Turner v. United States Department of the Treasury

Filing 28


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRUCE EVIN TURNER, 12 Plaintiff, 13 14 15 No. 1:15-cv00007-DAD-SKO v. UNITED STATES DEPARTMENT OF THE TREASURY, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER Defendant. 16 (Doc. Nos. 23,24) 17 18 This action is before the court on defendant’s motion for summary judgment (Doc. No. 19 23), and plaintiff’s motion for a protective order (Doc. No. 24). Both motions were submitted 20 without a hearing pursuant to Local Rule 230(l). For the reasons stated below, defendant’s 21 motion for summary judgment will be granted in part and denied in part and plaintiff’s motion for 22 a protective order will be denied. FACTUAL BACKGROUND 23 Plaintiff Bruce Turner is a state prisoner proceeding pro se and in forma pauperis in this 24 25 action against defendant United States Department of the Treasury. (Doc. No. 1.) Plaintiff brings 26 this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), seeking 27 production of certain designated documents from the Department of the Treasury. (Id.) 28 ///// 1 1 The following facts are undisputed on summary judgment. On August 25, 2014, the 2 Financial Crimes Enforcement Network (“FinCEN”), a bureau of the United States Department of 3 the Treasury, received a FOIA request from plaintiff. (Doc. Nos. 1 at 6; 23-3 at 10.) In his 4 request, plaintiff sought records concerning himself, specifically: (i) plaintiff’s savings account 5 records from a branch of Bank of America located in Riverside, California for the period of 6 January 1993 through December 1994; (ii) copies of checks and other instruments; (iii) records of 7 transactions; (iv) receipt of funds; and (v) a copy of a Currency Transaction Report (“CTR”) 8 submitted by Bank of America for the sum of $100,000 in plaintiff’s name.1 (Doc. Nos. 1 at 6; 9 23-3 at 10.) 10 On September 15, 2014, the FinCEN denied plaintiff’s FOIA request. (Doc. Nos. 1 at 7; 11 23-3 at 11.) The agency informed plaintiff that its non-Bank Secrecy Act (“BSA”)2 records did 12 not include documents responsive to plaintiff’s request, and that its BSA records were specifically 13 exempt from disclosure under FOIA. (Id.) Plaintiff appealed the denial of his FOIA request on 14 October 5, 2014. (Doc. Nos. 1 at 7; 23-3 at 10.) On December 8, 2014, plaintiff received a letter 15 from the FinCEN denying plaintiff’s administrative appeal. (Id.) That letter informed plaintiff 16 that he could obtain judicial review in a district court where he resided pursuant to 5 U.S.C. 17 § 552(a)(4)(B). (Doc. Nos. 1 at 7; 23-3 at 11.) Plaintiff then commenced the present action in 18 this court. (Doc. No. 1.) 19 Defendant filed a motion for summary judgment on June 30, 2016. (Doc. No. 23.) On 20 August 5, 2016, plaintiff filed his opposition (Doc. No. 25), as well as a motion seeking a 21 ///// 22 1 23 24 25 26 27 28 The court pauses to note that it seems somewhat odd that plaintiff is seeking his own bank records, with the exception of the CTR sought, from the FinCEN of the United States Department of the Treasury by way of a FOIA request instead of from his bank directly. Although somewhat difficult to decipher from his pro se pleadings, it appears that plaintiff seeks these records because he believes an individual he has identified and a Bank of America employee conspired to withdraw $100,000 from a savings account held in his name and to close the account. (Doc. No. 25 at 4, 6.) Plaintiff apparently believes that a CTR was issued when that bank account was opened and that the CTR may reflect information he would find helpful in pursuing the identified individual and the unknown Bank of America employee. (Id.) 2 Codified at 31 U.S.C. §§ 5311–5332. 2 1 protective order from the court authorizing defendant to file a copy of the requested CTR under 2 seal. (Doc. No. 24). Defendant filed its reply on August 12, 2016. (Doc. No. 26.) 3 LEGAL STANDARDS 4 I. Summary Judgment “Most FOIA cases are resolved by the district court on summary judgment, with the 5 6 district court entering judgment as a matter of law.” Animal Legal Def. Fund v. U.S. Food & 7 Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc); see also Sakamoto v. EPA, 443 F. 8 Supp. 2d 1182, 1188 (N.D. Cal. 2006) (“It is generally recognized that summary judgment is a 9 proper avenue for resolving a FOIA claim.”) (citing Nat’l Wildlife Fed’n v. U.S. Forest Serv., 10 861 F.2d 1114 (9th Cir. 1988)). However, it has now been made clear in this circuit that usual 11 summary judgment standards apply and that “if there are genuine issues of material fact in a 12 FOIA case, the district court should proceed to a bench trial or adversary hearing.” Animal Legal 13 Def. Fund, 836 F.3d at 990; see also Cameranesi v. U.S. Dep’t of Def., 839 F.3d 751,762 (9th Cir. 14 2016) (“We have now overruled this FOIA-specific summary judgment standard, and instead 15 apply our usual summary judgment standard.”)3 16 Accordingly, summary judgment is appropriate here if the moving party “shows that there 17 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 18 law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, the moving party “initially 19 bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. 20 Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 21 (1986)). The moving party may meet its burden by “citing to particular parts of materials in the 22 23 24 25 26 27 28 3 Before the en banc decision in Animal Legal Defense Fund, this was not the case in the Ninth Circuit. Rather, the recognized procedure was that, “[u]nlike the typical summary judgment analysis,” “in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute.” Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). Rather, the question was whether “an adequate factual basis” exists “upon which to base [a] decision” on the FOIA claim at issue. Id.; see also Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1040 (9th Cir. 1999). It was also recognized that government affidavits could supply the requisite factual basis. Lane v. Dep’t of Interior, 523 F.3d 1128, 1135–36 (9th Cir. 2008). Although this change is legally significant, it may well be that it has no impact on the resolution of the pending motions or on the ultimate resolution of this FOIA action. 3 1 record, including depositions, documents, electronically store information, affidavits or 2 declarations, stipulations (including those made for purposes of the motion only), admission, 3 interrogatory answers, or other materials” or by showing that such materials “do not establish the 4 absence or presence of a genuine dispute, or that the adverse party cannot produce admissible 5 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need 6 7 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 8 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 9 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 10 against a party who fails to make a showing sufficient to establish the existence of an element 11 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 12 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 13 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 14 circumstance, summary judgment should be granted, “so long as whatever is before the district 15 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 16 II. 17 Protective Orders As noted above, plaintiff has also moved for a protective order authorizing defendant to 18 file a copy of the CTR purportedly issued in his name with the court under seal.4 All documents 19 filed with the court are presumptively public. See San Jose Mercury News, Inc. v. U.S. Dist. 20 Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established that the fruits of pretrial 21 discovery are, in the absence of a court order to the contrary, presumptively public.”). Rule 26 of 22 the Federal Rules of Civil Procedure provides a mechanism by which the parties may, in 23 appropriate circumstances, propose means of protecting the claimed confidentiality of 24 information in certain documents filed in a specific case. Fed. R. Civ. P. 26(c). Protective orders 25 pursuant to Rule 26(c) are intended to safeguard the parties and other persons in light of the broad 26 27 28 4 In reality, it appears that, although styled as a motion for protective order, plaintiff is actually requesting that the court conduct an in camera review of a particular CTR. (See Doc. No. 24 at 2; see also Doc. No. 25 at 4, 6.) 4 1 discovery rights authorized in Rule 26(b). United States v. CBS, Inc., 666 F.2d 364, 368–69 (9th 2 Cir. 1982). 3 Whether a protective order is entered in any case is subject to the discretion of the court. 4 See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); Phillips v. Gen. Motors Corp., 307 5 F.3d 1206, 1211 (9th Cir. 2002). However, a protective order will not be entered absent a 6 showing of good cause. Fed. R. Civ. P. 26(c); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 7 1122, 1130–31 (9th Cir. 2003); Phillips, 307 F.3d at 1210. The party seeking protection bears the 8 burden of showing specific prejudice or harm, including, with respect to individual documents, 9 the particular and specific need for protection. Phillips, 307 F.3d at 1210-11; San Jose Mercury 10 News, 187 F.3d at 1102–03. “If a court finds particularized harm will result from disclosure of 11 information to the public, then it balances the public and private interests to decide whether a 12 protective order is necessary.” Phillips, 307 F.3d at 1211. 13 14 ANALYSIS I. Defendant’s Summary Judgment Motion 15 The Freedom of Information Act (“FOIA”) establishes “a judicially enforceable right to 16 secure [government] information from possibly unwilling official hands.” Dep’t of Air Force v. 17 Rose, 425 U.S. 352, 361 (1976) (citing S. Rep. No. 813, 89th Cong. (1st Sess. 1965)); see also 18 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009). The aim of these disclosure 19 requirements is to “ensure an informed citizenry, vital to the functioning of a democratic society, 20 needed to check against corruption and to hold the governors accountable to the governed.” 21 N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Hamdan v. U.S. Dep’t 22 of Justice, 797 F.3d 759, 770 (9th Cir. 2015); Shannahan v. I.R.S., 672 F.3d 1142, 1148 (9th Cir. 23 2012). 24 In response to a FOIA request, a government agency must conduct a search “reasonably 25 calculated to uncover all relevant documents.” Lahr, 569 F.3d at 986. To demonstrate that it has 26 conducted a reasonable search, an agency may produce “reasonably detailed, nonconclusory 27 affidavits submitted in good faith.” Zemansky v. U.S. E.P.A., 767 F.2d 569, 571 (9th Cir. 1985) 28 (citing Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); see also Lahr, 5 1 569 F.3d at 986; Citizens Comm’n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 2 (9th Cir. 1995). “At the same time, FOIA contemplates that some information may legitimately be kept 3 4 from the public.” Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1194 (9th 5 Cir. 2011) (quoting Lahr, 569 F.3d at 973). The FOIA enumerates nine statutory exemptions 6 allowing the government to withhold documents or portions of documents. See U.S.C. 7 § 552(b)(1)–(9). An agency invoking a statutory exemption to justify withholding documents 8 bears the burden of demonstrating the applicability of that exception. See U.S. Dep’t of State v. 9 Ray, 502 U.S. 164, 173 (1991); Shannahan, 672 F.3d at 1148; Lahr, 569 F.3d at 973; see also 10 Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2011) (“[A]gencies are 11 typically required to submit . . . a particularized explanation of why each document falls within 12 the claimed exemption.”), rev’d on other grounds by Animal Legal Def. Fund, 836 F.3d at 987. 13 To meet this burden, an agency may supply a reasonably detailed affidavit identifying the 14 documents withheld, the FOIA exemptions claimed, and the reason why each documents falls 15 within a claimed exemption.5 See Lion Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082 (9th 16 Cir. 2004), rev’d on other grounds by Animal Legal Def. Fund, 836 F.3d at 987. This submission 17 is typically referred to as the “Vaughn index.” Id.; see also Hamdan, 797 F.3d at 769. 18 One of the exemptions specifically enumerated in the FOIA statute, Exemption 3, 19 incorporates nondisclosure provisions contained in other federal statutes. See 5 U.S.C. 20 § 552(b)(3). Exemption 3 permits the withholding of information “specifically exempted from 21 disclosure by statute” if that statute “requires that the matters be withheld from the public in such 22 ///// 23 ///// 24 5 25 26 27 28 There is an exception to this rule, termed the Glomar exception, which applies when “confirming or denying the existence of records would itself reveal protected information.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995); see also Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992). For this exception to apply, the government must demonstrate that revealing the very existence of records would cause harm cognizable under a FOIA exception. See Pickard v. Dep’t of Justice, 653 F.3d 782, 785–6 (9th Cir. 2011) (citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). 6 1 a manner as to leave no discretion on the issue.” Id.6 The Ninth Circuit has outlined a two-step 2 inquiry for deciding Exemption 3 questions, requiring courts to analyze (i) whether the statute 3 identified by the agency is a statute of exemption within the meaning of Exemption 3; and, if so, 4 (ii) whether the withheld records satisfy the criteria of the exemption statute. See Hamdan, 797 5 F.3d at 776 (citing C.I.A. v. Sims, 471 U.S. 159, 179 (1985)). 6 If an agency withholds a document pursuant to a FOIA exemption, it must nonetheless 7 disclose any “reasonably segregable portion” of the document. See 5 U.S.C. § 552(b) (“Any 8 reasonably segregable portion of a record shall be provided to any person requesting such record 9 after deletion of the portions which are exempt under this subsection.”); see also Mead Data Ctr., 10 Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“[N]on-exempt portions of a 11 document must be disclosed unless they are inextricably intertwined with exempt portions.”). 12 “The burden is on the agency to establish that all reasonably segregable portions of a document 13 have been segregated and disclosed.” Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 14 (9th Cir. 2008). An agency can meet this burden by providing the court with “a reasonably 15 detailed description of the withheld material,” and by “alleging facts sufficient to establish an 16 exemption.” Pac. Fisheries, Inc., 539 F.3d at 1148; see also Hamdan, 797 F.3d at 779 (“A 17 district court must take seriously its role as a check on agency discretion, but this does not require 18 a page-by-page review of an agency’s work); Johnson v. Exec. Office of U.S. Attorneys, 310 F.3d 19 771, 776 (D.C. Cir. 2002) (“In order to demonstrate that all reasonably segregable material has 20 been released, the agency must provide a ‘detailed justification’ for its non-segregability,” 21 although ‘the agency is not required to provide so much detail that the exempt material would be 22 effectively disclosed.’”) (quoting Mead Data, 566 F.2d at 261). 23 Here, defendant moves for summary judgment in its favor on plaintiff’s FOIA claim on 24 two grounds. First, defendant contends that the FinCEN conducted a search reasonably 25 6 26 27 28 Title 5 U.S.C. § 552(b)(3) provides, in relevant part: (b) This section does not apply to matters that are– . . . (3) specifically exempted from disclosure by statute . . . , if that statute– (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.” 7 1 calculated to uncover all non-BSA records responsive to plaintiff’s request. (Doc. No. 23-1 at 4– 2 5.) In support of this contention, defendant points to the following evidence: (i) a declaration 3 from Gilbert Paist, a Senior Project and Program Management Advisor with the FinCEN, who 4 states that any non-BSA records responsive to plaintiff’s FOIA request would have been 5 contained within the Enforcement Division’s files,7 (Doc. No. 23-3 at 1–4); (ii) a declaration from 6 Antonya Brown, a Program Administration Specialist with the FinCEN Enforcement Division, 7 who explains that the FinCEN conducted a computerized search of Enforcement Division 8 database using plaintiff’s name, checked against plaintiff’s social security number and date of 9 birth, and discovered no responsive records, (Doc. No. 23-4 at 2, ¶¶ 4, 7); (iii) a copy of a letter 10 from Amanda Michancyk, FinCEN Management Specialist, responding to plaintiff’s initial FOIA 11 request, and informing plaintiff that FinCEN had searched its files but found no responsive non- 12 BSA records, (Doc. No. 23-3 at 8); and (iv) a copy of a letter from Frederick Reynolds, FinCEN 13 Deputy Director, informing plaintiff that the FinCEN had rejected his appeal of the agency’s 14 decision denying his FOIA request, (Id. at 10–11). Second, defendant argues, without citation to 15 authority, that it had no obligation to search its BSA records because such records are not subject 16 to FOIA disclosure under Exemption 3 and 31 U.S.C. § 5319. (Doc. No. 23-1 at 6–7; Doc. No. 17 26 at 3.) 18 In opposition to defendant’s motion for summary judgment, plaintiff argues in conclusory 19 fashion that the FinCEN did not make a good faith attempt to search non-BSA records for 20 documents responsive to his request. (Doc. No. 25 at 1–2.) Plaintiff also argues that defendant 21 violated the FOIA by not including BSA records in its search. (Id.) Finally, plaintiff contends 22 that, to the extent BSA records are exempt from the FOIA disclosure requirements, this 23 exemption does not prevent defendant from disclosing excerpts of documents that are responsive 24 7 25 26 27 28 As noted above, plaintiff’s FOIA request sought the following five categories of documents: (i) plaintiff’s savings account records from a Riverside, California branch of Bank of America for the period of January 1993 through December 1994; (ii) copies of checks and other instruments; (iii) records of transactions; (iv) receipt of funds; and (v) a copy of a Currency Transaction Report (“CTR”) submitted by Bank of America for the sum of $100,000 in plaintiff’s name. Mr. Paist’s declaration establishes that if FinCEN had any records responsive to these four requests they would be found within the FinCEN Enforcement Division’s files. 8 1 to plaintiff’s request. (Id. at 4.) 2 The court first considers the adequacy of the search conducted by defendant of non-BSA 3 records in response to plaintiff’s FOIA request. In its motion for summary judgment, defendant 4 has submitted a number of declarations explaining the process that the agency used to search for 5 responsive documents of the non-BSA category. For instance, the declarations submitted by 6 defendant identify the files searched, those from the FinCEN Enforcement Division. See 7 Lawyers’ Comm. for Civil Rights v. U.S. Dep’t of the Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. 8 Cal. 2008) (explaining that in a FOIA case, sufficient declarations describe “what records were 9 searched”) (citing Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). 10 Defendant’s declarations explain that the search for non-BSA documents was conducted through 11 a computerized survey, and specify the terms used to conduct this computerized search. See 12 McCash v. CIA, No. 5:15-cv-02308-EJD, 2016 WL 6650389, at *6–7 (N.D. Cal. Nov. 10, 2016) 13 (finding that defendant met its burden to show the adequacy of a search conducted in response to 14 a FOIA request, because it “described with particularity the office responsible for the search, the 15 database it searched, the process it used to search—including the search terms used—and the 16 results of the search”); Hiken v. Dep’t of Defense, 521 F. Supp. 2d 1047, 1054 (N.D. Cal. 2007) 17 (“The disclosure of search terms and a declarant’s assurances that the search covered all relevant 18 files may be helpful in evaluating the adequacy of the search.”); cf. Lion Raisins, Inc., 636 F. 19 Supp. 2d at1105 (finding defendant’s FOIA search inadequate in part because the affidavits 20 provided by defendant “do[] not mention whether, or what, search terms or key words were 21 utilized”). 22 In his opposition to the summary judgment motion, plaintiff has not come forward with 23 any “meaningful evidentiary showing” that the defendant’s search of non-BSA records was 24 inadequate. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 175 (2004) (“Allegations 25 of government misconduct are easy to allege and hard to disprove, so courts must insist on a 26 meaningful evidentiary showing.”) (internal quotation marks and citation omitted); see also 27 Hamdan, 797 F.3d at 770 (“Affidavits submitted by an agency to demonstrate the adequacy of its 28 response are presumed to be in good faith.”); Lahr, 569 F.3d at 987–88 (finding that an agency 9 1 had conducted an adequate search in response to a FOIA request, after finding that there was “no 2 evidence of either agency’s bad faith in conducting their searches, and [that], aside from his 3 general allegations of government cover-up, [plaintiff] presents no evidence [to the contrary]”). 4 Plaintiff has also not come forward with any evidence that that the agency failed to produce 5 documents that were discovered during the search that they have described. See Lahr, 569 F.3d at 6 988 n.24 (“The government, of course, must produce responsive documents actually uncovered in 7 a search, unless one of FOIA’s exemptions applies.”); cf. Hamdan, 797 F.3d at 771 (“[A] search 8 is not inadequate for failure to turn up a single document.”). 9 In light of the evidence submitted by defendant on summary judgment and plaintiff’s 10 failure to make any evidentiary showing in response, the court concludes that defendant has 11 satisfied its burden of establishing the adequacy of its search of non-BSA FinCEN Enforcement 12 Division files made in connection with plaintiff’s FOIA request. Defendant has also established 13 that as a result of its appropriate search, no records responsive to plaintiff’s FOIA requests 14 numbered one through four were located. Plaintiff has not presented any contrary evidence or 15 any evidence of bad faith on the part of the agency. See Elec. Privacy Info. Ctr. v. Fed. Bureau of 16 Investigation, __F. Supp. 3d__, 2017 WL 680370, at *3 (D.D.C. Feb. 21, 2017) (“To successfully 17 challenge an agency’s showing that it complied with the FOIA, the plaintiff must come forward 18 with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the 19 agency has improperly withheld extant agency records.”) (citation omitted); Civil Beat Law Ctr. 20 for the Pub. Interest, Inc. v. Ctr. for Disease Control & Prevention, __F. Supp. 3d__, 2016 WL 21 6155358, at *9 (D. Haw. Aug. 30, 2016). Accordingly, defendant’s motion for summary 22 judgment will be granted with respect to plaintiff’s FOIA requests one through four. 23 With respect to plaintiff’s FOIA request for a copy of a CTR submitted by Bank of 24 America in his name, however, the court is not persuaded that defendant properly excluded BSA 25 records from the search it conducted. In its summary judgment motion, defendant invokes 26 Exemption 3 and 31 U.S.C. § 5319 as grounds for nondisclosure of any and all BSA records. 27 Though it appears likely defendant may ultimately prevail on that ground, it has cited no authority 28 for the proposition that it was under no obligation to search the BSA records in response to 10 1 2 plaintiff’s FOIA request, and the court has found no such authority. As noted above, the applicable two-step inquiry in deciding Exemption 3 questions 3 requires the court first to consider whether the statute identified by the agency represents an 4 Exemption 3 withholding statute, and then to analyze whether records withheld by the 5 government satisfy the exemption statute’s criteria. See Hamdan, 797 F.3d at 776 (emphasis 6 added). It is certainly true that under the BSA, CTRs and other “financial institution reports and 7 records of reports of transactions involving the payment, receipt or transfer of United States coins 8 and currency” are exempt from FOIA disclosure. See Council on Am.-Islamic Relations v. F.B.I., 9 749 F. Supp. 2d 1104, 1117 (S.D. Cal. 2010); Berger v. I.R.S., 487 F. Supp. 2d 482, 496 (D. N.J. 10 2007) (“Congress explicitly precluded disclosure of CTRs and similar reports . . . under § 5319 11 and expressly stated that covered reports would be exempt from disclosure under FOIA.”), aff’d 12 on other grounds, 288 F. App’x 829 (3d Cir. 2008); Vosburgh v. I.R.S., No. 93-1493-MA, 1994 13 WL 564699, at *4 (D. Or. July 5, 1994); see also Small v. I.R.S., 820 F. Supp. 163, 166 (D. N.J. 14 1992). Any such information collected pursuant to the BSA is therefore properly subject to 15 Exemption 3. See Council on Am.-Islamic Relations, 749 F. Supp. 2d at 1117 (finding that 16 agency’s “reli[ance] on the [BSA] to withhold information obtained from the [FinCEN]” was 17 proper) (citing Davis v. U.S. Dep’t of Justice, No. Civ. A. 00–2457(CKK), 2003 WL 25568468, 18 at *5 (D. D.C. 2003)); see also Berger, 487 F. Supp. 2d at 496–97 (finding information 19 concerning cash transactions was protected from disclosure because the BSA “mandates 20 withholding in such a manner as to leave no discretion on the issue to the agency”). 21 Here, however, defendant has not identified which, if any, documents were withheld in 22 response to plaintiff’s FOIA request for the CTR he identified. This is because defendant 23 categorically excluded all BSA records from its search. (Doc. No. 23-1 at 7–8.) Beyond the 24 conclusory characterization of these documents as “BSA records,” defendant did not and could 25 not provide any information as to what records were located or how many pages of documents 26 were withheld because no search was conducted. As noted above, an agency has the burden to 27 demonstrate why disclosure of withheld documents would violate a FOIA exemption. In order to 28 do so, the agency must provide “reasonably detailed descriptions” of documents withheld as well 11 1 as facts sufficient to establish the exemption. Pac. Fisheries, Inc., 539 F.3d at 1148; see also 2 Wiener v. F.B.I., 843 F.2d 972, 983 (finding that a CIA affidavit was inadequate to support 3 withholding under Exemption 3 because it “fail[ed] to discuss the facts or reasoning upon which 4 [defendant] based [its] conclusion”); see also Stolt-Nielsen Transp. Group Ltd. v. United States, 5 534 F.3d 728, 734 (D.C. Cir. 2008) (finding that the government could not withhold information 6 requested under FOIA merely by providing an affidavit stating in conclusory fashion that the 7 documents withheld were subject to nondisclosure under Exemption 3). It would appear that, 8 without conducting a search of its BSA documents in response to plaintiff’s request, defendant 9 cannot meet this burden. See Hamdan, 797 F.3d at 780 (“An agency must describe the document 10 or information being withheld in sufficient detail to allow the plaintiffs and the court to determine 11 whether the facts alleged establish the corresponding exemption”); see also Morley v. CIA, 508 12 F.3d 1108, 1122 (D.C. Cir. 2007) (“[W]hen an agency seeks to withhold information, it must 13 provide ‘a relatively detailed justification”); Boyd v. Exec. Office for U.S. Att’ys, 87 F. Supp. 3d 14 58, 90 (D.D.C. 2015) (“Treasury states that it applied Exemption 3 in conjunction with the [BSA] 15 to withhold ‘references to information collected pursuant to the Bank Secrecy Act.’ . . . 16 Treasury’s description of this withholding is not sufficient: the agency has failed to provide even 17 a general description of the relevant records or the type of information withheld.”). 18 Defendant’s position that it was under no obligation to search BSA records in its 19 possession because the requested CTR is exempt from disclosure under FOIA, finds no support in 20 the cases addressing similar FOIA requests. In each of those cases it appears that although the 21 agency was found to have properly withheld the documents in question (including CTRs), that 22 determination was based upon the agency’s search of the records followed by a reasonably 23 detailed description of the documents being withheld as well as facts sufficient to establish the 24 applicability of the claimed exemption. See Berger, 487 F. Supp. 2d at 496 (finding that the IRS 25 properly withheld records under Exemption 3 pursuant to the BSA non-disclosure provision, 26 when it explained the number of documents withheld, identified those documents as Currency 27 and Banking Retrieval System (“CBRS”) summaries and CBRS CTRs, and disclosed portions of 28 withheld documents after finding they contained information not derived or extracted directly 12 1 from non-disclosable records); Sciba v. Bd. of Governors of the Fed. Reserve Sys., No. Civ.A. 04- 2 1011, 2005 WL 3201206, at *3–4 (D.D.C. Nov. 4, 2005) (finding that an agency properly 3 withheld records under Exemption 3 pursuant to the BSA when it specifically identified the 4 withheld documents as including three Suspicious Activity Reports and four CTRs); Linn v. U.S. 5 Dep’t of Justice, Civ. A. No. 92-1406, 1995 WL 631847, at *29–30 (D.D.C. Aug. 22, 1995) (IRS 6 invocation of Exemption 3 and 31 U.S.C. § 5319 as the basis for withholding a CTR in response 7 to a FOIA request, supported by the declaration of an IRS attorney, found to be proper on 8 summary judgment); Vosburgh, 1994 WL 564699, at *2, 4 (concluding defendants lawfully 9 withheld CTRs pursuant to the FOIA Exemption 3 and 31 U.S.C.§ 5319 based upon three IRS 10 affidavits describing the withheld documents and the basis for invoking the exemption); Small, 11 820 F. Supp. at 166 (granting summary judgment, concluding that seven specific pages were 12 exempt from disclosure under FOIA because they contained information from TECS and 13 CBRS).8 14 For these reasons, defendant’s motion for summary judgment will be denied as to 15 plaintiff’s fifth numbered request for a copy of the identified CTR without prejudice to the 16 defendant’s filing of a new, properly supported motion for summary judgment addressing the 17 deficiencies noted above.9 18 8 19 20 21 22 23 24 25 26 27 28 The court acknowledges it has been recognized that “Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage.” Bloomer v. U.S. Dep’t of Homeland Sec., 870 F. Supp.2d 358, 365 (D. Vt. 2012) (quoting Wilner v. NSA, 592 F.3d 60, 72 (2d Cir. 2009)). Nonetheless, the court has been unable to find any authority for the government’s proposition that no search need be conducted of certain categories of documents and that therefore no description of documents withheld, or of why the claimed exemption applies to them, need be provided. If the government is aware of such authority it may, of course, move to reconsider. 9 The court recognizes that it may be defendant’s position that a CTR contains no segregable portion and that the entire document is exempt from disclosure under FOIA. However, that question is unaddressed in the briefing now before the court. Accordingly, in any subsequent motion defendant may elect to file, counsel is directed to also address whether segregability applies where Exemption 3 and 31 U.S.C. § 5319 are invoked with respect to a request for a CTR. That doctrine requires a determination of whether there were any segregable portions of documents that could be released, or whether all portions of the documents in question were “inextricably intertwined” with exempt portions so as to justify their non-disclosure. Mead Data, 13 1 2 II. Plaintiff’s Motion for a Protective Order As noted, plaintiff has moved for a protective order requesting that the FinCEN be granted 3 “leave to lodge with the Court a copy of Plaintiff’s [CTR] in its Data-base . . . under Exemption 4 or seal.” (Doc. No. 24.) It appears that plaintiff is actually requesting that the court order 5 production of the requested CTR for the court’s in camera review. (See Doc. No. 24 at 2; see 6 also Doc. No. 25 at 4, 6.) “FOIA provides district courts the option to conduct in camera review, 7 5 U.S.C. § 552(a)(4)(B).” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009). 8 However, “[i]n camera inspection of documents is disfavored” and the government normally 9 should attempt to sustain its burden of proof by affidavit. Lion Raisins, 354 F.3d at 1079; Pusa v. 10 Fed. Bureau of Investigation, No. CV 13-04658 BRO (PLAx), 2015 WL 10939781, at *5 (C.D. 11 Cal. Mar. 30, 2015). Here, the remaining issue—plaintiff’s FOIA request for a particular CTR— 12 does not involve a lack of specificity in the declarations submitted by defendant. Rather, that 13 issue remains unresolved because defendant initially took the position that it need not search its 14 BSA records and therefore did not submit a declaration addressing what, if anything, was 15 discovered and withheld pursuant to an exemption. It would seem that this deficiency can be 16 cured and that in camera review of any document or documents should not be necessary. 17 18 19 20 21 22 Accordingly, plaintiff’s request for a protective order, construed as a request for in camera review, will be denied without prejudice. CONCLUSION For all of the reasons set forth above: 1. Defendant’s motion for summary judgment (Doc. No. 23) is granted with respect to plaintiff’s FOIA requests numbered one through four; 23 24 25 26 27 28 566 F.2d at 260. If the doctrine does apply here, the court must be able to determine from the defendant’s declarations whether there were reasonably segregable portions of documents subject to Exemption 3 that were nonetheless releasable. See Pac. Fisheries, Inc., 539 F.3d at 1148; see also Stolt-Nielsen Transp. Group Ltd., 534 F.3d at 734 (“The [government agency’s] conclusion on a matter of law is not sufficient support for a court to conclude that the self-serving conclusion is the correct one.”); Johnson, 310 F.3d at 776 (“In order to demonstrate that all reasonably segregable material has been released, the agency must provide a ‘detailed justification’ for its non-segregability,” although ‘the agency is not required to provide so much detail that the exempt material would be effectively disclosed.’”) (quoting Mead Data, 566 F.2d at 261). 14 1 2. Defendant’s motion for summary judgment (Doc. No. 23) is denied with respect to 2 plaintiff’s FOIA requests number five, without prejudice to the filing of a properly 3 supported motion for summary judgment as to that aspect of plaintiff’s FOIA request; 4 3. Plaintiff’s motion for a protective order (Doc. No. 24) is denied; 5 4. Within thirty (30) days of the date of this order, counsel shall advise the court of whether 6 defendant intends to file another motion or believes the matter instead should be set for 7 trial or adversarial hearing.10 See Animal Legal Def. Fund, 836 F.3d at 990. If the former, 8 defendant shall also advise the court of a proposed date by which that motion will be filed 9 as well as the nature of the motion and the court will then issue an order setting a briefing 10 11 schedule. IT IS SO ORDERED. 12 Dated: March 23, 2017 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 10 26 27 28 The court notes that on November 14, 2016, plaintiff filed a demand for jury trial in this action and therein estimated that the trial of the matter “should only take 5 to 10 days to complete.” (Doc. No. 27 at 1.) However, as observed above, the court is not yet convinced that there are disputed issues of material fact in connection with this action which require resolution by bench trial or adversarial hearing as opposed to summary judgment. 15

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