Schoenman v. F.B.I.

• Decision Date: 01 September 2008
• Docket Number: Civil Action No. 04-2202 (CKK).
• Citation: 573 F.Supp.2d 119
• Parties: Ralph SCHOENMAN, Plaintiff, v. FEDERAL BUREAU of INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

573 F.Supp.2d 119

Ralph SCHOENMAN, Plaintiff, v. FEDERAL BUREAU of INVESTIGATION, et al., Defendants.

Civil Action No. 04-2202 (CKK).

United States District Court, District of Columbia.

September 1, 2008.

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James H. Lesar, Washington, DC, for Plaintiff.

Kathleene A. Molen, U.S. Department of Justice, Washington, DC.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff, Ralph Schoenman, a political activist and author, filed the above-captioned action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 ("Privacy Act" or "PA"), 5 U.S.C. § 552a, seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations, from a total of ten different named agencies and a number of unnamed agencies to which the named agencies might refer documents for a determination as to releasability (identified as "John Doe Agencies 1-10" in Plaintiff's Complaint). Plaintiff's Complaint named as Defendants: the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the Defense Intelligence Agency ("DIA"), the Department of the Air Force ("Air Force"), the Department of Justice ("DOJ"), the Department of the Army ("Army"), the Department of the Navy ("Navy"), the Department of State ("State Department"), the National Archives and Records Administration ("NARA"), the National Security Agency ("NSA"), and John Doe Agencies 1-10. Compl. at 1 & ¶ 13.

In a Memorandum Opinion and Order dated March 31, 2006, the Court dismissed Plaintiffs Complaint against Defendants CIA, NARA, NSA, Air Force, Army, and Navy because Plaintiff either could not show that the agencies had received his FOIA/PA requests or could not show that he had exhausted his administrative remedies as to the agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C. Mar. 31, 2006). By Memorandum Opinion and Order dated June 5, 2006, the Court dismissed without prejudice certain portions of Plaintiffs Complaint against the FBI and the State Department. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1582253 (D.D.C. Jun. 5, 2006). The Defendants with remaining obligations to process documents in response to Plaintiffs request did so. Those Defendants, along with the agencies to whom they have referred documents for releasability determinations, have now begun moving for summary judgment, and Plaintiff has filed cross-motions for summary judgment. This Memorandum Opinion addresses only the Motion for Summary Judgment filed by the State Department and the Cross-Motion for Partial Summary Judgment filed by Plaintiff. The Court notes at the outset that the parties agreed to brief these cross-motions based upon Plaintiff's selection of a sample of documents to be included in a Vaughn index. See 3/21/07 Joint Status Report, Docket No. [34] at 4; 7/11/07 Joint Status Report, Docket No. [37] at 2. The Court therefore resolves the pending cross-motions for summary judgment on that basis, as well as upon the State Department's declarations regarding the scope of its search, without opining on whether Plaintiffs selected sample is representative of the information more generally withheld by the State Department.

The Court has conducted a searching review of the State Department's Motion for Summary Judgment, Plaintiffs Cross-Motion for Partial Summary Judgment/Opposition, the State Department's Reply/Opposition, Plaintiffs Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court shall GRANT-IN-PART the State Department's [52] Motion for Summary Judgment and shall DENY-IN-PART Plaintiffs [56] Cross-Motion for Partial Summary Judgment, insofar as each relates to the adequacy of the State Department's search, the State Department's segregation of non-exempt information, and the State Department's withholding of information from Documents P323 and P334. The Court cannot ultimately resolve the parties' cross-motions as to Documents P143 and P319 on the current record because a discrete issue remains. Specifically, the State Department has withheld the names of an FBI legal attaché's and two FBI agents from those documents pursuant to FOIA Exemption 6 and 7(C) without indicating whether it made any efforts to determine whether those individuals are alive or dead before purporting to balance their privacy interests against any public interest in disclosure. In the absence of this information, the Court cannot determine whether the State Department's invocation of the FBI legal attaché's and agents' privacy interests represented a reasonable response to Plaintiffs FOIA/PA request. As such, the Court shall HOLD IN ABEYANCE the parties' cross-motions for summary judgment with respect to Documents P143 and P319 and—as set forth in the accompanying Order—shall require the State Department to indicate to the Court whether the FBI legal attaché and agents are alive or dead, so that the Court may consider the State Department's balancing under FOIA Exemptions 6 and 7(C).

I: BACKGROUND

By letter dated July 27, 2001, Plaintiff, through counsel, submitted a request to the State Department pursuant to the FOIA and the Privacy Act. See Second Decl. of Margaret P. Grafeld, Director of the Office of Information Programs and Services ("IPS"), State Department (hereinafter "Grafeld Decl."), submitted in support of the State Department's Motion for Summary Judgment, ¶ 4 & Ex. 1.¹ Plaintiffs request sought access to records pertaining to himself, Lord Bertrand Russell, six organizations, and twenty-six other subject matters, as well as all "index references" to the foregoing subjects, all previous FOIA requests pertaining to those subjects, and all records used by the State Department in its searches in response to Plaintiffs request. Id.² Along with his request, Plaintiff submitted a Privacy Act Authorization permitting the State Department to release records about him to his counsel. Id., Ex.1 at 4.

IPS acknowledged Plaintiffs request in two separate letters dated August 23, 2001, and advised Plaintiff that his request had been split administratively into two requests. Grafeld Decl. ¶ 5 & Exs. 2-3. Ms. Grafeld avers that "[t]his was done to streamline the administrative processing of material about plaintiff, which was potentially subject to the Privacy Act [versus] material solely subject to the FOIA." Id. ¶ 5. The State Department therefore created one file—the so-called "Schoenman Request"—for Plaintiffs request for records concerning himself, see id. Ex. 2, and another request file—the so-called "Russell Request"—for Plaintiff's request for records pertaining to Lord Bertrand Russell and the organizations identified by Plaintiff in his request letter, see id., Ex. 3. See also Grafeld Decl. ¶ 5.

In his initial FOIA/PA request, Plaintiff asserted that he was the author of numerous published books, as well as a representative of the news media, and therefore requested that the State Department waive all search fees and copying costs. Id., Ex. 1 at 3. By letter dated August 23, 2001, the State Department informed Plaintiff that his request for a fee waiver had been denied. See Grafeld Decl., Ex. 3. Schoenman appealed the denial of his fee waiver request by letter dated September 16, 2001. Id., Ex. 13. The State Department upheld the denial of Plaintiffs fee waiver request by letter dated October 18, 2001. Id., Ex. 15.

Nevertheless, Ms. Grafeld's Supplemental Declaration explains that because the State Department does not charge requesters for processing Privacy Act requests, "all documents regarding the `Schoenman request' were released to plaintiff free of charge." Suppl. Grafeld Decl. ¶ 4. Ms. Grafeld further explains that, although the State "Department initially denied plaintiff's request for a fee waiver, no search fees or duplication costs were charged to plaintiff for the processing of this request." Id. ¶ 5. Rather, "[a]ll documents concerning the `Russell request' were released to plaintiff free of charge." Id. Thus, Plaintiff has not been charged any fees for the processing or release of documents in response to his FOIA/PA request.

A. The Schoenman Request

In its letter of August 23, 2001, the State Department advised Plaintiff that it required additional information before it could begin processing Plaintiff's request for records pertaining to himself. Id. ¶ 6 & Ex. 2. Plaintiff provided that additional information by letters dated September 15 and September 16, 2001. Id. ¶ 7 & Exs. 4, 14; see also State Dep't Stmt. ¶ 4. By letter dated October 12, 2001, the State Department informed Plaintiff that the Schoenman Request was being processed and that he would be notified when responsive material was retrieved and reviewed. Grafeld Decl. ¶ 8 & Ex. 5. The State Department also advised Plaintiff that State Department records predating 1975 were generally in the custody of NARA, and suggested that Plaintiff submit a FOIA request directly to NARA for any State Department records predating 1975. Id.

Ms. Grafeld avers that the State "Department's search for records responsive to plaintiff's request was designed to uncover all responsive records." Id. ¶ 21. As background, she explains that when the State Department receives a FOIA/PA request, "IPS evaluates the request and determines which offices, overseas posts, or other record systems within the [State] Department may reasonably be expected to contain the information requested ... based on the description of records set forth in the request." Id. Ms. Grafeld continues to explain the manner in which the State Department's records are maintained, which includes both centralized and decentralized systems of records, and specifically describes the searches conducted of these...