Langton v. U.S. Dep't of Homeland Sec.

• Decision Date: 11 August 2020
• Docket Number: No. CV-20-00099-PHX-JZB,CV-20-00099-PHX-JZB
• Parties: Darrin Langton, Plaintiff, v. United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Arizona

Darrin Langton, Plaintiff, v. United States Department of Homeland Security, Defendant.

No. CV-20-00099-PHX-JZB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 11, 2020

ORDER

Pending before the Court are Defendant's Motion to Dismiss and Motion for Summary Judgment (doc. 16). For the reasons discussed below, the Motion to Dismiss will be denied as moot and the Motion for Summary Judgment will be granted against Plaintiff Darrin Langton and his claims will be dismissed with prejudice.

I. Background.

On January 14, 2020, Plaintiff filed his complaint in this court. (Doc. 1.) The complaint seeks injunctive relief against the Defendant United States Department of Homeland Security ("DHS") "and its components [sic] Federal Bureau of Investigation ("FBI")."¹ (Id. ¶ 1.) Plaintiff alleges he submitted a public records request under the Freedom of Information Act ("FOIA") to DHS and this request was subsequently denied by Defendant, citing exemptions to FOIA. (Id. ¶ 7.) DHS's response included thefollowing:

Your request is denied under exemption 3 pursuant to Title 50 US Code § 3024(i) and 6 U.S.C. § 121(d)(11), which protect intelligence sources and methods from unauthorized disclosure. Additionally, we are neither confirming nor denying the existence of records under exemption 7(E) as disclosure of the information you requested would reveal law enforcement techniques or procedures and the circumstances under which those procedures ore [sic] techniques were used. Also, these records are exempted pursuant to Exemptions 6 and 7(C) of the FOIA, 5 U.S.C. § 552(b)(6) and (b)(7)(C). I&A hereby neither confirms nor denies that such records may or may not exist.

(Id.) Plaintiff appealed this denial, the appeal was reviewed by the United States Coast Guard Office of the Chief Administrative Law Judge ("ALJ"), and the ALJ affirmed DHS's response. (Id. ¶ 9.) Plaintiff requests the Court order Defendant to disclose the existence or non-existence of Plaintiff's requested records, disclose the records in their entirety to Plaintiff, and award costs and attorney's fees. (Id. at 4.)

On April 8, 2020, Defendant filed a Motion for Summary Judgment and a Motion to Dismiss for failure to state a claim. (Doc. 16.) The Motion to Dismiss argues that Plaintiff failed to perfect service under Rule 4 by failing to serve the Attorney General and failing to file the required proof of service. (Id. at 11-12.) The Motion for Summary Judgment argues Plaintiff's request falls squarely within the FOIA statutory exemptions and Defendant's response was directly in line with the applicable law. (Id. at 7-11.) On April 22, 2020, Plaintiff filed his Response to the Motion to Dismiss stating the parties stipulated to extend the deadline to complete service and Plaintiff had completed service upon the Attorney General. (Doc. 21.) On April 23, 2020, Defendant filed its Reply, agreeing that Plaintiff had perfected service. (Doc. 22.) On May 22, 2020, Plaintiff filed a Response to the motion for summary judgment. (Doc 26.) On June 4, 2020, Defendant filed its Reply. (Doc. 27.)

As the parties agreed, Plaintiff perfected service, thus the basis for the Motion to Dismiss no longer exists and it is moot. (Docs. 18-22). Therefore, the Court will only address the Motion for Summary Judgment.

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II. Legal Standard.

The district court has jurisdiction to enjoin an agency from withholding agency records and reviews such matters de novo. 5 U.S.C. § 552(a)(4)(B). "Most FOIA cases are resolved by the district court on summary judgment, with the district court entering judgment as a matter of law." Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (citing Wickwire Gavin, P.C. v. U. S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004)). The Ninth Circuit employs its usual summary judgment standard in FOIA cases. Id. Thus, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled as to judgment as a matter of law." Fed. R. Civ. P. 56(a). "District Court decisions in FOIA cases must provide statements of law that are both accurate and sufficiently detailed to establish that the careful de novo review prescribed by Congress has in fact taken place." Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 656 F.2d 1356, 1358 (9th Cir. 1981) (quoting Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 950 (D.C. Cir. 1979)).

"The FOIA mandates a policy of broad disclosure of government documents when production is properly requested." Kamman v. U.S. I.R.S., 56 F.3d 46, 48 (9th Cir. 1995) (citing 5 U.S.C. § 552(a)). "An agency may withhold a requested document only if it falls within one of nine statutory exemptions to the disclosure requirement." Id. (citing 5 U.S.C. § 552(b)). "These exemptions are to be narrowly construed by the courts." Id. (citing Church of Scientology of Cal. v. U.S. Dep't. of the Army, 611 F.2d 738, 742 (9th Cir. 1979)). Under FOIA, "the burden is on the agency to sustain its action" withholding documents pursuant to an exemption. 5 U.S.C. § 552(a)(4)(B). "Affidavits of agency employees may be used to satisfy this burden." Kamman, 56 F.3d at 48 (citing Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987)). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "As a general matter, '[a]n affidavit from anagency employee responsible for supervising a FOIA search is all that is needed to satisfy' the personal knowledge requirement of Federal Rule of Civil Procedure 56." Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 990 (9th Cir. 2009) (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994)). Summary judgment is warranted "on the basis of agency affidavits when the affidavits describe 'the justifications for nondisclosure with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'"). Wolf v. C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

III. FOIA Exemption and Glomar Responses.

Under FOIA Exemption 3, FOIA's disclosure requirements do not apply to matters that are

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—

(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

5 U.S.C. § 552(b)(3). "Exemption 3 does not itself provide the standards for an exemption from disclosure but instead incorporates other applicable statutory exemptions." Civil Beat Law Ctr. for the Pub. Interest, Inc. v. Ctrs. for Disease Control & Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019). In determining whether withholding under Exemption 3 is proper, "[f]irst, we determine whether the withholding statute meets the requirements of Exemption 3. Then, we determine whether the requested information falls within the scope of the withholding statute." Id. (quoting Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1127 (9th Cir. 2007)).

In response to a records request, an agency may "provide a Glomar response, 'refus[ing] to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception.'" Pickard v. Dep't of Justice, 653F.3d 782, 786 (9th Cir. 2011) (quoting Wolf, 473 F.3d at 374). "When the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal." Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Id. at 774 (9th Cir. 2015) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

IV. Analysis.

The material facts in this case are not in dispute. On May 2, 2019, Plaintiff submitted a FOIA request to Defendant requesting records on himself. (Doc. 17 ¶ 7; Smislova Aff. ¶ 9, Attach. A; Doc. 25, at 1.)² Plaintiff's request also included a comment asking, "Am I being harassed by your department?" (Id.) On May 13, 2019, the Office of Intelligence and Analysis ("I&A") at DHS issued its final response citing FOIA Exemption 3 pursuant to 50 U.S.C. § 3024(i) and 6 U.S.C. § 121(d)(9)³, "which protect intelligence sources and methods from unauthorized disclosure." (Doc. 17, ¶ 9; Smislova Aff. ¶ 10, Attach. B; Doc. 25, at 1.) As a result, I&A issued a Glomar response stating: "I&A hereby neither confirms nor denies that such records may or may not exist." (Smislova Aff. Attach. B; Doc. 25, at 1). On June 5, 2019, Plaintiff appealed this decision, and on September 16, 2019, the ALJ affirmed I&A's Glomar response. (Doc. 17, ¶¶ 11-12, Smislova Aff. Attachs. C-D; Doc. 25, at 1.)

A. The National Security Act and the Homeland Security Meet the Requirements of Exemption 3.

Defendant cited to two withholding statutes in its Glomar response. The first is Section 102(A)(i)(1) of the National Security Act of 1947, as amended by the IntelligenceReform and Terrorist Prevention Act of 2004, codified at 50 U.S.C. § 3024(i). The National Security Act of 1947 is recognized as a withholding statute under Exemption 3. See CIA v. Sims, 471 U.S. 159, 167 (1985); Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992); DiBacco v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015); Cable News Network, Inc. v. Fed. Bureau of Investigation...