Bonilla v. United States Department of Justice
Filing
59
ORDER Granting 39 Motion for Summary Judgment. Signed by Senior Judge James Lawrence King on 7/25/2011. (jw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 10-22168-CV-KING
MARlO SIMBAQUEBA BONILLA,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.
-------------------------------------,/
ORDER GRANTING SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Defendant United States Department of
Justice's Renewed Motion for Summary Judgment (DE #39), filed April 15, 2011.
To
support the Motion for Summary Judgment in this Freedom of Information Act case,
Defendant submitted records to the Court for in camera review. The Court has carefully
reviewed the records, and finds that summary judgment should be granted for Defendant.
I.
Background
In his Complaint, Plaintiff Bonilla alleges that he sought the release of certain records
from Defendant under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and that
Defendant wrongfully withheld those records. (DE #1). Plaintiff was convicted in 2009 of a
variety of identity theft offenses,l and requested records pertaining to the prosecutors that
worked on his case. 2 (DE #1 ~ 11). The Executive Office for the United States Attorneys
1 United
States v. Bonilla, 579 F.3d 1233, 1237 (lIth Cir. 2009).
2Specifically, Plaintiff requested "any and all written communication or electronic
communication (E-mail) pertaining to himself' between several individuals and offices handling his case;
1
("EOUSA") claimed the records are exempt under § 552(b)(6) and (b)(7)(C) and refused to
release them. (DE #1(2)). Section (b)(6) provides that "personnel and medical files and
similar files" are exempt from disclosure under FOIA where disclosure "would constitute a
clearly unwarranted invasion of personal privacy." Section (b)(7)(C) creates an exemption
for "records or information compiled for law enforcement purposes, but only to the extent
that the production ... could reasonably be expected to constitute an unwarranted invasion of
personal privacy."
The Department of Justice's Office of Information Policy affirmed the denial of
Plaintiffs request.
Id.
The Court dismissed the Complaint on August 11, 2010,3 but
ultimately granted Plaintiffs Motion for Reconsideration. (DE #16). In granting the Motion
for Reconsideration, the Court found that Defendant has the burden to prove the requested
records come within a FOIA exception, and that Defendant therefore must come forward
with evidence supporting its position. Id.; United States Dept. of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 755 (1989) ("FOIA expressly places the burden on
the agency to sustain its action."). The Court ordered Defendant to submit a Vaughn index4
or an affidavit to support its position that the requested records are exempt. (DE #16). On
all records pertaining to an individual prosecutor's withdrawal from the United State's Attorney's office;
"any and all job applications to the U.S. Attorney's Office Appellate Section 3rd Circuit" in 2007; "any
and all written or electronic (E-mail) communication pertaining to" an individual prosecutor between
various individuals and offices within the Department of Justice; communication between the United
States Attorney's Office in Miami and Microsoft Corporation; and any complaint filed against an
individual prosecutor in the "public integrity section." (DE #1(2)).
3The Court initially found the records were exempt from disclosure under sections (b)(6) and
(b)(7)(C), and that "Plaintiff did not demonstrate that the release of the information pertaining to third
parties is in the public interest." (DE # 16).
4The Vaughn index, named after Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert denied,
415 U.S. 977 (1974), is a "system of itemizing and indexing that ... correlate[s] statements made in the
Government's refusal justification with the actual portions of the document." Id. at 827.
2
January 13,2011, the Court denied Defendant's first Motion for Summary Judgment, finding
that the affidavit relied on by Defendant was insufficient to constitute an "adequate factual
basis" for a finding of exemption. s (DE #23).
Since that time, Defendant has conducted a search for the requested records, and
submitted them for in camera review.
Defendant also submitted the declaration of the
Freedom of Information Act Paralegal Specialist for the United States Attorney's Office for
the Southern District of Florida, who conducted the search. Relying on these submissions,
Defendant now argues that the records are exempt under § 552(b)(6) (providing exemption
from disclosure for "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.").
II.
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment
where the pleadings and supporting materials establish that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the
burden to establish the absence of a genuine issue as to any material fact. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970); Tyson Foods, Inc., 121 F.3d at 646. Once the
moving party has established the absence of a genuine issue of material fact, to which the
nonmoving party bears the burden during trial, the nonmoving party must go beyond the
5The Government submitted the Declaration of John F. Boseker to support its Motion for
Summary Judgment. (DE #18-1). The Court found the Declaration insufficient because it merely
explained Mr. Boseker's duties as an Attorney Advisor for EOUSA, and stated the agency's reasons for
denying the request, all of which were already stated in the Motion for Summary Judgment. (DE #23).
Accordingly, the Court found that "the Declaration does not provide the Court with any facts that would
support a finding that the records requested by Plaintiff fall within a statutory exception from disclosure."
(DE #23 at 6) (emphasis added).
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pleadings and designate "specific facts showing that there is a genuine issue for trial."
Celotex v. Carrett, 477 U.S. 317, 324 (1986). In FOIA cases, "an agency is entitled to
summary judgment if no material facts are in dispute and if it demonstrates 'that each
document that falls within the class requested either has been produced . . . or is wholly
exempt from the Act's inspection requirements.'" Florida Immigrant Advocacy Ctr. v. Nat'l
Security Agency, 380 F.Supp. 2d 1332, 1336-37 (S.D. Fla. 2005).
III.
Discussion and Analysis
A.
FOIA Determinations, Generally
A district court has jurisdiction in a FOIA action "to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant."
5 U.S.C. § 552(a)(4)(B).
Under FOIA, records are
"presume[d to be] subject to disclosure." Ely v. Fed. Bureau o/Investigation, 781 F.2d 1487,
1490 (11 th Cir. 1986). The Government agency resisting disclosure thus carries the burden
of rebutting this presumption. Id. ("FOIA places on the courts the obligation to consider and
resolve competing claims of privilege and access, relegating the government to the role of
furnishing evidence to rebut the presumption of disclosure.").
When reviewing the denial of a FOIA request, a trial court engages in a "two-step
inquiry: the court must determine that (1) the information was of the sort covered by the
relevant exception and then undertake (2) a balancing of individual privacy interests against
the public interest in disclosure that may reveal that disclosure of the information constitutes
a clearly unwarranted invasion of privacy." Ely v. Fed. Bureau
0/ Investigation,
781 F.2d
1487, 1490, n.3 (11 th Cir. 1986) (internal quotations and alterations omitted).
When
conducting the first part of the inquiry, the trial court must have an "adequate factual basis"
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for its initial detennination that records are exempt under FOIA. Stephenson v. Internal
Revenue Serv., 629 F.2d 1140, 1144 (5th Cir. 1980). In camera review of the actual
documents may supply the Court with this "adequate factual basis." Miscavige v. Internal
Revenue Serv., 2 F.3d 366, 366-7 (11th Cir. 1993); see also Ely, 781 F.2d at 1491 ("Our
jurisprudence offers the trial court two alternate methods by which to make the adequate
factual basis detennination: in camera review; and the so-called' Vaughn index. "').
B.
Adequacy of the Search for Requested Records
As a threshold matter, this Court finds the Department of Justice conducted an
adequate search for the requested records. An agency's search for records under FOIA must
be reasonable, but need not be exhaustive. Ray v. Us. Dept. of Justice, 908 F. 2d 1549, 1558
(lIth Cir. 1990), rev'd on other grounds,
us.
Dept. of State v. Ray, 502 U.S. 164 (1991).
Under this reasonableness standard, "the agency must show beyond material doubt ... that it
has conducted a search reasonably calculated to uncover all relevant documents."
Id.
(quoting Miller v. United States Dept. of State, 779 F.2d 1378, 1383 (8th Cir. 1985)). To
make this showing, the agency "may rely upon affidavits, as long as they are relatively
detailed and nonconclusory and submitted in good faith. The required level of detail sets
forth the search tenns and the type of search perfonned, and avers that all files likely to
contain responsive materials (if such records exist) were searched." Florida Immigrant
Advocacy Ctr. v. Nat'l Security Agency, 380 F.Supp. 2d 1322, 1344 (S.D. Fla. 2005) (internal
quotations and citations omitted).
Here, the submitted affidavit meets these requirements.
Defendant submitted the
affidavit of the FOIA Paralegal Specialist for the United States Attorney's Office for the
Southern District of Florida ("USAO"). The affidavit describes the search she conducted in
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detail: the paralegal sent an office-wide email to all USAO personnel seeking responsive
records, requested that the Assistant United States Attorney currently assigned to Plaintiffs
criminal case to search that case file, contacted Human Resources, contacted the United
States Attorney's Office for the Eastern District of Pennsylvania, and conducted an electronic
search of documents, files, and email communications of Richard Boscovich using a number
of search terms identified in the affidavit. The Court finds that this search was "reasonably
calculated to uncover all relevant documents," and is therefore adequate under FOIA.
C.
The Section 552(b)(6) Exemption
The search for responsive records turned up only four documents, totalling seven
pages. The first part of the Court's two-step inquiry is whether the records at issue come
within a FOIA exemption. Ely v. Fed. Bureau of Investigation, 781 F.2d 1487, 1490, n.3
(1Ith Cir. 1986) (instructing courts to first determine if "the information was of the sort
covered by the relevant exception").
In the instant Motion for Summary Judgment, the Department of Justice argues that
these records are exempt from disclosure under FOIA Exemption 6, which exempts
"personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6). Exemption 6 is a "general
exemption" that was "intended to cover detailed Government records on an individual which
can be identified as applying to that individual."
United States Dept. of State v. The
Washington Post Co., 456 U.S. 595, 602 (1982). The Supreme Court has explained that the
nature of the information contained in the records is irrelevant-biographical data included in
personnel records that is "not normally regarded as highly personal" is afforded the same
protection as "intimate" information. Id. at 600-02 (rejecting appellate Court's interpretation
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that Exemption 6 protects only highly personal or intimate information).
One of the documents submitted to the Court, titled "Notification of Personnel
Action," is from the U.S. Office of Personnel Management. It contains the type of personal
"information about a particular individual that is not intimate," but that the Supreme Court
has explained is nonetheless exempt from disclosure under Exemption 6. The Washington
Post Co., 456 U.S. at 600. This record clearly falls within the exemption, and the Court finds
the Government has met its initial burden as to this document.
The remaining three documents are reference letters from other Assistant United
States Attorneys discussing the personal characteristics of Richard Boscovich. Although
these letters discuss his performance as an Assistant United States Attorney in very general
terms, none reference specific cases or procedures.
The letters instead focus on his
personality traits and other details of his personal life, and thus fit squarely within Exemption
6 as "similar files." The term "similar files" in Exemption 6 is broadly construed.
The
Washington Post Co., 456 U.S. at 600 ("The phrase 'similar files' was to have a broad, rather
than a narrow, meaning."). "The protection of Exemption 6 is not determined merely by the
nature of the file in which the requested information is contained," and therefore, any files
containing information similar to the type of information in personnel or medical files is thus
exempt from disclosure.
Id. at 601 (determining files containing passport information
exempt under Exemption 6 because of similarity to personnel files).
These documents,
although not "personnel or medical files," nonetheless contain information similar to the
information contained in those types of files. Thus, these documents contain "information ..
. of the sort covered by the relevant exception," and Defendant has met its initial burden as to
these three documents as well.
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D.
Individual Privacy Interests versus Public Interest in Disclosure
The second prong of the Court's inquiry in FOIA actions is a "balancing of individual
privacy interests against the public interest in disclosure."
Ely v. Fed. Bureau of
Investigation, 781 F .2d 1487, 1490, n.3 (1Ith Cir. 1986). The purpose of this balancing of
interests is to determine whether disclosure would result in the "clearly unwarranted invasion
of privacy" referenced in Exemption 6. See 5 U.S.C. § 552(b)(6).
1.
Individual Privacy Interest
The first question before the Court is whether Richard Boscovich's interest in the
nondisclosure of the requested records is the type of "privacy interest" Exemption 6 protects.
See United States Dept. ofJustice v. Reporters Committee for Freedom of the Press, 489 U.S.
749, 762 (1989).
As an initial matter, Richard Boscovich's status as a former federal
employee does not render his privacy interest in the subject records nonexistent or
unimportant. See, e.g., Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171
(2004) (finding "deceased's former status as a public official" does not "detract[] from the
weighty privacy interests involved"); Office of the Capital Collateral Counsel, N Region of
Fla. v. Dep't of Justice, 331 F.3d 799, 803 (11 th Cir. 2003) ("The fact that Cox was a public
official ... does not render her interest in preserving her personal privacy without weight.").
The Supreme Court has recognized a privacy interest "in avoiding disclosure of
personal matters." Reporters Committee, 489 U.S. at 762. That privacy interest is implicated
by records like FBI "rap sheets" containing descriptive information and a criminal activity
history, id., death scene photographs, Favish, 541 U.S. 157, and passport information, United
States Dept. of State v. The Washington Post Co., 456 U.S. 595 (1982). Richard Boscovich
has a similar privacy interest in the documents at issue here. They reveal his colleagues'
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personal opinions of him as a person and as a prosecutor. This is information that would not
normally be publicly available, and involves the type of "personal matters" protected by
Exemption 6. Furthermore, these records are clearly "Government records on an individual
which can be identified as applying to that individual." Washington Post Co., 456 U.S. at
602.
2.
Public Interest in Disclosure
The public interest at issue in FOIA cases is "the basic purpose of the Freedom of
Information Act to open agency action to the light of public scrutiny." Reporters Committee,
489 U.S. at 772 (internal citations and quotations omitted). Thus, ordinarily, "the particular
purpose for which the document is being requested" is irrelevant to the disclosure
determination under FOIA. Id.
However, Plaintiff Bonilla claims that the public interest that would be served by
disclosure here is the revelation of possible misconduct by the Department of Justice. (DE
#21 at 16-20).6
Where a requester seeks records to show impropriety by government
officials, "the requester must produce evidence that would warrant belief that a reasonable
person that the alleged Government impropriety might have occurred." Nat '/ Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004).
Here, Plaintiffs allegations of
impropriety are pure speculation, and in fact have been found meritless by the presiding court
in his criminal action. United States v. Bonilla, Case No. 07-20897-CR-HUCK (DE #91).
Furthermore, the purely personal matters contained in the records produced by
6 Specifically, Plaintiff claims the public interest implicated by his records request is "knowing if
federal prosecutors abide the standards of ethics, if federal prosecutors do not engage in illegal conflict
[sic] of interest when prosecuting a criminal case, that a Federal prosecutor do [sic] not get illegal 'things
of value' as a reward for a federal prosecution, and ... the DOJ ... fulfills its statutory duties of
supervision." (DE #21 at 19-20).
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Defendant fail to further even the broader purpose of FOIA, to inform citizens about "what
their government is up to." Reporters Committee, 489 U.S. at 773. The information in the
records "reveals little or nothing about an agency's own conduct," id., and would thus
"constitute an invasion of . . . privacy that is excessively disproportionate to the public
interest at stake and is therefore clearly unwarranted." Office of Capital Collateral Counsel
v. Dept. ofJustice, 331 F.3d 799, 804 (11 th Cir. 2003).
IV.
Conclusion
After a careful review of the record and for the foregoing reasons, the Court finds that
the records requested by Plaintiff Bonilla from the Department of Justice are exempt from
disclosure under FOIA. Therefore, it is hereby
ORDERED, ADJUDGED, and DECREED as follows:
1.
Defendant United States Department of Justice's Renewed Motion for
Summary Judgment (DE #39) is GRANTED.
2.
The denial by the United States Department of Justice of Plaintiffs records
request under the Freedom of Information Act is AFFIRMED.
3.
The Clerk shall CLOSE this case.
4.
All other pending motions are DENIED as moot.
DONE and ORDERED in chambers at the James Lawrence King Federal Justice
Building and United States Courthouse, Miami, Florida, this 25th day of July, 2011.
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cc:
Plaintiff
Mario Simbaqueba Bonilla, Pro Se
Reg. No. 78997-004
Federal Detention Center Miami
P.O. Box 019120
Miami, Florida 33101
Counsel for Defendant
Carole M. Fernandez
Assistant U.S. Attorney
99 N.E. 4th St., Suite 300
Miami, Florida 33132
Noticing AUSA
Email: usafls-civ@usdoj.gov
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