Wolfson v. U.S.

672 F.Supp.2d 20

Allen WOLFSON, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 09-0304 (ESH).

United States District Court, District of Columbia.

November 30, 2009.

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Allen Wolfson, Butner, NC, pro se.

Terri Lynn Roman, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the United States Department of Justice ("DOJ").¹ This matter is before the Court on the DOJ's motion for summary judgment and plaintiff's motion to dismiss. For the reasons discussed herein, the Court will grant summary judgment for the DOJ.

I. BACKGROUND

On or about August 25, 2005, plaintiff submitted a Privacy Act Identification and Request Form to the DOJ's FOIA/PA Unit, Criminal Division, in Washington, D.C. Complaint ("Compl.") at 3; Defendants' Memorandum in Support of its Motion for Summary Judgment ("Def.'s Mem."), Declaration of Pamela A. Roberts ("Roberts Decl."), Exhibit ("Ex.") 1 (Privacy Act Identification and Request Form). He requested that the agency search the following systems of records for information about himself:

  JUSTICE/CRM-001   Central Criminal Division Index
                    File and Associated Records
  JUSTICE/CRM-003   File of Names Checked to
                    Determine if Those Individuals
                    have been the Subject of an
                    Electronic Surveillance
  JUSTICE/CRM-004   General Litigation and Legal
                    Advice Section, Criminal Division
                    Central Index File and
                    Associated Records
  JUSTICE/CRM-008   Name Card File on Department
                    of Justice Personnel Authorized
                    to have Access to Classified
                    Files of the Department of
                    Justice
  JUSTICE/CRM-012   Organized Crime and Racketeering
                    Section, General Index
                    File and Associated Records
  JUSTICE/CRM-017   Registration and Propaganda Files
                    Under the Foreign Agents
                    Registration Act of 1938, as
                    amended
  JUSTICE/CRM-019   Requests to the Attorney General
                    for Approval of Applications
                    to Federal Judges for
                    Electronic Interceptions
  JUSTICE/CRM-021   The Stocks and Bonds Intelligence
                    Control Card File System
  JUSTICE/CRM-022   Witness Immunity Records
  JUSTICE/CRM-024   Freedom of Information/Privacy
                    Act Records
  JUSTICE/CRM-025   Tax Disclosure Index File and
                    Associated Records

See id., Ex. 1. Through this FOIA request, plaintiff sought "all of the wire taps that were done illegally against him," operating under the assumption that an Assistant United States Attorney illegally obtained wiretaps "solely to keep tabbs [sic] of plaintiff[.]" Compl. at 3. Through such surveillance, plaintiff felt "that the government invaded his privacy and should be forced to turn over what ever they have acquired." Id.

Criminal Division staff located 16 documents responsive to plaintiff's request and processed them under the FOIA. Roberts Decl., Ex. 3 (June 16, 2008 letter from R.Y. Kim, Chief, Freedom of Information/Privacy Act Unit, Criminal Division, regarding Request No. CRM-200500908P). Of these 16 documents, the DOJ withheld two documents in full (Items 15-16), released eight documents in full (Items 1-5, 12-14), and released six documents in part (Items 6-11), after redacting information under Exemptions 3, 5, 6, 7(C), and 7(D) of the FOIA.² Roberts Decl. ¶ 13. This determination was upheld on administrative appeal. Id., Ex. 5 (September 23, 2008 letter from J.G. McLeod, Associate Director, Office of Information and Privacy, DOJ).

In this action, plaintiff demands the disclosure in full of all the information he has requested in order to "prove that he did not commit any crimes from [1]990 until 2002" and to "prove that the government has been illegally spying on [him]." Compl. at 3. In addition, he "wants to be financially compensated for the illegal activity of the government in listening to plaintiff's telephone conversation[s]" in the amount of "1000 dollars a day for every day his phones were tapped." Id. at 4.

II. DISCUSSION

A. Summary Judgment Standard

The Court may grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. United States Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the information provided in an agency's supporting affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are 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); see also Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). Such 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.'" Safe-Card Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)).

B. The DOJ's Search for Responsive Records

An agency's search is adequate if its methods are reasonably calculated to locate records responsive to a FOIA request, see Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990), and an agency is not obligated to expand the scope of its search or to search all of its systems of records when it has searched the systems of records most likely to contain responsive records. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C.Cir.1998) (stating that an agency generally need not search every records system as long as it conducts "a reasonable search tailored to the nature of a particular request") (citing Oglesby, 920 F.2d at 68). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (citing Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982)).

A search for records responsive to a person's request for information about himself to the Criminal Division begins "by searching its centralized records index, JUSTICE/CRM-001 (Central Criminal Division Index File and Associated Records)." Roberts Decl. ¶ 9. If this search yields responsive or potentially responsive records, staff sends "a search request ... to the section identified as having custody of the records for such records." Id. A requester also may designate specific Privacy Act systems of records to be searched, as plaintiff has done. Id. ¶ 10; see id., Ex. 1. "Pursuant to long-standing FOIA/PA Unit search procedures, a search sheet with a copy of the request is transmitted to all sections that may have responsive records." Id. ¶ 11. Designated personnel in each section "undertake a search for responsive materials and report the results by means of individual, signed forms to the Criminal Division FOIA/PA Unit." Id.

In this case, a search of the Criminal Division's centralized records index, JUSTICE/CRM-001, using plaintiff's name as a search term, "revealed six separate indexes located in the Federal Records Center." Notice of Filing Supplemental Declaration, Supplemental Declaration of Rena Y. Kim ("Kim Decl.") ¶ 6. Staff determined that "potentially responsive records may exist [in] the following Criminal Division Sections: the Appellate, the Fraud and Public Integrity Sections, as well as the FOIA/PA Unit." Id.

Also using plaintiff's name (or variants of his name) as a search term, manual and electronic searches of records maintained by the Appellate and Public Integrity Sections yielded no responsive records. Kim Decl. ¶¶ 7-8. Likewise, searches of JUSTICE/CRM-003, JUSTICE/CRM-004, JUSTICE/CRM-012, JUSTICE/CRM-017, JUSTICE/CRM-021, and JUSTICE/CRM-025, yielded no responsive records. See id. ¶¶ 11-12, 14-16. DOJ staff did not search JUSTICE/CRM-008. Id. ¶ 17. This system of records "contains only records about present and former [DOJ] personnel[,]" and plaintiff "gave no indication that he has ever been an employee of the [DOJ]." Id. Criminal Division staff also requested that the Computer Crime and Intellectual Property Section search its systems of records. Kim Decl. ¶ 18. Using "Allen Z. Wolfson" as a search term, no responsive records were located. Id. Responsive records actually were located in four systems of records: JUSTICE/CRM-001, JUSTICE/CRM-019, JUSTICE/CRM-022, and JUSTICE/CRM-024, after having conducted electronic and manual searches of each system using plaintiff's name as a search term. Roberts Decl. ¶...