Smith v. U.S. Dep't of Treasury

GRANT F. SMITH Plaintiff, v. UNITED STATES DEPARTMENT OF TREASURYUNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendants.

Civil Action No. 17-cv-1796 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 23, 2020

MEMORANDUM OPINION

Plaintiff Grant F. Smith, proceeding pro se, has sued Defendants United States Department of Treasury ("Treasury") and the Office of Personnel Management ("OPM"), seeking to compel responses to his two Freedom of Information Act ("FOIA") requests for personnel information regarding all Treasury employees. Defendants moved for summary judgment under Federal Rule of Civil Procedure 56 (ECF No. 19), and Smith cross-moved for summary judgment (ECF No. 23). In an order issued March 31, 2019, the court granted Defendant's Motion for Summary Judgment and denied Plaintiff's Cross-Motion for Summary Judgment. Upon further consideration of the record and for the reasons set forth below, the court will GRANT in part and DENY in part Defendants' Motion for Summary Judgment and will DENY Plaintiff's Cross-Motion for Summary Judgment. A revised Order will accompany this opinion and issue separately.

I. BACKGROUND

Smith is a public interest researcher and founder of the Institute for Research: Middle Eastern Policy, Inc. (ECF No. 1. ("Compl.") ¶ 5.) On April 24, 2012, he submitted a FOIA request to Treasury seeking a list of "every Treasury Department employee," including their "first name, middle initial, last name, title, department, and phone number." (Compl. ¶ 8, Ex. A.) In response, Treasury provided Smith with the "Treasury Headquarters Organizational directory, the Treasury Phonebook Bureau Offices and the U.S. Department of the Treasury Organizational Structure chart." (ECF No. 19-2 ("Defs. SOF") ¶ 2.) Smith appealed Treasury's response because it did not identify every Treasury employee and did not identify employees of Treasury bureaus and offices. (Compl. ¶ 10.) Treasury then provided Smith with a link to a publicly accessible website containing a searchable database that identifies employees in all departments and agencies. (Id. Ex. D.) Treasury also denied Smith's appeal, claiming exemption 6—which protects unwarranted invasions of privacy into personnel files. (Id.)

Smith submitted a second, similar FOIA request to OPM on October 15, 2012, seeking the names and titles or occupations of employees of Treasury's Office of Terrorism and Financial Intelligence ("TFI"). (Id. ¶ 12, Ex. E.) After OPM forwarded the request to Treasury, Treasury produced seven heavily redacted pages and again claimed exemption 6. (Id. Ex. F.)

Smith then sought review of the agencies' decisions in this court. After Smith sued, Treasury conducted additional searches and produced additional lists of its employees from its components, including TFI, the Bureau of Engraving and Printing, the Bureau of Public Debt, the Financial Management Service, the U.S. Mint, the Office of the Comptroller of Currency, the Alcohol & Tobacco Tax and Trade Bureau ("TTB"), the Financial Crimes Enforcement Network ("FinCEN"), the Office of the Inspector General ("OIG"), the Special Inspector General for theTroubled Asset Relief Program ("SIGTARP"), the Treasury Inspector General for Tax Administration ("TIGTA"), and the Internal Revenue Service ("IRS"). (ECF No. 19-3 ("Dodson Decl.") n.3.)

Treasury redacted the following phone numbers¹:

• Business cell phone numbers for all personnel, claiming exemption 6;

• Phone numbers for all TFI employees, claiming exemption 6;

• Phone numbers for all IRS employees, claiming exemption 6; and

• Phone numbers for all FinCEN employees, claiming exemption 6 and 7(C).

Treasury also redacted names of the following categories of personnel²:

• Non-senior employees of Treasury components that perform law enforcement or national security functions—the U.S. Mint, TTB, FinCEN, OIG, SIGTARP, TIGTA—claiming exemption 6 and 7(C);

• Non-senior TFI employees, claiming exemption 6;

• IRS employees who participate in the "pseudonym program," which permits certain IRS employees to use pseudonyms to protect personal safety, claiming exemption 6; and

• IRS employees who hold sensitive positions, as defined by OPM, claiming exemption 6.

Treasury also withheld all names, titles, and phone numbers of employees of TFI's Office of Intelligence and Analysis, claiming exemption 1, which protects classified material. (ECF No. 19-7 ("Mason Decl.") ¶ 8.)

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is proper where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). Courts must view "the evidence in the light most favorable to the non-movant[ ] and draw[ ] all reasonable inferences accordingly," and determine whether a "reasonable jury could reach a verdict" in the non-movant's favor. Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). When the non-moving party "is proceeding pro se, courts in this jurisdiction will construe the non-moving party's filings liberally." Cunningham v. U.S. Dep't of Justice, 40 F. Supp. 3d 71, 82 (D.D.C. 2014), aff'd, No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). "However, a pro se litigant still has the burden of establishing more than '[t]he mere existence of a scintilla of evidence' in support of his position." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. FOIA

"FOIA provides a 'statutory right of public access to documents and records' held by federal government agencies." Citizens for Resp. and Ethics in Wash. v. U.S. Dep't of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). Under FOIA, federal agencies must comply with requests to make their records available to the public, unless such "information is exempted under [one of nine] clearly delineated statutory [exemptions]." Id. (quoting Pratt, 673 F.2d at 413) (internal quotation marks omitted); see also 5 U.S.C. §§ 552(a)-(b).

The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The government agency bears the burden of showing that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Summary judgment may be based solely on information provided in the agency's supporting declarations. See Am. Civ. Liberties Union (ACLU) v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) ("An agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of claimed exemptions. Typically it does so by affidavit."). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU, 628 F.3d at 619 (citations omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted)). The agency's declarations are "accorded a presumption of good faith which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

In order to overcome an agency's "showing that it complied with the FOIA, the plaintiff must come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)). By corollary, "[a] non-moving party's complete failure to come forward with evidence to demonstrate the existence of a genuine issue of material fact constitutes a 'reason' for the grant of summary judgment under [Rule 56(e)]." Smith v. U.S. Dep't of Justice, 987 F. Supp. 2d 43, 47 (D.D.C. 2013).

III. ANALYSIS

A. Adequacy of OPM's Search

Smith argues that OPM failed to adequately search for responsive records to his request for a list of TFI employees. OPM declares that it referred the request to Treasury but does not explain whether it had responsive records or how the search was conducted. Because OPM failed to provide sufficient detail regarding its search for responsive records, its motion for summary judgment is denied without prejudice. Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (internal quotation omitted) ( holding that "agency affidavits . . . [that] do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized" are insufficient). OPM must either conduct an adequate search for records or provide enough detail to show that no responsive records exist.

In reply, OPM argues—for the first time—that Smith did not exhaust his administrative remedies and therefore his suit should...