Schoenman v. Fed. Bureau of Investigation

• Decision Date: 09 February 2011
• Docket Number: Civil Action No. 04–02202(CKK).
• Citation: 763 F.Supp.2d 173
• Parties: Ralph SCHOENMAN, Plaintiff,v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

763 F.Supp.2d 173

Ralph SCHOENMAN, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action No. 04–02202(CKK).

United States District Court, District of Columbia.

Feb. 9, 2011.

James H. Lesar, Washington, DC, for Plaintiff.Caroline A. Smith, Sean Ryan O'Neill, U.S. Department of Justice Office of Information Policy, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Ralph Schoenman (“Schoenman”), a self-described political activist and author, commenced this action against a variety of named and unnamed agencies, including the Federal Bureau of Investigation (the “FBI”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act of 1974 (the “Privacy Act”), 5 U.S.C. § 552a, seeking an array of records concerning himself, Lord Bertrand Russell, and various named organizations. This Court previously granted-in-part and denied-in-part the parties' respective cross-motions for summary judgment and the parties were instructed to, and in fact did, file renewed motions addressing various concerns identified by the Court. Presently before the Court is the FBI's [135] Partial Renewed Motion for Summary Judgment (“Renewed Motion for Summary Judgment”) and Schoenman's [143] Renewed Cross–Motion for Summary Judgment and Other Relief (“Renewed Cross–Motion for Summary Judgment”). Based upon the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT the FBI's Renewed Motion for Summary Judgment and DENY Schoenman's Renewed Cross–Motion for Summary Judgment.¹ Furthermore, because there are no viable claims remaining against the FBI in this action, the Court shall DISMISS the FBI as a defendant.

I. BACKGROUND

The Court assumes familiarity with its prior opinions in this action, which set forth in detail the extensive history of this case, and shall therefore only address the factual and procedural background necessary to address the discrete issues currently before the Court.

By letters dated July 24, 2001 and July 27, 2001, Schoenman, through counsel, submitted various FOIA requests to the FBI seeking the disclosure of an array of records pertaining to a variety of subjects including himself, Lord Bertrand Russell, and six named organizations.² Second Decl. of David M. Hardy, Docket No. [73–1], ¶¶ 5, 28, 41, 49, 61 & Exs. A, X, KK, SS, BBB. The FBI acknowledged receipt of Schoenman's requests and searched its records, producing some materials and withholding others in full or in part. Id. ¶¶ 10, 14, 16, 37–40, 45, 54, 57, 60, 62–63 & Exs. F, I, K, GG, HH, II, JJ, OO, AAA, CCC, DDD. Unsatisfied with the FBI's response, Schoenman commenced this action on December 20, 2004, naming the FBI as a defendant along with a host of other identified and unidentified agencies subject to similar requests for information. Compl., Docket No. [1]. In the succeeding years, Schoenman's claims have been successively winnowed down by orders of this Court, two of which merit explicit mention here because they pertain to Schoenman's claims against the FBI in particular.

On June 5, 2006, the Court dismissed without prejudice certain claims against the FBI based upon Schoenman's failure to exhaust his administrative remedies. Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202(CKK), 2006 WL 1582253 (D.D.C. June 5, 2006). Thereafter, the parties agreed to proceed with motions for summary judgment based upon a sample of the records withheld in full or in part by the FBI. See Joint Status Report, Docket No. [34], at 4; Joint Status Report, Docket No. [41], at 2. Schoenman selected the records to serve as the subject of the FBI's Vaughn index ³ and, using that sample as the focus point, Schoenman and the FBI each moved for summary judgment. See Mot. for Summ. J. on Behalf of Def. Federal Bureau of Investigation, Docket No. [73]; Pl.'s Cross–Mot. for Summ. J., Docket No. [92].

On March 31, 2009, the Court issued a decision addressing the parties' respective cross-motions for summary judgment. Schoenman v. Fed. Bureau of Investigation, 604 F.Supp.2d 174 (D.D.C.2009). In that decision, the Court found as follows: the FBI had improperly denied Schoenman's requests for a fee waiver; Schoenman had conceded that the FBI's search for responsive records was reasonable; and the FBI's proffered Vaughn index was defective. See generally id. On this final point, the Court characterized the FBI's Vaughn index as “utterly inadequate” and proceeded to identify a litany of infirmities in the FBI's submissions at that time. See id. at 194–204. While the Court shall describe those infirmities in greater detail in the course of evaluating the adequacy of the revised Vaughn index now relied upon by the FBI, see infra Part III.B, at this point it suffices to observe that the infirmities were sufficiently pronounced so as to prevent the Court from evaluating the propriety of the FBI's withholding decisions and assessing whether the FBI should be required to reprocess or release records responsive to Schoenman's requests. See Schoenman, 604 F.Supp.2d at 195–96. The Court therefore denied the parties' respective cross-motions for summary judgment without prejudice as they pertained to these issues, with leave to renew after the FBI prepared a proper Vaughn index. Id.

Shortly thereafter, the parties jointly submitted a proposed schedule for resolving the outstanding issues identified by the Court in its decision. See Joint Status Report & Proposed Briefing Schedule, Docket No. [113]. By mutual agreement, the FBI would first reprocess the full universe of responsive documents and re-release the disclosable portions thereof to Schoenman. Id. at 2. Thereafter, Schoenman would select a sample of approximately 10% of all responsive records to serve as the subject of a revised Vaughn index. Id. At the penultimate step, the parties would meet and confer to review each document selected by Schoenman and address any misunderstandings. Id. at 4. Only thereafter would the parties file renewed motions for summary judgment. Id.

The Court agreed with the proposed course of action and entered a schedule corresponding to the steps identified by the parties. Min. Order (Apr. 21, 2009). By July 1, 2009, the FBI had reprocessed all of the records responsive to Schoenman's requests—a total of 3,987 pages—and produced the disclosable parts thereof to Schoenman. See Status Report, Docket No. [118], at 1. Schoenman then selected 402 pages to serve as the representative sample—10.1% of all responsive records—and the parties certified that they were in agreement as to the composition of the sample. Joint Status Report, Docket No. [123], at 1. Unfortunately, the process unraveled when, in the course of preparing its Renewed Motion for Summary Judgment, the FBI discovered that additional material within the sample could be released. 6th Hardy Decl. ¶ 34. That discovery prompted the FBI to reprocess the full universe of responsive records a second time. Id. Based upon that second reprocessing, the FBI supplemented its production to Schoenman, ultimately producing 2,983 out of a total of 3,987 pages to Schoenman on January 19, 2010. Id. ¶ 34 & Ex. S. Regrettably, neither party took the reasonable step of advising the Court of these developments. See infra Part III.A.1. Instead, the parties proceeded to brief their renewed cross-motions for summary judgment. The FBI filed its [135] Renewed Motion for Summary Judgment on January 21, 2010. See Def.'s Mem. Schoenman filed his [143] Renewed Cross–Motion for Summary Judgment on March 3, 2010. See Pl.'s Mem. After a series of successive filings, some of which were filed out of time and without prior leave of the Court, both motions have now been fully briefed and are ripe for adjudication.

II. LEGAL STANDARD

Congress enacted FOIA to introduce transparency into government activities. Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C.Cir.1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of “legitimate governmental and private interests [that] could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). For this reason, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. § 552(b)(1)-(9). “Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents,” Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993), and only after an agency has proven that it has fully discharged its obligations is summary judgment appropriate, Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983)).

In reviewing motions for summary judgment in this context, the district court must conduct a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), which “requires the court to ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure,” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C.Cir.2003) (internal quotation marks omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). With these principles in mind, the Court turns to the merits of the parties' renewed cross-motions for summary...