Filing 85

MEMORANDUM OPINION AND ORDER denying parties' motions for summary judgment, denying plaintiff's motion for limited discovery, and requiring the parties to meet and confer and prepare additional submissions for the record. Signed by Judge Henry H. Kennedy on 9/25/09. (EHS)

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U N I T E D STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA MICHAEL SUSSMAN, P l a i n t i f f, v. U N IT E D STATES MARSHALS SERVICE, D e fe n d a n t . C iv il Action No.03-610 (HHK) M E M O R A N D U M ORDER In this case, Michael Sussman proceeding pro se, alleges that the United States Marshals S e rv ic e ("Marshals Service") violated both the Privacy Act, 5 U.S.C. 522a, and the Freedom of In fo rm a tio n Act ("FOIA"), 5 U.S.C. 522. This Court granted summary judgment in favor of the M a rs h a ls Service, and Sussman appealed. The United States Court of Appeals for the District of C o l u m b i a Circuit affirmed part of this Court's decision, and vacated and remanded the remainder fo r further proceedings. See Sussman v. United States Marshals Service, 494 F.3d 1106, 1124 (D .C . Cir. 2007). Since the Circuit Court rendered its opinion, the Marshals Service has released a d d i ti o n a l documents to Sussman, and both parties have changed their positions with respect to e x e m p t io n s claimed and disputed prior to the Circuit Court's decision. Thus, some disputes that p r e d a t e the Circuit Court's opinion have been resolved, others have not, and new ones are p re s e n te d to this Court for the first time. Now before the Court is the Marshals Service's motion fo r summary judgment and Sussman's motion for partial summary judgment and limited d i s c o v e ry. Because neither party has established an absence of a genuine issue of material fact a n d that it is entitled to judgment as a matter of law, the summary judgment motions submitted by b o t h parties will be denied without prejudice. Because discovery is not warranted at this point, S u s s m a n 's motion for limited discovery will also be denied without prejudice. I. FOIA EXEMPTIONS T h e parties continue to dispute at least some of the FOIA exemptions claimed by the d e fe n d a n t . The record submitted does not permit the Court to determine exactly which e x e m p tio n s as to which redacted portions of which documents Sussman challenges. The in fo r m a tio n submitted by the Marshals Service in its Vaughn index, together with its d e c l a r a t i o n s , is insufficient to support a determination that the Marshals Service has justified its n o n d is c lo s u re decisions. Therefore, the Court will require the parties to submit a record that will afford the Court a b a s is upon which to resolve the parties' disputes. See Voinche v. F.B.I., 412 F. Supp. 2d 60, 65 (D .D .C . 2006) (stating that a court may require a more detailed Vaughn index if the one s u b m i tt e d is not detailed enough to allow a court to determine whether FOIA exemptions were l e g it im a t e l y claimed). The parties shall meet and confer, repeatedly if necessary, in order to n a rro w their disputes and prepare a clear record for the Court.1 At a minimum, Sussman will be r e q u i re d to precisely identify for the Marshals Service each disputed redaction, and the Marshals S e r v i c e will be required to prepare a submission that: (1) addresses only the nondisclosures that remain in dispute; If at this juncture, or at any time, the parties wish to mediate their dispute either with th e assistance of a magistrate judge or the Court's Alternative Dispute Resolution program, the p a rtie s are encouraged to so notify the Court. 1 -2- ( 2 ) is accompanied by copies of all the pages that have been released to Sussman with d is p u te d partial nondisclosures, so as to show the location and extent of each redaction a n d the precisely correlated exemption(s) asserted for each redaction (these pages should b e a r unique identifiers for ease of reference by the parties and the Court, e.g., page n u m b e r s or Bates-stamps applied for this purpose); (3) includes a sworn statement that, by reference to the unique page identifier, provides fo r each redaction on each page a nonconclusory description 2 of the redacted information th a t explains how the asserted exemption applies. S e e id. The parties shall confer and jointly propose a date by which this new record for the Court w ill be submitted. II. PRIVACY ACT CLAIMS S u s s m a n asserts three Privacy Act claims: a failure to provide him access to his records, a fa i l u r e to comply with the nondisclosure provisions, and a failure to account for allegedly im p ro p e r disclosures of his records. See 5 U.S.C. 552(a)(d)(1) (governing access of subject re c o rd s ); 552a(b) (governing nondisclosure of subject information); 552a(c) (governing a c c o u n tin g of disclosures of subject records). All these claims depend in the first instance on a d e te rm i n a tio n of what information the Marshals Service has on Sussman that is subject to the a c c e s s , nondisclosure, and accounting provisions of the Privacy Act, a disputed issue. Describing withheld information as "internal information" Vaughn index, Aug. 29, 2 0 0 8 , [filed at docket entry 75] at 4, 5, 6, or as "predominantly internal and which, if released, w o u l d risk circumvention of the law," Mem. in Supp. of Def.'s Mot. for Summ. J., Suppl. D e c la ra tio n of William E. Bordley, Oct. 24, 2008, 10, is not adequate as a nonconclusory d e s c r i p t io n that explains the application of FOIA exemption (b)(2). 2 -3- T h i s Circuit has determined that the Privacy Act provisions implicated in this case apply o n ly to records maintained in a "system of records," and that a "system of records" for these p u rp o s e s is one in which information about individuals is, in actual practice, retrieved by the in d iv id u a l's name. See Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1459-61 (D.C. Cir. 1 9 9 6 ) ; accord Krieger v. U.S. Dep't of Justice, 529 F. Supp. 2d 29, 41-42 (D.D.C. 2008). This is not to suggest that an agency may simply refuse to acknowledge th a t it maintains a system of records and thereby insulate itself from the reach of th e Privacy Act. To the contrary, if there is evidence that an agency in practice re trie v e s information about individuals by reference to their names, the mere fact th a t the agency has not acknowledged that it operates a system of records will not p r o t e c t it from the statutory consequences of its actions. On the other hand, there is no magic number of incidental or ad hoc retrievals by reference to an in d iv id u a l's name which will transform a group of records into a system of records k e ye d to individuals. One factor in deciding whether such a system exists, obviously, is the p u rp o s e for which the information on individuals is being gathered . . . . Thus, . . . where information about individuals is only being gathered as an administrative a d ju n c t to a grant-making program which focuses on businesses and where the a ge n c y has presented evidence that it has no practice of retrieving information k e ye d to individuals, the agency should not be viewed as maintaining a system of re c o rd s . On the other hand, where an agency--such as the FBI--is compiling in fo r m a tio n about individuals primarily for investigatory purposes, Privacy Act c o n c e rn s are at their zenith, and if there is evidence of even a few retrievals of i n f o r m a t i o n keyed to individuals' names, it may well be the case that the agency is m a in t a in i n g a system of records. We hold therefore that in determining whether a n agency maintains a system of records keyed to individuals, the court should v ie w the entirety of the situation, including the agency's function, the purpose for w h i c h the information was gathered, and the agency's actual retrieval practice and p o lic ie s . H e n k e , 83 F.3d at 1461. Given the function of the Marshals Service, Privacy Act concerns are at t h e i r zenith. Whether Sussman's records are part of a "system of records" depends in large part o n the purpose for which the information was gathered and the Marshals Service's actual re trie v a l practice and policies. -4- T h e Marshals Service's declarations in this case do not disclose its actual retrieval p ra c tic e and policies. See Mem. in Support of Def.'s Mot. for Summ. J., Suppl. Decl. of William E . Bordley, Oct. 24, 2008 ("Bordley Decl."); Reply in Supp. of Def.'s Mot. for Summ. J., Second S u p p l. Decl. of William E. Bordley, Dec. 12, 2008. The Marshals Service states that it conducted " a search for records pertaining to" Sussman at several of its district offices, and that it located r e c o r d s on Sussman in its office in the Western District of Pennsylvania and in its headquarters fo r the Investigative Services and Judicial Security Divisions. Bordley Decl. 19. The Marshals S e r v i c e does not disclose the method by which these records were retrieved or its usual practice o f retrieving such records. It claims, however, that "[t]he IC/TIS [Inappropriate C o m m u n ic a tio n s /T h re a t Investigation System] is the only Privacy Act system of records wherein re c o r d s indexed to [Sussman's] name and/or personal identifier are maintained," id. (emphasis a d d e d ), and that it "located no accountings for disclosures for [Sussman's] records in the IC/TIS s ys te m ," and that there is no evidence of improper disclosures from Sussman's records in that s ys te m of records, id. 20. These assertions rest on a presumption to which the Marshals Service is not entitled on this record: that the other records searched are not a "system of records" for P r iv a c y Act purposes. B e c a u s e the Marshals Service's declarations do not establish a record that sufficiently e x p la in s the purpose for which all of the information on Sussman was gathered, or its actual re trie v a l practice and policies for the information maintained in various locations on Sussman, th e Marshals Service has not established that those records are not part of a "system of records" a b o u t Sussman and subject to the Privacy Act provisions giving rise to the claims in this case.3 3 It does not help matters that the record is confused by discrepancies between what the M a rs h a ls Service's declarations appear to state and what its counsel represents as fact. For -5- W ith o u t resolving that issue in the first instance, there can be no summary judgment on the P riv a c y Act claims. CONCLUSION AND ORDER B e c a u s e the record facts do not warrant an award of summary judgment for either party as to any of the issues remaining in dispute, it is hereby ORDERED that Sussman shall identify with precision, and convey to the Marshals S e r v i c e, each document or redaction in same that remains in dispute; it is further O R D E R E D that the Marshals Service shall prepare and submit a record such as is d e s c r ib e d in subpart A of this memorandum order; it is further O R D E R E D that the parties shall, on or before October 8, 2009, file a jointly proposed d a t e for the submission of such record; and it is further O R D E R E D that the Marshals Service shall, on or before October 8, 2009, advise the C o u rt as to whether it intends to attempt again to establish a record capable of supporting an a w a rd of summary judgment on the Privacy Act claims, and if so, propose a date by which that re c o rd will be submitted. D a te : September 25, 2009 HENRY H. KENNEDY, JR. U n ite d States District Judge example, the sworn declaration states that a document was released "showing the date the USMS c lo s e d its only investigative file indexed to plaintiff's name." Bordley Decl. 8. Yet, counsel a s s e rts that "[h]ere, the evidence is undisputed that the USMS conducted, and then closed, an in v e s tiga tio n into Keith Maydak, including for threatening a federal judge, but that USMS never in v e s tiga te d Plaintiff himself." Def.'s Reply in Supp. of its Mot. for Summ. J. at 2, 1. The law i s clear that in such situations the declaration controls, but such apparent contradictions invite c o n c e rn as to the accuracy and/or clarity of the sworn statements. -6-

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