Summary
holding that naming component agencies as the defendant is proper because an agency "need not be a cabinet-level agency" under the FOIA
Summary of this case from Nielsen v. U.S. Bureau of Land ManagementOpinion
Civil Action No. 03-827 (RCL) ECF.
March 21, 2005
MEMORANDUM OPINION
Pro se Plainitff Scott Mark Lair wants this court to compel the Department of Justice ("DOJ"), the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), the Secret Service, the Executive Office of the United States Attorneys ("EOUSA"), and Doe Defendants 1-5 to produce withheld records pursuant to their obligations under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B). Some time ago, Lair was convicted in federal court for the illegal possession of a firearm. Lair seeks records related to the government's investigation in that case. (First Amended Compl. ¶ 13.)
The government has moved to dismiss Lair's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and for summary judgment pursuant to Rule 56. After consideration of the government's motions, the opposition, the reply, and the sur-reply thereto, the court considers all these motions under the summary judgment rubric and grants the motion for summary judgment.
I. THE FOIA REQUESTS
A. Requests to the Treasury Department
On November 15, 1998, Lair sent a FOIA request via letter to the Treasury Department. He asked for "a copy of all documents retrievable in a search for files listed under" his name "as well as a copy of all documents contained in San Antonio, Corpus Christi, Houston and Austin Texas." (Def. Mot., Exh. A.) On December 29, 1998, Lair submitted an additional request. This time, he asked for "a copy of all documents retrievable in a search for files listed under" his name and "all documents contained in any other file dealing" with him. He indicated that the files he sought were held by the ATF and the Secret Service. (Def. Mot., Exh. B.) The Treasury Department forwarded plaintiff's request to the appropriate FOIA personnel at the ATF and the Secret Service. (Mannix Decl. ¶ 10.)
The Secret Service, by letter, informed Lair that its search for responsive documents had yielded none and that Lair had the right to file an administrative appeal within 35 days by writing to the Deputy Director of the Secret Service, who has the authority to decide administrative appeals on behalf of the Secret Service under the FOIA. (Lyerly Decl. ¶¶ 18-19.) No appeal was filed. Id. ¶ 20.
The ATF's search did uncover responsive records. In March of 1999, ATF released 224 pages of responsive documents, withheld others, and notified Lair of his right to file an administrative appeal. (Chambers' Decl. ¶¶ 4-6.) ATF has no record of an administrative appeal ever being filed by the Plaintiff for these two March releases. Id. ¶ 5. In late summer of 1999, the EOUSA referred 157 pages of documents, an audio tape, and a video tape to the ATF for FOIA processing. Id. ¶ 6. Of the documents, the ATF released seven pages to Lair; the other 150 pages had been handed over to Lair back in March. Id. The ATF withheld the tapes, claiming a statutory exemption from disclosure based on the privacy interests of people on the tapes. Id. ¶ 9. Lair appealed on two grounds: first, the ATF should have released the tapes; second, the ATF neglected to produce documents related to the seizure of items from Lair's residence. (Def. Mot., Exh. 17.) On June 3, 2002, his appeal was denied and he was told he could seek judicial review. (Def. Mot., Exh. 18.).
Both the Secret Service and the ATF are no longer part of the Treasury Department. The Secret Service is part of the Department of Homeland Security and the ATF is part of the DOJ. (Def. Mot. at 11.)
B. Requests to the DOJ/EOUSA
On November 25, 1998, Lair sent, by letter, a similar FOIA request to the DOJ. He sought all documents "listed under" his name and asked that the search be made in San Antonio, Austin, Corpus Christi, and Houston. (Def. Mot., Exh. AA.) The EOUSA, part of the DOJ, assigned the request number 99-163-S and forwarded the request to FOIA personnel in the Western and Southern Districts of Texas.
The Western District found no responsive documents. (Def. Mot., Exh. GG.) Upon learning this news, Lair wondered why the Western District was involved and asked that the Southern District conduct a search. (Def. Mot., Exh. II) The agency, apparently considering this request an appeal, told Lair his case was remanded for further processing, that he could appeal the result of the new processing to the same administrative office, and that if he was dissatisfied with the present appeal, he could seek judicial review. (Pl. Opp., Exh. D.); (Luczynski Decl. ¶ 12.) The Southern District found documents related to Lair's criminal case and the EOUSA released in part twenty-four pages of records, withheld in full ("WIF") sixty-seven pages, and released in full ("RIF") two hundred and forty-two pages of requested materials to Plaintiff. The Southern District also came across the 157 pages and the audio and video tapes, already mentioned, that it transferred to the ATF for processing.
II. ANALYSIS
A. Legal Framework
Summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Defendants' 12(b)(1) motion, which concerns exhaustion of administrative remedies under FOIA, ought to be considered as a 12(b)(6) motion, see Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003). Given the existence of the evidentiary record in this case, defendants' 12(b)(6) motion will be rolled into its summary judgment motion. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
B. Proper Defendants
The government first asks the court to dismiss all claims against improperly named defendants. First, the government argues that individuals are not proper FOIA defendants. Second, the government argues that the Secret Service, ATF, and EOUSA are not FOIA agencies because they are components of cabinet departments. If the government were to prevail on both arguments, only the DOJ would remain as a defendant. Only one of the government's arguments has merit.
As for the propriety of naming individual defendants, "[t]he jurisdiction of this Court to enforce FOIA is limited to enjoining agency noncompliance, § 552(a)(4)(B), and consequently no FOIA claim may be asserted against individual federal officials." Whittle v. Moschella, 756 F. Supp. 589, 596 (D.D.C. 1991) (citing Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987); Sherwood Van Lines v. United States Dep't of Navy, 732 F. Supp. 240, 241 (D.D.C. 1990); Canadian Javelin v. SEC, 501 F. Supp. 898, 904 (D.D.C. 1980)). Therefore, the court must dismiss all claims in this case against Does 1-5.
However, as for the propriety of naming components of executive departments, naming components is proper. Peralta v. United States Attorney's Office, 69 F. Supp. 2d 21, 26 (D.D.C. 1999); Peralta v. United States Attorney's Office, 136 F.3d 169, 172 (D.C. Cir. 1998) (dictum). The FOIA defines "agency" as "any Executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government . . . or any independent regulatory agency." 5 U.S.C. § 552(f). An "Executive department" is a "cabinet-level agency," which includes the DOJ. 5 U.S.C. § 105. By the statute's plain language, an agency need not be a cabinet-level agency such as the DOJ. Moreover, at least one court in this Circuit did not "think DOJ should be substituted for FBI, the Central District, and EOUSA in this case."Peralta, 69 F. Supp. 2d. at 26 ("Treating the Central District, EOUSA, and FBI as individual defendants instead of treating DOJ as the sole defendant affords this FOIA plaintiff the most direct interaction possible with the entities that are actually in possession of or responsible for creating the documents at issue.") (citing Peralta, 136 F.3d at 172). Therefore, this court holds that the Secret Service, ATF, and EOUSA are proper defendants in this case.
C. Failure to Exhaust Administrative Remedies
Next, the government seeks dismissal of all claims for which plaintiff did not exhaust his administrative remedies. For FOIA requesters, "[e]xhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision."Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quotingOglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). A requester "may have exhausted administrative remedies with respect to one aspect of a FOIA request — and thus properly seek judicial review regarding that request — and yet not have exhausted her remedies with respect to another aspect of a FOIA request. Dettmann v. Dept. of Justice, 802 F.2d 1472 (D.C. Cir. 1986).
Here, the undisputed evidence shows that Lair filed two administrative appeals concerning only three narrow decisions of the federal agencies. Lair successfully appealed the EOUSA's initial focus on the Western District of Texas as opposed to the Southern district. Not surprisingly, he raises no issues about this appeal in the present case. Lair unsuccessfully appealed the ATF's decision to withhold the tapes and the ATF's failure to locate and disclose documents related to the seizure of items from Lair's residence. Lair does raise challenges to these appeals. Only the merits of these appeals, and not other aspects of Lair's FOIA requests, may be considered by this court.
D. The Merits
After considering the government's preliminary arguments concerning proper parties and exhaustion, this case comes down to the propriety of the ATF actions raised in Lair's ATF appeal. The appeal raises questions about the adequacy of the ATF search — in that Lair claims that the ATF actually controls documents that it failed to locate — and about the propriety of withholding the tapes. On summary judgment, a FOIA defendant can win on the merits by showing that it "conducted an adequate search, one `reasonably calculated to uncover all relevant documents' and that . . . any withheld materials fall within a statutory exemption." Judicial Watch v. Dep't of Commerce, 337 F. Supp. 2d 146, 158 (2004); Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
1. The ATF Search Was Adequate
The adequacy of an agency's search is measured by a "standard of reasonableness," McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), and is "dependent upon the circumstances of the case," Founding Church of Scientology v. NSA, 610 F.2d 824, 834 (D.C. Cir. 1979). "The government may rely upon affidavits to show it has conducted a reasonable search, as long as they are relatively detailed and nonconclusory and . . . submitted in good faith." Weisberg, 705 F.2d at 1351 (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)).
The unchallenged affidavit of Dorothy Chambers, Chief of the ATF Disclosure Division, establishes the adequacy of the ATF search in this case. (Chambers Decl. ¶¶ 14-15.) ATF conducted its FOIA search by using the Treasury Enforcement Communication System II ("TECS"), ATF's central database for storage of law enforcement investigation records. When an ATF investigation is opened, the investigation is entered into TECS. With Lair's identifying information, ATF was able to locate a case in the Houston Field Division and requested that the case documents be forwarded for processing. Id.
Lair's insistence that the ATF controls specific additional documents, namely documents related to the seizure of items from Lair's residence, does not alter the court's determination of adequacy. As our Circuit Court has previously explained, a FOIA requester who challenges the reasonableness of a search "because the agency did not find responsive documents that [the requester] claims must exist" cannot sustain that challenge when he "provides no proof that these documents exist and [offers only] his own conviction that [an event] was of such importance that records must have been created." Oglesby, 920 F.2d at 67 n. 13. "Such hypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of the agency's search. Id. (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)).
2. Withholding of the Tapes was Proper
Having determined the ATF search was adequate, the court must now determine the propriety of the challenged ATF withholding, the withholding of the tapes. The government argues that its withholding is justified by FOIA Exemption 7(C), 5 U.S.C. § 552(b) (7(C). Lair first argues that Exemption 7(C) does not apply. He then argues that even if the exemption applies, the tapes are already in the public domain such that withholding would be improper.
Exemption 7(C) protects against unwarranted invasions of privacy. The exemption protects the identities of suspects and others of investigatory interest who are identified in agency records in connection with law enforcement investigations.Reporters Comm. for Freedom of the Press, 489 U.S. 749, 780 (1989). Given a privacy interest, that interest must be balanced against the public interest, if any, that would be served by disclosure, Albuquerque Publ'g Co. v. Dep't of Justice, 726 F. Supp. 851, 855 (D.D.C. 1989); however, as with other exemptions that require balancing, the public interest is only that interest central to FOIA: shedding light on an agency's performance of its statutory duties. Reporters Comm., 489 U.S. at 773.
Law enforcement officers who work on criminal investigations, and individuals who provide information to the law enforcement authorities, have a privacy interest and their identities have traditionally been protected from disclosure by Exemption 7(C).Davis v. Dep't of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992); Computer Prof'ls for Social Responsibility v. Secret Service, 72 F.3d 897, 904 (D.C. Cir. 1996). Further, private citizens who may be mentioned in investigatory files, witnesses, and informants enjoy a privacy interest. Davis, 968 F.2d at 1281; King v. Dep't of Justice, 830 F.2d 210, 233 (D.C. Cir. 1987). On the other hand, there is generally no public interest in the disclosure of such information, because this information sheds no light on an agency's performance of its duties. Davis, 968 F.2d at 1281 (citing Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990); NARFE v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)).
In Davis, a FOIA requester sought "tape recordings made in 1979 and 1980 during a criminal investigation of reputed mafia boss Carlos Marcello." Davis, 968 F.2d at 1278. Some of these tapes were introduced into evidence during Marcello's trial.Id. Release of the "tapes would assertedly implicate the privacy interests of several categories of individuals: those whose voices were overheard — the two convicted defendants, their three acquitted codefendants, other targets of the investigation who were not indicted, secretaries and telephone operators, the informant and undercover agents — and others who were mentioned by the conversants." Id. at 1281. The court found that there was a privacy interest, though perhaps minor, that there was no public interest, and that, therefore, Exemption 7(C) applied.Id.
The facts of this case mirror Davis, and the application of Exemption 7(C) is likewise appropriate. Further, there is unchallenged evidence that there is no meaningful segregable portion of the tapes that ATF could have released. (Def. Mot., Exh. 18, p. 2.). See generally Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992) ("[I]t is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof.").
Even though the ATF's withholding of the tapes was justified by a statutory exemption, disclosure would still be required if the withheld "information that has been officially acknowledged or is in the public domain. Davis, 968 F.2d at 1279. A FOIA requester bears the "burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Id. Specifically, "to obtain portions of tapes alleged to be in the public domain, [a requester] has the burden of showing that there is a permanent public record of the exact portions he wishes." Id. Lair has not met this burden. His conclusory allegation that the tapes were played at trial is not enough.
3. Conclusion
The ATF's search being adequate and its withholding of the tapes being proper, the defendants' motion for summary judgment must be granted.
D. Attorney Fees
Both because Lair is a pro-se non-attorney, Benavides v. Bureau of Prisons, 993 F.2d 257, 260 (D.C. Cir. 1993), and because he has not substantially prevailed, 5 U.S.C. § 552(a)(4)(E), the defendants are correct that plaintiff may not collect attorney fees in this matter.
III. CONCLUSION
For the foregoing reasons, the court will grant defendants' motion for summary judgment. A separate Order consistent with this Memorandum Opinion shall issue this date.