Braun v. Federal Bureau of Investigation
ORDER denying 48 MOTION for Order/Judgment filed by David Steven Braun, denying 43 MOTION for Leave to File filed by David Steven Braun, Motions terminated: 43 MOTION for Leave to File filed by David Steven Braun, 48 MOTION for Ord er/Judgment filed by David Steven Braun., FINDINGS AND RECOMMENDATIONS re 32 MOTION for Partial Summary Judgment filed by David Steven Braun, 35 MOTION for Summary Judgment filed by Federal Bureau of Investigation. () Signed by Magistrate Judge Jeremiah C. Lynch on 12/28/2016. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
DAVID STEVEN BRAUN,
ORDER, and FINDINGS
FEDERAL BUREAU OF
Before the Court are: (1) Plaintiff David Braun’s Fed. R. Civ. P. 56 motion
for summary judgment, and (2) Defendant Federal Bureau of Investigation’s (FBI)
cross motion for summary judgment under Rule 56. For the reasons discussed, the
Court recommends the FBI’s motion be granted, and this action be dismissed.
Braun, appearing pro se, commenced this action against the FBI asserting
claims under the Privacy Act of 1974, 5 U.S.C. §§ 552a et seq. He seeks to obtain
information and documents in the FBI’s possession concerning unspecified
investigations. Specifically, by letter dated May 21, 2015, Braun requested “all
records off [sic] investigations generated buy [sic] contacts with the FBI over the
years.” (Doc. 2-1 at 1.) In his letter, Braun referenced his prior requests for
records, and requested that the FBI update its search of pertinent records for new
On January 29, 2016, the FBI identified 119 pages of documents that it
reviewed in response to Braun’s request, and it released 88 pages of those
documents. In withholding the remainder of the documents, the FBI identified
various legal exemptions for not producing those documents.
Braun appealed the FBI’s decision to withhold various documents.
Ultimately, the Department of Justice’s Office of Information Policy affirmed the
On September 7, 2016, the FBI disclosed additional documents to Braun in
response to his request. As a result, the FBI decided to release a total of 108 pages
of the original 119 pages it reviewed. In its September 7, 2016 letter the FBI again
identified various provisions of law justifying its decision to withhold or redact
certain information and documents. (Doc. 40-8.)
The FBI moves for summary judgment dismissing this action on the ground
that it has produced to Braun all the documents to which Braun is entitled to
receive under both the Privacy Act and the Freedom of Information Act, 5 U.S.C.
§ 552 (FOIA). For the reasons discussed, the Court agrees the FBI has satisfied its
Applicable Law - Summary Judgment
Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” In deciding a motion for
summary judgment, the Court views the evidence in the light most favorable to the
non-moving party and draws all justifiable inferences in the non-moving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
When presented with cross-motions for summary judgment on the same
matters, the court must “evaluate each motion separately, giving the non-moving
party the benefit of all reasonable inferences.” American Civil Liberties Union of
Nevada v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
Finally, because Braun is proceeding pro se the Court must construe his
documents liberally and give them “the benefit of any doubt” with respect to the
FBI’s summary judgment motion. Frost v. Symington, 197 F.3d 348, 352 (9th Cir.
1999). See also Erickson v. Pardus 551 U.S. 89, 94 (2007).
The FBI believes the records responsive to Braun’s request are documents
“compiled in the course of the FBI’s investigation of [Braun’s] possible
involvement with threats against judges, law enforcement and U.S. Postal Service
workers.” (Doc. 38 at 2.) But in its summary judgment motion the FBI argues it
has complied with its obligations to produce the information and documents as
imposed under the Privacy Act and FOIA. Specifically, it argues (1) Braun has no
viable claim for relief under the Privacy Act, and (2) the legal exemptions set forth
in FOIA support its decision to withhold several documents from disclosure to
Braun’s summary judgment motion asserts the FBI has unlawfully withheld
or redacted information and documents. He argues generally, and without
evidentiary support, that he is entitled to summary judgment requiring the FBI to
produce all of the documents to him.
In general, the purpose of the Privacy Act is “to ‘protect the privacy of
individuals’ through regulation of the ‘collection, maintenance, use, and
dissemination of information’ by federal agencies.” Rouse v. United States
Department of State, 567 F.3d 408, 413 (9th Cir. 2009) (citation omitted). The
Privacy Act permits individuals to pursue civil remedies against a federal agency
in limited circumstances to enforce the agency’s compliance with the requirements
of the Act. Id. One available remedy is a legal action under authority of 5 U.S.C.
§§ 552a(d)(1) and 552a(g)(1)(B) to gain access to information maintained by an
agency. Id. at 413-414.
The Privacy Act, however, imposes limitations on, or exemptions from, an
agency’s obligation to produce documents. Specifically, the Privacy Act exempts
from disclosure specifically identified records maintained by an agency “which
performs as its principal function any activity pertaining to the enforcement of
criminal laws[,]” and the statute permits agencies to promulgate regulations
pertaining to the exempt records. 5 U.S.C. § 552a(j)(2). The Department of
Justice, within which the FBI operates, has exempted from disclosure law
enforcement investigative records maintained in the Central Records System. 28
C.F.R. § 16.96(a)(1).
The FBI submitted the declaration of David Hardy, a Section Chief
responsible for maintaining FBI records. Hardy asserts the specific records the
FBI withheld from production from Braun were criminal investigation documents
maintained in the Central Records System and, therefore, are exempt from
production under the Privacy Act and 28 C.F.R. § 16.96(a)(1). (Dec. 40 at ¶¶ 2627.)
In response to the FBI’s motion, Braun has not identified or presented any
evidentiary material suggesting the records the FBI withheld were not maintained
in the Central Records System and are not exempt from production under 5 U.S.C.
§ 552a(j)(2) and 28 C.F.R. § 16.96(a)(1). Therefore, Braun’s summary judgment
motion should be denied, and the FBI is entitled to summary judgment on Braun’s
Privacy Act claim.
The FBI represents, however, that because the records Braun requested were
exempt from disclosure under the Privacy Act, the FBI proceeded to consider
Braun’s request under FOIA to achieve the maximum disclosure of documents to
Braun. (Doc. 40 at ¶ 27.) Therefore, the Court will consider the propriety of the
FBI’s conduct in withholding documents under FOIA.
Freedom of Information Act
FOIA requires federal agencies to disclose public information upon a
citizen’s request unless the information falls within exemptions from disclosure
identified in 5 U.S.C. § 552(b). 5 U.S.C. § 552(a)(1), (2) and (3); Oregon Natural
Desert Association v. Locke, 572 F.3d 610, 614 (9th Cir. 2009). Where an agency
refuses to produce requested information FOIA permits an aggrieved party to file a
civil action in federal district court requesting the court order the agency to
produce the information. 5 U.S.C. 552(a)(4)(B).
In response to a FOIA request the responding agency must demonstrate it
conducted a search of its records that was reasonably calculated to uncover all
relevant documents. Zemansky v. United States Environmental Protection Agency,
767 F.2d 569, 571 (9th Cir. 1985). In his declaration David Hardy thoroughly
describes the FBI’s records systems, the way in which they can be searched, and
the conduct of its search in response to Braun’s request. (Doc. 40 at ¶¶ 14-24.
Braun does not materially challenge the reasonableness of the manner and
scope of the FBI’s search for documents that are responsive to Braun’s request.
Therefore, based on Hardy’s declaration, the Court finds the FBI’s search was
reasonably calculated to locate all responsive documents, and was adequate under
FOIA identifies numerous categories of documents which are expressly
exempt from the disclosure requirements under FOIA. Those categories are listed
in 5 U.S.C. § 552(b)(1) - (9).
In responding to a FOIA request and deciding to withhold documents from
production, an agency bears the burden of demonstrating that any withheld
documents fall within one of the express exemptions. 5 U.S.C. § 552(a)(4)(B).
The federal courts may rely upon an affidavit submitted from an agency employee
if the affidavit sufficiently describes the documents and the facts which support
the decision to withhold certain documents pursuant to a particular FOIA
exemption. Lane v. Department of the Interior, 523 F.3d 1128, 1135-36 (9th Cir.
Hardy’s declaration details the various grounds on which the FBI relied to
withhold certain documents from production to Braun. The specific exemptions
applicable in this case are discussed separately.
Exemption - Information Protected by Statute
FOIA specifically exempts from disclosure matters that are exempted from
disclosure by statute if (1) the non-disclosure is not discretionary, or if the statute
establishes particular criteria for withholding information or refers to particular
types of matters to be withheld, and (2) the statute cites to section 552 if the statute
was enacted after FOIA. 5 U.S.C. § 552(b)(3).
Federal law requires the maintenance of certain financial reports and records
that “have a high degree of usefulness in criminal, tax, or regulatory investigations
or proceedings, or in the conduct of intelligence or counterintelligence activities,
including analysis, to protect against international terrorism.” 31 U.S.C. § 5311.
Those reports and records, however, “are exempt from disclosure under section
552 of Title 5[.]” 31 U.S.C. § 5319. See also 31 C.F.R. § 1010.960.
Hardy’s declaration identifies investigative financial records and reports
compiled as required under 31 U.S.C. § 5311 that were responsive to Braun’s
request. (Doc. 40 at ¶¶ 32-37.) The FBI, therefore, asserts those specific pages
were lawfully withheld from production under 5 U.S.C. § 552(b)(3) and 31 U.S.C.
Braun does not identify or present any evidentiary material which suggests
the documents Hardy identifies were unlawfully withheld under the referenced
statutory exemptions - sections 552(b)(3) and 5319. Therefore, Braun’s summary
judgment motion should be denied, and the FBI’s motion should be granted with
respect to documents withheld from production under authority of 5 U.S.C. §
552(b)(3) and 31 U.S.C. § 5319.
Exemption - Unwarranted Invasion of Personal Privacy
FOIA exempts from production certain documents the disclosure of which
could inflict the unwarranted invasion of personal privacy. Specifically, FOIA
exempts (1) matters that are “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal
privacy[,]” and (2) matters that are “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information [...] could reasonably be expected to constitute
an unwarranted invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6) and (7)(C).
The “similar files” referenced in section 552(b)(6) is broadly construed to include
names, addresses, and other identifying information about federal employees.
Forest Service Employees for Environmental Ethics v. United States Forest
Service, 524 F.3d 1021, 1024 (9th Cir. 2008). And subsection (7)(C) is even more
protective of privacy than subsection (6). United States Department of Defense v.
Federal Labor Relations Authority, 510 U.S. 487, 496 n.6 (1994). Together the
exemptions protect private information about government employees and private
third parties such as suspects and witnesses. See McAtee v. United States
Department of Homeland Security, Cause No: CV 15-48-M-DWM (D. Mont.
2016) (doc. 34 at 13-14).
In considering whether an invasion of personal privacy is unwarranted, the
courts balance that invasion against the public interest in disclosure. Forest
Service Employees for Environmental Ethics, 524 F.3d at 1024. The public
interest at issue is the disclosure of information that would “contribute
significantly to public understanding of the operations or activities of the
government.” Id. at 1025 (quotations and citations omitted). And the motivation
of the party seeking the disclosure is irrelevant to the issue of whether the invasion
of privacy is warranted. Id.
Hardy’s declaration asserts that certain records the FBI withheld were
records compiled for law enforcement purposes. (Doc. 40 at ¶¶ 38-39.) Hardy
further asserts the information withheld included: (1) the names of FBI special
agents and FBI support employees involved in the investigative records Braun
requested (id. at ¶¶ 42-43); (2) the names of local law enforcement personnel who
acted in their official capacities aiding the FBI in its law enforcement investigative
activities (id. at ¶ 44); (3) the names of private third parties identified in the
records, e.g. individuals who had come into contact with the subject of the FBI’s
law enforcement investigations (id. at ¶ 45); and (4) the name and address
information of victims of the subject of the FBI’s investigations (id. at ¶ 46).
With respect to each of the four categories of personal identifying
information that the FBI withheld, Hardy describes the factors the FBI considered
in balancing the privacy interests against the public’s interest in disclosure of the
information. In each category the FBI concluded that either there existed no
public interest served by the disclosure, or that the disclosure would not serve the
public interest because it would not further the public’s understanding of the
operations or activities of the government. (Doc. 40 at ¶¶ 42-46.)
In response to the FBI’s motion Braun has not identified or presented any
evidentiary material suggesting the withheld names and personal identifying
matters do not fall within the exemption categories described in 5 U.S.C. §
552(b)(6) and (7)(C). Therefore, the Court concludes the FBI lawfully withheld
the specific information it identifies as exempt under FOIA.
And the Court agrees the public interest in disclosure of the specific names
does not outweigh the privacy interests protected. The Court finds that the
invasion of privacy that would be inflicted by the FBI’s disclosure of the
documents it withheld is unwarranted. Therefore, the Court concludes Braun’s
summary judgment motion should be denied in this respect, and the FBI’s motion
should be granted.
Exemption – Law Enforcement Techniques and Guidelines
FOIA exempts from its disclosure requirements any information and
documents that disclose law enforcement techniques and guidelines. Specifically,
it exempts matters that are:
records or information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information [...] 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)(7)(E). This exemption pertains to the “specific means”
employed by law enforcement for conducting investigations which are not
generally known to the public. Hamdan v. United States Department of Justice,
797 F.3d 759, 777-778 (9th Cir. 2015). A law enforcement agency need only
establish that disclosure of certain details “would compromise the very techniques
the government is trying to keep secret[.]” Id. at 778.
Here, Hardy’s declaration explains that the types and dates of investigations
conducted by the FBI, given the context of the actual investigations it conducted,
would disclose whether an investigation was a “preliminary” or a “full”
investigation. (Doc. 40 at ¶ 48.) It explains that the disclosure of the types and
dates of investigations would allow individuals to know what activities would
trigger which type of investigation – preliminary or full – and would enable
individuals to adjust their behavior accordingly. (Id.) The disclosure would
impede the FBI’s investigations as it would disclose techniques it is trying to keep
secret, and it would aid criminals in circumventing of the law. (Id.)
Hardy also states the FBI withheld database search results from a database
that is not well-known to the public. (Doc. 40 at ¶ 49.) This information would
disclose to criminals the tools and resources available to the FBI in its criminal
investigations, and would disclose the source of the FBI’s data and information.
(Id.) Hardy asserts the disclosure of the information regarding its database would
disclose the very information it seeks to keep secret, would impede the
effectiveness of the FBI’s investigations, and would aid criminals in avoiding
detection and circumventing the law. (Id.)
Next, Hardy states the FBI withheld sensitive FBI case file numbers. The
FBI employs a file number system which identifies the file classification, the
office of origin – the geographic location in which the investigation was initiated,
and the unique case number. (Doc. 40 at ¶ 50.) A criminal could use the
information revealed by the file numbers to gain insight into the FBI’s capabilities
and to relocate his or her criminal activities based on the geographic pattern of the
FBI’s investigations in order to avoid investigation and detection by the FBI. (Id.)
Disclosure of the file number information would release specific information the
FBI seeks to maintain as secret. (Id.)
Hardy states the FBI also withheld information disclosing the investigative
focus of its specific investigations. Disclosure of the specific investigative focus
would enable criminals to modify their behavior to avoid associating with
anything that is the focus of an investigation. It would enable criminals to avoid
detection by the FBI and to circumvent the law. (Doc. 40 at ¶ 51.) The disclosure
of an investigative focus would compromise the investigative techniques the FBI
is attempting to keep secret.
Finally, Hardy states the FBI withheld the disclosure of its non-public
intranet web address for its information technology systems. Disclosure of the
internal web address would allow criminals access and opportunities for cyber
attacks on the FBI’s computer systems and would disrupt the FBI’s investigations.
(Doc. 40 at ¶ 52.) The web address needs to be kept secret as disclosure of the
address would aid criminals in circumventing the law and would interfere with the
FBI’s law enforcement activities.
In response to the FBI’s summary judgment motion Braun does not identify
or present any evidentiary material suggesting that the information, documents,
and matters that the FBI withheld do not fall within the various FOIA exemptions
asserted and established by the FBI and the Hardy declaration. Therefore, based
on the FBI’s presentation of facts, and the absence of any genuine issue of
material fact identified by Braun, the Court concludes the referenced FOIA
exemptions are applicable to the matters withheld by the FBI, and the FBI is not
obligated to disclose those matters. Braun’s summary judgment motion should be
denied in this respect, and the FBI’s summary judgment motion should be granted.
Disclosure of Segregated Matters
Once the FOIA exemptions are properly invoked and applied to withhold
specific matters, the FBI must then disclose “[a]ny reasonably segregable portion
of a record [...] after deletion of the [exempt] portions.” Pacific Fisheries, Inc. v.
United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (quoting 5 U.S.C. § 552(b)).
Hardy’s declaration establishes that the FBI reasonably segregated the exempt
matters from the those matters that were subject to disclosure, and sufficiently
disclosed all reasonably segregated materials that were not exempt under FOIA.
(Doc. 40 at ¶ 53.)
Motion to Leave to File Amended Complaint
Braun filed a motion requesting leave to file an amended complaint. He
proposes to add the Office of Management and Budget (OMB) as a new defendant
in this action, and he seeks to expose information in an unidentified database
which is causing adverse effects in his life. Specifically, he contends the
information in the database has been used by any and all agencies and employees
with whom he has been in contact to cut off communications with him. In his
proposed pleading Braun poses numerous questions about the propriety of the
information in the database and the use to which that information has been put.
Fed. R. Civ. P. 15(a)(2) permits a court to grant leave to amend a pleading
and provides that “[t]he court should freely give leave when justice so requires.”
A district court, however, has discretion to deny leave to amend “due to ‘undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of
amendment.’” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th
Cir. 2009) (citations omitted).
The FBI opposes Braun’s amended pleading on the basis that Braun has not
asserted any jurisdictional grounds for his allegations against the OMB, and he has
failed to state any cognizable claim for relief. For the reasons stated, the Court
agrees Braun’s proposed amendment is deficient.
A plaintiff’s pleading must set forth sufficient allegations to invoke the
jurisdiction of this Court. Fed. R. Civ. P. 8(a)(1).
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... It is to be presumed that a
cause lies outside this limited jurisdiction,... and the burden of establishing
the contrary rests upon the party asserting jurisdiction[.]
Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). Plaintiff bears the burden of proof for establishing jurisdiction.
Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.
Braun’s allegations in his amended pleading fail to establish the Court has
original jurisdictional over his allegations against the OMB. He does not
expressly allege the existence of federal question jurisdiction as required under 28
U.S.C. § 1331. And Braun’s amended pleading is not predicated upon diversity of
citizenship as permitted under 28 U.S.C. § 1332. Finally, although Braun names
an agency of the United States which could provide grounds for jurisdiction as set
forth in 28 U.S.C. § 1346, Braun’s allegations do not invoke any of the specific
limited circumstances identified in section 1346 which provide the Court with
jurisdiction over a claim against an agency of the United States.
In his reply brief, Braun argues that no further jurisdictional allegations and
grounds are necessary for his claims against OMB. He asserts that since the Court
already has jurisdiction over his Privacy Act and FOIA claims advanced against
the FBI in this case he does not need to establish further original jurisdiction over
his claims against OMB. Therefore, in substance, Braun argues the Court
possesses supplemental jurisdiction over his related claims against OMB as
permitted under 28 U.S.C. § 1367(a).
But even assuming the Court possesses supplemental jurisdiction over
Braun’s claims against OMB pursuant to section 1367(a), the Court may decline to
exercise supplemental jurisdiction for various reasons stated in the statute,
including when “the district court has dismissed all claims over which it has
original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). Because the Court recommends
dismissal of Braun’s claims under the Privacy Act and FOIA – claims over which
the Court has original jurisdiction – the Court declines to exercise supplemental
jurisdiction over Braun’s claims against the OMB.
Based on the foregoing, in the absence of any jurisdictional basis for
Braun’s amended pleading, the amendment is futile. Therefore, the Court
exercises its discretion to deny Braun leave to amend.
Based on the foregoing, the Court concludes Braun’s claims under the
Privacy Act lack merit, and that the FBI satisfied its obligations under FOIA.
Therefore, IT IS RECOMMENDED that Braun’s summary judgment motion be
DENIED, the FBI’s summary judgment motion be GRANTED, and this action be
Further, IT IS ORDERED that Braun’s motion for leave to amend is
DENIED due to lack of jurisdiction and the resulting futility of the amendment.
Finally, Braun moves for a status update in this case and for guidance from
the Court as to how he should proceed in this matter due, in part, to the pending
summary judgment motions and upcoming pretrial deadlines. But the
recommendation set forth herein provides Braun with a sufficient update as to the
status of this case, and the Court cannot provide guidance or legal advice to Braun.
Therefore, IT IS ORDERED that Braun’s motion for status update and guidance is
DATED this 28th day of December, 2016.
Jeremiah C. Lynch
United States Magistrate Judge
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