Hillier v. Cent. Intelligence Agency, Civil Action No. 16-cv-1836 (DLF)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtDABNEY L. FRIEDRICH United States District Judge
PartiesWYNSHIP W. HILLIER, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
Docket NumberCivil Action No. 16-cv-1836 (DLF)
Decision Date12 September 2018

WYNSHIP W. HILLIER, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

Civil Action No. 16-cv-1836 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 12, 2018


MEMORANDUM OPINION

Pro se plaintiff Wynship Hillier invokes the Privacy Act of 1974, 5 U.S.C. § 552a, to identify records about him at the Department of Homeland Security (DHS), United States Department of State, and Central Intelligence Agency (CIA) (collectively the "defendants"). Hillier claims these agencies have records confirming that he is "the target of a sophisticated campaign" designed to render him an "involuntary psychiatric outpatient" and to convince him, and others, that he suffers from "psychiatric disorders." 2d Am. Compl. ¶ 4, Dkt. 33. Dissatisfied by the agencies' failure to produce any records, Hillier filed this lawsuit. Before the Court are the defendants' Motion for Summary Judgment, Dkt. 40, Hillier's Motion for Partial Summary Judgment Against Defendant United States Department of Homeland Security, Dkt. 41, and Hillier's Cross-motion for Partial Summary Judgment Against the Central Intelligence Agency and United States Department of State, Dkt. 48. For the reasons that follow, the Court will grant in part and deny in part the defendant's motion and deny Hillier's motions.

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I. BACKGROUND

For the past six years, Wynship Hillier has sought records that he believes DHS, Department of State, and CIA possess. His quest began in early 20121 when he sent letters to these agencies asking whether certain record systems contained records about him. See Defs.' Statement of Facts ¶¶ 3, 6, 17, 29, Dkt. 40-1; Pl.'s Statement of Genuine Issues ¶¶ 3, 6, 17, 29, Dkt. 45.2 Each agency processed Hillier's requests under both the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA), 5 U.S.C. §552. But none of the agencies provided records to Hillier because (1) none were found, (2) the relevant record systems were statutorily exempt from the Privacy Act and FOIA, or (3) the CIA could neither confirm nor deny the existence of records that might reveal a classified relationship with the agency. Defs.' Statement of Facts ¶¶ 3, 6, 19, 29. Hillier exhausted his administrative remedies and commenced this lawsuit on September 12, 2016. See 2d Am. Compl. Exs. 1-54; Defs.' Statement of Facts ¶¶ 9, 31.

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Since then, Hillier has zealously prosecuted his lawsuit. In addition to securing leave to amend his complaint three times, he submitted over 1,300 pages of argument and evidence. See Dkts. 15-18, 20, 22, 26, 31, 33-35, 38, 39, 41-43, 45, 46, 48, 49, 52-56, 59, 61, 64. 65.

When the defendants moved for summary judgment on August 24, 2017, see Dkt. 40, Hillier countered on September 7, 2017 with a motion for partial summary judgment against DHS, see Dkt. 41. He also filed an opposition to the defendants' motion for summary judgment, a motion to compel discovery, a motion to participate in hearings by telephone or televideo, see Dkts. 42, 43, 45, and, on October 17, 2017, he filed a cross-motion for partial summary judgment against the CIA and Department of State, see Dkt. 48.

About a week after this case was reassigned to the undersigned judge on December 5, 2017, Hillier moved for leave to file a surreply to the defendants' motion for summary judgment, see Dkt. 52, which the Court granted. Several weeks later, Hillier filed a 454-page request asking the Court to take judicial notice of facts that he argued were contained in Federal Register notices and proposed rules, Executive Orders and memoranda, federal statistical reports published on agency websites, a telephone directory posted on a government website, a page from a government website, other court records, dictionaries, law review articles, workday calculations, and legislative reports and documents. Pl's. Req. for Judicial Notice at 1, 35, 54, 65, 85, 87, 90, 92, 95, 96, Dkt. 54.

On February 23, 2018, Hillier moved to amend his motion for partial summary judgment against DHS, cross-motion for partial summary judgment against the CIA and Department of State, motion to compel discovery, and opposition to the defendants' motion for summary judgment. Mot. to Amend at 1, Dkt. 55. In support, Hillier submitted 464 pages of exhibits. Id. Exs. 71-166, Dkt. 55-1. He followed that with a March 19, 2018 motion seeking reconsideration

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of the May 31, 2017 minute order issued by the judge who was previously assigned to this case. Mot. for Recons. at 1, Dkt. 59. That minute order prohibited Hillier from further amending his complaint "absent a showing of exceedingly good cause." Minute Order of May 31, 2017.

The competing motions for summary judgment are addressed in this memorandum opinion. Hillier's other pending motions are addressed in the accompanying order.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact" and, viewing the evidence in the light most favorable to the nonmoving party, "the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Paige v. Drug Enf't Admin., 665 F.3d 1355, 1358 (D.C. Cir. 2012). "A dispute is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Paige, 665 F.3d at 1358. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Hillier invokes the Privacy Act to secure notice of records about him. The Privacy Act mandates that "[e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him." 5 U.S.C. § 552a(d)(1). The Privacy Act also allows individuals to request notice that an agency's system of records contains information about them. See 5 U.S.C. §§ 552a(e)(4)(G), (f)(1).

The defendants treat Hillier's requests as though he is also seeking records under FOIA. Defs.' Statement of Material Facts ¶¶ 3, 6, 19, 29. FOIA provides that "each agency, upon any

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request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A).

The Privacy Act and FOIA are structurally similar. Londrigan v. FBI, 670 F.2d 1164, 1169 (D.C. Cir. 1981). Both provide a requester with access to federal agency records about the requester and create a private cause of action when an agency fails to comply with a valid request.3 See 5 U.S.C. §§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B) (FOIA).

Under both the Privacy Act and FOIA, an agency must conduct an adequate and reasonable search for relevant records. See Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (stating that "the Privacy Act, like FOIA, requires" that a search "be reasonably calculated to uncover all relevant documents" (internal quotation marks omitted)). In this Circuit, courts apply the same standard under both statutes to determine the adequacy of a search.4 See id.; Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam) (affirming search's adequacy under Privacy Act for the same reasons the search was affirmed under FOIA). Thus, "[i]n a suit seeking agency documents—whether under the Privacy Act or the FOIA—at the summary judgment stage, where the agency has the burden to show that it

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acted in accordance with the statute, the court may rely on a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Chambers, 568 F.3d at 1003 (internal alteration and quotation marks omitted). The agency's affidavit is "accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).

If agency searches reveal records responsive to a Privacy Act or FOIA request, an agency may withhold access to the records if the statutes exempt them from disclosure. See 5 U.S.C. §§ 552a(j)(2), (k)(2), 552(b). Although the Privacy Act and FOIA "substantially overlap," the statutes "are not completely coextensive; each provides or limits access to material not opened or closed by the other." Greentree, 674 F.2d at 78. The Privacy Act and FOIA "seek[] in different ways to respond to the potential excesses of government," and "[e]ach, therefore, has its own functions and limitations." Id. at 76. Accordingly, "[t]he two acts explicitly state that access to records under each is available without regard to exemptions under the other." Id. This means that, when both statutes are at play, an agency seeking to withhold records must "demonstrate that the documents fall within some exemption under each Act." Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987). "If a FOIA exemption covers the documents, but a Privacy Act exemption does not, the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be released under FOIA." Id.

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III. ANALYSIS

The defendants move for summary judgment under Rule 56 on the ground that their searches were adequate but they found no nonexempt records to disclose to Hillier. Defs.' Mot. for Summ. J. at 1. Hillier opposes the defendants' motion...

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