MARCUSSE v. UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY et al

Filing 37

MEMORANDUM OPINION accompanying Order issued separately this day granting certain defendants' dispositive motion. Signed by Judge Colleen Kollar-Kotelly on 8/12/13.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Janet Mavis Marcusse,
Plaintiff,
v.
United States Department
of Justice Office of Information
Policy et al.,
Defendants.

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Civil Action No. 12-1025 (CKK)

MEMORANDUM OPINION
Plaintiff Janet Mavis Marcusse challenges the defendants’ responses to her requests for
records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. She sues three
Department of Justice (“DOJ”) components, the Department of the Treasury (“Treasury”) and its
component Internal Revenue Service (“IRS”), and the Board of Governors of the Federal
Reserve System (“BOG”). Defendants have filed two separate dispositive motions. In this
ruling, the Court considers Defendants’ Partial Motion to Dismiss and for Summary Judgment
filed on behalf of DOJ’s Executive Office for United States Attorneys (“EOUSA”), DOJ’s Office
of Information Policy (“OIP”), Treasury, and BOG [Dkt. # 16]. 1 Plaintiff has not filed a timely
opposition and has not asserted anything in her Motion for Reconsideration [Dkt. # 34] that
could reasonably be construed as opposing the instant motion. See July 24, 2013 Min. Order &
Supplement [Dkt. # 35] (indicating that the Court might consider plaintiff’s arguments in the
motion to reconsider that address defendants’ arguments for dispositive relief).

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The Defendants’ Partial Motion to Dismiss and for Summary Judgment brought on behalf of
the FBI and IRS [Dkt. # 25] is considered separately.
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Upon consideration of the moving defendants’ motion and the relevant parts of the
record, including the Complaint, the Court finds that these defendants have satisfied their
disclosure obligations under the FOIA and are entitled to judgment as a matter of law. Hence,
the instant motion will be granted.
BACKGROUND
Plaintiff is serving a 25-year sentence imposed by the United States District Court for the
Western District of Michigan following her convictions for “mail fraud, conspiracy to commit
mail fraud, and money laundering in connection with the[] operation of a fraudulent investment
scheme.” U.S. v. Flynn, 256 Fed. Appx. 434, 436, 439 (6th Cir. 2008). This action arose from
plaintiff’s various FOIA requests for records pertaining seemingly to every aspect of her criminal
case. Although the complaint purports to present nineteen “Cause[s] of Action,” the first ten
causes or claims are in reality allegations devoted to plaintiff’s FOIA request dated October 6,
2009, Causes Eleven through Fourteen are allegations devoted to plaintiff’s FOIA request dated
May 12, 2009, and Causes Fifteen through Sixteen are allegations devoted to plaintiff’s FOIA
request dated March 16, 2006, to the FBI. The Seventeenth Cause of Action concerns plaintiff’s
FOIA request to the IRS dated October 19, 2010, and the Eighteenth Cause of Action concerns
plaintiff’s FOIA request dated April 9, 2012. The Nineteenth Cause of Action merely “alleges
that [plaintiff] should have been provided with a Vaughn Index in the previously described 18
causes of action when the defendants failed to provide or denied her FOIA requests.” Compl. ¶
221.
The Court will address plaintiff’s three FOIA requests applicable to the moving
defendants in the order that they appear in the Complaint. The relevant facts thoroughly

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documented by the government in its Partial Statement of Material Facts as to Which There is
No Genuine Dispute [Dkt. # 16] follow.
October 6, 2009 Request
On October 6, 2009, plaintiff requested from EOUSA 17 categories of records about
which IRS Agent James Flink had allegedly testified to at plaintiff’s criminal trial. The
categories cover particulars about investors, investor deposits, banks, bank records, checks, and
wire transfers. See Decl. of Kathleen Brandon [Dkt. # 16-1], Ex. R (FOIA Request). In addition,
plaintiff requested information about “fees paid” or “deals cut confidential informants or other
individuals . . . .,” the Western Union records of herself and two other individuals, the “original
notes or records from [portions of the trial] transcript” recording her testimony and the testimony
of certain witnesses, and “proof [a named individual] was convicted for ‘investment fraud’ by
federal authorities.” Id. EOUSA assigned a tracking number for the requested first-party records
and a separate tracking number for the requested third-party records. Brandon Decl. ¶ 22.
Following a search for responsive records in the U.S. Attorney’s Office for the Western
District of Michigan (hereafter “USAO-WDM”), EOUSA released 257 unredacted pages to
plaintiff on April 13, 2010, that were responsive to her first-party records request. Id., Ex. U.
EOUSA informed plaintiff that it did not possess certain items she had requested and that she
was entitled only to public records pertaining to third-party individuals. EOUSA further
informed her that any plea agreements were available through the district court. Id. On
administrative appeal, the OIP affirmed EOUSA’s decision “on partly modified grounds.” Id.,
Ex. X. OIP informed plaintiff that EOUSA did not search for third-party records and to the
extent that such records exist, they were protected by FOIA exemption 7(C) absent third-party
consent, proof of death, official acknowledgement of an investigation, or an overriding public

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interest in disclosure. 2 Id. In addition, OIP informed her that the FOIA does not require
agencies to answer questions, create records in response to a request, or certify that documents
are “true” or “real” versions. Id.
On November 3, 2009, EOUSA denied plaintiff’s request for third-party records since
she had not provided authorizations from the subjects of her requests to release records, proofs of
death, or “public justification for release.” Id., Ex. Y. EOUSA informed plaintiff that such
information is generally exempt from disclosure under the Privacy Act and FOIA’s privacy
exemptions 6 and 7(C). In response to plaintiff’s appeal asserting in part that one of the subjects
of her request, Robert Plaster, had died, OIP, on March 1, 2010, affirmed EOUSA’s decision in
part and remanded it in part for EOUSA to conduct a search for records pertaining to Plaster.
Id., Ex. BB. On June 4, 2010, EOUSA released in full 43 responsive pages consisting of
Plaster’s trial testimony and portions of one page with third-party personal information redacted
under exemptions 6 and 7(C). Brandon Decl. ¶ 37 & Ex. GG. OIP affirmed this decision on
September 7, 2010. Id., Ex. JJ.
May 12, 2009 Requests
On May 12, 2009, plaintiff requested from OIP six categories of records, including (1)
the search warrant, affidavit, and inventory of items she claims were “seized” from her attorney,
Gurmail Sidhu, in July 2004, (2) “applications, authorizations, affidavits, or other documents in
regards to ‘tax protester’ classification or profiling,” (3) the same in regards to “ ‘terrorist’ or
‘enemy combatant’ classification or profiling,” (4) “[a]ny National Security letter authorized and
issued, along with supporting documents and affidavits,” (5) FBI Form 302s, and (6) IRS
Memorandum of Interview “MOI’s”. Brandon Decl., Ex. KK. OIP referred this request to

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See 5 U.S.C. § 552(b) (listing FOIA’s exemptions).
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EOUSA on May 12, 2009, id., Ex. LL, and on June 8, 2009, EOUSA referred the request to the
FBI and IRS for processing and a direct response to plaintiff, id., Ex. OO. 3
Staff at USAO-WDM searched its computer and card files but located no records
“specifically under the name of Gurmail Sidhu.” Decl. of Kristina Zelasko [Dkt. # 16-4] ¶ 6. A
search of plaintiff’s criminal case file, consisting of five boxes and five volumes of exhibit
books, id., located responsive records, Brandon Decl. ¶¶ 46-47. On August 31, 2009, EOUSA
referred 112 pages to the FBI and 22 pages to the IRS for each component to process the
respective pages and respond directly to plaintiff. Brandon Decl., Ex. QQ.
Also on May 12, 2009, plaintiff requested the same categories of records from Treasury.
Decl.of Hugh Gilmore [Dkt. # 16-2], Ex. 1. When plaintiff did not respond to Treasury’s letter
dated May 26, 2009, to provide specific information necessary to “begin processing [the]
request,” id., Ex. 2, Treasury closed plaintiff’s request in accordance with 31 C.F.R. § 1.5(a). Id.
¶ 9.
April 9, 2012 Request
On April 9, 2012, plaintiff requested from EOUSA “Form USA 207, DEC 00 Notice to
Close Legal Case File” and “[a]ny similar form authorizing the disposition or destruction of
files.” Brandon Decl., Ex. e. EOUSA determined that one of three cases associated with
plaintiff in the USAO-WDM included such a form and released the form in its entirety on July
10, 2012. Zelasko Decl. ¶¶ 15-16; Brandon Decl. Ex. i.

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See 28 C.F.R. § 16.4(c) (authorizing a DOJ component to refer records in its possession to
another component or U.S. agency upon a determination that the other entity “is better able to
determine whether the record is exempt from disclosure and, if so, whether it should be disclosed
as a matter of administrative discretion”); id. § 16.4(d) (requiring the “receiving component” of a
request for law enforcement information not originating there to refer or consult the component
or agency from where such information originated).
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Records Referred to EOUSA
On January 14, 2011, the FBI referred two documents to EOUSA that were potentially
responsive to plaintiff’s May 12, 2009, request. Brandon Decl. ¶¶ 52-53 & Ex. SS. The
documents consisted of seven pages of “correspondence from the USAO/WDM to a victim of a
criminal investigation, and correspondence from the USAO to a defense attorney concerning a
third party client’s potential proffer.” Id. ¶ 54. EOUSA informed plaintiff on February 15,
2011, that it determined that the documents were not responsive to the May 12, 2009 request, id.,
Ex. TT; OIP affirmed this decision on August 15, 2011, adding that plaintiff’s “name was not
referenced in any of the seven [referred] pages.” Id., Ex. WW.
On May 3, 2011, the FBI referred three documents to EOUSA consisting of 20 pages that
were potentially responsive to plaintiff’s May 12, 2009, request. Id., Ex. XX. On May 23, 2011,
EOUSA informed plaintiff that it had reviewed 30 pages referred from the FBI and was
withholding them in full under FOIA exemptions 5, 6, and 7(C) because they were draft plea
agreements involving third-party criminal defendants. Id. ¶ 61 & Ex.YY. On September 21,
2011, OIP affirmed this decision “on partly modified grounds,” namely exemptions 6 and 7(C)
only. Id., Ex. b.
On June 20, 2011, the FBI referred four documents to EOUSA consisting of 14 pages of
correspondence that were potentially responsive to plaintiff’s May 12, 2009, request. Id. ¶ 66 &
Ex. c. Save a one-page letter addressed to plaintiff from USAO-WDM, the correspondence
pertained to third parties. Id. On June 29, 2011, EOUSA released the letter addressed to
plaintiff with third-party information redacted and withheld the remaining 13 pages in full under
exemptions 6 and 7(C). Id., Ex. d. EOUSA has no record of plaintiff appealing this decision to
OIP. Id. ¶ 69.

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Request to the Board of Governors
Although plaintiff’s FOIA request to BOG is not the subject of any count of the
Complaint, BOG is a named defendant and has appropriately responded to the complaint. On
June 20, 2011, plaintiff requested from BOG “any information or documents about Suisse
Security Bank & Trust, Nassau, Bahamas” and about “Swiss Mercantile Bank Corporation,
Paradise Island or Nassau, Bahamas.” Decl. of Jeanne M. McLaughlin [Dkt. # 16-3], Ex. A.
Following searches of BOG’s databases, its FOIA tracking system, and the Internet, id. ¶¶ 5-11,
BOG failed to locate responsive records in its files, as was the case in response to a similar
request from plaintiff in 2006. Id. ¶¶ 11-12. However, on June 30, 2011, BOG did provide
plaintiff with “publicly available information” it had obtained from the Internet. Id. ¶ 9 & Ex. B.
LEGAL STANDARD
Summary judgment is appropriate upon a showing 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). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The FOIA requires a federal agency to release all records responsive to a properly
submitted request except those protected from disclosure by one or more of nine enumerated
exemptions. See 5 U.S.C. § 552(b). The agency’s disclosure obligations are triggered by its
receipt of a request that “reasonably describes [the requested] records” and “is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be
followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]
agency from withholding agency records or to order the production of any agency records

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improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a
FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise
remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5
U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). The
disclosure requirement generally covers only those records that are in the agency’s custody and
control at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d
1095, 1110 (D.C. Cir. 1983).
In a FOIA case, the Court may award summary judgment to an agency solely on the
information provided in affidavits or declarations when they describe “the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); accord Am. Civil Liberties Union v. U.S. Dep't of Def., 628
F.3d 612, 619 (D.C. Cir. 2011). see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). The district court must conduct a “de novo” review of the
record, 5 U.S.C. § 552(a)(4)(B), which “requires the court to ascertain whether the agency has
sustained its burden of demonstrating that the documents requested . . . are exempt from
disclosure.” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55,
57 (D.C. Cir. 2003) (citation and internal quotation marks omitted). “Consistent with the
purpose of the Act, the burden is on the agency to justify withholding requested documents,”
Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has

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proven that “it has fully discharged its disclosure obligations” is summary judgment appropriate.
Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).
Agency declarations are accorded "a presumption of good faith[.]” Long v. U.S. Dep’t of
Justice, 450 F. Supp. 2d 42, 54 (D.D.C. 2006) (citation and quotation omitted). To rebut the
presumption, a plaintiff “must point to evidence sufficient to put the Agency's good faith into
doubt.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). In properly
opposing a summary judgment motion, a plaintiff may not merely “replace conclusory
allegations of the complaint or answer with conclusory allegations of an affidavit,” Lujan v.
National Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; see Schoenman v.
FBI, 841 F. Supp. 2d 69, 80 (D.D.C. 2012) (“In other words, ‘uncontradicted, plausible affidavits
showing reasonable specificity and a logical relation to the exemption are likely to prevail.’ ”)
(quoting Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir.
2011)) (alteration omitted).
DISCUSSION
Defendants argue that they are entitled to summary judgment because they conducted
reasonable searches in response to plaintiff’s FOIA requests and produced all non-exempt
responsive records. Defs’ Mem. of P.& A. [Dkt. # 16] at 12-22. In the alternative, defendants
argue that some of plaintiff’s claims against EOUSA and Treasury should be dismissed for
failure to exhaust administrative remedies. Id. at 22-24.
Dismissal for Failure to Exhaust
Treasury’s response to plaintiff’s May 12, 2009, request did not advise plaintiff about her
right to appeal the determination and thus “was insufficient under the FOIA to trigger the

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exhaustion requirement[.]” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 67 (D.C. Cir. 1990); see
id. at 65 (“A[n] [agency’s] response is sufficient for purposes of requiring an administrative
appeal if it includes: the agency's determination of whether or not to comply with the request; the
reasons for its decision; and notice of the right of the requester to appeal to the head of the
agency if the initial agency decision is adverse.”) (emphasis supplied) (citations omitted).
Regardless, Treasury properly closed plaintiff’s request because she had not complied with its
FOIA regulations. Gilmore Decl. ¶ 9; see 31 C.F.R. § 1.5(a)(1) (“If a requester does not respond
within 30 days to a communication from a bureau to amend the request in order for it to be in
conformance with this subpart, the request file will be considered closed.”).
An agency’s disclosure obligation is triggered by its receipt of a request that “reasonably
describes [the requested] records” and “is made in accordance with [the agency’s] published
rules.” 5 U.S.C. ' 552(a)(3)(A). Since it not disputed that plaintiff failed to respond to
Treasury’s reasonable request for additional information so that it could process her broadly
worded May 2009 request, the Court finds either that it lacks jurisdiction over this claim since no
improper withholding has yet occurred, see Trupei v. Bur. of Customs and Border Prot., No. 070475, 2008 WL 249878 (D.D.C. Jan. 29, 2008), or that no claim capable of being redressed has
been stated. Hence, the Court will dismiss the claim arising from Treasury’s response to the
May 2009 request, albeit on a different ground from that advanced by the defendants.
On the other hand, the factual record is sufficiently developed to resolve the claims
against EOUSA on the merits, and the FOIA’s exhaustion requirement is not jurisdictional.
Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003). Hence, the Court declines defendants’
invitation to dismiss some of the claims against EOUSA for plaintiff’s failure to exhaust
administrative remedies with EOUSA.

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The Adequacy of Defendants’ Searches
In determining the adequacy of a FOIA search, the court is guided by principles of
reasonableness, Campbell v. United States Dep't of Justice, 164 F.3d 20, 27-28 (D.C. Cir. 1998),
mindful that an agency is required to produce only those records in its custody and control at the
time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C.
Cir. 1983). Because “the adequacy of a FOIA search is generally determined not by the fruits of
the search, but by the appropriateness of the methods used to carry out the search,” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), “the [mere] fact that a particular
document was not found does not demonstrate the inadequacy of a search.” Boyd v. Crim. Div.
of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).
In demonstrating that a search was adequate, the agency "may rely upon affidavits . . . ,
as long as they are relatively detailed and nonconclusory and . . . submitted in good faith."
Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citations and quotation
marks omitted). The required level of detail "set[s] forth the search terms and the type of search
performed, and aver[s] that all files likely to contain responsive materials (if such records exist)
were searched. . . ." Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.
1990); accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). "Once
the agency has shown that its search was reasonable, the burden shifts to [plaintiff] to rebut
[defendant's] evidence by a showing that the search was not conducted in good faith." Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378,
1383 (8th Cir. 1985)). Summary judgment is inappropriate “if a review of the record raises
substantial doubt” about the adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing
Founding Church of Scientology v. Nat’l Sec’y Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

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The Court is satisfied from the moving defendants’ unrefuted declarations describing
their searches that EOUSA and BOG conducted searches reasonably calculated to locate all
responsive records. See Zelasko Decl. ¶¶ 4-16 (EOUSA); McLaughlin Decl. ¶¶ 5-10 (BOG).
Defendants’ Claimed Exemptions
As the Brandon declaration has shown, EOUSA withheld third-party information and
third-party records under FOIA’s privacy exemptions 6 and 7(C). Although both exemptions are
properly invoked, the Court will address only exemption 7(C) since it is obvious from the
requests themselves that the records plaintiff seeks were compiled for her criminal prosecution
and, thus, satisfy exemption 7’s threshold law enforcement requirement. See 5 U.S.C. §
552(b)(7) (protecting from disclosure “records or information compiled for law enforcement
purposes . . . to the extent that the production of such law enforcement records or information . . .
.” would cause certain enumerated harms); Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011)
(finding law enforcement assertion “especially convincing [where] [requester] explicitly sought
records related to his own criminal prosecution”). 4
In enacting FOIA, Congress “underst[ood] that disclosure of records containing personal
details about private citizens can infringe significant privacy interests.” U.S. Dep't of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 766 (1989). As a direct outgrowth of this
concern, Congress crafted exemption 7(C), which permits agencies to withhold from disclosure
records compiled for law enforcement purposes if the disclosure of such records “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §
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Because exemption 7(C) is somewhat broader than exemption 6, see Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 165-66 (2004), the Court need not address exemption 6
separately. In any event, the D.C. Circuit “has deemed the privacy inquiry of exemptions 6 and
7(C) to be essentially the same.” Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1125
(D.C. Cir. 2004).

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552(b)(7)(C). In assessing an agency's claim under exemption 7(C), the district court must look
to the balance of the privacy interests asserted and the public interest in disclosure, Voinche v.
FBI, 412 F. Supp. 2d 60, 68 (D.D.C. 2006), and, as a general matter, the identification of an
individual “in a law enforcement file will engender comment and speculation and carries a
stigmatizing connotation,” Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987). Therefore,
“[a]bsent exceptional circumstances, the balance [of interests] categorically favors withholding
the names . . . of third parties,” as such information is not probative of an agency's performance
of its statutory responsibilities. Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C.
Cir. 2000). More recently, the D.C. Circuit has determined that
[a]s a result of [e]xemption 7(C), FOIA ordinarily does not require
disclosure of law enforcement documents (or portions thereof) that contain
private information . . . . [because] privacy interests are particularly difficult
to overcome when law enforcement information regarding third parties is
implicated . . . . Moreover, the Supreme Court has made clear that requests
for such third party information are strongly disfavored. That is particularly
true when the requester asserts a public interest—however it might be
styled—in obtaining information that relates to a criminal prosecution.
Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (citations and internal quotation marks
omitted). Hence, the only relevant question is “whether [plaintiff] has shown government
misconduct sufficient to overcome [e]xemption 7(C)’s protection for personal privacy under the
test outlined [Favish].” Id. (citing Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157
(2004)).
Under the Favish test, plaintiff “must show that the public interest sought to be advanced
is a significant one, an interest more specific than having the information for its own sake” and
that “the information is likely to advance that interest.” Favish, 541 U.S. at 172. Such a
showing requires “more than a bare suspicion” of official misconduct; “the requester must
produce evidence that would warrant a belief by a reasonable person that the alleged
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Government impropriety might have occurred.” Id. at 174. For it is “[o]nly when [such
evidence is] produced [that] there [will] exist a counterweight on the FOIA scale for the court to
balance against the cognizable privacy interests in the requested records.” Id. at 174-75.
In her Complaint, plaintiff makes widespread, unsubstantiated accusations of
governmental misconduct during her criminal prosecution that may be summed up as follows:
In order to obtain a grand jury indictment, conduct their criminal trial, and
pursue a direct appeal, the Office of U.S. Attorney, CI Division IRS Agents,
and FBI Agents in the Western District of Michigan engaged in evidence
tampering with their chief exhibits to promote a nonexistent crime after the
first grand jury did not return an indictment, fabricated unreported income
claims to invent motive, and destroyed documents and records or refused to
produce documents and records in response to a discovery order from U.S.
Tax Court.
Compl. ¶ 2. The fact that plaintiff has been unsuccessful on direct appeal and in post-conviction
proceedings, see Marcusse v. U.S., No. 1:09-CV-913, 2012 WL 5306258, at *2 (W.D. Mich.
Oct. 26, 2012) (finding that plaintiff’s “33 remaining claims for collateral relief lack merit”),
tends to belie her claim of “a nonexistent crime.” Regardless, as a general rule applicable here,
plaintiff’s personal stake in obtaining documents in order to attack her conviction “does not
count in the calculation of the public interest.” Oguaju v. United States, 288 F.3d 448, 450 (D.C.
Cir. 2002), vacated and remanded on other grounds, 541 U.S. 970 (2004), judgment reinstated,
378 F.3d 1115 (D.C. Cir. 2004); see Pugh v. FBI, 793 F. Supp. 2d 226, 233 (D.D.C. 2011)
(“That the FBI's denial of [plaintiff’s] FOIA requests may hinder his efforts to challenge his
conviction or sentence . . . is irrelevant.”). Furthermore, “courts must insist on a meaningful
evidentiary showing,” Favish, 541 U.S. at 175, to even consider the competing interests.
Plaintiff’s “litany of allegedly suspicious [but unsubstantiated] circumstances” surrounding her
prosecution, much like that of the plaintiff in Blackwell, “has not come close to meeting the
demanding Favish standard for challenging [EOUSA’s] invocation of FOIA [e]xemption 7(C).”
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Blackwell, 646 F.3d at 41. Hence, summary judgment is warranted on the moving defendants’
application of exemption 7(C) to the withheld third-party information.
CONCLUSION
For the foregoing reasons, the Court finds no genuinely disputed material fact with regard
to the moving defendants’ satisfaction of their disclosure obligations under the FOIA and
concludes that these defendants are entitled to judgment as a matter of law. A separate Order
accompanies this Memorandum Opinion.

DATE: August 12, 2013

__________s/s__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

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