Cvijanovich v. U.S. Secret Serv.
| Decision Date | 25 September 2019 |
| Docket Number | Case No. 3:18-cv-220 |
| Citation | 410 F.Supp.3d 1085 |
| Parties | Daniel CVIJANOVICH, Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant. |
| Court | U.S. District Court — District of North Dakota |
Daniel Edward Cvijanovich, Fargo, ND, pro se.
James P. Thomas, U.S. Attorney's Office, Bismarck, ND, for Defendant.
Plaintiff Daniel Cvijanovich brings this suit against the United States Secret Service pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking records concerning himself. (Doc. 1). The Secret Service moves for summary judgment, asserting records it has not yet disclosed are exempt under FOIA. (Doc. 24).
The Freedom of Information Act was passed to allow public access to federal government documents and records. 15 Federal Procedure, Lawyers Edition § 38:1 (2019). Under FOIA, federal agencies must release any properly requested information unless a FOIA exemption applies. Id. The statute requires agencies to designate and publish contact information for officers to whom the public may direct requests for information. Id. § 38:609. Generally, agencies must establish detailed criteria that their Freedom of Information Officers are to follow, id. § 38:319, and they must allow administrative review of any denial of an information request, id. § 38:352.
The Secret Service is a federal agency charged with protecting the President and Vice President of the United States, their families, and other designated protectees. (See Doc. 26, p. 7; 18 U.S.C. § 3056 ). The Secret Service began investigating Cvijanovich in March 2006 after an anonymous post to a Federal Bureau of Investigation website claimed Cvijanovich wanted to assassinate then-President George W. Bush. (Doc. 26, p. 9). That posting also claimed Cvijanovich was responsible for damage to a post office building in 2001. In connection with the post office incident, an indictment charged Cvijanovich with damage to government property, threatening to assault a federal official, and mailing threatening communications. Id. at 10. In 2006, Cvijanovich pleaded guilty to those charges and was sentenced to a prison term followed by supervised release. (Dkt. 3:06-cr-44, 16; Dkt. 3:06-cr-44, 24). In 2007, a federal grand jury indicted Cvijanovich on three counts of making threats against the President. Cvijanovich v. United States, No. 3:07-CR-55, 2011 WL 2680485, at *1 (D.N.D. July 8, 2011). Later that same year, Cvijanovich was convicted of one of the three counts and sentenced to another prison term. Id. In July 2011, because of a matter involving credibility of a key government witness, the district judge vacated the 2007 conviction, id. at 11, and the indictment was dismissed without re-trial, (Dkt. 3:07-cr-55, 187).
According to the Secret Service, because of Cvijanovich's past actions and mental evaluations, the agency continues to monitor Cvijanovich "to ensure that one of its protectees is not harmed by [him]," (Doc. 26, p. 11), and he is a subject of an active protective intelligence investigation, (Doc. 25, p. 1). The details of that investigation are described in a declaration of William J. Callahan, Deputy Director of the Secret Service. (Doc. 26).
On December 1, 2017, Cvijanovich requested "copies of all records pertain[ing] to [himself] which are in the possession of the United States Secret Service." (Doc. 1-2). The Secret Service conducted a search of its Field Investigative Reporting System, "the Secret Service's central index for records related to new or existing cases and investigations of crimes." (Doc. 25, pp. 6-7). That search led to records relating to Cvijanovich in the Protective Threat Management System, which holds "records related to individual actors' threatening behavior or incidents that may impact the Secret Service's mission," and the Significant Case Database, an "application that allows users to search for, create, and modify criminal investigative files." (Id.; Doc. 26, pp. 2-3). On April 9, 2018, the Secret Service responded to Cvijanovich's request, stating it had the records he requested but those records were exempt from disclosure under 5 U.S.C. § 552(b)(7)(A). (Doc. 26, p. 3).
On June 4, 2018, Cvijanovich administratively appealed. (Doc. 1-4). The Secret Service responded on July 31, 2018, reaffirming the records would be "withheld under 5 U.S.C. § 552(b)(7)(A) as release of [that] information could interfere with an ongoing enforcement proceeding." (Doc. 1-5). Cvijanovich challenged that determination and filed in this court on October 30, 2018.
After the present suit commenced, the Secret Service referred certain records created prior to Cvijanovich's 2007 conviction for review by the FBI and the Federal Bureau of Prisons (BOP). (Doc. 26-6; Doc. 26-7; Doc. 26-8). On May 2, 2019, the Secret Service released over seven hundred pages of other redacted documents, with references to seven specific exemptions claimed for those redactions, to Cvijanovich. (Doc. 27). The Secret Service also provided a Vaughn index1 annotating its reasons for asserting each exemption. (Doc. 26-10). After the Secret Service released the 700+ pages to Cvijanovich, the FBI and BOP responded to the Secret Service's referral by indicating some documents were entirely exempt, some documents should be partially redacted, and some documents were non-exempt. (Doc. 32; Doc. 32-1; Doc. 32-2; Doc. 39; Doc. 39-1; Doc. 39-2). The non-exempt and partially redacted documents were released to Cvijanovich. As to documents created after Cvijanovich's 2007 conviction, the Secret Service released court documents and news articles but withheld reports and mental health information which were responsive to Cvijanovich's request. (Doc. 26, p. 12).
In an affidavit describing his interactions with the Secret Service since 2010, Cvijanovich asserts Callahan's description of his history with the Secret Service is misleading and designed to make disclosure of the requested documents appear riskier than it actually is. (Doc. 41, p. 1).
Under FOIA, federal agencies must "make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Congress intended FOIA to apply broadly: "[FOIA] seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." John Doe Agency v. John Doe Corp., 493 U.S. 146, 151, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (internal quotation marks omitted); see also Milner, 562 U.S. at 565, 131 S.Ct. 1259. "[A]lthough FOIA strongly favors prompt disclosure, its nine enumerated exemptions are designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information." August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003) (internal quotation marks omitted).
Most FOIA cases are properly resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011) ; Nielsen v. U.S. Bureau of Land Mgmt., 252 F.R.D. 499, 503 (D. Minn. 2008). The standard for summary judgment motions in FOIA cases in the Eighth Circuit is well-developed:
[The court reviews] whether the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Summary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Miller v. United States Dep't of State, 779 F.2d 1378, 1382 (8th Cir.1985). To defeat a motion for summary judgment, the nonmoving party "need only present evidence from which a jury might return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Miller v. USDA, 13 F.3d 260, 262 (8th Cir. 1993).
The burden of proof in FOIA cases rests on the agency claiming exemptions: "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ). As another district court in this circuit recently explained:
A District Court may grant summary judgment for the government based solely on the information provided in affidavits or declarations when the affidavits or declarations describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Bush v. USDA, No. 16-CV-4128, 2017 WL 3568672, at *2 (N.D. Iowa Aug. 17, 2017), aff'd sub nom. Bush v. Risk Mgmt. Agency, USDA/RMA, 728 F. App'x 607 (8th Cir. 2018), cert. denied sub nom. Bush v. USDA, Risk Mgmt. Agency, ––– U.S. ––––, 139 S. Ct. 1200, 203 L.Ed.2d 204 (2019) (internal citations and quotation marks omitted).
As an initial matter, the court notes Cvijanovich does not question the adequacy of the Secret Service's search for the requested documents. As the Eighth Circuit stated, "the search need only be reasonable, it does not have to be exhaustive." Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985). After review of the Secret Service's submitted records and...
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