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Montenegro v. Federal Bureau of Investigation

United States District Court, E.D. Virginia, Alexandria Division

June 22, 2017

TRISTAN DI MONTENEGRO, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE

         This 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 Defendant's motion.

         I. Background[1]

         On July 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 omitted).

         On July 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.

         On July 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.

         On 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. Id.

         On 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.”[2] [Dkt. 1-2] at 1.

         On 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.

         By 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.”), ¶¶ 3-16.

         Attached 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.

         After the conclusion of all four agencies' review, the FBI produced 48 pages of documents to Plaintiff.[3] 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.

         On 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.]

         The FBI 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.[4] Oral argument was held on June 22, 2017. This matter is now ripe for disposition.

         II. Standard of Review

         Summary 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)).

         Once 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.

         To 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.

         2004); 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 ...


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