Schoenman v. F.B.I.

• Citation: 604 F.Supp.2d 174
• Decision Date: 31 March 2009
• Docket Number: Civil Action No. 04-2202 (CKK).
• Parties: Ralph SCHOENMAN, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

604 F.Supp.2d 174

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

Civil Action No. 04-2202 (CKK).

United States District Court, District of Columbia.

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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 certain portions of Plaintiff's 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 those agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C. Mar. 31, 2006). By a Memorandum Opinion and Order dated June 5, 2006, the Court dismissed without prejudice certain portions of Plaintiff's 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 Plaintiff's 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.¹ This Memorandum Opinion addresses the [73] Motion for Summary Judgment filed by the FBI and the [92] Cross-Motion for Partial Summary Judgment filed by Plaintiff. In addition, this Memorandum Opinion addresses Plaintiff's recently filed [105] Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, as it pertains directly to the issues raised in the parties' pending cross-motions for summary judgment.

The Court has conducted a searching review of the FBI's Preliminary Vaughn Index, the FBI's Motion for Summary Judgment, Plaintiff's Cross-Motion for Partial Summary Judgment/ Opposition, the FBI's Opposition/Reply, Plaintiff's Reply, the FBI's Supplemental Vaughn Index, Plaintiff's Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, Plaintiff's March 24, 2009 Notice to the Court, and the FBI's Partial Opposition to Plaintiff's Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, as well as the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court shall: (1) GRANT-IN-PART the FBI's [73] Motion for Summary Judgment, finding in favor of the FBI with respect to the reasonableness of the FBI's search for responsive records; (2) DENY-IN-PART the FBI's [73] Motion for Summary Judgment and GRANT-IN-PART Plaintiff's [92] Cross-Motion for Partial Summary Judgment, with respect to the FBI's denial of Plaintiff's requests for a full fee waiver, finding that the FBI improperly denied Plaintiff's requests; and (3) GRANT Plaintiff's [105] Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index. Finally, in light of the Court's determination that the FBI must submit a single, comprehensive Vaughn index, the Court shall DENY WITHOUT PREJUDICE the parties' cross-motions as they pertain to the merits of the FBI's withholdings and Plaintiff's request that the FBI be required to reprocess all responsive documents. The Court cannot resolve the merits of these issues until an adequate Vaughn index is compiled. Upon submission of the FBI's final Vaughn index, the parties may re-file their cross-motions as to the merits of the FBI's withholdings, as appropriate.

I. BACKGROUND

A. Plaintiff's FOIA/PA Requests

By letters dated July 24, 2001, and July, 27, 2001, Plaintiff, through counsel, filed FOIA/PA requests with the Paris Legal Attache and the London Legal Attache ("Legat") of the FBI as well as with the Los Angeles, New York City, and San Francisco Field Offices. See Second Decl. of David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, at the FBI Headquarters ("FBIHQ") (hereinafter "Second Hardy Decl."), submitted in support of the FBI's Motion for Summary Judgment, ¶¶ 5, 28, 41, 49, 61.² Each of Plaintiff's FOIA/PA requests is identical and sought access to records pertaining to himself, Lord Bertrand Russell, and six organizations³—and all records on any confidential source or informant who supplied information on any of the foregoing subjects as well as all "index references" to the foregoing subjects, all previous FOIA requests pertaining to those subjects, and all records used by the FBI in its searches in response to Plaintiff's requests. Id., Ex. A⁴ In addition, Plaintiff requested a fee waiver of all duplication fees. See id. Id. The relevant facts concerning the FBI's response to each of Plaintiff's requests are set forth below.

1. Paris Legat

By letter dated July 31, 2001, the Paris Legat notified Plaintiff that it had forwarded his request to FBIHQ. Id. ¶ 6. FBIHQ thereafter acknowledged receipt of Plaintiff's FOIA/PA request, and advised Plaintiff that it was opening a separate request for each subject of Plaintiff's FOIA/PA request. Id. ¶¶ 6-7. As an initial matter, the Court notes that, by Order dated June 5, 2006, it found that Plaintiff had failed to exhaust his administrative remedies as to certain portions of his FOIA/PA request to the FBI Paris Legat and therefore dismissed without prejudice Plaintiff's claim to the extent it concerned his request to the Paris Legat for records relating to the Who Killed Kennedy Committee and the Citizens Commission of Inquiry. See Schoenman v. FBI, Civ. Act. N. 04-2202, 2006 WL 1582253, *9-12 (D.D.C. Jun. 5, 2006) (CKK). Accordingly, the only aspects of Plaintiff's claim against the Paris Legat that remain relate to his request for records pertaining to himself, Lord Bertrand Russell, the Bertrand Russell Research Center, and the Bertrand Russell Peace Foundation (including the New York office), the International War Crimes Tribunal.

a. FOIA Request Number 947852 (Schoenman)

Plaintiff's request to the Paris Legat for records pertaining to himself was assigned FOIA Request Number 947852. Second Hardy Decl. ¶ 7. FBIHQ subsequently consolidated this request with Plaintiff's request to the Los Angeles Field Office ("LAFO"), discussed below. See infra pp. 182-84. Accordingly, the Court shall consider Plaintiff's challenges to this request as part of its discussion concerning the request to LAFO.

b. FOIA Request Number 948774 (Lord Bertrand Russell)

Plaintiff's request to the Paris Legat for records pertaining to Lord Bertrand Russell Center was assigned FOIA Request Number 948772. Id. ¶ 24. FBIHQ subsequently advised Plaintiff that no records were found responsive to his request. Id. Plaintiff thereafter appealed FBIHQ's "no records" determination, which determination was subsequently affirmed by the Office of Information and Privacy ("OIP"), the entity within DOJ that adjudicates FOIA appeals of the various DOJ components.⁵ Id. ¶¶ 11, 25-27.

c. FOIA Request Number 948772 (Bertrand Russell Center)

Plaintiff's request to the Paris Legat for records pertaining to the Bertrand Russell Center was assigned FOIA Request Number 948772. Second Hardy Decl. ¶ 19. FBIHQ subsequently advised Plaintiff that no records were found responsive to this request. Id. ¶ 19. Plaintiff thereafter appealed FBIHQ's "no records" determination, which was subsequently affirmed by OIP on appeal. Id. ¶¶ 20-22.

d. FOIA Request Number 948768 (Bertrand Russell Peace Foundation)

By letter dated August 21, 2001, FBIHQ acknowledged receipt of Plaintiff's request for records pertaining to the Bertrand Russell Peace Foundation (including specific to the New York office) and advised Plaintiff that the request had been assigned FOIA Request Number 948768. Id. ¶ 9. Thereafter, FBIHQ informed Plaintiff that it had located 372 pages responsive to his request and was releasing 270 of those pages, with redactions made pursuant to FOIA Exemptions 1, 2, 3, 7(C), and 7(D). Id. ¶ 10. FBIHQ also informed Plaintiff that responsive documents had been referred to other agencies for review and direct response to Plaintiff. Id.⁶ Finally, FBIHQ advised Plaintiff that his request for a fee waiver was denied because the FBI "concluded that [Plaintiff's] interest in these records is personal in nature and that the information pertains primarily to him," and that he had therefore been assessed duplication fees totaling $17. Id. and Ex. F.

Plaintiff subsequently appealed the withholdings and denial of his fee waiver to OIP. Id. ¶ 11. Specific to the fee waiver issue, Plaintiff argued that the FBI had wrongly concluded that his interest in the records is personal in nature and that the information...