Raimondo v. Fed. Bureau of Investigation

DENNIS JOSEPH RAIMONDO, et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Case No. 13-cv-02295-JSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

May 10, 2016

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 69, 82

Plaintiffs Dennis Raimondo and Eric Gams bring claims under the Freedom of Information Act and the Privacy Act against Defendant the Federal Bureau of Investigation ("FBI"). Plaintiffs seek records regarding a 2004 threat assessment the FBI conducted of a website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the FBI conducted of Plaintiffs. Plaintiffs also seek expungement of certain records related to the exercise of their First Amendment rights, and Plaintiff Garris seeks expungement of a record that admittedly contains inaccurate information. Now pending before the Court are the parties' cross-motions for summary judgment.¹ (Dkt. Nos. 69 & 82.)

BACKGROUND

In August of 2011, Raimondo and Garris discovered that they and the website,Antiwar.com, had been subject to FBI surveillance. (Dkt. No. 28-1 ¶ 15.)² In particular, Plaintiffs discovered a heavily redacted FBI memorandum from April 30, 2004 ("April 30 Memo") which suggested that the FBI had conducted a threat assessment of Antiwar.com "an anti-interventionist website that publishes news and opinion articles regarding U.S. foreign and military policy." (Id. ¶ 2.) Garris is the founder, managing editor, and webmaster of Antiwar.com, and Raimondo is the editorial director. (Id. ¶¶ 8-9.) Plaintiffs contend that the FBI initiated investigations into each of them based on First Amendment protected speech activity which was memorialized in the April 30 Memo. (Id. ¶ 3.)

1. Plaintiffs' Freedom of Information Act and Privacy Act Requests

In October 2011, Plaintiffs separately filed Freedom of Information Act ("FOIA") and Privacy Act requests (collectively known as "FOIPA requests") seeking disclosure of records maintained by the FBI regarding themselves. (Dkt. No. 71 at ¶ 7.) The FBI responded a month later in separate form letters stating that it had been unable to identify main file records responsive to Plaintiffs' requests in its Central Records System. (Id. ¶ 8.) Over the course of the next year, Plaintiffs, through counsel, pursued various administrative appeals and challenges to the FBI's denial of their FOIPA requests. (Id. ¶¶ 9-11.) In particular, in a May 24, 2012 letter, Plaintiffs requested additional information and clarification regarding seven FOIPA requests explaining that "[e]ach of the original requests sought files about each requester and specified the requester's connection to the online magazine Antiwar.com. As such, the FBI needed to search for records related to Antiwar.com in order to determine whether there were responsive records for the requesters" and suggesting that additional records related to Raimondo, Garris and Antiwar.com existed in light of the April 30 Memo. (Id. ¶ 12.) The May 24 letter also provided Raimondo and Garris's full legal names. (Id. ¶ 13.)

The FBI thereafter reopened Plaintiffs' FOIPA requests and assigned the request for records regarding Antiwar.com a separate FOIPA number. (Id. ¶ 14.) On November 9, 2012, the FBI notified Plaintiffs that their FOIPA requests were being administratively closed andconsolidated with Plaintiffs' request regarding Antiwar.com. (Id. ¶ 17.)

2. This Lawsuit and Plaintiffs' Request Under the Privacy Act Section 552a

In May 2013, Plaintiffs filed this action seeking disclosure of documents pursuant to FOIA and the Privacy Act. That same day, Plaintiffs separately filed requests with the FBI seeking expungement of all records maintained by the FBI that describe each Plaintiff's exercise of First Amendment rights. (Id. at ¶ 103; Dkt. No. 78 at 18.) In August 2013, the FBI responded that maintenance of records regarding Plaintiffs was proper under Section 552a(j)(2) of the Privacy Act. (Dkt. No. 71 at ¶ 40; Dkt. No. 78 at 25.) Plaintiffs filed a timely appeal of this decision and the FBI responded nearly a year later that because the matter was subject to judicial review the appeal had been administratively closed. (Dkt. No. 71 at ¶¶105-106; Dkt. No. 78 at 27.) Around the same time Plaintiffs appealed the denial of the expungement request, Plaintiffs submitted requests pursuant to Privacy Act Sections 552a(d)(2) and 552a(e)(7) seeking amendment of any records that pertain to Garris or Raimondo that are inaccurate, irrelevant, untimely, or incomplete. (Dkt. No. 71 at ¶¶ 107-108; 112-113.) The FBI denied the request as to Raimondo, but issued an Electronic Communication ("EC") with respect to Garris. (Id. at ¶¶ 109-110; 115-116; Dkt. No. 71-4 at 20.) Plaintiff Garris appealed this action on the grounds that the EC falls short of the necessary corrective action. (Id. at ¶ 117.) The FBI denied the appeal because the matter was currently subject to judicial review. (Id. at ¶ 118.)

Plaintiffs thereafter filed the operative First Amended Complaint alleging four claims for relief, including the two previously pled claims under FOIA and the Privacy Act for failure to promptly and properly disclose documents in response to Plaintiffs' FOIAP requests, and two new claims under the Privacy Act. (Dkt. No. 28-1, FAC.) The new Privacy Act claims are brought pursuant to Section 552a(e)(7) which provides that an agency shall not maintain "any record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity," and under Section 552a(d)(2) challenging the FBI's maintenance of records which are inaccurate, untimely, irrelevant, or incomplete, respectively. (Id. at ¶¶ 86-83.)

Because this case includes both FOIA and Privacy Act claims, the parties conducted some discovery prior to submission of the now pending cross-motions for summary judgment.

3. The FBI's Document Production

Five months after this lawsuit was filed, the FBI made its first interim release of records. Having reviewed 170 pages, the FBI released in full or part 47 pages and withheld others under Privacy Act Exemption (j)(2) and FOIA Exemptions 1, 3, 4, 6, 7(A), 7(C), 7(D) and 7(E). (Dkt. No. 71 at ¶ 20.) This production included a less redacted version of the previously discovered April 30 Memo as well as 11 of the Memo's enclosures, a memo from September 18, 1972 (the "September 1972 Memo") which references Plaintiff Garris (Id. at ¶ 119-122), and a July 29, 2004 memo from the San Francisco FBI Field Office declining to initiate a preliminary investigation into Plaintiffs (the "July 2004 Memo"), (Id. at ¶ 20, n.8; Dkt. No. 73-5.).

The FBI made a second interim release of records the following month: of the 54 pages reviewed, the FBI released 36 in whole or part and withheld certain other information pursuant to the same FOIA exemptions previously asserted. (Id. at ¶ 21.) Three months later, the FBI made its third and final interim release of records. Having reviewed another 69 pages, the FBI released 50 pages in full or part and withheld certain information pursuant to the same FOIA exemptions. (Id. at ¶ 22.) In January 2014, the FBI provided Plaintiffs with a description of the search conducted in response to Plaintiffs' FOIPA requests and provided an initial Vaughn index. (Id. at ¶ 24.) In total, the FBI has identified 290 responsive pages of records: of these, 26 pages have been released in full, 104 pages were released in part, 117 pages were withheld in full, and 43 pages were withheld in full as duplicates. (Id. at ¶ 4.)

EVIDENTIARY OBJECTIONS

As a preliminary matter, the Court must address Plaintiffs' objections to the two declarations the FBI submitted in support of its motion for summary judgment.

1. The Campi Declaration

The FBI submitted the Declaration of Andrew Campi who is the Assistant Special Agent in Charge of the FBI's Newark Field Office. (Dkt. No. 70.) Plaintiffs object to those portions of the Campi Declaration which discuss the April 30 Memo because Campi has no personalknowledge of the memo or its attachments—he was not stationed in Newark at the time it was prepared and attests that his knowledge is based on "his experience and review of information provided to me in the course of my official duties, including the April 30 2004 EC and the attachments thereto." (Id. at ¶ 3.)

The FBI counters that personal knowledge can come from review of the contents of agency files and records and that as the Assistant Special Agent in charge of the Newark office Campi has knowledge to testify regarding the AG guidelines, the procedure regarding development of ECs and the attachments thereto, any further investigative activity into Plaintiffs, and the extent to which the April 30 Memo is relevant to ongoing and future activity.

Campi has adequate personal knowledge to address these matters. As a general matter in FOIA cases, "[a]n affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy the personal knowledge requirement of Federal Rule of Civil Procedure 56(e)." Lahr v. National Transp. Safety Bd, 569 F.3d 964, 989 (9th Cir. 2009). Courts routinely deny hearsay and lack of personal knowledge objections in FOIA cases based on agency affidavits similar to those submitted here. See, e.g., Our Children's Earth Found. v. Nat'l Marine Fisheries Serv, No. 14-1130 SC, 2015 WL 6331268, at *2 (N.D. Cal. Oct. 21, 2015) (overruling hearsay and personal knowledge objections with respect to a declaration submitted by the agency's San Francisco Branch Chief); Hersh & Hersh v. U.S. Dep't of Health & Human Servs., No. C 06-4234, 2008 WL 901539, at *4 (N.D. Cal. Mar. 31, 2008) (same with respect to a declaration submitted by the Health and Human Services FOIA officer). The same rationale applies equally here...