White v. Executive Office of US Attorneys et al
Filing
61
ORDER DENYING 37 MOTION for Partial Summary Judgment filed by William A. White; GRANTING 51 MOTION for Partial Summary Judgment as to FBI FOIA requests filed by Department of Justice. Judgment shall be entered in favor of Defendan ts and against Plaintiff on counts 6-9, 11, 13-16, 18-27, 29, and 31 at the close of the case; and the parties are ORDERED to respond to the Courts proposed entry of judgment pursuant to Rule 56(f) on counts 3-5, 10, 12, 17, 28, 30, 32-33 by 4/16/2020. Signed by Magistrate Judge Reona J. Daly on 3/17/2020. (ely)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. WHITE,
Plaintiff,
v.
EXECUTIVE OFFICE OF US
ATTORNEYS, FEDERAL BUREAU OF
INVESTIGATION, and DEPARTMENT
OF JUSTICE,
Defendants.
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Case No. 18-CV-841-RJD
MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter is before the Court on the Motion for Partial Summary Judgment Against the
FBI for Counts 4-14, 16-27, 29-30, and 32-34 (Doc. 37) filed by Plaintiff, and the Motion for
Partial Summary Judgment as to FOIA Requests filed by Defendants (Doc. 51). The parties have
responded to each other’s motions (Docs. 38, 39, 56).
Background
Plaintiff brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. He alleges that the Executive Office of US Attorneys (“EOUSA”) and Federal Bureau of
Investigations (“FBI”) did not respond properly to his requests for information under the FOIA.
The Court granted partial summary judgment for the DOJ on Plaintiff’s claims involving the
EOUSA requests. Plaintiff’s claims against the FBI all remain pending and are the subject of the
cross motions for summary judgment.
Legal Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind.,
Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the
light most favorable to the nonmoving party and draw all reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520
F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial,
the moving party may satisfy its burden of production in one of two ways. It may present evidence
that affirmatively negates an essential element of the non-moving party’s case, see Fed. R. Civ. P.
56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the nonmoving party’s case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B).
Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet
its strict burden, a court cannot enter summary judgment for the moving party even if the opposing
party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368,
371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
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Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.”
Anderson, 477 U.S. at 252.
Freedom of Information Act (“FOIA”)
The Seventh Circuit Court of Appeals has described the FOIA generally:
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242,
98 S. Ct. 2311, 57 L.Ed.2d 159 (1978). Toward that end, FOIA provides that agencies
“shall make ... records promptly available to any person” who submits a request that “(i)
reasonably describes such records and (ii) is made in accordance with [the agency’s]
published rules.” 5 U.S.C. § 552(a)(3)(A). The Act is “broadly conceived,” and its
“basic policy” is in favor of disclosure. Robbins Tire, 437 U.S. at 220, 98 S. Ct. 2311.
Agencies are, however, permitted to withhold records under nine statutory exemptions and
three special exclusions for law-enforcement records. See 5 U.S.C. § 552(b)-(c).
Rubman v. United States Citizenship & Immigration Servs., 800 F.3d 381, 386 (7th Cir. 2015).
In creating the exemptions to FOIA disclosure, “Congress sought ‘to reach a workable
balance between the right of the public to know and the need of the Government to keep
information in confidence to the extent necessary without permitting indiscriminate secrecy.’”
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. Rep. No. 1497, 89th
Cong., 2d Sess., 6 (1966), U.S. Code Cong. & Admin. News 1966, pp. 2418, 2423). “But these
limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant
objective of the Act.”
Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
Therefore, the Court must narrowly construe the exemptions, id., and the agency bears the burden
of showing they apply, 5 U.S.C. § 552(a)(4)(B). John Doe Agency, 493 U.S. at 152. In reaching
its decision, the Court should take a practical approach to achieve the balance sought by Congress.
John Doe Agency, 493 U.S. at 158.
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FOIA Request
To establish a cause of action under the FOIA, a plaintiff must show that, in response to a
valid FOIA request, “an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’”
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5
U.S.C. § 552(a)(4)(B)). A valid FOIA request reasonably describes the records if the agency can
determine exactly what records are being requested. 5 U.S.C. § 552(a)(3)(A); Kowalczyk v.
Department of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996). “A reasonable description of records
is one that would allow an agency employee to locate the records ‘with a reasonable amount of
effort.’” Moore v. F.B.I., 283 F. App’x 397, 398 (7th Cir. 2008) (quoting Marks v. United States
DOJ, 578 F.2d 261, 263 (9th Cir. 1978)). A request seeking all records relating to a subject may
not satisfy this standard and therefore may not trigger the agency’s obligation to search for records.
See Freedom Watch, Inc. v. Dep’t of State, 925 F. Supp. 2d 55, 61-62 (D.D.C. 2013). The request
must also be made in compliance with the agency’s rules on the time, place, fees and procedures
for making such a request. 5 U.S.C. § 552(a)(3)(A).
Search for Records
Agency records may be found to be improperly withheld if the agency failed to make “a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.” Rubman v. United States Citizenship
& Immigration Servs., 800 F.3d 381, 387 (7th Cir. 2015) (internal quotations omitted); accord
Stimac v. United States Dep’t of Justice, 991 F.2d 800, 1993 WL 127980, at *1 (7th Cir. 1993)
(Table) (search must be “reasonably calculated to uncover all relevant documents”); In re Wade,
969 F.2d 241, 249 n. 11 (7th Cir. 1992) (question is whether search was “reasonably calculated to
uncover all relevant documents”). The agency need not search all of its record systems, but only
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systems where responsive information is likely to be found, although it should explain why it
believes such limits are reasonable. Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). “Good faith is presumed . . ., and it can be bolstered by evidence of the agency’s
efforts to satisfy the request.” Rubman, 800 F.3d at 387 (internal citation omitted).
At the summary judgment stage, such information normally comes in the form of
“reasonably detailed nonconclusory affidavits submitted in good faith.” In re Wade, 969 F.2d at
249 n. 11.
The plaintiff may overcome the presumption of good faith by presenting
“countervailing evidence as to the adequacy of the agency’s search.” Rubman, 800 F.3d at 387;
see Carney v. United States Dep’t of Justice, 19 F.3d 807, 813 (2d Cir. 1994) (bare allegations and
speculation insufficient to overcome presumption). Importantly, “[t]he issue is not whether other
documents may exist, but rather whether the search for undisclosed documents was adequate.” In
re Wade, 969 F.2d at 249 n. 11 (emphasis in original); accord Rubman, 800 F.3d at 387.
Exemptions
Records may also be found to be improperly withheld if the agency misapplies a statutory
exemption. See, generally, Solar Sources, Inc. v. United States, 142 F.3d 1033 (7th Cir. 1998)
(reviewing the application of certain exemptions). As with the question of the adequacy of a
search, to satisfy its burden of showing an exemption applies, the agency must “provide detailed
justification for its claim of exemption, addressing the requested documents specifically and in a
manner allowing for adequate adversary testing.” Antonelli v. D.E.A., 739 F.2d 302, 303 (7th Cir.
1984). “[T]he agency has the initial burden of demonstrating why it should not disclose the
information.” Antonelli v. F.B.I., 721 F.2d 615, 617 (7th Cir. 1983) (citing Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)). If the agency meets its burden and
there is a public interest in disclosure, the Court will balance the agency’s reasons for withholding
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documents against that public interest. Antonelli v. F.B.I., 721 F.2d at 617.
The statutory exemptions relevant to this case are commonly known as Exemptions 6, 7(A),
7(C), 7(D), 7(E). Those provisions exempt the following from disclosure:
(6) personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceeding… (C) could reasonably be expected
to constitute an unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source, including a State, local, or foreign
agency or authority or any private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the
law. . . .
5 U.S.C. § 552(b)(6)-(7).
Glomar Response
In the event even acknowledging whether responsive records exist would jeopardize the
interests sought to be protected by FOIA exemptions, the agency may respond with a “Glomar
response.” 1 See Bassiouni v. C.I.A., 392 F.3d 244, 246-47 (7th Cir. 2004); Antonelli v. F.B.I., 721
F.2d at 617. For example, where a requestor asks for documents concerning a law enforcement
confidential source, an agency’s confirming that a file on the individual exists and that it is exempt
under the exemption for information that could expose the identity of a confidential source, 5
1
So named after “the Hughes Glomar Explorer, a ship built (we now know) to recover a sunken
Soviet submarine, but disguised as a private vessel for mining manganese nodules from the ocean
floor. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).” Bassiouni v. C.I.A., 392 F.3d 244,
246 (7th Cir. 2004).
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U.S.C. § 552(b)(7)(D), the denial could lead the requester to deduce that the individual is a
confidential source. Antonelli v. F.B.I., 721 F.2d at 618. Similarly, “revealing that a third party
has been the subject of FBI investigations is likely to constitute an invasion of that person’s privacy
that implicates the protections of Exemptions 6 and 7,” and it could jeopardize valuable FBI
investigations by identifying FBI informants and ongoing investigations.
Id.
Indeed, the
Supreme Court has held “as a categorical matter that a third party’s request for law enforcement
records or information about a private citizen can reasonably be expected to invade that citizen’s
privacy.” USDOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 780 (1980).
A Glomar response neither confirms nor denies that responsive records exist. Bassouni,
392 F.3d at 246-47; Antonelli v. F.B.I., 721 F.2d at 617-18. However, when the interest to be
protected is an individual’s privacy interest, the agency may not use a Glomar response if the
requestor provides a waiver from the individual, proof that the individual is dead, or a showing
that the public interest outweighs the individual’s privacy interest. See, e.g., Donato v. Executive
Office for U.S. Attorneys, 308 F. Supp. 3d 294, 306 (D.D.C. 2018) (acknowledging FBI policy not
to issue Glomar response to FOIA request seeking third party information where “the requester
submits a privacy waiver or proof of death, or demonstrates an overriding public interest in
disclosure.”).
“[T]he plaintiff can overcome a Glomar response by showing that the agency has already
disclosed the fact of the existence (or nonexistence) of responsive records, since that is the
purportedly exempt information that a Glomar response is designed to protect.” ACLU, 710 F.3d
at 427; Wolf v. C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007). This rule applies where the FBI has
officially acknowledged a connection between the individual and the FBI such as, for example,
when the individual was called as a government witness at trial and identified as an FBI informant.
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5 U.S.C. § 552(c)(2) (criminal informant records not subject to FOIA unless informant has been
“officially recognized”); see Pickard v. DOJ, 653 F.3d 782, 786 (9th Cir. 2011); Boyd v. Criminal
Div. of USDOJ, 475 F.3d 381, 388 (D.C. Cir. 2007). Where the existence of a relationship
between the FBI and the individual—and logically the existence of records regarding the
individual—has been officially recognized—the FBI can no longer rely on a Glomar response.
Pickarc, 653 F.3d at 786.
Three things are required to establish official acknowledgement by an agency: “First, the
information requested must be as specific as the information previously released. Second, the
information requested must match the information previously disclosed. . . . Third, . . . the
information requested must already have been made public through an official and documented
disclosure.” Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990); accord Wolf, 473 F.3d at
378. Further, a prior disclosure by a different agency does not waive the right of a responding
agency to make Glomar response, although it may bear on the merits of asserting such a response.
Florez v. C.I.A., 829 F.3d 178, 186 (2d Cir. 2016).
Summary Judgment
An agency can carry its burden on summary judgment by submitting affidavits that “(1)
describe the withheld documents and the justifications for non-disclosure with reasonably specific
detail, (2) demonstrate that the information withheld falls logically within the claimed exemption,
and (3) are not controverted by either contrary evidence in the record or by evidence of agency
bad faith.” Kimberlin v. Department of Treasury, 774 F.2d 204, 210 (7th Cir. 1985) (internal
quotations omitted); accord ACLU v. United States Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011). The agency is entitled to a presumption of good faith which cannot be rebutted by mere
speculation. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991); see In re Wade,
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969 F.2d at 246. Courts must give substantial weight to an agency’s affidavit. American Civil
Liberties Union v. C.I.A., 710 F.3d 422, 427 (D.C. Cir. 2013) (“ACLU”). The Court has discretion
to review documents or an index of withheld documents (a “Vaughn index”) in camera but is not
required to do so where the agency has submitted a sufficient affidavit. Kimberlin, 774 F.2d at
210; Antonelli v. D.E.A., 739 F.2d at 303-04. “Ultimately, an agency’s justification for invoking
a FOIA exemption, whether directly or in the form of a Glomar response, is sufficient if it appears
‘logical’ or ‘plausible.’” ACLU, 710 F.3d at 427 (internal quotations omitted).
Judicial Relief
If an agency has improperly withheld agency records, the Court has the power “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). The Court is not inclined,
however, to order wholesale production of all documents requested without regard to exemption
eligibility. Such an approach, which appears to be what Plaintiff seeks, “would eviscerate the
many and genuine concerns underlying the FOIA exemptions,” Caifano v. Wampler, 588 F. Supp.
1392, 1394 (N.D. Ill. 1984), and would utterly fail to achieve the balance between disclosure and
privacy Congress intended to achieve through the FOIA.
Analysis
Plaintiff has submitted numerous FOIA requests to the FBI.
In the instant matter,
Plaintiff’s requests regarding 57 subjects were set forth in six letters. The Court starts with
Defendants’ arguments because they carry the initial burden of showing the searches were
reasonable and the claims of exclusions justified.
The Court will simultaneously review
Plaintiff’s arguments set forth in both his motion for summary judgment and in his response to
Defendants’ motion.
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As an initial matter, Defendants ask the Court to disregard White’s “Sworn Declaration”
(Doc. 37-1) attached to his Motion because it was not properly executed, portions are not based on
personal knowledge, it contains inadmissible hearsay, and it includes a multitude of issues
irrelevant to the case. To the extent the Declaration contains hearsay and inadmissible evidence,
the Court will not consider such portions. Additionally, Plaintiff complains Defendants have
incorporated their summary judgment response by reference into their summary judgment motion.
Plaintiff objects to Defendants being allowed to make two responses to his summary judgment
motion. In order to minimize the already voluminous briefing and avoid repetitive arguments, the
Court exercises its discretion to allow both parties to incorporate freely all of their briefs, either in
support or in opposition to summary judgment. The Court will consider all arguments, wherever
they occur, and the evidence cited with particularity in support of those arguments.
FBI Records Systems
A brief overview of the FBI’s records system is a necessary first step in analyzing its
response to Plaintiff’s FOIA requests. The DOJ has submitted the affidavit of David M. Hardy,
the section chief of the FBI’s Records/Information Dissemination System of the Records
Management Division to describe the FBI’s record-keeping systems (“Hardy Decl.”) (Doc. 51-1).
Plaintiff has produced no evidence to contradict Hardy’s declaration, so the Court accepts it as true
for summary judgment purposes.
The FBI maintains the Central Records System (“CRS”) for the entire FBI, including its
headquarters, field offices and legal attaché offices worldwide. The CRS consists of “applicant,
investigative, intelligence, personnel, administrative, and general files compiled and maintained
by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement,
counterterrorism, and intelligence agency to include performance of administrative and personnel
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functions.” Hardy Decl. ¶ 47. The files in the CRS are organized by subject categories, referred
to as “classifications,” that include “types of criminal conduct and investigations conducted by the
FBI,
as
well
as
categorical
subjects
pertaining
to
counterterrorism,
intelligence,
counterintelligence, personnel, and administrative matters.” Id. at ¶ 48. 2
Files in the CRS are indexed by subject matter, including “by individual (persons), by
organization (organizational entities, places, and things), and by event (e.g., a terrorist attack or
bank robbery).” Id. at ¶ 50. This general index includes “main entries,” that is, the main subject
of a file such as an individual, organization or other subject matter. Id. at ¶ 49. The index also
includes “reference entries” or “cross-references,” indicating that an individual, organization or
subject matter is mentioned or referenced in a “main file” about another subject matter. Id.
Because the FBI indexes only information it considers relevant and necessary for its future
retrieval, not all names or subject matters in a file are recorded in the index. Id. at ¶ 50.
In 1995, the FBI began using Automated Case Support (“ACS”), an electronic case
management system. Id. at ¶ 51. More than 105 million CRS records were converted and
incorporated into ACS when it was first activated. Id. An ACS feature called the Universal
Index (“UNI”) allows searching of the CRS index in ACS. Id. at ¶ 52. Because the ACS
includes indices that predate its activation in 1995, a UNI search in ACS can locate FBI records
that were indexed even before 1995, as well as entries that have been added since ACS began,
although some old records are not indexed and must be manually searched in a card index. Id.
UNI currently can search approximately 119.7 million records. Id.
2
Each classification corresponds to a numerical code. When a particular case file is opened, it is
assigned a three-component code, the first indicating the classification number, the second
indicating which FBI office initiated the file, and the third indicating the unique case file number
within the subject matter. Id. Within each case file, each document is numbered. Id.
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In 2012, the FBI began using Sentinel, a newer, web-based case management system which
is also indexed to facilitate document retrieval. Id. at ¶ 53. When a record is created in Sentinel,
its information is also placed into ACS. Id.
When the FBI needs to locate records in CRS in response to a FOIA request, it searches
the ACS index using UNI and, if a record was possibly prepared after Sentinel was activated in
2012, it also searches the Sentinel index. The FBI believes that these index searches “are
reasonably expected to locate responsive material within the vast CRS” because all information
the agency believed was pertinent and necessary to be retrievable for its own agency functions was
indexed in a way that it could retrieve. Id. at ¶ 54.
When the FBI gets a FOIA request, it conducts a search in ACS, and possibly Sentinel,
using the exact subject used by the requestor and similar permutations of the subject. See id. at
¶ 56 et seq. If it locates a main file record, that is, a file where the requested subject is indexed as
the main subject of the file, it reviews the records in the file for responsiveness and for FOIA
disclosure exemptions. See, e.g., id. at ¶65. If it is unable to locate a main file record where the
requested subject is the main subject of the file but was able to locate potential cross-reference
entries, it does not review the cross-reference files unless the requestor specifically asks for crossreferences because such review is unlikely to produce enlightening information about the subject
of the request and would likely increase the requestor’s duplication fees, the agency’s response
time, and the administrative burden on the FBI. See id. at ¶¶ 56. It informs the requestor of the
potential increase in page count, charges and response time, in the event the requestor asks for
review of the files in which the cross-references appear. See id. at ¶ 60. It does not interpret a
request for “all records” as including records in cross-reference files.
Plaintiff’s FOIA Requests:
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Defendants assert Plaintiff’s requests and the FBI’s actions taken in response thereto can
be grouped into one of the following five categories:
1) Plaintiff failed to exhaust administrative remedies or otherwise perfect his request
before filing his Complaint;
2) Glomar response, in that confirming or denying the existence of records would cause
a harm protected by a FOIA exemption;
3) Search was conducted, potentially responsive records were located, and either are being
processed or awaiting processing;
4) Search was conducted and no records were located in the search; and
5) Search was conducted and potentially responsive records are categorically exempt
pursuant to FOIA Exemption 7(A) because release of the information would cause
harm to a pending law enforcement investigation or prosecution.
Defendants seek summary judgment as to all FOIA requests in Categories 1, 2, and 4. As to the
requests still in processing classified within Category 3, the FBI asks the Court to consider their
memorandum a status report to the Court demonstrating they are acting in good faith in searching
for and responding to Plaintiff’s requests for voluminous records on a reasonable schedule. As to
the request in Category 5, the FBI proposes to recheck the status of the investigation at a later time,
to reevaluate whether records should be produced.
The Court reviews each count as follows 3:
Count 3: FOIA # 1369569 (Michael Lefkow, deceased)
Summary of FBI Actions: 4 Plaintiff’s request for subject was included in his multisubject letter dated February 19, 2017. FBI acknowledged receipt on 3/22/17. FBI sent a
cost/negotiation letter on 3/23/17 and Plaintiff responded to cost letter on 4/4/17 (no
reduction in scope, alternative address provided). FBI sent request for upfront payment of
50% of estimated costs on 10/4/17 and after no response was received in 30 days, FBI
3
Counts 1 and 2 were directed to Defendant EOUSA and are not subject to the current crossmotions for summary judgment before the Court.
4
The Summary of FBI Actions and Search Description for each Count is taken verbatim from
Exhibit B to the Declaration of David Hardy (Doc. 51-3).
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closed the request 11/6/17. No administrative appeal was filed. Plaintiff filed Complaint
on April 9, 2018. On 8/13/19, Plaintiff submitted the requested advance payment of
$297.50 and the request was then reopened for processing on 8/13/19. Currently, the FBI
is processing records at a rate of 500 pages reviewed per month and making monthly
releases of non-exempt information until complete. Thus far, the FBI has made monthly
interim releases on November 8, 2019, December 6th, 2019. The FBI will continue to make
monthly releases until processing is completed.
Search Description: The FBI utilized a search cut-off date 5 of 3/22/2017. The FBI
conducted a TP search of the Central Records System (CRS) via the Automated Case
System (ACS) and an OTN search of the Manual Indices using the following terms:
Michael Lefkow, Michael F. Lefkow, Michael Francis Lefkow. Plaintiff’s request did not
seek cross-references, therefore the search conducted was for main files only.
Approximately 20,000 pages of main file records plus a large amount of media was located.
The FBI verified the accuracy of the search at the litigation stage.
Defendants contend this count falls into Category 3 because responsive records are still
being processed. The FBI has located approximately 20,000 pages of potentially responsive
records and are currently processing records at the rate of 500 pages per month. Plaintiff omits
Count 3 in his motion seeking summary judgment. Defendants do not seek summary judgment
since the records are still being processed, however, the Court will review the reasonableness of
the current processing rate. The FBI has indicated it has located in total approximately 55,500
pages of potentially responsive records as a result of its searches in this case. At the current
processing rate of 500 pages per month, it will take approximately nine years for the FBI to process
and produce the records.
It is true that FOIA requires a federal agency to make records “promptly available” once a
proper request is received in the proper manner. 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i). The
Court of Appeals for the District of Columbia Circuit has observed that “depending on the
circumstances typically would mean within days or a few weeks of a ‘determination,’ [to comply
5
Search cut-off dates are the date the FBI conducts its first search in response to the request.
Page 14 of 50
with a records request,] not months or years.” Citizens for Responsibility & Ethics in Washington
v. Fed. Election Comm’n, 711 F.3d 180, 188 (D.C. Cir. 2013) (“CREW”).
However, it is also true that federal agencies are not private investigation agencies or
copying factories for individuals seeking mountains of government documents for no articulable
public purpose. It is true that it is improper to inquire into the requester’s public interest motive
for his request when determining whether the agency must respond, but this Court believes it is
entirely appropriate to consider it when determining how and when the agency must respond. This
and other factors should be weighed: the existence of an articulable public interest in the records,
the number of responsive records expected, the diligence of the agency in attempting to respond
to the request, and potential disruption to the agency and delays to other FOIA requesters from a
tighter production schedule. See, e.g., Middle E. Forum v. DHS, 297 F. Supp. 3d 183, 186 (D.D.C.
2018); Clemente v. FBI, 71 F. Supp. 3d 262, 269 (D.D.C. 2014); Elec. Privacy Info. Ctr. v. F.B.I.,
933 F. Supp. 2d 42, 46 (D.D.C. 2013). By enacting FOIA, Congress could not have intended to
allow a single requester to paralyze a federal agency by submitting thousands of FOIA requests
for which there could be hundreds of thousands—even millions—of responsive documents and
then demanding the entire disclosure be made within a matter of weeks, or even a few years.
In this case, Plaintiff seeks records from the FBI on no less than 57 subjects. He has
refused to narrow his requests to make them more manageable or more likely to produce
documents that actually shed light on the functioning of government. He has also failed to
articulate any real public interest in the records he seeks. Instead, his requests amount to a fishing
expedition designed to uncover information about those whom he believes have wronged him and
his white supremacist affinity groups. While he may be entitled to all of the non-excluded or nonexempt records he seeks, he is not entitled to them next week, or even next year.
Page 15 of 50
At issue is whether the FBI’s current policy of processing records at a rate of 500 pages
per month complies with FOIA. When determining the rate at which a federal agency must
respond to FOIA requests, courts often give deference to the agency’s release policies. See
Negley v. DOJ, No. 15-cv-1004, 2018 WL 1610950, at *7 (D.D.C. Apr. 3, 2018), appeal filed, No.
18-5133 (D.C. Cir. May 2, 2018) (applying DOJ’s 500-page interim release policy because the
policy would “promote efficient responses to a larger number of requesters” and “the Court sees
no basis to expedite release”). As set forth in the Hardy Declaration, the FBI adheres to the 500page-per-month policy because it promotes efficiency and allows the FBI to maintain proper
information security while also processing multiple complex requests simultaneously and meeting
litigation demands. A number of Courts have found a production rate of 500 pages per month
reasonable under specific circumstances. See Nat'l Sec. Counselors v. United States Dep't of
Justice, 848 F.3d 467, 471–72 (D.C. Cir. 2017) (recognizing the FBI’s 500-page-per-month policy
“serves to promote efficient responses to a larger number of requesters”); Freedom Watch v.
Bureau of Land Mgmt., 325 F. Supp. 3d 139, 142 (D.D.C. 2018) (where Plaintiff's overall multisubject request equated to in excess of approximately 100,000 pages, the FBI’s policy of releasing
500 pages per month was justified); Middle E. Forum v. U.S. Dep't of Homeland Sec., 297 F. Supp.
3d 183 (D.D.C. 2018) (DHS proposed rate of processing 500 pages was an appropriate rate of
production); Colbert v. Fed. Bureau of Investigation, No. 16-CV-1790 (DLF), 2018 WL 6299966,
at *3 (D.D.C. Sept. 3, 2018) (the Court refused to order the FBI to adjust its standard processing
rate of 500-pages per month); Energy Future Coal. v. Office of Mgmt. & Budget, 201 F. Supp. 3d
55 (D.D.C. 2016) (“OMB shall continue to review 500 documents per month with respect to
Plaintiffs' request).
While the Court recognizes a more robust schedule would be appropriate under certain
Page 16 of 50
circumstances, in this case, the FBI’s processing rate of 500 documents per month is reasonable.
Plaintiff’s own FOIA requests are exemplary of the strain placed on the FBI’s resources.
According to the FBI’s classification system for FOIA requests, Plaintiff’s requests for just ten
subjects in this case amount to over 55,000 pages of potentially responsive records in closed files.
That number does not include the voluminous requests that are the subject of Plaintiff’s other
pending FOIA cases. Plaintiff has failed to show the subject of his request warrants expedited
treatment. Given the large volume and complexity of responding to Plaintiff’s request, releasing
documents at the rate of 500 pages per month balances the need for transparency in government
with the allocation of the FBI’s limited resources.
Count 4: FOIA # 1369575 (Countering Violent Extremism Operations)
Summary of FBI Actions: Plaintiff’s request for subject was included in his multi-subject
letter dated February 19, 2017, and generally sought “The Countering Violent Extremism
Program” (CVEO). The FBI assigned FOIA No. 1369575-000 to the request. The FBI’s
determination letter was sent March 22, 2017 and advised the records sought were not
reasonably described. The FBI closed the request. Plaintiff provided an amended request
dated March 28, 2017, narrowing the requested records to “Director-level” documentation
of implementation of CVEO at FBI. The FBI re-opened the FOIA on April 24, 2017 and
advised Plaintiff that unusual circumstances apply to the request. Approximately 134 pages
of potentially responsive material was located and awaits processing. Plaintiff filed
Complaint on April 9, 2018.
Search Description: The FBI utilized a search cut-off date of March 22, 2017 and through
a retrieval search (RTS) of FDPS determined the requested subset of records were already
searched for and processed as a sub-set of other current FOIA requests. The responsive
records were then pulled for this request. 134 pages were located and deemed responsive
to the Plaintiff’s request. No administrative appeal was filed. The FBI verified the accuracy
of the search at the litigation stage.
Defendants do not seek summary judgment regarding Count 4 as the release of the records
responsive to the request is pending. Plaintiff, however, does seek summary judgment arguing it
has been 30 months since he requested the records and the FBI has failed to promptly provide
them. As set forth above, the Court finds Defendants’ production of 500 pages per month is
Page 17 of 50
reasonable. Plaintiff’s motion is denied.
Count 5: FOIA # 1369846 (World Church of the Creator)
Summary of FBI Actions: Plaintiff’s request for subject was included in his multi-subject
letter dated February 19, 2017. On April 4, 2017, the FBI provided 196 pages of records
previously processed for another requester on the same subject. On April 19, 2017, Plaintiff
filed an administrative appeal, challenging only the withholdings within the records
provided. OIP acknowledged receipt of the appeal on June 29, 2017, assigning it tracking
number DOJ-AP-2017-005032. DOJ/OIP adjudicated the appeal on August 18, 2017,
affirming (on partly modified grounds) the FBI’s determination, and referring the classified
information to the DOJ Department Review Committee (DRC) for further review. Plaintiff
filed Complaint on April 9, 2018. Upon filing of the Plaintiff’s Complaint, the FBI
conducted a new search, and located approximately 15,960 non-pending, potentially
responsive pages.
Defendants do not seek summary judgment regarding Count 5 as approximately 15,960
additional responsive pages currently await processing. The FBI is processing the request at 500
pages per month. Plaintiff seeks summary judgment arguing it has been 30 months since he
requested the records and the FBI has failed to promptly provide them and the current production
of 500 pages per month is inadequate. Additionally, Plaintiff objects to the FBI aggregating ten
of the subjects of his requests. The FBI determined ten of the subjects constituted a series of
related requests due to the similarity in scope and content and charged aggregate duplication fees
as set forth in the FOIA statute. Plaintiff argues Defendants should not be allowed to aggregate
and process his requests consecutively.
When an agency reasonably believes that a requester is attempting to divide a single request
into a series of requests for the purpose of avoiding fees, the agency may aggregate those requests
and charge accordingly. See 28 C.F.R. § 16.10. The FBI reasonably believed a number of
Plaintiff’s requests involved related matters. The Court finds under the circumstances there is a
reasonable basis for determining that aggregation is warranted. Additionally, as set forth above,
the Court finds Defendants’ production of 500 pages per month is reasonable. Plaintiff’s motion
Page 18 of 50
is denied.
Count 6: FOIA # 1369559 (Clifford Herrington, Andrea Herrington, R James)
Summary of FBI Actions: Plaintiff’s request for subject was included in his multi-subject
letter dated February 19, 2017. The FBI responded to the request subject by letter dated
March 22, 2017, advising that the request was unperfected (no privacy waiver or proof of
death provided on third party). By letter dated April 4, 2017, Plaintiff supplied additional
information on the requested third parties by noting their alleged involvement with the
National Socialist Movement. However, Plaintiff still failed to provide proof of death or
privacy waiver and therefore this request subject remains unperfected. The FBI denied this
request pursuant to Glomar based on FOIA Exemptions 6 and 7(C). Plaintiff filed his
Complaint on April 9, 2018, without filing an administrative appeal first.
Defendants seek summary judgment on Count 6 arguing Plaintiff failed to exhaust his
administrative remedies because he did not perfect his request by providing a privacy waiver or
proof of death on the third parties. In response, Plaintiff argues he responded to the FBI in a letter
of April 4, 2017, proffering a public interest justification for the records.
Defendants
acknowledge they received Plaintiff’s letter of April 4, 2017, telling the FBI, “The public interest
in uncovering your agency’s involvement in the creation, and, operation, of Satanic pedophile
cults, overrides any privacy concern. Further, there is no privacy interest in non-personnel file
records detailing work done for a public agency.” (Doc. 10 at 65-66). Plaintiff asserts he did not
receive a response from the FBI notifying him of any deficiencies in his public interest argument,
therefore, he constructively exhausted his request.
Defendants argue Plaintiff’s assertion
contained no official acknowledgement by the FBI concerning the existence of records regarding
third parties, nor did it provide a privacy waiver or proof of death as requested. Defendants seek
summary judgment for failure to exhaust his administrative remedies because Plaintiff filed his
complaint without filing an administrative appeal. Additionally, Defendants contend the FBI
properly denied the request pursuant to Glomar based on Exemptions 6 and 7(c) and the privacy
interest of third parties.
Page 19 of 50
Plaintiff seeks summary judgment on Count 6 arguing there is a public interest in the
release of the records requested.
Plaintiff asserts the FBI is creating and operating “white
supremacist extremist” groups and that Clifford Herrington was a leader for one such group.
Plaintiff also contends “the primary function of the FBI in modern America is to foment crime
through manipulation of mentally and intellectually disabled people, and, a Satanic pedophile cult
seems as good of an instrument in carrying out the mission as a “Nazi” party.” Plaintiff asserts
the FBI operates a wide variety of political, religious, and criminal organizations including Satanic
cults and pedophile clubs, and that the requested records could shed light on whether these
individuals were working with the FBI in conducting such activities. Plaintiff argues the FBI may
not invoke Glomar because it has previously disclosed during one of his trials that Clifford and
Andrea Herrington were federal informants. Plaintiff also argues the disclosure of the record of
the R James emails gathered by the FBI make a Glomar response unavailable.
“[A] plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing
to specific information in the public domain that appears to duplicate that being withheld.”
Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C.Cir.1983).
Prior disclosure of similar
information does not suffice; instead, the specific information sought by the plaintiff must already
be in the public domain by official disclosure. Public Citizen v. Dep't of State, 11 F.3d 198, 202
(D.C.Cir.1993). The insistence on exactitude recognizes “the Government's vital interest in
information relating to national security and foreign affairs.” Id. at 203; see also Military Audit
Project, 656 F.2d at 752–53 (rejecting claim that public disclosure of some information
overlapping with content of requested material results in waiver as to all information). Wolf v.
C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007).
Plaintiff failed to meet the initial burden of pointing to specific information in the public
Page 20 of 50
domain that appears to duplicate that being withheld. Plaintiff alleges Clifford and Andrea
Herrington have been disclosed as federal informants but does not point to any specific information
that is already in the public domain. The Court finds the FBI properly denied the request pursuant
to Glomar based on Exemptions 6 and 7(c) and the privacy interest of third parties. Defendants
are entitled to summary judgment on Count 6.
Count 7: FOIA # 1377814 (FBI’s Use of Informants at April 29, 2017 Pikesville, KY Rally)
Summary of FBI Actions: Plaintiff submitted his request by letter dated June 5, 2017 and
the FBI acknowledged receipt of request on June 23, 2017. The FBI issued a determination
by letter dated September 1, 2017 advising it could neither confirm nor deny records
revealing the use of confidential informants. Plaintiff filed Complaint on April 9, 2018,
without having filed an administrative appeal first.
Search Description: Due to the assertion of an Exemption 7(D) and 7(E) Glomar, no search
is warranted.
Defendants seek summary judgment arguing a Glomar response was appropriate to a
request for information revealing the use of confidential informants. Plaintiff argues he requested
“all records in the FBI’s possession” regarding the rally, and that the FBI improperly narrowed the
request to the “use of informants.” Plaintiff further argues he did appeal the FBI’s narrowing of
his request and his appeal went unanswered. Plaintiff seeks summary judgment on this count
arguing the FBI unreasonably narrowed his request and the OIP ignored his appeal.
Plaintiff’s request was written as follows:
This is to request all records in your possession regarding events which occurred in, or,
around Pikesville, KY on, or, about, April 29, 2017. Specifically, your Joint Terrorism
Task Force, working with state, and, local, law enforcement, brought in hundreds of
informants, and, law enforcement officers, from around the country to stage two notional
“special events”, one an alleged “white supremacist” rally by the Traditionalist Workers’
Party, the National Socialist Movement, the Global Crusader Order of the Ku Klux Klan,
the League of the South, and, others, and the other, a rally by unidentified “antifa”, or “antifascists”. Review of the photographs, and, news accounts, indicate that 80% - 90% of the
persons participating on both sides were undercover operatives of your agency, or, other
law enforcement.
Page 21 of 50
Thank you for releasing all documents related to your agencies’ continued involvement in
these phony “extremist” rallies within 20 days.
(Doc. 51-2 at 2). Plaintiff’s request was most certainly aimed at gaining information regarding
the FBI’s use of informants at the Pikeville rally. While a broader interpretation is possible, the
Court finds the FBI’s understanding of the request was not unreasonable. The FBI’s Glomar
response was appropriate, and it did not violate FOIA by responding that it could not reveal records
regarding the use of confidential informants. Defendants are granted summary judgment on
Count 7.
Count 8: FOIA # 1369570 (Teens for Satan)
Summary of FBI Actions: Plaintiff’s request for subject was included in his multi-subject
letter dated February 19, 2017 at item 9. The FBI issued its determination by letter dated
March 22, 2017, advising it had located no main file records. Plaintiff provided additional
information by letter dated April 4, 2017 and the FBI conducted an additional search. The
FBI advised by letter dated April 20, 2017, that despite conducting an additional search,
no records were located. Plaintiff made a new request for the same subject, by letter dated
February 11, 2018 at item 1. The FBI advised Plaintiff by letter dated March 19, 2018 that
no records were located despite an additional search. Plaintiff filed an administrative appeal
with DOJ/OIP by a letter dated March 24, 2016 (received by DOJ/OIP on April 9, 2018)
challenging the adequacy of the FBI’s search. Plaintiff filed Complaint on April 9, 2018.
DOJ/OIP acknowledged receipt of the administrative appeal by letter dated April 20, 2018,
and assigned tracking number DOJ-AP-2018-004345 to the appeal. Plaintiff provided
additional information on October 28, 2018, stating that despite being advised the FBI
could locate no records on this subject, he had received responsive information on both this
subject and another (FOIA 1398616-000, KKK Groups in NJ 2004-2008) on October 20,
2018, and enclosed a sampling. Neither of the two documents provided any additional leads
that would support another search.
Search Description: Three searches were conducted in an effort to locate responsive
records on this subject. Initially, the FBI utilized a search cut-off date of March 22, 2017.
It conducted an ST search of the CRS via ACS. The term searched was “Teens for Satan”.
A second search was conducted using an expanded search cut-off date of April 20, 2017
using the same term and methods. A third search utilized a search cut-off date of March
13, 2018 and included a TP, search of the CRS via ACS and an OTN search of the manual
indices. Sentinel was also utilized to search the CRS, via an entities search. The term
utilized for the searches was “Teens for Satan”. The FBI verified the accuracy of the search
at the litigation stage.
Page 22 of 50
Defendants seek summary judgment arguing it conducted three separate searches using
different date ranges and the terms “Teens for Satan” but failed to locate any responsive records
regarding the organization. Defendants argue summary judgment is appropriate as the FBI
utilized a reasonable search methodology.
Plaintiff seeks summary judgment arguing he supplemented his request to also seek
documents regarding “Joy of Satan” but received no response. Plaintiff argues because the FBI
failed to conduct a search for “Joy of Satan” as well as “Teens for Satan” the search was not
reasonable, and he is entitled to summary judgment and records regarding the Joy of Satan/Teens
for Satan organization.
Plaintiff’s initial FOIA request sought records regarding “Teens for Satan” but did not seek
records regarding “Joy of Satan.” When Plaintiff received the letter informing him that no records
were located, he responded with a letter dated March 24, 2018 (Doc. 37-2 at 4). Plaintiff appealed
the FBI’s claim that it possessed no such records and alleged the claim was false. Plaintiff, again,
did not mention Joy of Satan. Plaintiff’s appeal was denied by the OIP (Id. at 6-7). On October
28, 2018, Plaintiff sent a letter to David Hardy alleging “Teens for Satan” was part of the “Joy of
Satan” group (Id. at 8). Plaintiff did not clearly request records regarding “Joy of Satan,” but only
mentioned the group in his letter.
Additionally, the FBI’s searches for this request were
conducted well before Plaintiff sent the letter on October 28, 2018. The Court finds Defendants
conducted a reasonable search for Plaintiff’s actual request and are entitled to summary judgment
on Count 8.
Count 9: FOIA # 1369838 (Citizens Against Hate)
Summary of FBI actions: Plaintiff’s request for this subject was included at item 1 in his
multi-subject letter dated February 19, 2017. The FBI advised by letter dated March 27,
Page 23 of 50
2017, no main file records were located. Plaintiff filed an administrative appeal with
DOJ/OIP by letter dated March 24, 2017. 6 Plaintiff included this at item 2 of a February
11, 2018 new request. Plaintiff filed Complaint on April 9, 2018. DOJ/OIP acknowledged
receipt of the administrative appeal by letter dated April 20, 2018, assigning tracking
number DOJ-AP-2018-004350 to the appeal. DOJ/OIP affirmed the FBI’s determination
by letter dated May 24, 2018, and advised the Plaintiff that if he wanted a cross-reference
search conducted by the FBI, he would need to supply sufficient information to enable the
FBI to determine if any references located are identifiable to the request subject. No further
information was supplied.
Search Description: The FBI utilized a search cut-off date of March 24, 2017 for the initial
search. It conducted an ST search of the CRS utilizing ACS. The term “Citizens Against
Hate” was used to conduct an ST search of the CRS via ACS, and an OTN search of the
manual indices and Sentinel using the same term was also conducted. No main file records
were located. Another search was conducted in response to the second request with a search
cut-off date of March 13, 2018. An ST search of the CRS using ACS and an OTN search
of the manual indices and Sentinel was also conducted. The term searched was “Citizens
Against Hate”. Again, no records responsive to the request were located. The FBI verified
the accuracy of the search at the litigation stage.
Defendants seek summary judgment arguing two searches were conducted regarding
“Citizens Against Hate” and no responsive documents were located. Plaintiff argues the FBI’s
search was unreasonable because they did not run a cross-reference search.
The DOJ/OIP
affirmed the FBI’s determination of this request by letter dated May 24, 2018, and advised Plaintiff
that if he wanted a cross-reference search conducted by the FBI he would need to supply sufficient
information to enable the FBI to determine if any references located are identifiable to the request
subject.
The FBI affirmed no further information was supplied.
Defendants conducted a
reasonable search for Plaintiff’s actual request and are entitled to summary judgment on Count 9.
Count 10: FOIA # 1369840 (One People’s Project)
Summary of FBI Actions: Plaintiff included this subject at item 2 of his multi-subject
letter dated February 19, 2017. The FBI responded by letter dated March 27, 2017, no main
file records were located. Plaintiff filed a new request on the same subject by letter dated
6
Although dated March 24, 2016, the letter was not received by DOJ/OIP until April 9, 2018. The
date stamp on the envelope bears an April 3, 2018 date, indicating the date in Plaintiff’s letter was
likely incorrect.
Page 24 of 50
February 11, 2018 (item 3), noting the new request was submitted for the purpose of
correcting his prior failure to exhaust administrative remedies. Plaintiff filed an
administrative appeal of the FBI’s no records determination by letter dated March 24, 2016,
and further indicated in the appeal letter that he was also seeking a cross-reference search. 7
Plaintiff filed his Complaint with this Court on April 9, 2018. DOJ/OIP acknowledged
Plaintiff’s administrative appeal on April 20, 2018 and assigned it tracking number DOJAP-2018-004346. On May 29, 2018, DOJ/OIP affirmed the FBI’s determination and
advised Plaintiff to submit additional identifying information concerning the subject of the
request to the FBI if he would like to receive cross-reference records. Plaintiff has not
submitted additional information that would better assist the FBI in locating identifiable
cross-references; however, upon reviewing the information from the appeal and with the
filing of the litigation the FBI proactively conducted another search in an effort to locate
any potentially responsive cross-references. Potentially responsive records were located
and currently await processing.
Search: The FBI utilized a search cut-off date of March 13, 2018 and conducted an ST
search of the CRS utilizing ACS. The FBI utilized the following search terms: “The
Peoples Project”, “The One Peoples Project”, “One Peoples Project”, “One People’s
Project”, and “The Peoples Project”. At the litigation stage, the FBI verified the search,
including adding an OTN search of the CRS via Sentinel.
Defendants do not seek summary judgment regarding Count 10 as approximately 200
additional responsive pages currently await processing. The FBI is processing Plaintiff’s requests
at 500 pages per month. Plaintiff seeks summary judgment arguing there are positive indications
records exist regarding this request. Since filing of Plaintiff’s motion, Defendants have conducted
a cross-reference search and located records which are pending processing.
The Court finds given the large volume and complexity of responding to Plaintiff’s request,
releasing documents at the rate of 500 pages per month balances the need for transparency in
government with the allocation of the FBI’s limited resources. Plaintiff is not entitled to summary
judgment.
Count 11: NFP-80763 (August 11, 2017 Training Session)
Summary of FBI Action: This subject was included in Plaintiff’s September 7, 2017
multi-subject FOIA request at item 5. The FBI advised that Plaintiff’s request for a
7
See fn. 4 supra.
Page 25 of 50
“training session” hosted by two third parties on August 11, 2017 was not reasonably
described. The FBI assigned tracking number NFP-80763 and advised Plaintiff by letter
dated September 21, 2017, he would need to submit additional specific information before
the FBI could conduct a search. By letter dated September 27, 2017, Plaintiff submitted
additional correspondence but nothing that documented an official public acknowledgment
by the named third parties concerning their alleged involvement in the training session.
Further, the allegations appearing in the submitted article did not provide official
confirmation of the alleged training event, nor did it provide enough specific information
to allow employees to conduct a reasonable search of the CRS. FBI records in the CRS are
arranged by subject, victim, or event and the information provided is insufficient. Plaintiff
did not appeal the FBI’s determination, and instead filed his Complaint with this Court on
April 9, 2018.
Search: The request is unperfected; therefore, no search is possible.
Defendants seek summary judgment arguing Plaintiff failed to perfect this request and
exhaust his administrative remedies. Defendants contend Plaintiff failed to appeal the FBI’s
determination that his request was insufficiently detailed even after he attempted to provide
clarification. Plaintiff seeks summary judgment arguing he responded to the FBI’s letter seeking
further information but did not receive notice that his supplement was inadequate, therefore, he
constructively exhausted his administrative remedies.
The FBI’s letter seeking additional
information was dated September 21, 2017, and Plaintiff’s correspondence responding to the FBI
was dated September 27, 2017. There was no further correspondence sent by the FBI and Plaintiff
did not appeal.
The Court finds Plaintiff failed to exhaust his administrative remedies as to this request.
The September 21, 2017 letter from the FBI informed Plaintiff his FOIA request did not contain
enough descriptive information to permit a search of their records. The letter also informed
Plaintiff of his right to file an appeal of this determination within ninety (90) days. While Plaintiff
sent a letter with additional information, the information provided did not cure the defects and
Plaintiff failed to file an appeal as required. Defendants are entitled to summary judgment on
Page 26 of 50
Count 11.
Count 12: FOIA #1385029 (Unite the Right Rally)
Summary of FBI Action: This subject was included in Plaintiff’s September 7, 2017
multi-subject request letter as items 1 and 2. The FBI acknowledged the request by letter
dated September 21, 2017, assigning it FOIA # 1385029. The FBI advised the Plaintiff by
letter dated November 15, 2017, that the records requested were exempt from disclosure
pursuant to FOIA Exemption (b)(7)(A) because they are located in a pending investigative
file and disclosure could reasonably be expected to interfere with enforcement proceedings.
Plaintiff filed an administrative appeal by letter dated November 21, 2017. DOJ/OIP
acknowledged receipt of the administrative appeal by letter dated December 7, 2017 and
assigned it tracking number DOJ-AP-2018-001335. By letter dated December 22, 2017,
DOJ/OIP affirmed the FBI’s determination. Plaintiff filed his Complaint with this Court
on April 9, 2018.
Search: The FBI conducted an ST search via ACS of the CRS, using the terms “Unite the
Right Rally,” “Charlottesville Rally” as well as an OTN search of Sentinel using these
same terms. One file was located. The FBI verified the accuracy of the search at the
litigation stage.
Defendants do not seek summary judgment on Count 12 because the records requested are
located in a pending investigative file. The FBI contends the records requested are exempt from
disclosure because they are located in a pending investigative file and disclosure could reasonably
be expected to interfere with enforcement proceedings. The FBI did not release the volume or
records associated with the pending investigation because it did not want to provide insight into
the scope of the investigation. Defendants propose rechecking the request at the conclusion of
processing of records when the status of the investigation is likely to have changed to closed.
Plaintiff seeks summary judgment arguing the FBI has failed to meet the requirements for
an exemption pursuant to (b)(7)(A) because it was not “demonstrated with specificity a logical
connection between the information withheld and an identified investigation.” Plaintiff contends
the Hardy Declaration fails to identify any investigation and fails to specify what records are being
withheld related to that investigation.
Page 27 of 50
The Court finds Plaintiff is not entitled to summary judgment. Plaintiff seeks information
regarding the pending investigation into the Unite the Right rally. The Court finds that while the
investigation is pending, the FBI does not have to provide insight into the scope or information
contained within the investigation.
Providing specific information regarding records being
withheld could provide Plaintiff with insight, that if released, could interfere with the pending
investigation. Plaintiff is not entitled to summary judgment on this count.
Count 13: FOIA # 1385038 (Mike Tubbs)
Summary of FBI Actions: This subject was included as item 4 in Plaintiff’s September 7,
2017 multi-subject request letter. The FBI’s determination by letter dated September 21,
2017 advised the Plaintiff that before the FBI could conduct a search for records on a living
third party, he must submit a privacy waiver, proof of death if deceased, or a justification
that the public interest outweighs the third party’s privacy interest otherwise the FBI could
not confirm nor deny the existence or non-existence of responsive records. The FBI
informed Plaintiff it could neither confirm nor deny the existence of records pursuant to
FOIA exemptions 6 and 7(C). Although Plaintiff submitted additional correspondence by
letter dated September 27, 2017, it did not include the required information that would
allow the FBI to conduct a search.
Plaintiff submitted a new multi-subject request dated February 11, 2018 that included this
subject as item 4, but again failed to provide the requisite information required. By letter
dated March 18, 2018, the FBI again advised the Plaintiff that without proof of death, a
privacy waiver, or justification that the public interest outweighs the privacy interest of the
third party, the FBI could neither confirm nor deny the existence or non-existence of
responsive records pursuant to FOIA Exemptions 6 and 7(C).
Plaintiff included this subject in appeal letter dated March 24, 2016 (received April 9,
2018). 8 Plaintiff filed his Complaint on April 9, 2018. OIP acknowledged receipt of the
appeal by letter dated April 20, 2018 and assigned it appeal number DOJ-AP-2018-004348.
By letter dated May 11, 2018, OIP affirmed the FBI’s determination.
Search: The request remains unperfected; therefore, no search is possible.
Defendants seek summary judgment on Count 13 arguing Plaintiff has not provided
8
FBI believes the 2016 date was a typographical error and the actual letter date was intended to
be 2018.
Page 28 of 50
documentation establishing that the public interest in disclosure outweighs the Third Party’s
privacy interests, thereby warranting a Glomar response. In response, Plaintiff argues there is a
public interest because he believes Tubbs was broadcast live on CNN clubbing Antifa
demonstrators during the rally yet managed to evade arrest. Plaintiff alleges Tubbs was working
for the FBI and deliberately sparked violence at Charlottesville which ultimately led to the murder
of Heather Heyer. Defendants contend the FBI properly denied the request pursuant to Glomar
based on Exemptions 6 and 7(c) and the privacy interest of third parties.
Plaintiff seeks summary judgment on Count 13 arguing there is a public interest in the
release of records that would expose that the FBI’s counter-terrorism units have been involved in
frequent murders over the past two decades. Plaintiff argues that because he believes Tubbs was
broadcast on television engaged at violence at the rally, he has waived his privacy interest as to
the existence of responsive records.
The fact that someone is shown on national television does not indicate that individual has
waived his privacy interests as to the existence of records held by a federal agency. Plaintiff failed
to submit a privacy waiver or proof of death of the third party on which he was seeking records.
Further, Plaintiff’s purported public interest is premised on the fact he believes he saw “Mike
Tubbs” on a television broadcast. Plaintiff failed to provide the FBI with any information to
support his public interest theory. Plaintiff’s declaration as to what he believes he saw on CNN
is not sufficient to outweigh the privacy interest of the third-party. The Court finds the FBI
properly denied the request pursuant to Glomar based on Exemptions 6 and 7(c) and the privacy
interest of third parties. Defendants are entitled to summary judgment on Count 13.
Count 14: FOIA 1385045 (Vanguard America)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated September 7,
Page 29 of 50
2017 that included this subject as item 6. The FBI acknowledged the request by letter dated
September 21, 2017. The FBI advised no responsive records could be located by letter
dated March 8, 2018. Plaintiff appealed by letter dated March 30, 2018. OIP acknowledged
the appeal by letter dated April 20, 2018, assigning it DOJ-AP-2018-004342. By letter
dated June 7, 2018, OIP affirmed the FBI’s determination.
Search: The FBI conducted an ST search of the CRS via ACS and an OTN search of the
CRS via Sentinel on September 20, 2017. The term searched was “Vanguard America”.
No responsive records were located. The FBI verified the accuracy of the search at the
litigation stage.
Defendants seek summary judgment arguing two searches were conducted regarding
Vanguard America and no responsive documents were located. Plaintiff argues the FBI’s search
was unreasonable because they did not run a cross-reference search. Plaintiff, however, did not
specifically request any cross-reference search. The DOJ/OIP affirmed the FBI’s determination
of this request by letter dated June 7, 2018. The Court finds Defendants conducted a reasonable
search for Plaintiff’s actual request and are entitled to summary judgment on Count 14.
Count 15: FOIA # 1390703 (Sacco Vandal, Dillon Hopper, Alexander Dugin, Richard
Spencer, and Billy Roper)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated November 12,
2017, which included requests for information on five third parties identified at items 5-9
of the request. Plaintiff provided no privacy waivers or proof of death for any of the five
third parties. By letter dated December 5, 2017, the FBI advised Plaintiff it could neither
confirm nor deny the existence of third-party records absence proof of death or a privacy
waiver, pursuant to FOIA Exemptions 6 and 7(C). By letter dated December 12, 2017,
Plaintiff asserted release of information on these five individuals was in the public interest
and in support, supplied news articles from publications such as The Nationalist Times and
American Free Press and a copy of his own unsigned affidavit filed in another civil action.
These items were insufficient to overcome the privacy interests of the third parties and
therefore the matter was not re-opened. Plaintiff did not submit an appeal.
Search: The request remains unperfected; therefore, no search is possible.
Defendants seek summary judgment on Count 15 arguing Plaintiff failed to exhaust his
administrative remedies because he did not perfect his request by providing a privacy waiver or
proof of death on the third parties and he failed to appeal. In response, Plaintiff stated he would
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“voluntarily dismiss” this count as it pertains to Vandal, Hopper, and Roper. Regarding the
requests for records on Dugin and Spencer, Plaintiff proffers a public interest justification for the
records. According to Plaintiff, Dugin is a Russian intelligence asset and advisor to Vladimir
Putin who has travelled to the United States to visit “white supremacist extremists.” Plaintiff
asserts a Russian ideological public figure should not have a privacy interest in FBI records. As
to Spencer, Plaintiff contends he was the organizer of the Unite the Right rally and a Glomar
response is improper because he must be the subject of an ongoing FBI investigation.
Defendants acknowledge they received Plaintiff’s December 12, 2017 letter asserting a
public interest but argue the news articles from The Nationalist Times and American Free Press
along with an unsigned affidavit were insufficient to overcome the privacy interests of the third
parties. Defendants argue Plaintiff’s assertion contained no official acknowledgement by the FBI
concerning the existence of records regarding third parties, nor did it provide a privacy waiver or
proof of death as requested. Defendants seek summary judgment for failure to exhaust his
administrative remedies because Plaintiff filed his complaint without filing an administrative
appeal.
Additionally, Defendants contend the FBI properly denied the request pursuant to
Glomar based on Exemptions 6 and 7(c) and the privacy interest of third parties.
The Court finds Plaintiff failed to exhaust his administrative remedies and the FBI properly
denied the request pursuant to Glomar based on Exemptions 6 and 7(c) and the privacy interest of
third parties. Defendants are entitled to summary judgment on Count 15.
Count 16: FOIA # 1390712 (National Policy Institute)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated November 12,
2017, which included this subject as its first item. By letter dated December 5, 2017, the
FBI advised no responsive records could be located. By letter dated December 12, 2017,
Plaintiff supplied additional information through news articles from publications such as
The Nationalist Times and American Free Press and by providing a copy of an unsigned
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affidavit from himself filed in another civil action. These items did not provide any
additional terms or other information that could impact the FBI’s search, therefore a new
search was not conducted. Plaintiff did not submit an appeal.
Search: The FBI conducted a search of its CRS using the search term “National Policy
Institute”. An ST search via ACS and an OTN search via Sentinel was utilized. No main
file records were located. Plaintiff did not request a cross-reference search in his letter. The
FBI verified the accuracy of the search at the litigation stage.
Defendants seek summary judgment arguing Plaintiff failed to perfect his request and
exhaust his administrative remedies. The FBI received Plaintiff’s additional correspondence, but
the items included did not provide any additional terms or other information that could impact the
FBI’s search; therefore, a new search was not conducted. Defendants contend Plaintiff failed to
appeal. Plaintiff seeks summary judgment arguing he responded to the FBI’s letter and provided
additional information but did not receive a response, therefore, he constructively exhausted his
administrative remedies.
The Court finds Plaintiff failed to exhaust his administrative remedies as to this request.
The December 5, 2017 letter informed Plaintiff no responsive records were located. The letter
also informed Plaintiff of his right to file an appeal of this determination within ninety (90) days.
While Plaintiff sent a letter with additional information, the information provided did not include
additional search terms or request a cross-reference search and Plaintiff failed to file an appeal as
required. The Court finds Defendants conducted a reasonable search and are entitled to summary
judgment on Count 16.
Count 17: FOIA #1390754 (October 2017 White Lives Matter Rally in Tennessee)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated November 12,
2017, which included this subject at item 3. By letter dated December 5, 2017, the FBI
acknowledged the Plaintiff’s request. Records were located and are currently awaiting
processing by a FOIA analyst. Plaintiff filed his Complaint on April 9, 2018.
Search: The FBI conducted a search of the CRS using the search terms “White Lives
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Matter” and limited to records pertaining specifically to an October 2017 event in
Tennessee. An ST search of the CRS via ACS was utilized as well as an OTN search of
the CRS via Sentinel. Approximately 436 pages of potentially responsive records were
located. The FBI verified the accuracy of the search at the litigation stage.
Defendants do not seek summary judgment regarding Count 10 as approximately 436
additional responsive pages currently await processing. The FBI is processing the request at 500
pages per month. Plaintiff’s motion seeks summary judgment on Count 17 but makes no specific
argument as to why he is entitled to summary judgment regarding this count. Plaintiff has not
met his burden and is not entitled to summary judgment.
Count 18: FOIA # 1390777 (Identity Europa)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated November 12,
2017, which included this subject at item 2. By letter dated December 5, 2017, the FBI
advised Plaintiff it could locate no records responsive to the request. By letter dated
December 12, 2017, Plaintiff supplied additional information through news articles from
publications such as The Nationalist Times and American Free Press and by providing a
copy of an unsigned affidavit from himself filed in another civil action. These items did
not provide any additional terms or other information that could impact the FBI’s search,
therefore a new search was not conducted. Plaintiff did not submit an appeal. Plaintiff filed
his Complaint on April 9, 2018.
Search: The FBI conducted a search of the CRS using the search terms “Identity Europa”
as provided in the request. In addition, based on other similar requests made to the FBI, the
term “Identity Evropa” and “National Youth Front” were also searched. The FBI searched
the CRS via an OTN search in Sentinel and an ST search of the CRS via ACS. No
responsive main file records were located. The FBI verified the accuracy of the search at
the litigation stage.
Defendants seek summary judgment arguing no records were responsive to his request and
Plaintiff failed to perfect his request. The FBI received Plaintiff’s additional correspondence, but
the items included did not provide any information that could locate records. Defendants contend
Plaintiff failed to appeal. Plaintiff seeks summary judgment arguing he responded to the FBI’s
letter and provided additional information but did not receive a response, therefore, he
constructively exhausted his administrative remedies.
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The Court finds Plaintiff failed to exhaust his administrative remedies as to this request.
The December 5, 2017 letter informed Plaintiff no responsive records were located. The letter
also informed Plaintiff was his right to file an appeal of this determination within ninety (90) days.
While Plaintiff sent a letter with additional information, the information provided did not provide
additional search terms or request a cross-reference search and Plaintiff failed to file an appeal as
required. The Court finds Defendants conducted reasonable searches and are entitled to summary
judgment on Count 18.
Count 19: FOIA #1391518 (Anti-Communist Action)
Summary of FBI Actions: Plaintiff submitted a multi-subject request dated November 12,
2017, which included this subject at item 4. By letter dated December 15, 2017, the FBI
advised Plaintiff it could locate no main file records responsive to his request. Plaintiff
provided additional information by letter dated December 27, 2017, noting that the subject
is associated with a White Nationalist rally that occurred in Shelbyville, TN in late October
2017. By letter dated January 5, 2018, the FBI advised that despite an additional search, no
responsive records could be located. Plaintiff appealed the FBI’s response by letter dated
March 30, 2018. OIP assigned Plaintiff’s DOJ-AP-2018-004342 to Plaintiff’s appeal.
Plaintiff filed his Complaint on April 9, 2018.
Search: The FBI conducted a main file ST search of the CRS using ACS, an OTN search
of Sentinel, and an OTN search of the manual index cards utilizing the term “Anti
Communist Action”. The search cut-off date was December 15, 2017. In January 2018,
another search was conducted utilizing the additional information and again. The FBI
conducted an ST search of the CRS utilizing ACS and an OTN search of the CRS utilizing
Sentinel, no records were located. The FBI verified the accuracy of the search at the
litigation stage.
Defendants seek summary judgment arguing five searches were conducted regarding AntiCommunist Action and no responsive documents were located. Plaintiff argues the FBI’s search
was unreasonable because they did not run a cross-reference search. Plaintiff, however, did not
specifically request any cross-reference search.
The Court finds Defendants conducted a
reasonable search for Plaintiff’s actual request and are entitled to summary judgment on Count 19.
Count 20: FOIA # 1385031 (Ike Baker)
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Summary of FBI Actions: This subject was included in Plaintiff’s September 7, 2017
multi-subject request letter at item 3. The FBI’s determination by letter dated September
21, 2017 advised the Plaintiff that before the FBI could conduct a search for records on a
living third party, he must submit a privacy waiver, proof of death if deceased, or a
justification that the public interest outweighs the third party’s privacy interest otherwise
the FBI could not confirm nor deny the existence or non-existence of responsive records.
The FBI informed Plaintiff it could neither confirm nor deny the existence of records
pursuant to FOIA exemptions 6 and 7(C). Although Plaintiff submitted additional
correspondence by letter dated September 27, 2017, it did not include the required
information that would allow the FBI to conduct a search.
Plaintiff submitted a new multi-subject request dated February 11, 2018 that included this
subject at item 5, but again failed to provide the requisite information required. By letter
dated March 18, 2018, the FBI again advised the Plaintiff that absent proof of death, a
privacy waiver, or justification that the public interest outweighs the privacy interest of the
third party, the FBI could neither confirm nor deny the existence or non-existence of
responsive records pursuant to FOIA Exemptions 6 and 7(C).
Plaintiff included this subject in appeal letter dated March 24, 2016 (received April 9,
2018) 9. Plaintiff filed his Complaint on April 9, 2018. OIP acknowledged receipt of the
appeal by letter dated April 20, 2018 and assigned it appeal number DOJ-AP-2018-004348.
By letter dated May 11, 2018, OIP affirmed the FBI’s determination.
Search: The request remains unperfected; therefore, no search is possible.
Defendants seek summary judgment on Count 20 arguing Plaintiff has not provided
documentation establishing that the public interest in disclosure outweighs the Third Party’s
privacy interests, thereby warranting a Glomar response. In response, Plaintiff argues there is a
public interest because he believes Baker was a white nationalist demonstrator trained by the FBI
to attack the Antifa counterdemonstrators at the Charlottesville Unite the Right rally. Defendants
contend the FBI properly denied the request pursuant to Glomar based on Exemptions 6 and 7(c)
and the privacy interest of third parties.
Plaintiff asks the Court not to make a determination as to Count 20 until he receives records
9
FBI believes the 2016 date was a typographical error and the actual letter date was intended to
be 2018.
Page 35 of 50
regarding Count 12. Plaintiff contends he needs the records regarding the Unite the Right rally
in order to prove there are responsive records to this request.
Plaintiff failed to submit a privacy waiver or proof of death of the third party on which he
was seeking records. Further, Plaintiff admits he has little evidence to support his purported
public interest. The Court finds the FBI properly denied the request pursuant to Glomar based on
Exemptions 6 and 7(c) and the privacy interest of third parties. Defendants are entitled to
summary judgment on Count 20.
Count 21: FOIA # Not Assigned (Willis Carto, Michael Piper, Victor Thorn, Lou
Barletta, Michael Burks, John Wyczlinski, Christopher John Brooks, Dustin Ryan Perry,
Kent Ryan McLellan, Verlin Clifford Lewis, Paul Wilard Jackson, Richard Adam Stockdale,
Marcus Faella, Patricia Faella, Diane Stephanie Stacy, Luke Leger, Jon Morgan, Dan
Freiberg, Randall Kraeger, Brien James)
Summary of FBI Actions: By letter dated February 27, 2018, plaintiff submitted a 37
subject request letter (seeking both main and reference files), a portion of which were third
parties identified in Plaintiff’s Complaint at Count 21. 10 Plaintiff did not provide proof of
death or privacy waivers for the third party individuals. The FBI is unable to locate an
assigned FOIA tracking number for this part of Plaintiff’s request or a final determination
letter. Plaintiff filed his complaint on April 9, 2018. The FBI can neither confirm nor deny
the existence of third party records without proof of death or a privacy waiver, pursuant to
FOIA Exemptions 6 and 7(C).
Defendants seek summary judgment arguing the records of these living third parties are
exempt pursuant to Exemption 6 and 7(c) and Glomar. Defendants state that if Plaintiff provides
proof of death or a privacy waiver for any of the third parties, the FBI will reopen the request and
conduct a search.
Plaintiff states he “voluntarily dismisses” Wyczlinski, Brooks, Perry, McLellan, Lewis,
Stockdale, Marcus Faella, Patricia Faella, Leger, Barletta, and Kraeger from this count. Plaintiff
argues the FBI cannot invoke Glomar to withhold records two years after the request and for the
10
These third-party individuals were listed in the request as items 5-8, 15-26, 28-29, 31, and 33.
Page 36 of 50
first time in the motion. Plaintiff states that Carto, Piper, and Thorn are deceased. Plaintiff
alleges Morgan and Friberg are barred by the State Department from entering the United States
because of their relationship with Dugin and therefore some FBI records must exist. Finally,
Plaintiff states Brian James was an FBI informant and asks the Court to withhold ruling on the
request as to James until he receives records from other requests so that he can demonstrate public
interest.
While there was no final determination letter issued in the 41 days between the date of
Plaintiff’s request and the date he filed suit, Plaintiff failed to perfect this request. As Plaintiff
has been informed repeatedly, the FBI can neither confirm nor deny the existence of third-party
records without proof of death or a privacy waiver, pursuant to FOIA Exemptions 6 and 7(C).
Plaintiff has indicated a number of these parties are now deceased. If that is the case, as indicated
by the FBI’s response, when Plaintiff provides proof of death or a privacy waiver for any of the
third parties, the FBI will reopen the request and conduct a search. As Plaintiff failed to perfect
this request, Defendants are entitled to summary judgment on Count 21.
Count 22: FOIA # 1398616 (New Jersey Ku Klux Klan groups 2004-2008)
Summary of FBI Actions: Plaintiff included this subject (item 9) in his multi-subject
request dated February 27, 2018, seeking both main and reference files. By letter dated
March 19, 2018, the FBI advised Plaintiff it could locate no records responsive to his
request. Plaintiff submitted an administrative appeal to OIP by letter dated March 29, 2018
alleging the FBI employed an exclusion. OIP assigned the appeal DOJ-AP-2018-004407.
Plaintiff filed his Complaint on April 9, 2018. By letter dated June 1, 2018, OIP affirmed
the FBI’s determination. Plaintiff provided additional correspondence to the FBI on
October 28, 2018; however, the information submitted by Plaintiff provided nothing
additional that would warrant further or a different search.
Search: The FBI conducted a search of the CRS. An ST via ACS utilized the following
terms: “Ku Klux Klan” “KKK” “Ku Klux Klan New Jersey” “KKK New Jersey” “KKK
in New Jersey” “Ku Klux Klan NJ” “KKK NJ” “Ku Klux Klan In NJ” ”KKK in NJ”. Next,
an OTN search via ACS was conducted using the following terms “Ku Klux Klan” “KKK”
“Ku Klux Klan New Jersey” ”KKK New Jersey” ”Ku Klux Klan In New Jersey” “Ku Klux
Page 37 of 50
Klan NJ”, “KKK NJ”. The search was limited to records originating in the Newark and
Philadelphia field offices between 2004 and 2008. The search cut-off date was March 13,
2018. The FBI verified the accuracy of the search at the litigation stage.
Defendants seek summary judgment arguing searches were conducted regarding New
Jersey KKK Groups and no responsive documents were located. Plaintiff argues records should
exist citing an exhibit labelled “J(p)-(s)” 11 and asserts the FBI’s search was unreasonable because
they did not run a cross-reference search. The Court finds Defendants conducted a reasonable
search using multiple search terms for Plaintiff’s request and Defendants are entitled to summary
judgment on Count 22.
Count 23: FOIA # 1398619 (Outlaw Hammerskins)
Summary of FBI Actions: Plaintiff included this subject (item 35) in his multi-subject
request dated February 27, 2018, seeking both main and reference files. By letter dated
March 19, 2018, the FBI acknowledged receipt of the Plaintiff’s request. Plaintiff filed the
instant Complaint on April 9, 2018. By letter dated April 30, 2018, the FBI advised Plaintiff
that although potentially responsive records were located it determined the records contain
subject matter that the Federal Bureau of Prisons has categorized as prohibited within its
facility and therefore the request would be closed. Plaintiff was also advised that should he
provide an alternative address, the request would be reopened for processing. Plaintiff
submitted additional correspondence on May 3, 2018, challenging the FBI’s statement that
the prison location prohibits such materials and again requested the responsive records be
mailed to his prison address.
Search: The FBI conducted an ST search of the CRS via ACS using the term “Outlaw
Hammerskins”. The FBI also conducted an OTN search via ACS using the terms “OHS”
and “Indiana Outlaw Hammerskins” and “Outlaw Hammerskins”. An OTN search via
Sentinel was also conducted utilizing the terms “Outlaw Hammerskins” “OHS” and
“Indiana Outlaw Hammerskins”. The FBI searched for both main file and cross-reference
records. A search cut-off date of March 13, 2018 was used. The FBI verified the accuracy
of the search at the litigation stage.
Approximately 850 additional pages of potentially responsive records were located in the
search; however, should Plaintiff wish to re-open this request, the FBI cannot proceed with
processing this request without authorization to send non-exempt records responsive to this
request to an alternative address.
11
The Court is unable to identify “Exhibit J(p)-(s)” in Plaintiff’s filings.
Page 38 of 50
Defendants seek summary judgment on Count 23 arguing due to Prison policy the subject
matter contained within these records cannot be sent to the address provided by the requester.
Plaintiff responded to the motion stating the records could be released on CD to the Derwood,
Maryland address on file, rather than to his prison address. Plaintiff seeks summary judgment
arguing the FBI has records and has failed to produce them.
The Court finds Defendants appropriately responded to this request in compliance with
BOP policy. Refusal to send prohibited materials to a prison address does not violate FOIA. The
FBI appropriately responded by offering to send the responsive records to an alternative address.
Defendants are entitled to summary judgment on Count 23.
Count 24: FOIA # 1398644 (Barnes Review, a historical magazine based in Washington DC
and Los Angeles, CA)
Summary of FBI Actions: Plaintiff included this subject at item 2 in his February 27, 2018
multi-subject request, seeking both main and reference files. By letter dated March 19,
2018, the FBI acknowledged receipt of the request. By letter dated April 3, 2018, the FBI
advised the Plaintiff it could not locate any records responsive to his request. Plaintiff filed
the instant Complaint on April 9, 2018, and filed his administrative appeal with OIP by
letter dated April 12, 2018. OIP acknowledged the appeal by letter dated May 7, 2018,
assigning it DOJ-AP-2018-004786. On June 8, 2018, OIP advised Plaintiff it affirmed the
FBI’s response.
Search: The FBI conducted an ST search of the CRS via ACS using the terms “Barnes
Review” and “TBR”. An OTN search of both Sentinel and ACS was conducted using these
same terms. The search cut-off date was March 13, 2018. The FBI verified the accuracy of
the search at the litigation stage.
Defendants seek summary judgment arguing two searches were conducted regarding The
Barnes Review and no responsive documents were located. Plaintiff argues the FBI’s search was
unreasonable because they did not run a cross-reference search. The DOJ/OIP affirmed the FBI’s
determination of this request by letter dated June 8, 2018.
The Court finds Defendants conducted a reasonable search of main files, but Defendants
Page 39 of 50
fail to state whether they conducted a cross-reference search. However, Plaintiff failed to exhaust
his administrative remedies as to this request because he did not appeal the FBI’s determination
prior to filing suit. Defendants are entitled to summary judgment on Count 24.
Count 25: FOIA # 1398672 (Ku Klux Klan rally, Antietam, Maryland 2006)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 10 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
advised by letter dated March 19, 2018 no responsive records were located. Plaintiff
submitted an administrative appeal to OIP by letter dated March 29, 2018 alleging the FBI
employed an exclusion. Plaintiff filed the instant Complaint on April 9, 2018. OIP
acknowledged receipt of the appeal by letter dated April 20, 2018, assigning it DOJ-AP2018-004347. OIP affirmed the FBI’s “no records” determination by letter dated June 1,
2018. Plaintiff sent additional correspondence by letter dated September 30, 2018, advising
that he had received documents in a separate litigation and request (16-cv-948) identifying
the existence of responsive records on this subject [FBI(16cv948)-2909].
Search: The FBI conducted an ST search of the CRS via ACS using the following terms:
“Ku Klux Klan Rally”, “KKK Rally”, “Antietam”, “Antietam, Maryland”, “Antietam,
MD”, “Ku Klux Klan Antietam”, and “KKK Antietam”. The FBI also conducted an OTN
search using the same terms. The location and date were used as limiters, as well as a search
cut-off date of March 13, 2018. The FBI included main files and cross-references in the
search. The FBI verified the accuracy of the search at the litigation stage.
Defendants seek summary judgment arguing searches were conducted regarding Antietam
Maryland KKK Rally and no responsive documents were located. Plaintiff argues records should
exist and because the FBI did not locate such records the search could not have been reasonable.
The DOJ/OIP affirmed the FBI’s determination of this request by letter dated June 1, 2018. The
Court finds Defendants conducted a reasonable search for Plaintiff’s request and Defendants are
entitled to summary judgment on Count 25.
Count 26: FOIA # 1398724 (Ku Klux Klan rally, Hazelton, Pennsylvania 2007)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 11 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
advised by letter dated March 19, 2018, the FBI advised Plaintiff it could locate no records
responsive to the request. Plaintiff submitted an administrative appeal to OIP by letter dated
March 29, 2018 alleging the FBI employed an exclusion. Plaintiff filed the instant
Page 40 of 50
Complaint on April 9, 2018. OIP acknowledged the appeal, assigning it DOJ-AP-2018004408. By letter dated April 27, 2018, OIP advised it was affirming the FBI’s
determination.
Search: The FBI conducted an ST and OTN search of the CRS via ACS using the following
terms: “Ku Klux Klan Hazelton”, “Ku Klux Klan Hazelton, PA”, Ku Klux Klan Hazelton,
Pennsylvania”, “KKK Hazelton”, “KKK Hazelton, PA”, “KKK Hazelton, Pennsylvania”,
“Hazelton”, “Hazelton, PA”, “Hazelton, Pennsylvania”. The location and date were used
as limiters, as well as a search cut-off date of March 13, 2018. The FBI included main files
and cross-references in the search. The FBI verified the accuracy of the search at the
litigation stage.
Defendants seek summary judgment arguing searches were conducted regarding Hazelton,
PA KKK rally and no responsive documents were located. Plaintiff argues records should exist
and because the FBI did not locate such records the search could not have been reasonable. The
DOJ/OIP affirmed the FBI’s determination of this request by letter dated April 27, 2018. The
Court finds Defendants conducted a reasonable search for Plaintiff’s request and Defendants are
entitled to summary judgment on Count 26.
Count 27: FOIA # 1399310 (Arktos, a book publishing company based, at different times, in
Britain, Hungary, and India)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 27 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 23, 2018. By letter dated March
28, 2018, the FBI informed Plaintiff it could locate no records responsive to the subject of
his request. Plaintiff filed the instant Complaint on April 9, 2018, and Plaintiff submitted
an administrative appeal to DOJ/OIP by letter dated May 3, 2018. OIP acknowledged
receipt of the appeal by letter dated May 30, 2018, assigning it DOJ-AP-2018-005736. By
letter dated July 11, 2018, OIP affirmed the FBI’s determination.
Search: The FBI conducted two searches for responsive records. Initially, the FBI only
searched for main file records. In that search, the FBI conducted an ST search of the CRS
via ACS using the terms “Arktos” and “Arktos Media”. It also conducted an OTN search
of the CRS via Sentinel using the same terms. The search cut-off date was March 23, 2018.
Next, the FBI (realizing cross-references had been omitted during the initial search)
repeated the same searches but including cross-references. The search cut-off for the
second search was March 30, 2018. The FBI verified the accuracy of the search at the
litigation stage.
Page 41 of 50
Defendants seek summary judgment on Count 27 arguing no records responsive to
Plaintiff’s request were located. Plaintiff does not object to Defendants’ motion on this Count.
As Plaintiff does not object, the Court grants Defendants summary judgment on Count 27.
Count 28: FOIA # 1399311 (Volksfront, a skinhead organization in the Northwest United
States)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 30 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 23, 2018. Plaintiff filed the
instant Complaint on April 9, 2018. Plaintiff was advised by letter dated April 20, 2018
that the subject of the request is characterized as material prohibited within his prison
facility and therefore the FBI was closing the request until an alternative address could be
provided. By letter dated April 27, 2018, Plaintiff provided an alternative address. By letter
dated May 21, 2018, the FBI acknowledged the re-opening of Plaintiff’s request for further
processing. By letter dated July 9, 2018, the FBI provided 184 pages of information
previously processed for another requester at no charge, and informed Plaintiff additional
pages were available for processing. Plaintiff was asked to respond if he also wished to
receive those pages. By letter dated August 2, 2018, Plaintiff filed an appeal with DOJ/OIP
concerning the FBI’s redactions on the previously processed pages he received. In early
August Plaintiff responded to the FBI’s July 9, 2018 letter, advising he would like to
receive the additional material. The FBI advised Plaintiff by letter dated August 14, 2018,
approximately 8,518 pages of additional potentially responsive records exist and if he
wished to receive all material on CD he would owe approximately $270.00 in duplication
fees (or $425.90 if in paper, to the alternative address). Plaintiff was also advised he would
need to pay 50% of the estimated cost upfront before processing would begin ($135 for
release on CDs or $212.95 for paper) and was asked to respond in 30 days or the request
would be closed. On or about August 22, 2018, Plaintiff responded advising he was willing
to pay the estimated duplication costs for releases on CD to the alternate address provided;
however, he did not enclose payment. By letter dated August 23, 2018, OIP acknowledged
receipt of Plaintiff’s appeal concerning the previously processed material, assigning it
DOJ-AP-2018-007813. By letter dated September 28, 2018, OIP responded to Plaintiff’s
appeal, advising it upheld the FBI’s determinations as to FOIA Exemptions 1, 3, 6, 7(C),
7(D), and 7(E); however, it would also refer the Exemption 1 information to DOJ’s
Department Review Committee (DRC) to determine if the information should remain
classified.
Plaintiff submitted payment in the amount of $135.00 on or about August 13, 2019, and
the request has been re-opened for processing of the remaining records as part of this
litigation.
Search: The FBI conducted an ST search of the CRS via ACS using the term “Volksfront”.
It also conducted an OTN search using Sentinel. The search cut-off date utilized was March
Page 42 of 50
23, 2018 and the search included main files and cross-references. The search was verified
at the litigation stage. Potentially responsive records were located during the search.
Defendants do not seek summary judgment regarding Count 28 as approximately 10,668
additional responsive pages currently await processing and 219 media items await processing.
The FBI is processing the request at 500 pages per month. Plaintiff does not seek summary
judgment on this Count.
Count 29: FOIA # 1399312 (Ohio State Skinheads)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 34 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 23, 2018. Plaintiff filed the
instant Complaint on April 9, 2018. Plaintiff was advised by letter dated April 20, 2018
that the subject of the request is characterized as material prohibited within his prison
facility and therefore the FBI was closing the request until an alternative address could be
provided. By letter dated May 29, 2018, the FBI advised the Plaintiff the request had been
reopened for further processing. The FBI advised Plaintiff by letter dated June 27, 2018,
the FBI had completed its search for potentially responsive records and no responsive
records were located.
Search: The FBI conducted an ST search of the CRS via ACS using the term “Ohio State
Skinheads”. It also conducted an OTN search using Sentinel. The search cut-off date
utilized in the search was March 28, 2018 and both main files and cross-references were
included in the search. The search was verified at the litigation stage. No responsive records
were located during the search. 12 The search cut-off date utilized was May 30, 2018.
Defendants seek summary judgment arguing searches were conducted regarding Ohio
State Skinheads and no responsive documents were located. Plaintiff argues because records
were located in a cross-reference search but not provided, the FBI has failed to comply with the
FOIA request. The FBI determined the cross-referenced hits mentioned Ohio State Skinheads,
but were not about the group itself.
12
The FBI did locate the term “Ohio State Skinheads” but determined these hits were only mere
mentions of the group and not substantively about the group itself. These non-substantive mere
mentions were considered by the FBI non-responsive to the request for information concerning the
group.
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The Court finds the FBI conducted a reasonable search. In every FOIA request the agency
determines what records are and are not responsive to the request. Here, the FBI has indicated
there were no records responsive to Plaintiff’s request. Defendants are entitled to summary
judgment on Count 29.
Count 30: FOIA # 1398640 (The Spotlight, a Washington, DC area newspaper)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 4 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 19, 2018. By letter dated March
28, 2018, the FBI advised Plaintiff that “unusual circumstances” 13 applied to the
processing of the request. Plaintiff filed the instant Complaint on April 9, 2018.
Search: The FBI conducted an ST search of the CRS via ACS and an OTN search of the
CRS via ACS, with both searches including the terms “Spotlight” and “The Spotlight”.
Main files and cross-references were included in the search. The search cut-off date was
March 13, 2018. Potentially responsive records were located. The search was verified at
the litigation stage.
Defendants do not seek summary judgment regarding Count 30 as approximately 204
additional responsive pages currently await processing and the FBI is processing the request at 500
pages per month. Plaintiff seeks summary judgment arguing the FBI has responsive records and
has failed to promptly provide them.
The Court finds given the large volume and complexity of responding to Plaintiff’s request,
releasing documents at the rate of 500 pages per month balances the need for transparency in
government with the allocation of the FBI’s limited resources. Plaintiff is not entitled to summary
judgment.
13
Unusual circumstances means the FBI has determined that one or more of the following
scenarios apply: (1) there is a need to search for and collect records from field offices and/or other
offices that are separate from the FBI Record/Information Dissemination Section (RIDS); (2) there
is a need to search for, collect, and examine a voluminous amount of separate and distinct records;
or (3) there is need for consultation with another agency or two or more DOJ components.
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Count 31: FOIA # 1398647 (American Free Press, a Washington, DC area newspaper)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 1 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 19, 2018. By letter dated March
28, 2018, the FBI advised Plaintiff that “unusual circumstances” applied to the processing
of the request. Plaintiff filed the instant Complaint on April 9, 2018. By letter dated April
20, 2018, the FBI advised Plaintiff it had completed its search and no records responsive
to his request were located. Plaintiff filed an administrative appeal with DOJ/OIP by letter
dated May 3, 2018. OIP acknowledged receipt of the appeal by letter dated May 30, 2018,
assigning it DOJ-AP-2018-005735. OIP advised Plaintiff by letter dated September 14,
2018, it was affirming the FBI’s determination.
Search: The FBI conducted an ST search of the CRS via ACS and an OTN search of the
CRS via ACS, with both searches including the term “American Free Press”. The FBI also
searched the CRS via an OTN search of Sentinel using the same term. The search cut-off
date was March 13, 2018. No responsive records were located. The search was verified at
the litigation stage.
Defendants seek summary judgment on Count 31 arguing no records responsive to
Plaintiff’s request were located. Plaintiff argues the FBI’s search was unreasonable because they
did not run a cross-reference search. The DOJ/OIP affirmed the FBI’s determination of this
request by letter dated September 14, 2018. Plaintiff does not seek summary judgment regarding
this Count.
The Court finds Defendants conducted a reasonable search of main files, but Defendants
fail to state whether they conducted a cross-reference search. Regardless, Plaintiff failed to
exhaust his administrative remedies as to this request because he did not appeal the FBI’s
determination prior to filing suit. Defendants are entitled to summary judgment on Count 31.
Count 32: FOIA # 1398777 (New Order, a group in Wisconsin, formerly known as the
National Socialist White People’s Party)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 13 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 23, 2018 and advised Plaintiff
that previously processed records on this subject are available in the FBI’s FOIA Library
(The Vault). Plaintiff was also advised that additional records potentially responsive to the
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request may exist and if he would like a search for additional records he would need to
inform the FBI of his decision. Plaintiff filed the instant Complaint on April 9, 2018. By
letter dated April 21, 2018, the Plaintiff filed an administrative appeal with DOJ/OIP
advising as a prisoner he lacked access to the FBI’s website and requested an electronic
copy of the records be sent to an alternative address and a paper copy be sent to him at
prison. OIP acknowledged receipt of the appeal by letter dated May 15, 2018, assigning
it DOJ-AP-2018-005186. OIP advised by letter dated June 21, 2018 it was remanding the
request to the FBI for further processing of the records. On August 3, 2018, in response to
OIP’s remand, the FBI advised Plaintiff it was reopening the request. By letters dated
August 17, 2018, the FBI forwarded 120 pages of previously processed records (a portion
of the records available on the FBI’s FOIA Library) at no charge to the alternative address
he provided. Plaintiff was again advised that if the previously processed material did not
satisfy his needs he would need to request an additional search. By a second letter that same
date, the FBI advised Plaintiff that the records could not be sent to the prison as they are
considered prohibited by the facility, and instead an electronic copy was sent to the
alternate address noted in his appeal letter. Plaintiff responded by letter dated August 30,
2018, acknowledging the 120 pages were received and advising he wished to receive
additional material specifically relating to New Order, including both main file records and
cross-references.
Search: The FBI conducted a search at the litigation stage using the terms: “New Order”.
An ST search of the CRS via ACS and an OTN search via Sentinel was conducted. The
search cut-off date utilized was April 4, 2019. Approximately 7,540 pages of potentially
responsive records were located.
Defendants do not seek summary judgment regarding Count 32 as approximately 7,504
additional responsive pages currently await processing. The FBI is processing the request at 500
pages per month. Plaintiff seeks summary judgment arguing he only received 120 pages of
records and is entitled to all of the records.
The Court finds given the large volume and complexity of responding to Plaintiff’s request,
releasing documents at the rate of 500 pages per month balances the need for transparency in
government with the allocation of the FBI’s limited resources. Plaintiff is not entitled to summary
judgment.
Count 33: FOIA # 1398811 (Imperial Knights of the Ku Klux Klan)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 36 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
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acknowledged receipt of the request by letter dated March 19, 2018. Plaintiff filed the
instant Complaint on April 9, 2018. The FBI advised Plaintiff in a letter dated April 12,
2018, previously processed records on this subject are available in the FBI’s FOIA Library
(The Vault). Plaintiff was also advised that additional records potentially responsive to the
request may exist and if he would like a search for additional records he would need to
inform the FBI of his decision. By letter dated April 17, 2018, the Plaintiff filed an
administrative appeal with DOJ/OIP advising as a prisoner he lacked access to the FBI’s
website and requested a paper copy be sent to him at prison. OIP acknowledged receipt of
the appeal by letter dated May 10, 2018, assigning it DOJ-AP-2018-004964. OIP advised
by letter dated September 13, 2018 it was remanding the request to the FBI for the purpose
of sending paper copies of the records.
Search: The FBI conducted a ST and OTN search of the CRS via ACS, an ST and OTN
search via Sentinel, and a search of the manual indices via an OTN search using the
following terms, “Imperial Knights of the Ku Klux Klan”, “Imperial Knights of the Ku
Klux Klan of America”, and “IKA”. The search cut-off date utilized was March 14, 2018.
Potentially responsive records were located.
Defendants do not seek summary judgment regarding Count 33 as approximately 340
additional responsive pages currently await processing. The FBI is processing the request at 500
pages per month.
Plaintiff seeks summary judgment arguing it has been months since he
requested the records and the FBI has failed to promptly provide them.
The Court finds given the large volume and complexity of responding to Plaintiff’s request,
releasing documents at the rate of 500 pages per month balances the need for transparency in
government with the allocation of the FBI’s limited resources. Plaintiff is not entitled to summary
judgment.
Count 34: FOIA # 1399307 (Unite the Right Rally Report authored by former AUSA
Timothy Heaphy, and released publicly)
Summary of FBI Actions: Plaintiff submitted a request for this subject as item 14 of his
February 27, 2018 letter seeking both main file records and cross-references. The FBI
acknowledged receipt of the request by letter dated March 23, 2018. Plaintiff filed the
instant Complaint on April 9, 2018. By letter dated April 10, 2018, the FBI advised the
requested information was located in a currently pending investigative file that is exempt
from disclosure pursuant to FOIA Exemption (b)(7)(A). On April 17, 2018, Plaintiff filed
an administrative appeal with DOJ/OIP concerning the FBI’s response, challenging the
FBI’s application of FOIA Exemption (b)(7)(A) to the records. OIP acknowledged receipt
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of the appeal by letter dated May 10, 2018, assigning it DOJ-AP-004965. OIP advised the
Plaintiff by letter dated August 23, 2018, it was remanding the request to the FBI for further
consideration. By letter dated November 30, 2018, the FBI advised that after completing a
search for the responsive record, it was unable to locate the specific record and was closing
the request. By letter dated December 17, 2018, Plaintiff filed another administrative
appeal with OIP, alleging the FBI was lying about the record. OIP advised Plaintiff on
August 2, 2019, it was closing the appeal per DOJ regulations at 28 C.F.R. §16.8(b)(2)
(2018) once an appeal becomes the subject of litigation it is not acted upon.
Search: The FBI conducted an OTN search of the CRS via Sentinel, using the following
terms: “Unite the Right Rally”, “Unite the Right”, “Timothy Heaphy”, “Tim Heaphy”,
“Charlottesville Rally”, “Unite the Right Rally Report”, and “Unite the Right
Charlottesville”. Although records were located concerning the rally, the specific report
sought was not found in the records. 14 The search cut-off date utilized was November 28,
2018, and this search was conducted and verified at the litigation stage.
Defendants seek summary judgment on Count 34 arguing no records responsive to
Plaintiff’s request were located. Plaintiff responded that the FBI’s response was “absurd” but that
as he was obtaining the report by other means, he does not contest the motion for summary
judgment on this count.
Defendants are granted summary judgment as to Count 34.
Sua Sponte Grant of Summary Judgment
Given that the Court has determined the FBI’s response up to this point does not violate
FOIA, the Court plans to sua sponte grant summary judgment on Counts 3, 4, 5, 10, 12, 17, 28,
30, 32, and 33. To establish a cause of action under the FOIA, a plaintiff must show that, in
response to a valid FOIA request, “an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency
records.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)
(quoting 5 U.S.C. § 552(a)(4)(B)). The Court has determined that the FBI has not improperly
14
Given that the report is described by Plaintiff as a report authored by a former AUSA and not
by the FBI, it is not unusual that the FBI would not have a copy within its file. The FBI conducted
a text search within the relevant file; however, it was still unable to locate the requested report.
Page 48 of 50
withheld records. The Court has found the FBI’s searches were reasonable and the current
schedule of processing records at the rate of 500 pages per month is reasonable, and the Court sees
no need to keep this case pending for more than nine years while the FBI proceeds with producing
the records. It is not in the interest of judicial efficiency to leave a case languishing on the Court’s
docket for such a lengthy period of time. Should the FBI stop processing the records at the rate
of 500 pages per month, Plaintiff may have a new FOIA claim. The Court’s granting of summary
judgment on this count should be interpreted as a review only of the FBI’s actions up to the date
of this Order.
Under Federal Rule of Civil Procedure 56(f), the Court may grant summary judgment
independent of a motion provided the parties are given notice and a reasonable time to respond.
Accordingly, the Court ORDERS Plaintiff and Defendants to respond to the Court’s proposed
entry of judgment on these counts within 30 days.
Any opposition must be supported by
competent evidence demonstrating a genuine issue of material fact exists that prevents this Court
from entering judgment as a matter of law.
Conclusion
For the reasons set forth above, the Motion for Partial Summary Judgment (Doc. 37) filed
by Plaintiff is DENIED; the Motion for Partial Summary Judgment (Doc. 51) filed by Defendants
is GRANTED; judgment shall be entered in favor of Defendants and against Plaintiff on counts
6-9, 11, 13-16, 18-27, 29, and 31 at the close of the case; and the parties are ORDERED to respond
to the Court’s proposed entry of judgment pursuant to Rule 56(f) on counts 3-5, 10, 12, 17, 28, 30,
32-33 within 30 days of the date of this Order.
IT IS SO ORDERED.
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DATED: March 17, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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