Boehm v. Fed. Bureau of Investigation

• Decision Date: 10 June 2013
• Docket Number: Civil Action No. 09–2173 (ABJ).
• Parties: Josef F. BOEHM, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

948 F.Supp.2d 9

Josef F. BOEHM, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action No. 09–2173 (ABJ).

United States District Court,

District of Columbia.

June 10, 2013.

Ronald G. London, Davis Wright Tremaine, LLP, Washington, DC, Tyler Kevin Firkins, Van Siclen, Stocks & Firkins, Auburn, WA, for Plaintiff.

Mary Elizabeth Stratton, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Josef Franz Boehm brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (2006). Plaintiff's complaint challenges defendants' responses to written requests that he made to the Federal Bureau of Investigations (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”). The requests sought copies of any records in agency files from the years 2000 to 2009 that mention or concern Joseph Franz Boehm. All three agencies have now responded to plaintiff's requests by conducting searches, disclosing some responsive records, and providing their reasons for withholding others. Defendants have filed a motion for summary judgment. Defs.' Mot. for Summ. J. (“Defs.' Mot.”) [Dkt. # 36]. Plaintiff opposes the motion, challenging the adequacy of the agencies' searches and their withholdings. Pl.'s Response to Defs.' Mot. for Summ. J. (“Pl.'s Opp.”) [Dkt. # 42]. Because the agencies conducted adequate searches, but they have not provided adequate explanations for some of their withholdings, the Court will grant in part and deny in part defendants' motion.

BACKGROUND

Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas. Compl. [Dkt. # 1] ¶ 1. In 2004, he pled guilty to one count of conspiracy to commit the crime of sex trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591(a)(1), and one count of conspiracy to distribute controlled substances to persons under age twenty-one, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 859(a). Court Minutes, United States v. Boehm, Case No. 3:04–cr–00003–JWS (D.Alaska Nov. 22, 2004) [Dkt. # 692]; see also Hardy Decl. [Dkt. # 36–5] ¶ 5. In May 2005, he was sentenced in the United States District Court for the District of Alaska to approximately eleven years in prison. Judgment, United States v. Boehm, Case No. 3:04–cr–00003–JWS (D.Alaska May 16, 2005) [Dkt. # 779–1].

On June 22, 2009, plaintiff submitted written requests to the FBI, the EOUSA, and the CRM under the Privacy Act and FOIA. Ex. A to Luczynski Decl. [Dkt. # 36–4] (EOUSA); Ex. B to Hardy Decl. (Criminal Division of DOJ); Ex. A to Argall Decl. [Dkt. # 36–2] (FBI). All of the requests stated:

I am requesting access to all records in agency files, including but not limited to all documents and records concerning Josef Franz Boehm ... for the years between 2000 and 2009 inclusive.... This is an all-inclusive request and includes any document, wherever located, in which the name of Josef Franz Boehm is made mention or listed including investigations of persons or business entities other than Josef Franz Boehm.

Id. The requests included plaintiff's date of birth, social security number, register number, place of birth, and the criminal case number of the offense for which he is currently incarcerated. Id.

I. Request to the EOUSA

The EOUSA acknowledged receipt of plaintiff's request by letter dated August 18, 2009. Ex. B to Luczynski Decl. On August 27, 2010, it responded to the request. Ex. C to Luczynski Decl. The response stated that the records plaintiff sought were located in a system of records that is exempt from the access provisions of the Privacy Act. Id. However, pursuant to FOIA, the EOUSA released 92 pages of responsive material in full and 128 pages in part. Id. In addition it withheld 1,545 pages of responsive material under FOIA Exemptions 3, 5, 7(C), 7(D), and 7(F), as well as grand jury material. Id. The letter also stated that the EOUSA had located records that originated with the FBI and that those the records were being referred to the FBI for review and for direct response to plaintiff. Id. The letter also notified plaintiff of the procedure for appealing the EOUSA's decision. Id.

According to the declaration of David Luczynski, Attorney Advisor for the EOUSA, the EOUSA referred 2,414 pages of material to the FBI. Luczynski Decl. ¶ 6. In addition, on October 27, 2010, the EOUSA referred to the FBI case audiotapes and DVDs that had been compiled prior to plaintiff's prosecution. Id. ¶ 7. The EOUSA also received a four-page referral letter sent by the CRM on March 14, 2011. Id. ¶ 8.

II. Request to the CRM

On July 21, 2009, the CRM sent plaintiff a letter acknowledging its receipt of his request and notifying him that additional information was required. Ex. 2 to Cunningham Decl. [Dkt. # 36–3]; Cunningham Decl. ¶ 7. Plaintiff provided the additional information to the agency, Ex. 3 to Cunningham Decl., and the agency acknowledged receipt on August 31, 2009, Ex. 4 to Cunningham Decl. The CRM's first substantive response to plaintiff's request stated that all of the responsive documents uncovered by its search were exempt from disclosure under FOIA Exemption (7)(A) because the records related to an open and ongoing law enforcement proceeding and release could reasonably be expected to interfere with the proceeding. Ex. 5 to Cunningham Decl. However, the agency later determined that the records should no longer be withheld under Exemption 7(A), but that the FBI—not the CRM—was the proper processing agency for the records because they had originated with the FBI. Cunningham Decl. ¶ 14. The CRM then forwarded the records to the FBI for processing and direct reply to plaintiff. Id.

The CRM also received 202 pages of material from the FBI, which the CRM later determined to have originated from the EOUSA and the U.S. Marshals Service. Id. ¶¶ 15, 16. The CRM forwarded the documents to the originating agencies. Id. The CRM did not identify any responsive materials that had originated with it. See id. ¶ 17.

III. Request to the FBI

The FBI acknowledged receipt of plaintiff's request by letter dated July 8, 2009. Ex. B to Argall Decl. On September 14, 2009, it responded to the request by a second letter. Ex. C to Argall Decl. That response stated that the material requested was located in an investigative file which is exempt from disclosure pursuant to FOIA Exemption 7(A). Id. It further stated that plaintiff could file an appeal by writing to the DOJ Office of Information Policy, and that any appeal must be received within sixty days from the date of the response letter. Id. The Office of Information Policy has no record of receiving a notice of appeal from plaintiff, Argall Decl. ¶ 10, and plaintiff does not claim that he filed one, see Pl.'s Opp. at 7–8 (arguing that failure to exhaust does not preclude the Court from hearing plaintiff's claims).

IV. Documents referred to the FBI from other agencies

By letter dated November 12, 2010, the FBI informed plaintiff that it had received approximately 4,791 pages of material from other agencies that had originated with the FBI, and that the material might be responsive to his request. Ex. C to Hardy Decl. [Dkt. # 36–6]. The FBI determined that all of this material was exempt from disclosure under the Privacy Act. Hardy Decl. ¶ 26. However, the FBI eventually released 1,359 pages of responsive material under FOIA, of which 431 pages were released in full and 928 pages were released in part. Id. ¶ 27; see also Exs. E, G, J, M, O to Hardy Decl. [Dkt. # 36–6]. The FBI also released sixteen responsive CDs containing audio and two responsive DVDs containing video to plaintiff under FOIA. Hardy Decl. ¶ 27. The FBI withheld 2,763 pages in full, of which 628 pages were withheld because they were duplicates of other released pages and 2,135 pages were withheld under FOIA exemptions and/or a court order sealing them. Id.

V. Procedural Background

Plaintiff, acting pro se, filed the complaint in this action on November 16, 2009. The complaint alleges that “defendants have failed, refused, and neglected to comply with Plaintiff's reasonable requests for records, documents, and discovery.” Compl. ¶ 10. It seeks an order requiring defendants to produce all documents responsive to his request, including without limitation, all Brady and Jenks Act material relevant to his criminal case, all communications about him by the United States Attorney's Office, all FBI 302 reports concerning him, all inhouse agency reports, documents, and records naming him, and all material exculpatory or impeaching documents concerning the criminal investigation of him. Compl. at 3. After defendants notified the Court and plaintiff of their withholdings, the Court ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA exemptions and, if so, to indicate to the Court whether he wanted to designate a representative sample or have defendants propose the sample and allow him to supplement it. Minute Order (June 29, 2011).

In response, plaintiff filed a motion for Vaughn index, [Dkt. # 19], and a notice of intent to challenge the asserted FOIA exemptions, [Dkt. # 20] (“Notice of Intent”). Plaintiff requested that he designate the representative sample. Notice of Intent. Defendants opposed plaintiff's motion and requested that the Court order defendants to designate a representative sample within thirty days, and order plaintiff to designate supplemental material within thirty days after defendants' designation. [Dkt. # 21]. By Minute Order of September 30, 2011, the Court ordered defendants to prepare a representative sample of documents that they were withholding under FOIA exemptions, transmit the sample to plaintiff accompanied by a letter explaining the...