Concepcion v. F.B.I.
| Decision Date | 27 March 2009 |
| Docket Number | Civil Action No. 07-1766 (RMU). |
| Parties | Alberto CONCEPCION, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Alberto Concepcion, Fort Dix, NJ, pro se.
Christopher Blake Harwood, U.S. Attorney's Office, Washington, DC, for Defendants.
This matter is before the court on the parties' cross-motions for summary judgment.1 For the reasons discussed herein, the defendants' motion will be granted in part and denied in part.
The plaintiff brings this civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") and two of its components, the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys ("EOUSA"). It appears that the plaintiff has submitted multiple requests for essentially the same information.
In September 2005, the plaintiff submitted to the Federal Bureau of Investigation's Newark, New Jersey field office ("NKFO") a request for:
certified copys [sic] of any, and all documents pertaining to ALBERTO CONCEPCION, ET AL., which some are as follows: statements, criminal complaints, arrest warrants, Lab Report(s), and etc., including any other unmentioned documents.
Compl. ¶ 11 & Ex. F-6 (Sept. 13, 2005 FOIA Req.) (capitalization in original). NKFO staff forwarded the request to the FBI Headquarters in Washington, DC ("FBIHQ"), and FBIHQ staff assigned it a tracking number, Request No. 1030134-000. Id. ¶ 12 & Ex. F-9 (Oct. 3, 2005 letter from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBI).
In December 2005, the plaintiff submitted a separate request to the FBIHQ, referencing Request No. 1030134-000, for "a certified copy of the `LAB REPORT'" associated with Criminal Case Nos. 99-6144-01-01 and 99-753 (AJL).2 Compl. ¶ 13 & Ex. F-10 (Dec. 20, 2005 FOIA Req.). In addition, the plaintiff submitted a second FOIA request to the NKFO seeking:
A FULL DISCLOSURE, AND RELEASE OF ALL RECORDS, and/or data contained in the files of this Department, and/or Agency . . . under [the plaintiff's] name, and/or identifier to [his] name. This request soughted [sic] herein is for COMPLAINTS OF MISCONDUCT, SANCTIONS, DISCIPLINARY ACTIONS, DISCHARGE FROM EMPLOYMENT FROM EITHER THE STATES, AND/OR FEDERAL GOVERNMENT AS EMPLOYEES, INTERNAL AFFAIRS RECORDS, and etc., pursuant to title 5 U.S.C. § 552(a)(2)(A), and (B), records which are secured, and maintained by this Department, and/or Agency . . . and any, and all, records, and data concerning the Complaints filed by Victim's co-workers, associates, [etc.]
Defs.' Mot. for an Extension of Time to Respond to the Compl. [# 15], Decl. of David M. Hardy ("Hardy I Decl.") ¶ 11 ().
The plaintiff's next request to the FBIHQ sought a "Lab Report, Search Warrant(s), & the wire tap Authorized Application for Federal Criminal Case # [99]-6144-01-01, & 99-753(AJL)." Compl., Ex. F-25 (June 13, 2006 FOIA Req.). Through his sister Vilma Cruz, to whom the plaintiff granted power of attorney, the plaintiff requested of the FBIHQ the following information:
Serial numbers, & dates [ONLY] on all the audio tapes for Federal Criminal Case #99-6614-01-06, & 99-753(AJL); & a "Certified Copy of the Lab Report" for the above Federal Criminal Case. If there is no Lab Report for the above criminal case, Please put it in writing, & forward a copy of that response to both [the plaintiff and Ms. Cruz].
Hardy I Decl. ¶ 15; Compl., Ex. F-44 (Oct. 13, 2006 FOIA Req.).
A search of NKFO electronic records yielded "two investigative files, 245D-NK-97240[,] and another file that were responsive to plaintiff's [September 13, 2005] request." Hardy I Decl. ¶ 37. By letter dated August 11, 2006, FBIHQ staff notified the plaintiff that the records responsive to Request No. 1030134-000 were "in an investigative file which [was] exempt from disclosure pursuant to [FOIA Exemption 7(A)]."3 Id. ¶ 13; see id. ¶ 37. The plaintiff successfully appealed this decision to the Justice Department's Office of Information and Privacy ("OIP"), which remanded the matter to the FBIHQ for further processing. Id. ¶¶ 17, 38. The OIP determined that Exemption 7(A) was no longer applicable, and notified the plaintiff by letter dated June 20, 2007 that the FBIHQ would be sending responsive records under a new tracking number, Request No. 1062945. Id. ¶ 17.
"While FBIHQ was handling the original [FOIA] requests to NKFO and FBIHQ, numerous requests from plaintiff were continually being received by NKFO and FBIHQ." Hardy I Decl. ¶ 40. In October and November 2006, the plaintiff submitted three nearly identical FOIA requests to the NKFO for the following information:
The serial numbers, & dates [ONLY] on all the audio tapes for Federal Criminal Case #99-6614-01-06, & 99-753(AJL); & a "CERTIFIED COPY OF THE LAB REPORT" for the above Federal Criminal Case. If there is no Lab Report for the above criminal case, please put it in writing, & forward a copy of that response to [both the plaintiff and Ms. Cruz].
Compl., Ex. F-52 (Oct. 20, 2006 FOIA Req.); see id., Ex. F-62 (Nov. 8, 2006 FOIA Req.), F-67 (Nov. 14, 2006 FOIA Req.); Hardy I Decl. ¶ 18. In addition, the plaintiff submitted three more requests for the same information to the FBIHQ. Compl., Ex. F-48 (Oct. 13, 2006 FOIA Req.), F-58 (Oct. 24, 2006 FOIA Req.), and F-78 (Mar. 14, 2007 FOIA Req.); Hardy I Decl. ¶ 19. FBIHQ staff did not open files for the new requests "inasmuch as it was determined that they were duplicate requests." Hardy I Decl. ¶ 40.
Initially, because NKFO investigative file 245D-NK-97240 "was a multi-subject file, with multiple sub-files, only the documents in the plaintiff's sub-file were reviewed for processing," and the remaining documents and sub-files "were excluded as out of the scope of the [September 13, 2005 FOIA] request." Id. ¶ 38. After this lawsuit began, FBIHQ staff reviewed the entire NKFO investigative file for processing. Id. ¶ 39. In addition to the records it released on June 14, 2007, the FBI released more records to the plaintiff on February 25, 2008, March 24, 2008 and March 27, 2008. Notice of Filing [#23], Second Decl. of David M. Hardy ("Hardy II Decl.") ¶¶ 8-11.
The FBI referred 20 pages of records to the DOJ, 608 pages of records to the Drug Enforcement Administration ("DEA"), and 3 pages of records to the Bureau of Customs and Border Protection ("CBP") for each component's direct response to plaintiff. Hardy II Decl. ¶ 5. Because the documents referred to the DOJ originated from the EOUSA, DOJ staff referred those 20 pages of records to the EOUSA for processing. Id.
On May 9, 2008, the FBI received a referral from the EOUSA of 214 pages of material, most pages of which were duplicates of material the FBI already had processed. Id. ¶ 7. The FBI responded directly to plaintiff and advised him of its decision to release only one of these 214 pages. Id.; Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. ( ) [# 25], Third Decl. of David M. Hardy ("Hardy III Decl.") ¶ 7 & Ex. C (May 19, 2008 letter from D.M. Hardy).
The materials referred to the DEA were "multiple copies of the DEA Form 7 (April 1982) Report of Drug Property Collected, Purchased or Seized." Notice of Filing [# 24], Decl. of William C. Little, Jr. ("Little Decl.") ¶ 12. The DEA returned these materials, which were lab reports, to the FBI on February 25, 2008. Hardy III Decl. ¶ 6 & Ex. B (May 13, 2008 letter from K.L. Myrick, Chief, Operations Unit, FOIA/Records Management Section). Of the 608 pages referred, "only 74 pages contained the plaintiff[']s name or other identifying information." Id. ¶ 6. The DEA recommended that "the names of DEA laboratory personnel . . . be withheld." Little Decl. ¶ 15. Because the DEA "could not determine whether the remaining 534 pages were responsive to the plaintiff, [it asked] that the FBI make the determination." Hardy III Decl. ¶ 6. From the lab reports, the FBI, in turn, redacted "only the names of the FBI Special Agents contained therein" under FOIA Exemptions 6 and 7(C), id. ¶ 8, and released the 74 redacted pages to plaintiff on June 16, 2008. Defs.' Reply Brief in Supp. of Mot. for Summ. J. ( ), Fourth Decl. of David M. Hardy ("Hardy IV Decl.") ¶ 12 & Ex. A (June 18, 2008 letter from D.M. Hardy).
The three pages of records referred by the FBIHQ to the CBP were described as "two pages of [Treasury Enforcement Communications System ("TECS")] documents (Document Numbers 001 and 002)" and "an additional, related page from TECS (Document Number 003)." Notice of Filing [#24], Decl. of Mark Hanson ("Hanson Decl.") ¶ 4 & Ex. A (Vaughn Index). The CBP released these records in part after redacting information under Exemptions 2, 6 and 7(C). See id. ¶¶ 9, 11, 14 & Ex. A.
On March 8, 2006, the plaintiff submitted a FOIA request to the EOUSA seeking the following information:
LAB REPORT, INDICTMENT, THE RULE 11, APPLICATION OF WHICH WAS SIGNED BY [PLAINTIFF] & THE RECORDED F.B.I. TAPES SERIES NUMBERS WITH THE DATES OF RECORDINGS, & IF POSSIBLE PLEASE PROVED [sic] [THE PLAINTIFF] WITH THE LOCATIONS OF SAID RECORDINGS.
Compl., Ex. F-22 (Mar. 8, 2006 FOIA Req.) (capitalization in original); see Defs.' Mot. for an Extension of Time to Respond to the Compl. [# 15], Decl. of Dione Jackson Stearns ("Stearns I Decl.") ¶ 20. Although the EOUSA received three subsequent requests from the plaintiff, see Compl., ...
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