United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE
case is before the Court on Defendant Federal Bureau of
Investigation's (“Defendant” or
“FBI”) Motion for Summary Judgment. [Dkt. 21.]
For the following reasons, the Court will grant
1, 2015, Plaintiff Tristan di Montenegro
(“Plaintiff”) submitted a Freedom of Information
Act and Privacy Act (“FOIA/PA”) request to the
FBI, in which Plaintiff requested “my records”
for the period of “1980 to present.” Mem. in
Supp. of Def.'s Mot. for Summ. J. [Dkt. 22], Exh. 1,
Declaration of David M. Hardy (“Hardy Decl.”),
Exh. A at 1. Plaintiff indicated that he wanted the FBI to
search for “any and all files, documents, records and
investigations classified under designation 190 and/or 197
main files, as well as all control files including but not
limited to those with ‘-0, ' ‘-2, ' and
‘-5' designations.” Id. (emphases
15, 2015, the FBI wrote to Plaintiff and stated that it was
“unable to identify main file records responsive”
to the request. Hardy Decl., Exh. B at 1. The FBI informed
Plaintiff that if he had “additional information
pertaining to the subject that [he] believe[d] was of
investigative interest to the [FBI], ” he could provide
those details and the FBI would “conduct an additional
search.” Id. The response also included a
standard statement that the FBI “neither confirms nor
denies the existence of [Plaintiff's] name on any watch
lists.” Id. Finally, the response indicated
that Plaintiff could appeal to the Office of Information
Policy (“OIP”) within 60 days. Id.
31, 2015, Plaintiff appealed to the OIP, arguing that the FBI
should have searched for “classified” records and
“control files.” Hardy Decl., Exh. C at 4-8.
Plaintiff also offered an “amendment” to his
original request, asking the FBI to search a list of seven
additional “Systems of Records, ” including the
“National Crime Information Center, ”
“Electronic Surveillance (ELSUR) Indices, ”
“Terrorist Screening Records System, ” and
“Law Enforcement National Data Exchange.”
Id. at 5.
August 24, 2015, the OIP denied Plaintiff's appeal,
concluding that the FBI had conducted an “adequate,
reasonable search” and that “no main file
records” had been located. Hardy Decl., Exh. E at 1-2.
The appeal denial stated that Plaintiff could submit
additional information to the FBI regarding specific dates,
locations, and names that the FBI could use to try and
“identify responsive cross references.”
Id. at 2. Finally, the appeal denial stated that
Plaintiff could file suit in federal district court.
November 4, 2016, Plaintiff filed the instant action,
proceeding pro se. Compl. [Dkt. 1]. Plaintiff
detailed the procedural history of his FOIA/PA request and
asked the Court to “[o]rder defendant immediately to
state which records it intends to disclose, ”
“order defendant to provide access to the requested
documents, ” “expedite this proceeding, ”
and “award plaintiff costs and reasonable attorneys
[sic] fees.” [Dkt. 1-1] at 2. In support of this
request, Plaintiff alleged that the “FBI and DHS have
engaged in a conspiracy” where Plaintiff “has
been subject to cyber-harassment, death threats, anti-Semitic
emails, interference of communications with Jewish
organizations, allegations that he is a ‘closet Muslim,
' identity theft and online impersonation, harassment of
business and employment contacts with the goal of depriving
the plaintiff of an income, interception of
plaintiff-attorney communications with the goal of depriving
the plaintiff of legal counsel, [and] abusive and threatening
text messages and phone calls.” [Dkt. 1-2] at 1.
December 19, 2016, the FBI filed its answer and status
report, [Dkts. 10, 11], and stated that “[a]s part of
this litigation, the FBI has been conducting additional
searches to ensure that it identifies all potentially
responsive documents to the plaintiff's request, ”
and that the FBI had “identified some potentially
responsive records, ” [Dkt. 11] at 1; Hardy Decl.,
¶ 21. The FBI proposed that the Court order the FBI to
complete its search and production of records by February 28,
2017, followed by the parties filing a joint status report on
or before March 31, 2017. [Dkt. 11] at 1-2.
February 28, 2017, the FBI had completed its additional
search for records responsive to Plaintiff's request.
Hardy Decl., Exh. F. A portion of the documents discovered
during these additional searches originated with other
government agencies: the Department of Justice's Office
of Inspector General (“OIG”), the United States
Immigration and Customs Enforcement (“ICE”), and
the United States Department of State (“State”).
Hardy Decl., ¶ 60. The FBI referred these records to the
relevant agencies for their review and potential redaction.
Id.; Exh. F at 1. OIG reviewed 22 pages of records.
Mem. in Supp. of Def.'s Mot. for Summ. J., Exh. 2,
Declaration of Deborah M. Waller (“Waller
Decl.”), ¶¶ 5-12. ICE reviewed 8 pages of
records. Id., Exh. 3, Declaration of Fernando
Pineiro (“Pineiro Decl.”), ¶¶ 6-9.
State also reviewed 8 pages of records. Id., Exh. 4,
Declaration of Eric F. Stein (“Stein Decl.”),
to its motion for summary judgment, the FBI submitted four
Vaughn declarations to specify and explain the
redactions and withholdings made by each of the four agencies
pursuant to FOIA/PA exemptions. The FBI withheld various
information under FOIA Exemptions 6 and 7(C), 7(D), 7(E), and
7(F), as well as under PA Exemption (j)(2). Hardy Decl.,
¶¶ 29-43, 44-49, 50-56, 57-58, 23. The OIG withheld
the name of an administrative employee under FOIA Exemptions
6 and 7(C). Waller Decl., ¶¶ 6-12. ICE redacted the
name of one special agent pursuant to FOIA Exemptions 6 and
7(C), Pineiro Decl., ¶ 8, and withheld information
contained within the Alien File, Index, and National File
Tracking System pursuant to PA Exemption (k)(2),
id., ¶ 9. Finally, State withheld the names of
a State consular official and of a Bureau of Diplomatic
Security agent pursuant to FOIA Exemptions 6 and 7(C). Stein
Decl., ¶¶ 14-16.
the conclusion of all four agencies' review, the FBI
produced 48 pages of documents to Plaintiff. Hardy Decl., Exh.
F. The documents relate primarily to three topics: (1)
Plaintiff's 2014 tips to the FBI regarding a theft of
diamonds in Belgium; (2) Plaintiff's 2014 claim that he
was the victim of wire fraud; and (3) Plaintiff's 2015
complaints concerning the FBI's alleged
“conspiracy” against him. Mem. in Supp. of
Def.'s Mot. for Summ. J., ¶ 9.
April 4, 2017, Plaintiff filed a status report indicating his
belief that the FBI's February 28 production “did
not respond to any of the plaintiff's specific requests
as referenced within the original FOIA Requests.” [Dkt.
16] at 1. On April 5, 2017, the FBI filed its own status
report indicating that it had turned over all responsive
documents. [Dkt. 19] at 2. However, given that Plaintiff
seemed to challenge the adequacy of its search, the FBI also
proposed a briefing schedule for summary judgment.
Id. The Court adopted the FBI's proposed
schedule on April 6, 2017. [Dkt. 20.]
has now moved for summary judgment. [Dkt. 21.] The FBI
contends that its search was adequate, the redactions made on
the produced records fall within well-established FOIA/PA
exemptions, and each of the redactions is detailed with
reasonable specificity in the Vaughn declarations.
Mem. in Supp. of Def.'s Mot. for Summ. J. at 1. Plaintiff
failed to file a brief in opposition to the FBI's
motion. Oral argument was held on June 22, 2017.
This matter is now ripe for disposition.
Standard of Review
judgment is appropriate only if the record shows “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The moving party
always bears the initial burden of “informing the
district court of the basis for its motion, ” and
identifying the matter “it believes demonstrate[s] the
absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. “A material fact is
one ‘that might affect the outcome of the suit under
the governing law.' A disputed fact presents a genuine
issue ‘if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.'”
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183
(4th Cir. 2001) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
the movant has met the initial burden, “the non-moving
party ‘may not rest upon mere allegation or denials of
his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.'” Hughes v.
Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995) (quoting
Anderson, 477 U.S. at 256). This is particularly
important where the opposing party bears the burden of proof.
Hughes, 48 F.3d at 1381. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. Anderson, 477 U.S. at
249-50. Moreover, the mere existence of a scintilla of
evidence is insufficient; there must be evidence on which the
jury could reasonably find for the non-moving party.
Id. at 252. The judge's inquiry, therefore,
unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the opposing party is
entitled to a verdict.
obtain summary judgment in a FOIA/PA action, an agency must
show that, viewing the facts in the light most favorable to
the requester, there is no genuine issue of material fact
with regard to the agency's compliance with FOIA. See
Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588,
591 (4th Cir. 2004); Steinberg v. U.S. Dep't of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). FOIA cases
are properly resolved on summary judgment after the agency
has responded to the request. See Hanson v. USAID,
372 F.3d 286, 290 (4th Cir.
Wickwire, 356 F.3d at 590. The Court may award
summary judgment based solely upon the information provided
in affidavits or declarations when the affidavits or
declarations describe the search conducted, explain the basis
for its response, and are not controverted by contrary
evidence in the record or evidence that the agency acted in
bad faith. Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). Moreover, agency declarations are