Tipograph v. Dep't of Justice, Case No. 1:13-cv-00239 (CRC)

146 F.Supp.3d 169

Susan Tipograph, Plaintiff,

v.Department of Justice, Defendant.

Case No. 1:13-cv-00239 (CRC)

United States District Court, District of Columbia.

Signed November 24, 2015

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiff.

Andrea McBarnette, U.S. Attorney'S Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Veteran criminal-defense and civil-rights lawyer Susan Tipograph filed a Freedom of Information Act (“FOIA”) request with the FBI, seeking records concerning her client Marie Mason, an environmental activist currently serving a lengthy federal prison sentence for arson and other acts of property destruction. After the FBI withheld all responsive materials from Mason's investigative file, Tipograph sued the Department of Justice (“DOJ”). She alleged that the FBI violated FOIA by improperly withholding Mason's investigative records under FOIA Exemption 7(A) (Count One) and by maintaining a policy of invoking that exemption at the file level, rather than at the record level as courts have required (Count Two). The Court previously granted summary judgment for DOJ on Count One of Tipograph's complaint. With the benefit of additional briefing, it now proceeds to consider DOJ's motion for summary judgment on Count Two. Finding that Tipograph has not shown that she faces an ongoing or imminent future injury from the challenged FBI policy, the Court concludes that she lacks standing to pursue the relief she seeks. The Court will therefore grant DOJ's motion.

I. Background

In December 2011, Susan Tipograph submitted a FOIA request to the FBI for documents related to her client Marie Mason. Compl. ¶ 9. Mason, a member of the environmental activist group Earth Liberation Front, was sentenced to a lengthy prison term after pleading guilty in September 2008 to arson against a research facility at Michigan State University and other acts of property destruction. Def.'s Mot. Summ. J. Ex. 1, ECF No. 22, Decl. David M. Hardy (“First Hardy Decl.”) ¶¶ 7–9. Seeking explanations for Mason's assignment to an enhanced-security prison unit, Tipograph requested copies of “any records that were prepared, received, transmitted, collected and/or maintained by the FBI relating to Marie Mason” for the period between January 26, 1962 and November 7, 2011. Compl. ¶ 9; Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. Attach. 6, ECF No. 48, Decl. Susan Tipograph (“Tipograph Decl.”) ¶ 7. After conducting a search of its database, the FBI informed Tipograph that information responsive to her request was located “in an investigative file” and was therefore exempt from disclosure under FOIA Exemption 7(A). First Hardy Decl. ¶ 12 & Ex. C. Tipograph appealed this determination, which the FBI affirmed. Id. ¶¶ 13, 15 & Exs. D, F. The FBI later released 199 pages of public-source information in whole or in part. Id. ¶¶ 17–18, 21. After a hearing before Judge Wilkins, who previously presided over this matter, the FBI also released duplicate pages and pages that were no longer subject to a court sealing order. Def.'s Reply, ECF No. 34, Decl. David M. Hardy (“Second Hardy Decl.”) ¶¶ 5, 14.

As for the remaining responsive documents, this Court held on March 18, 2015 “that the FBI properly invoked Exemption 7(A),” Tipograph v. U.S. Dep't of Justice , 83 F.Supp.3d 234, 239 (D.D.C.2015), and granted summary judgment for the government as to Tipograph's entire complaint, id. at 241. Tipograph then moved for reconsideration of the Court's grant of summary judgment on Count Two, arguing that the Court's ruling was precipitous because the government had not presented argument on that count in the memorandum supporting its motion. Although the government had addressed Count Two in its opposition to Tipograph's cross-motion for summary judgment, the Court accepted Tipograph's argument and, upon reconsideration, vacated its grant of summary judgment for DOJ on Count Two of the complaint. Order Pl.'s Mot. Reconsideration, June 11, 2015, ECF No. 40. The parties have now fully briefed the issue of whether summary judgment should be granted as to Count Two.

II. Standard of Review

Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep't of Justice , 655 F.3d 1, 5 (D.C.Cir.2011) (quoting U.S. Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The act, however, contains a set of exemptions to the general obligation to provide government records to the public. 5 U.S.C. § 552(b). These exemptions are intended “to balance the public's interest in governmental transparency against the ‘legitimate governmental and private interests [that] could be harmed by release of certain types of information.’ ” United Techs. Corp. v. U.S. Dep't of Defense , 601 F.3d 557, 559 (D.C.Cir.2010) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm'n , 975 F.2d 871, 872 (D.C.Cir.1992) (en banc)). Because FOIA “mandates a strong presumption in favor of disclosure,” its “statutory exemptions, which are exclusive, are to be narrowly construed.” Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C.Cir.2002) (quotations omitted).

In addition to challenging an agency's decision to withhold certain information under these exemptions, a plaintiff may challenge an agency policy or practice as a violation of FOIA. See Payne Enterprises, Inc. v. United States , 837 F.2d 486, 490–92 (D.C.Cir.1988). “The fact that the practice at issue is informal, rather than articulated in regulations or an official statement of policy, is irrelevant ....” Id. at 491. Thus, “[s]o long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials, a party's challenge to the policy or practice”—seeking prospective equitable relief—may proceed even if that party has obtained “release of the specific documents that prompted the suit.” Id.

Like most FOIA cases, this suit comes to the Court on cross-motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C.2009). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant's evidence and draws all reasonable inferences in the non-movant's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The government bears the burden to establish that its claimed exemptions apply to each document for which they are invoked. Am. Civil Liberties Union v. U.S. Dept. of Defense , 628 F.3d 612, 619 (D.C.Cir.2011). It may satisfy this burden through declarations that describe the justifications for its withholdings in “specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption.” Id. The government cannot satisfy its burden with affidavits that are vague or conclusory, or that merely parrot the statutory standard. Consumer Fed'n of Am. v. U.S. Dep't of Agric. , 455 F.3d 283, 287 (D.C.Cir.2006). The Court accords an agency affidavit substantial weight so long as it “is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith.”

Judicial Watch, Inc. v. U.S. Dep't of Defense , 715 F.3d 937, 940–41 (D.C.Cir.2013) (quotation omitted).

III. Analysis

Tipograph alleges that the FBI maintains a policy of improperly invoking FOIA Exemption 7(A) at the investigative-file level rather than at the record level. Compl. ¶¶ 16, 18. The FBI denies this allegation. Before the Court can proceed to the merits of Tipograph's claim, it must first assure itself that it has jurisdiction to hear the claim at all. To this end, the Court must assess whether it is presented with an actual case or controversy. See City of Los Angeles v. Lyons , 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ( “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.”). The government contends that (1) Tipograph's claim is moot because it has turned over all records to which she is entitled, and (2) Tipograph is without standing to bring her claim because she has not shown that she is likely to be injured in the future by any such policy. The Court concludes that while Tipograph's claim has not been mooted by the release of records in this case, she has nonetheless failed to establish that her alleged future injury is sufficiently concrete or imminent to confer standing.

A. Mootness

The government contends that Tipograph's “claims ... under Count II are moot because the FBI has released all records to which [she] is entitled under her FOIA request.” Mem. Supp. Defs.' Mot. Summ. J. 3. Mootness refers to “the familiar proposition that ‘federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.’ ” DeFunis v. Odegaard , 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting North Carolina v. Rice , 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) ). If Tipograph had based her claim in Count Two on the FBI's initial failure to release records that she was subsequently provided, the government surely would be correct that her claim is moot. After all, “[a] declaration that an agency's initial refusal to disclose requested information was unlawful, after the agency made that information available, would constitute an advisory opinion in...