Graff v. Fed. Bureau of Investigation

• Decision Date: 09 November 2011
• Docket Number: Civil Action No. 09–2047 (ABJ).
• Citation: 822 F.Supp.2d 23
• Parties: Garrett M. GRAFF, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

822 F.Supp.2d 23

Garrett M. GRAFF, Plaintiff,

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

Civil Action No. 09–2047 (ABJ).

United States District Court, District of Columbia.

Nov. 9, 2011.

Bradley P. Moss, Mark S. Zaid, Mark S. Zaid, P.C., Washington, DC, for Plaintiff.

Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Garrett M. Graff ¹ filed an amended complaint against the Federal Bureau of Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the Department of Justice (“DOJ”), alleging that defendants wrongfully refused to process requests for information that he submitted under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., as amended, and that their actions constituted irrational departures from agency policy. Defendants have moved for summary judgment on Count VI, the count that challenges the validity of the policy that governs defendants' response to requests for third party information, and Counts II and V, which challenge defendants' application of that policy to two of plaintiff's requests. [Dkt. # 39].² Plaintiff has cross-moved for partial summary judgment on Count VI. [Dkt. # 44]. For the reasons stated below, the Court will grant defendants' motion and deny plaintiff's cross-motion on Count VI, and it will remand Counts II and V for further proceedings consistent with this opinion.

BACKGROUND

This case arises from two requests for information that Graff, an editor of The Washingtonian Magazine, Am. Compl. ¶ 4, submitted under FOIA.³

The first request (“Noriega Request”), which Graff submitted to the EOUSA by letter on January 23, 2009, asked for the disclosure of “files regarding the investigation, capture, and prosecution of former Panamanian Gen. Manuel Noriega.” Ex. 1 to Pl.'s MSJ. It explained, in relevant part:

I am requesting copies of any documents or communications, including but not limited to logs, reports, messages, wires, cables, teletypes, and external or internal memorandums about the investigation and/or capture of General Noriega, as well as his later prosecution, trial, and appeals. Specifically, I'm requesting any and all materials relating to the involvement of Robert S. “Bob” Mueller III, then an official with the U.S. Department of Justice in Washington, DC, in the Noriega investigation, capture, prosecution, trial, and appeals. This request should include the period from June 1989 to June 1993, inclusive.

As a member of the news media, and considering that this request is made in the public interest, I am hereby requesting a waiver of all associated fees. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest.

Id.

The EOUSA responded to Graff on January 30, 2009, acknowledging that it had received the request and assigned it a number. Ex. 2 to Pl.'s MSJ at 1. Recording the subject of Graff's request as “Manuel Noriega,” the response stated:

You have requested records concerning a third party (or third parties). Records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since you have not furnished a release, death certificate, or public justification for release, the release of records concerning a third party would result in an unwarranted invasion of personal privacy and would be in violation of the Privacy Act, 5 U.S.C. § 552a. These records are also generally exempt from disclosure pursuant to sections (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552.

Id. The response further notified Graff that “[s]hould you obtain the written authorization and consent of the third party for release of the records to you, please submit a new request for the documents accompanied by the written authorization,” and advised him that he could obtain the public documents that the EOUSA maintained in its files by requesting them in a reply to the EOUSA. Id. Finally, it notified him of the process for appealing the decision to the Office of Information Policy (“OIP”). Id. at 2.

On February 24, 2009, Graff submitted an appeal to the OIP by letter. Ex. 3 to Pl.'s MSJ. The appeal repeats the request for information that he originally submitted to EOUSA and gives the following additional description:

As a prisoner of war currently in the custody of the United States, Mr. Noriega's permission to access files regarding his case should not be a hindrance to the disclosure of information to such a compelling public interest. Significant public benefit would result from disclosure of the requested files. As a member of the news media, I intend to use this information to contribute significantly to public understanding of the operations or activities of the government with regard to Mr. Noriega's case. Finally, Mr. Noriega is not privy to the personal privacy rights afforded through the Freedom of Information Act because he is not a U.S. citizen.

Id. at 1. On September 8, 2009, the OIP affirmed the EOUSA's action by letter to Graff on the grounds that the requested information is protected under FOIA Exemptions 6 and 7(C). Ex. 5 to Pl.'s MSJ at 1.

The second request (“Younis Request”), which Graff submitted to the FBI by letter on April 8, 2009, asked for the disclosure of “files regarding the FBI's investigation into and role in the 1987 rendition of Royal Jordanian Flight 402 highjacker and Amal Organization militiaman Fawaz Younis.” Ex. 6 to Pl.'s MSJ at 1. It further explained:

I am requesting copies of any documents or communications, including but not limited to logs, reports, messages, teletypes, wires, cables, and external or internal memorandums about capture [sic] and forced extradition of Younis on September 13, 1987.

This request should include the period from March 1, 1986 to October 4, 1989, inclusive. This request includes but is not limited to rendition preparations, apprehension and transit, as well as prosecution preparations for trial in United States District Court. This request should include the role of the Federal Bureau of Investigation, the Central Intelligence Agency, and the Hostage Rescue Team in apprehending Younis overseas and bringing him back to the United States to stand trial.

Id. The request also asked for waiver of fees in the same wording as the Noriega Request. Id.

The FBI replied to Graff two days later by letter, stating that it was unable to respond to the request for records maintained by the FBI concerning Fawaz Younis because Graff had failed to submit “either proof of death or privacy waiver from the subject(s) of [his] request.... Without proof of death or a privacy waiver, the disclosure of third-party information contained in law enforcement records, should they exist, is considered both a clearly unwarranted invasion of privacy pursuant to Exemption (b)(6) ... and an unwarranted invasion of personal privacy, pursuant to Exemption (b)(7)(C)....” Ex. 7 to Pl.'s MSJ at 1. The FBI then administratively closed the request. ⁴

On April 17, 2009, Graff submitted an appeal to the OIP by letter. Ex. 8 to Pl.'s MSJ. The appeal repeats the request for information that he originally submitted to the FBI and gives the following additional description:

Convicted of conspiracy, aircraft piracy, and hostage-taking, Mr. Younis was sentenced to 30 years in prison in October 1989, then deported to Lebanon after serving half his sentence. Consequently, Mr. Younis's permission to access files regarding his case should not be a hindrance to the disclosure of information to such a compelling public interest. Significant public benefit would result from disclosure of the requested files. As a member of the news media, I intend to use this information to contribute significantly to public understanding of the operations or activities of the government with regard to Mr. Younis's case. Finally, Mr. Younis is not privy to the personal privacy rights afforded through the Freedom of Information Act because he is not a U.S. Citizen.

Id. Graff never received a response and the FBI asserts that it has no record of the appeal. Argall Decl. ¶ 7 n. 1.

On July 16, 2010 Graff filed a Motion for Leave to File First Amended Complaint, [Dkt. # 33], which the Court granted on August 13, 2010, 269 F.R.D. 44 (D.D.C.2010) [Dkt. # 37]. The only counts remaining are Counts II, V, and VI.

Count II alleges that the EOUSA wrongfully withheld the information Graff requested in the Noriega Request. Am. Compl. ¶¶ 22–28. Count V alleges that the FBI wrongfully withheld the information Graff requested in the Younis Request. Id. ¶¶ 36–40. Count VI alleges that defendants' practice of requiring FOIA requesters who seek responsive records pertaining to a foreign national third party to provide proof of death, a signed privacy waiver, or a showing that the public interest in disclosure outweighs that person's privacy interest before the agency will process that request violates both the statute and the agencies' internal policies. Id. ¶¶ 41–48.

On November 15, 2010, defendants moved for summary judgment on these counts. On January 18, 2011, plaintiffs cross-moved for partial summary judgment on Count VI.

STANDARD OF REVIEW

Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the...