Stone v. Defense Investigative Service

• Decision Date: 26 March 1993
• Docket Number: Civ. A. No. 91-2013 SSH.
• Parties: Gregory Michael STONE, Plaintiff, v. DEFENSE INVESTIGATIVE SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

816 F. Supp. 782

Gregory Michael STONE, Plaintiff, v. DEFENSE INVESTIGATIVE SERVICE, et al., Defendants.

Civ. A. No. 91-2013 SSH.

United States District Court, District of Columbia.

March 26, 1993.

COPYRIGHT MATERIAL OMITTED

Gregory Michael Stone, pro se.

David L. Dougherty, Office of Information and Privacy, U.S. Dept. of Justice, Washington, DC, for defendants.

OPINION

STANLEY S. HARRIS, District Judge.

This matter is before the Court on defendants' motion for summary judgment, plaintiff's second motion to compel discovery, and the oppositions and replies thereto. Upon consideration of the entire record, the Court finds that it lacks subject matter jurisdiction over the individual defendants and that the agency defendants are entitled to summary judgment as a matter of law. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its analysis. See Fed.R.Civ.P. 52(a).

Background

On June 8, 1990, plaintiff, a pro se litigant, requested access to records maintained by defendant Defense Investigative Service ("DIS") pursuant to the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Plaintiff requested "... a copy of any and all records the Defense Investigative Service may have on me." Plaintiff's Statement of Genuine Issues at ¶ A(1). In response to a letter from defendant DIS explaining that a confirmation of identity was necessary for release of the requested records, plaintiff filed an executed DIS form 30 on July 23, 1990. Plaintiff sought from defendant DIS "all records and files including, but not limited to: investigative reports; investigative notes; reports of field interviews; complete information contained in background investigative file; complete information contained in special background investigative file; and all correspondence related to the requester including both inter/intra agency." Defendants' Ex. 1.

By letter dated July 26, 1990, defendant DIS advised plaintiff that he was the subject of an ongoing personnel security investigation and that his requested records would not be released until the completion of this investigation. Plaintiff filed a complaint on August 13, 1991, and an amended complaint on August 21, 1991, against defendants DIS, John Donnelly, Dale Hartig, S.J. Demarco, and Donald Reuter seeking declaratory and injunctive relief. On September 19, 1991, and November 5, 1991, defendant DIS released in full to plaintiff a copy of his personnel security investigative file, industrial personnel security clearance file, and a Privacy Act accounting of disclosures. Defendant DIS referred additional records to six other federal agencies—the Bureau of Alcohol, Tobacco and Firearms (the "BATF"), the Central Intelligence Agency (the "CIA"), The Federal Bureau of Investigation (the "FBI"), the Immigration and Naturalization Service (the "INS"), the Office of Personnel Management (the "OPM"), and the Air Force Office of Special Investigations (the "OSI")—for review and direct response to plaintiff.¹ On October 18, 1991, this Court granted plaintiff's unopposed motion to join the OSI, the BATF, the OPM, and Anonymous Federal Agencies Numbers 1 and 2 as defendants to this action. On November 26, 1991, this Court, on the unopposed motion of plaintiff, joined the FBI as a defendant and dismissed Anonymous Federal Agencies Numbers 1 and 2.

Eight pages of records referred to the BATF were returned to the DIS and then released to plaintiff by the DIS on December 23, 1991, and February 5, 1992.² The name of an FBI agent was withheld pursuant to the FOIA exemption 7(C), 5 U.S.C. § 552(b)(7)(C). On October 8, 1991, the OPM provided plaintiff with the referred records without deletion. The OSI furnished plaintiff with the referred records on January 16, 1992, January 23, 1992, and March 26, 1992, withholding certain information pursuant to the FOIA exemptions 2 and 7(C), 5 U.S.C. § 552(b)(2) and (7)(C). The FBI provided plaintiff with the referred records on January 24, 1992. It withheld certain information pursuant to the FOIA exemptions 7(C) and 7(D), 5 U.S.C. § 552(b)(7)(C) and (7)(D). The records referred to the CIA and the INS are not addressed in plaintiff's suit.

In response to plaintiff's opposition to defendants' motion for summary judgment and plaintiff's second motion to compel, defendants conducted an additional search for information concerning plaintiff. This additional search located the same documents as were initially processed.³ Hartig Declaration II at ¶ 5.

Defendants have moved for summary judgment, arguing that their search was adequate and their exemptions proper as a matter of law. Plaintiff contends that genuine issues of material fact exist concerning the adequacy of the search conducted, the completeness of the released information, and the propriety of the claimed exemptions. Plaintiff further contends that discovery is necessary to determine the facts relating to these issues.⁴

Discussion

Subject Matter Jurisdiction

In addition to charging several federal agencies with violations of the FOIA and the Privacy Act, plaintiff has named three federal officials as defendants. This Court's jurisdiction to enforce the FOIA is limited to enjoining agency noncompliance. See 5 U.S.C. § 552(a)(4)(B). Therefore, plaintiff may not assert a FOIA claim against individual federal officials. See Whittle v. Moschella, 756 F.Supp. 589, 596 (D.D.C.1991); Sherwood Van Lines, Inc. v. United States Dep't of Navy, 732 F.Supp. 240, 241 (D.D.C.1990).

Under the Privacy Act, this Court has jurisdiction over individually named defendants only for unauthorized disclosure in violation of 5 U.S.C. § 552a(i). Although plaintiff states that unauthorized releases of records protected by the Privacy Act were made, plaintiff provides no support for these speculative assertions. See Plaintiff's Opposition at ¶ 14(k); Plaintiff's 108(h) Statement at ¶ C(2); Plaintiff's Supplemental Reply at ¶ 9. Accordingly, the Court finds that it does not have jurisdiction over defendants Donnelly, Hartig, and Demarco, and dismisses plaintiff's action as to these defendants.

The FOIA Claims

To obtain summary judgment in a FOIA action, an agency must prove that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Founding Church of Scientology, Inc. v. NSA, 610 F.2d 824, 836 (D.C.Cir.1979). To meet this burden, the agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from FOIA's inspection requirements." National Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973). The Court may rely on agency affidavits in determining whether an agency has met its burden of proof. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). These affidavits must be sufficiently detailed, nonconclusory, and submitted in good faith. Id. "If these requirements are met, the district judge has the discretion to forgo discovery and award summary judgment on the basis of the affidavits." Id.⁵

Defendants assert that, as a matter of law, their search was adequate and that they properly invoked exemptions 2, 7(C), and 7(D). The Court addresses each of these issues in turn.

The Adequacy of the Search

In order to obtain summary judgment on this issue, defendants must show "that they made a good faith search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C.Cir. 1990). In making its determination of whether an agency has met its burden, the Court must accord substantial weight to affidavits averring that all documents have been produced. Goland, 607 F.2d at 352. Based on defendants' affidavits, the Court finds that defendants' search was adequate as a matter of law.

In responding to plaintiff's FOIA request, defendant DIS twice searched its name retrievable systems of records containing information about individuals not employed by DIS.⁶ Specifically, defendant DIS searched its "personnel security investigative records system" and its "industrial security clearance record system" for information concerning plaintiff. See Hartig Declaration II at ¶ 4. Both searches uncovered nearly identical information. See id. at ¶ 5. Defendant DIS did not search non-name retrievable records systems. Id. at ¶ 4. A search need not, however, "be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request." Meeropol v. Meese, 790 F.2d 942, 956 (D.C.Cir.1986). Therefore, an agency need not search every record system. Oglesby, 920 F.2d at 68. In this case, given the complete lack of evidence suggesting that additional records exist, the Court concludes that defendants' failure to search additional records systems does not create a genuine issue of fact as to the adequacy of the search conducted.

Plaintiff primarily contends that defendants' search was inadequate because plaintiff purportedly believes that additional records exist. See Plaintiff's Opposition at ¶ 14(g); Plaintiff's Statement of Genuine Issues at ¶ C(2); Plaintiff's Supplemental Reply at ¶ 7. Plaintiff provides no proof that additional records do exist. "Such hypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of the agency's search." Oglesby, 920 F.2d at 67 n. 13. See also Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir. 1991) ("Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them."). Therefore, the Court finds that defendants' search was adequate.

Exemption 2

Defendant OSI withheld a source...