Welenc v. Dep't of Justice

LARRY WELENC, Plaintiff, v. DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 17-0766 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 8, 2019

MEMORANDUM OPINION

The plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552 (2018), against the United States Department of Justice ("DOJ") to obtain records purportedly maintained by the Federal Bureau of Investigation ("FBI"). This matter is before the Court on the Defendants' Motion for Summary Judgment. For the reasons discussed below, the Court grants the motion.

I. BACKGROUND

On November 5, 2013, the plaintiff submitted a FOIA request to FBI's Las Vegas Field Office. Response to Motion for Summary Judgment (ECF No. 81, "Pl.'s Opp'n"), Exhibit ("Ex.") A. He sought "all documents in [his] file concerning Nancy Shuster and Special Agent Brescia," as well as "the second page of [a] letter to Special Agent Brecia." Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (ECF No. 43-2, "Defs.' Mem."), Declaration of David M. Hardy (ECF No. 43-3, "Hardy Decl."), Ex. A at 1-2. The FBI assigned the matter FOIPA No. 1236172. Pl.'s Opp'n, Ex. A. On November 13, 2013, the FBI denied the "request for documents from Agent Brescia and Nancy Shuster in regards to missing pages of a letter" because its "Central Records System is not arranged in a manner that allows for the retrieval of . . . specific documents/letters." Hardy Decl., Ex. A at 5.

The plaintiff chose not to "contest" the FBI's response to FOIPA No. 1236172, and by a fax submitted to the FBI's Record/Information Dissemination Section on November 22, 2013, the plaintiff submitted a new request for:

all documents originating from the FBI Field Office Las Vegas on myself with specific reference to Special Agent Richard J[.] Brescia, Nancy L[.] Schuster, Legal Unit, and Special Agent Nina Lynn Bill (Roseberry)

Id., Ex. A at 1; see Pl.'s Opp'n, Ex. A. By letter dated November 26, 2013, the FBI notified the plaintiff that, "[i]n response to [his] November 22, 2013 letter, [the] FBI opened a new FOIPA request and assigned it FOIPA Request No. 1239835-000." Hardy Decl. ¶ 6 n.1; see id., Ex. B.

The plaintiff alleges in his complaint, however, that he submitted a FOIA request to the FBI's Headquarters on March 26, 2013 "requesting all files with the FBI Las Vegas on Nancy Shuster (Schuster), the head of the Legal Unit of the FBI Las Vegas[,] Nevada from 1996 to 1998[.]" Petition for Judicial Review of Denial of FOIA Appeal 2015-00121 (ECF No. 1, "Compl.") at 3. According to the plaintiff, this March 26, 2013 submission was the matter assigned FOIPA Request No. 1239835-000. Id.; see id., Ex. C. Nevertheless, the parties have not disputed that the single FOIA request at issue in this case is the one designated FOIPA Request No. 1239835-000. See Hardy Decl., Ex. B; Compl., Ex. C.

FBI staff conducted a search of the Central Records System, see Hardy Decl. ¶¶ 24-25, using variations of the plaintiff's name as search terms, see id. ¶ 24. The search yielded 279 pages of responsive records, id. ¶ 11, found in a main file, 197-LV-29808, "stemming from a 1998 civil complaint filed by [the plaintiff] against the FBI in response to its handing of [anearlier FOIA] request," id. ¶ 27, in the United States District Court for the District of Nevada, see Welenc v. U.S. Dep't of Justice, No. 98-cv-0059 (D. Nev. filed Jan. 13, 1998).

On September 16, 2014, the FBI released 186 pages of records in full, released 42 pages in part, and withheld 11 pages in full, after having redacted certain information under FOIA Exemptions 5 and 6. See Hardy Decl. ¶¶ 11, 28; Compl. at 3; see id., Ex. C. The remaining 40 pages of records were withheld in full because they were duplicates. Hardy Decl. ¶ 28. The FBI further informed the plaintiff that it had consulted with unidentified government agencies with respect to some of the responsive records. Id., Ex. F at 1.

The plaintiff appealed the FBI's response to DOJ's Office of Information Policy ("OIP"), which assigned the matter a tracking number, AP-2015-00121. Id. ¶ 12; see id., Ex. G. On May 12, 2015, the OIP affirmed the FBI's initial determination. Id. ¶ 13; see Compl., Ex. A. In addition, the OIP advised the plaintiff that the FBI had referred records to other government agencies, specifically the DOJ's Civil Division and Executive Office for United States Attorneys ("EOUSA"), for processing and direct response to the plaintiff. Compl., Ex. A at 2. The OIP deemed the referrals proper, instructed the plaintiff to consult these agencies directly for further information, and advised the plaintiff of his right to appeal any future determination made by these agencies. Id., Ex. A at 2.

After the plaintiff filed this civil action in April 2017, FBI staff reviewed the agency's initial response to the plaintiff's request and "issued an updated release" on September 26, 2018. Hardy Decl. ¶ 15. Of the 279 pages it initially located, the FBI "released 228 pages with minimal information withheld pursuant to FOIA Exemptions [5 and 6]." Id.; see generally id., Ex. I ("Vaughn Index").

II. DISCUSSION

A. Summary Judgment Standard

The Court may grant summary judgment to a government agency as the moving party if the agency shows that there is no genuine dispute as to any material fact and if it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

The Court may base its ruling on information in an agency's supporting declaration if the declaration is "relatively detailed and nonconclusory[.]" Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and footnote omitted). Further, the supporting declaration must "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).

B. The FBI's Search for Responsive Records

An agency "fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). The agency may submit affidavits or declarations to explain the method and scope of its search, see Perry v. Block, 684 F.2d 124, 126 (D.C. Cir. 1982), andsuch affidavits or 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) (citation and internal quotation marks omitted). Here, the declarant asserts that the FBI's search of the Central Records System ("CRS") using variations of the plaintiff's name as search terms was a reasonable search. See Hardy Decl. ¶¶ 23-26.

The CRS contains "applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency[.]" Id. ¶ 16. Its files "are organized according to designated subject categories," such as investigations the FBI conducts. Id. ¶ 17. "[G]eneral indices to the CRS are the index or 'key' to locating records within . . . [the] CRS." Id. ¶ 18. These indices are arranged in alphabetical order and fall within two categories: (1) a "main" entry carrying the name of the individual who or organization or other subject matter which is the designated subject of the file, or (2) a "reference" or cross-reference entry mentioning an individual who is within a main file indexed to a different individual or subject matter. Id. ¶ 18. "FBI employees may index information in the CRS by individual (persons), by organization (organizational entities, places, and things), and by event (e.g., terrorist attack or bank robbery)." Id. ¶ 19. And "[i]ndividual names may be recorded with applicable identifying information such as date of birth, race, sex, locality, Social Security Number, address, and/or date of an event." Id. ¶ 21. While the FBI's systems have been upgraded over the years, see id. ¶¶ 20-22, the index search methodology still applies, see id. ¶ 23.

For two reasons, the FBI's declarant explains, the CRS is the "only system of records where information pertaining to [the plaintiff's] request would likely be found." Id. ¶ 26. First, the CRS "is where the FBI indexes information about individuals . . . for future retrieval." Id. "Second, given [the plaintiff's] request for information on himself with reference to specific individuals, such information would reasonably be expected to be located in the CRS." Id.

Accordingly, FBI staff "conducted a CRS index search for responsive main file records on subject, Larry Michael Welenc, . . . using three-way and two-way phonetic breakdowns of [three] variations of [the plaintiff's] name[.]" Id. ¶ 24. In addition, staff used information provided by the plaintiff in his FOIA request, "such as specific references to certain individuals, to identify responsive records." Id. This search yielded one main file, 197-LV-29808. Id. ¶¶ 24-25.

The premise of plaintiff's challenge to the adequacy of the FBI's search is that its summary judgment...