Boundaoui v. Fed. Bureau of Investigation
| Decision Date | 23 September 2020 |
| Docket Number | No. 17 C 4782,17 C 4782 |
| Parties | ASSIA BOUNDAOUI, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION AND UNITED STATES DEPARTMENT OF JUSTICE, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court in this action under the Freedom of Information Act ("FOIA") are two show cause motions by plaintiff Assia Boundaoui ("Plaintiff") against defendants the Federal Bureau of Investigation and the United States Department of Justice (collectively, "Defendants") for failure to comply with this Court's orders. R. 99; R. 144. For the reasons that follow, those motions are largely denied.
Plaintiff is a journalist and documentary filmmaker who produced The Feeling of Being Watched, a 2018 documentary concerning FBI surveillance of Muslim Americans in the Chicago neighborhood of Bridgeport in the 1990s. In September 2016 and in connection with her work on the documentary, Plaintiff submitted a FOIA request to the FBI (the "FOIA Request"). The FOIA Request sought records of the anti-terrorism investigation "Operation Vulgar Betrayal" or "265-CG-101942" that began in 1995 and was closed in 2000 (the investigation hereinafter sometimes referred to as "OVB," and this portion of the FOIA request as, "Section One"). R. 101, Ex. A. The FOIA Request also sought in relevant part "all files related to the intelligence investigation associated with Operation Vulgar Betrayal" ("Section Two"); and "all files related to the investigation that continued the work of 265-CG-101942 in the 2000's" ("Section Three"). Id. In addition, Plaintiff sought expedited processing of her request and a fee waiver. Id. The FBI informed Plaintiff that it would take over three years to process the approximately 33,120 pages of records it had located that were responsive to Plaintiff's FOIA Request, and denied her request for expedited processing and fee waiver. R. 101, Ex. B, C.
Plaintiff ultimately filed this case in June 2017, requesting that responsive records be processed at an expedited rate and seeking a waiver of applicable fees. R. 1. At a status conference that September, this Court directed the parties to meet and confer regarding a processing rate greater than the FBI's standard 500 pages per month. Unable to reach agreement, Plaintiff moved to compel expedited processing. R. 33. Defendants opposed, arguing among other things that their response should be limited to the OVB file as the only portion of the request that "reasonably describe[d] the records sought." R. 37 at 8-11. Thereafter, the Court granted Plaintiff's motion via a September 26, 2017 status hearing, R. 43, and minute order (such order, "September 2017 Order"), requiring Defendants to, in relevant part:
(2) review the approximately 33,120 pages of documents already identified by defendants as responsive to plaintiff's FOIA request on a rolling basis of 3,500 pages per month . . . ; and (3) give priority to the sub-files of individuals for whom plaintiff provides privacy waivers by appropriate means on or before October 16, 2017.
R. 40. The September 2017 Order continued, indicating:
To the extent plaintiff seeks to challenge the FBI's search identifying 33,120 pages of relevant documents involving the Operation Vulgar Betrayal criminal investigation and seeks review of documents beyond those identified documents, that issue . . . should be addressed in the context of a motion for summary judgment. The expedited processing need not include such documents. The parties should provide monthly written status reports reporting on the compliance with this order.
Id. Plaintiff thereafter provided Defendants with 179 privacy waivers for persons who resided in Bridgeview during the relevant time period and recalled heightened surveillance activity, unprompted house calls, and law enforcement interviews (the "Privacy Waivers").
Defendants processed the OVB documents at the required 3,500 pages per month rate through May 2018. Then in June, Defendants processed 2,962 pages and informed Plaintiff that: (1) but for documents that were the subject of consultations with other agencies, they had concluded processing OVB documents; and (2) they would not produce any documents related to any investigation that followed OVB because the FOIA Request did not reasonably describe those records. R. 55. The parties memorialized their disagreements in their monthly status reports and Defendants continued to process the remaining OVB documents at a fraction of the 3,500 per month rate until a May 2019 status conference at which the Court ordered Defendants to submit:
an affidavit from an agent answering the question of whether or not there are files related to the investigation that continued the work of 265-CG-101942 in the 2000s.
R. 78 at 24 ("May 2019 Order"). The minute order issued that same day reiterated that by June 7, "an affidavit is to be submitted by a representative of the government that sets forth the requirements stated by this Court." R. 77.
On June 7, Defendants moved for partial summary judgment concerning whether they had met their obligation to search for records in response to the FOIA Request, and included as exhibits thereto declarations from Section Chief of the FBI's Record/Information Dissemination Section ("RIDS"), Information Management Division, David M. Hardy, and FBI Special Supervisory Agent Daniel R. William purporting to respond to the Court's May 2019 Order.1 R. 79. Among other things, Mr. Hardy's declaration explained the search process RIDS uses generally and in this case, and Agent William's declaration explained that after its closing, OVB was not reopened, assigned a new case number, or consolidated with another investigation. R. 80, Exs. 1 and 2.
But dissatisfied with those declarations and Defendants' efforts with respect to Sections Two and Three of the FOIA Request more generally, Plaintiff moved for an order to show cause why Defendants should not be held in contempt for failure to comply with the Court's September 2017 and May 2019 Orders ("2019 show cause motion"), citing Defendants' alleged failure to: (1) continue to process documents at the 3,500 per month rate; (2) produce any documents concerning the persons forwhom Plaintiff provided Privacy Waivers; and (3) adequately search for records concerning the investigation that followed OVB. R. 99; R. 100.
Defendants' summary judgment motion and the 2019 show cause motion were fully briefed last fall. But the Court declined to rule on either at the November 2019 status conference that followed, citing Defendants' failure to directly answer in the declarations submitted whether or not there were files related to the investigation that continued the work of OVB in the 2000s. R. 119 at 4-5 (citing R. 78 at 24). The Court ordered Defendants to submit by December 2:
an affidavit indicating clearly whether there was any continuation of the work of Operation Vulgar Betrayal after that investigation was closed and whether there are any files related to any continuation of that work.
Id. at 5-6 ("November 2019 Order"). The Court commented that Id. at 5-7.
Defendants subsequently submitted another declaration from Mr. Hardy, this time identifying and promising to process two files totaling approximately 41,250 pages (together, the "Salah file"). Mr. Hardy attested that the FBI had initially used the information provided within the "four corners" of the FOIA Request to search for responsive files consistent with FBI procedures and FOIA. R. 120, Ex. 1 ¶ 10. But based on the Court's remarks at the November 2019 status hearing that Defendants still had not answered "whether steps were taken to continue the work of [OBV] and, if so, whether any files exist on the subject," the FBI examined newspaper articles("News Articles") and a federal indictment in which three individuals—Mousa Abu Marzook, Muhammad Salah, and Abdelhaleem Ashqar—were captioned (the "Salah Indictment"), each of which Plaintiff submitted with her opposition to Defendants' summary judgment motion. The FBI concluded that these documents suggested that "there was a continuation of the work . . . after September 11th, 2001," and that the News Articles "appear[ed] to point to matters that ultimately resulted in the [Salah Indictment]." Id. ¶¶ 5-6. Mr. Hardy explained that RIDS then used the captioned names as search terms in the FBI's Central Records System ("CRS"), because the Indictment—a publicly available court record—constituted an official DOJ acknowledgement of an investigation. Id. ¶¶ 5-7. This search located the underlying investigative files for the three captioned individuals as to the crimes discussed in the Indictment. And after reviewing certain information for those files, the FBI concluded that two of them—together, the Salah file—while not "continuations of the work of" OVB, "appear[ed] to share common subject matter with" OVB and/or the Salah Indictment (such investigations together, the "Salah investigation"). Id. ¶ 7.
Mr. Hardy indicated RIDS would scan and upload the "heavily classified" Salah file into the FBI's FOIA document processing system after "a classification review." The records would also require consultations with other agencies during processing, and each planned monthly release would undergo review by operational personnel. Id. ¶ 8. Finally, Mr. Hardy attested that the FBI's typical processing rate in similar cases—including regarding matters of high public interest—was 500 pagesper month, and indicated that the FBI intended to process the Salah file at that rate.2 Id. ¶¶ 9-10.
At the December 17, 2019 status conference that followed, having determined that Defendants still had not directly answered the Court's question...
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