Jabar v. U.S. Dep't of Justice
| Docket Number | 17-CV-301JLS(F) |
| Decision Date | 24 November 2021 |
| Parties | STEVE SATAR JABAR, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — Western District of New York |
MICHAEL KUZMA, ESQ. ATTORNEY FOR PLAINTIFF
TRINI E. ROSS UNITED STATES ATTORNEY ATTORNEY FOR DEFENDANT
MICHAEL S. CERRONE ASSISTANT UNITED STATES ATTORNEY, OF COUNSEL
REPORT AND RECOMMENDATION
This case was referred to the undersigned by Honorable Lawrence J Vilardo[1] on November 16, 2017, for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendant's motion for summary judgment filed November 30, 2020 (Dkt. 43).
Plaintiff Steve Satar Jabar (“Plaintiff” or “Jabar”), commenced this action pursuant to the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552 et seq., on April 10, 2017, seeking an injunction and other relief, including the disclosure and release of agency records withheld by Defendant United States Department of Justice (“Defendant” or “DOJ”), and its component Federal Bureau of Investigation (“FBI”). The information Plaintiff seeks pertains to the FBI's investigation and the eventual conviction of Plaintiff for conspiracy to commit wire fraud, wire fraud and making false statements to conceal the conspiracy and fraud. On May 11, 2017, DOJ filed its answer (Dkt. 5), and on March 13, 2020, DOJ filed a so-called Vaughn Index (Dkt. 28).[2]
On November 30, 2020, Defendant filed a motion for summary judgment (Dkt. 43) (“Defendant's Motion”) along with a Memorandum of Law (Dkt. 44) (“Defendant's Memorandum”), a Statement of Undisputed Facts (Dkt. 45) (“Defendant's Statement of Facts”), and the Declaration of Michael G. Seidel (Dkt. 46) (“Seidel Declaration”), attaching a volume of exhibits A through EE (Dkt. 46-1) (“Defendant's Exh(s). ”). Filed as Defendant's Exh. EE is another copy of the Vaughn Exhibit (Dkt. 46-1 at 136-149). On January 4, 2021, Plaintiff filed the Memorandum in Opposition to Defendant's Motion for Summary Judgment (Dkt. 48) (“Plaintiff's Response”), attaching the Affidavit of Deborah Bowers (Dkt. 48-1) (“Bowers Affidavit”), the Affidavit of Michael Kuzma, Esq, (Dkt. 48-2) (“Kuzma Affidavit”), the Affirmation of Mark J. Mahoney, Esq. (Dkt. 48-3) (“Mahoney Affirmation”), attaching a volume of exhibits (Dkt. 48-4) (“Plaintiff's Exh(s). __”), and Plaintiff's Statement of Undisputed Facts and Response to Defendant's Statement of Undisputed Facts (Dkt. 48-5) (“Plaintiff's Statement of Facts”). On January 22, 2021, Defendant filed the Reply Memorandum of Law (Dkt. 49) (“Defendant's Reply”). Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion should be GRANTED.
FACTS[3]
In 1989, following the end of the Iran-Iraq war, Plaintiff Steve Satar Jabar (“Plaintiff” or “Jabar”), a native of Iraq, immigrated with his wife and young child to the United States where Plaintiff was granted asylum based on Jabar's opposition to the regime of Saddam Hussein. In 1996, Plaintiff became a naturalized United States citizen. After arriving in the United States, Plaintiff, who is fluent in Arabic, Farsi, and Kurdish, and familiar with Middle Eastern culture and customs, volunteered as a translator for various refugee organizations in Buffalo, New York, worked as a translator in courts in the Buffalo area, and occasionally assisted the FBI with various investigations. After the September 11, 2001 terrorist attacks, Plaintiff became an Asylum Officer with Department of Homeland Security - Citizen and Immigration Services (“DHS/CIS”).
In 1995, Plaintiff and one Deborah Bowers (“Bowers”), founded Opportunities for Kids International (“OKI”), a not-for-profit organization that provided monetary, immigration, and education assistance to Kurdish refugees in New York State. Bowers served as OKI's executive director and Plaintiff as its treasurer. On June 2004, Plaintiff and Bower, on OKI's behalf, applied to the United Nations Development Fund for Women (“UNIFEM”) for a $ 500, 000 grant (“the grant”) to establish a radio station in Iraq, Voice of Women (“VOW”), which was to broadcast programming to educate Iraqi women on democratic processes, increase civic engagement, and make Iraq more stable. The grant was approved and on December 15, 2004, OKI received the initial $ 350, 000 disbursement (“initial disbursement”). Plaintiff and Bowers, however, converted a portion of the funds in the initial disbursement for personal use, and failed to comply with financial reporting requirements, causing UNIFEM to investigate and audit the initial disbursement which showed unauthorized expenditures and inadequate receipts. Based on the investigation, UNIFEM did not release the remaining $ 150, 000. In 2005, the Internal Revenue Service (“IRS”), received suspicious activity reports flagging attempted transfers from OKI's bank account to bank accounts in the Middle East, and commenced an investigation.
On May 21, 2009, a grand jury returned a 14-count indictment charging Plaintiff and Bowers each with one count of conspiracy to commit wire fraud, three counts of wire fraud, five counts of money laundering, and five counts of making false statements, U.S.A. v. Jabar, 09-CR-170 (W.D.N.Y.) (“the criminal case”). On September 2, 2016, following a five-week jury trial trial, Plaintiff and Bowers were convicted in the criminal case of conspiring to commit wire fraud, wire fraud, and making false statements. Plaintiff and Bowers moved pursuant to Fed.R.Crim.P. 29 for a judgment of acquittal (“Rule 29 motion”), and pursuant to Fed.R.Crim.P. 33 for a new trial (“Rule 33 motion”).
By letter dated October 25, 2016, Plaintiff, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a (“Privacy Act”), submitted a FOIA/Privacy Act (“FOIPA”) request (“FOIA Request”) to the FBI for any and all records pertaining to Plaintiff. Defendant's Exh. A (Dkt. 46-1 at 2-4). Plaintiff's FOIA Request was accompanied by the required DOJ Certificate of Identity, Form DOJ-361 (“Certificate of Identity forms”), completed with Plaintiff's information and signature. Id. (Dkt. 46-1 at 5). On October 25, 2016, the FBI acknowledged receipt of the FOIA Request. Defendant's Exh. B (Dkt. 46-1 at 7-8). By letter dated February 2, 2017, Plaintiff filed an appeal to the DOJ Office of Information Policy (“OIP”), complaining the FBI failed to respond the FOIA Request within the statutory 20 days. Defendant's Exh. C (Dkt. 46-1 at 10). On February 17, 2017, OIP acknowledged receipt of the appeal, Defendant's Exh. D (Dkt. 46-1 at 12), and on March 2, 2017, advised Plaintiff that because the FBI did not make an adverse determination of Plaintiff's FOIA Request, no action could be taken on Plaintiff's appeal. Defendant's Exh. E (Dkt. 46-1 at 14). On April 10, 2017, Plaintiff commenced the instant action.
Thereafter, the FBI made 21 interim releases of records responsive to Plaintiff's FOIA Request. Defendant's Exhs. F to DD (Dkt. 46-1 at 15-135). In total, the FBI processed 5, 368 pages responsive to Plaintiff's FOIA Request, of which 154 pages were released in full (“RIF”), 632 pages were released in part (“RIP”), and 4, 582 pages were withheld in full (“WIF”). Seidel Declaration ¶ 4. The FBI explains the withheld information, whether in full or in part, was duplicative of other pages accounted for elsewhere within the FBI's production, sealed pursuant to a United States Court Order, or exempted from disclosure pursuant to one of FOIA's separately enumerated exemptions. Id. The specific exemptions on which the FBI relies includes Privacy Act exemption (j)(2) (“PA (j)(2)”), and FOIA exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F), 5 U.S.C. §§ 552(b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D), (b)(7)(E), and (b)(7)(F). Id. Pursuant to an agreement between the parties, review of the records responsive to the FOIA Request was limited to a 503-page sample of responsive records the FBI released to Plaintiff.
In connection with the pending motion, an explanation as to how Plaintiff's FOIA Request was processed is provided by Michael G. Seidel (“Seidel”), Section Chief of the Record/Information Dissemination Section (“RIDS”), Information Management Division (“IMD”). According to Seidel, in fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency, the FBI compiles and maintains in the Central Records System (“CRS”) records consisting of applicants, investigative, intelligence, personnel, administrative, and general files. The CRS maintains records for the entire FBI organization including FBI Headquarters (“FBIHQ”), FBI Field Offices, and FBI Legal Attached Officers (“Legats”) worldwide.
CRS files are numerically sequenced and organized according to designated subject categories referred to as “FBI classifications.” As each FBI case file is opened, the file is assigned a Universal Case File Number (“UCFN”) consisting of three sequential components including (1) the CRS file classification number; (2) the abbreviation of the FBI Office of Origin (“OO”) initiating the file; and (3) the assigned individual case file number for that particular subject matter. Within each case file, certain documents of interest are “serialized” i.e., assigned a document number in the order in which the document is added to the file, typically in chronological order.
Records are located within the CRS through its general indices with the files alphabetized according to subject matters including individuals, organizations, events and subjects of investigative interest. Entries in the general indices fall into two...
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