Webster v. U.S. Dep't of Justice

• Decision Date: 31 March 2020
• Docket Number: Civil Action No.: 02-603 (RC)
• Parties: WEBSTER, et al., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

WEBSTER, et al., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No.: 02-603 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2020

Re Document No.: 234

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This Freedom of Information Act (FOIA) and Privacy Act case was originally filed by Plaintiff Carl Oglesby in March 2002. He sought records from the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA). During the course of the litigation, Mr. Oglesby passed away, and the present plaintiffs—Ms. Barbara Webster and Ms. Aron DiBacco, the administrator of his estate and his daughter, respectively—were substituted in his stead. Defendant, the U.S. Department of Justice (DOJ), now moves for summary judgment on behalf of the FBI,¹ arguing that the agency has fulfilled its statutory obligations. For the reasons explained below, the Court agrees and will bring this long-running litigation to a close.

II. PROCEDURAL HISTORY

Mr. Oglesby filed this action in 2002, seeking access to "records pertaining to himself" from the FBI and CIA. Compl. ¶¶ 5, 19, ECF No. 1. Since then, the parties have engaged in multiple rounds of negotiations, record searches, document productions, and briefing. Not of allof this extensive procedural history is relevant here. The Court will focus on the more recent developments that underlie DOJ's pending motion, which is based on two different groups of documents (each represented by its own Vaughn index).

The first Vaughn index has its roots in 2017. At that time, after some disagreements about the scope of Mr. Oglesby's requests, the Court ordered that the parties file new summary judgment motions based on 16,803 pages that the Court had newly deemed responsive. See Order (Aug. 10, 2017) at 4, ECF No. 219.² Shortly thereafter, the Court adopted a joint suggestion of the parties³: from the 16,803 pages, Plaintiffs would select a representative sample of up to 350 pages that Defendant had released in part (plus an additional sample of 10 documents that Defendant had withheld in their entirety), which would be compiled into a new Vaughn index. See Order (Sept. 11, 2017) at 2, ECF No. 221. In response to Plaintiffs' selections, the FBI was able to locate 225 total pages that were within the scope of the 16,803 pages identified by the Court. Def.'s Mot. Summ. J. Ex. A ("Hardy Decl.") ¶ 5, ECF No. 234-1).⁴ In February 2018, the FBI provided Plaintiffs with a copy of the corresponding Vaughn index and a copy of the processed documents. Id. (citing Ex. A1 ("Vaughn Index of Plaintiff's 2017 Sample"), ECF No. 134-2).

The second Vaughn index has its origins in 2011, when (for reasons not relevant here) the Court ordered DOJ to reprocess Plaintiffs' original FOIA requests. See Order (Aug. 8, 2011),ECF No. 127. After DOJ completed the reprocessing in 2011 and 2012, the Court adopted a similar joint proposal from the parties⁵: from the reprocessed documents, Plaintiffs would select a representative sample of 200 documents that were released in part (plus an additional sample of 10 documents that were withheld completely), which would likewise be compiled into a new Vaughn index. See Order (May 22, 2018), ECF No. 230. Based on Plaintiffs' selections, the FBI ultimately reviewed 116 total pages. Hardy Decl. ¶ 6.⁶ In September 2018, the FBI again provided Plaintiffs with a copy of this second Vaughn index and the processed documents. Id. (citing Ex. A2 ("Vaughn Index of Plaintiff's 2018 Sample"), ECF No. 134-2).

On the basis of these two Vaughn indices, DOJ filed the currently pending motion for summary judgment, which is now ripe for the Court's consideration. See Mem. Supp. Def.'s Mot. Summ. J. ("Def.'s MSJ"), ECF No. 234-4; Pls.' Resp. Def.'s Mot. Summ. J. ("Pls.' Opp'n"), ECF No. 243; Def.'s Reply to Pls.' Resp. Def.'s Mot. Summ. J. ("Def.'s Reply"), ECF No. 244.

III. LEGAL STANDARD

Summary judgment is proper when "the movant shows 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). A "material" fact is one capable of affecting the substantive outcome of the litigation, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), while a dispute is "genuine" if there is enough evidence for a reasonable finder of fact to decide in favor of the non-movant, see Scott v. Harris, 550 U.S. 372, 380 (2007). In the absence of an opposing party's own contraryaffidavits, declarations, or evidence, factual assertions in a moving party's affidavits or declarations may be accepted as true. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

"The vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). To carry its burden on such a motion, an "agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents," even when a plaintiff does not challenge the adequacy of an agency's search for responsive records. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (internal citation and punctuation omitted). The agency must also show that any responsive records that were not provided were properly withheld under one of FOIA's nine express statutory exemptions, see Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Justice (CREW I), 746 F.3d 1082, 1088 (D.C. Cir. 2014), or that information inside those records was "inextricably intertwined with" exempt information, Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (citations and internal quotation marks omitted). To justify the invocation of an exemption, an agency can submit affidavits that "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). Even when the use of a particular exemption is not challenged, though, "the Court still has an independent duty to 'determine for itself whether the record and any undisputed material facts justify granting summary judgment.'" Tokar v. U.S. Dep't of Justice, 304 F. Supp. 3d 81, 94 n.3 (D.D.C. 2018) (quoting Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)).

Additionally, as mentioned above, the parties here agreed to file dispositive motions based on a subset of documents, compiled in two separate Vaughn indices. This kind of "[r]epresentative sampling" is "an appropriate procedure to test an agency's FOIA exemption claims when a large number of documents are involved." Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991) (citations omitted). "When presented with a representative sample, a court considers the documents produced or described with the understanding that '[t]hey count not simply for themselves, but for presumably similar non-sample documents.'" Clemente v. FBI, 854 F. Supp. 2d 49, 58 (D.D.C. 2012) (quoting Bonner, 928 F.2d at 1151). An indication that information was improperly redacted from the sampled documents suggests similar errors infect the non-sampled documents; conversely, if the sampled documents reveal no improper withholdings, the Court can conclude the agency appropriately applied exemptions to the whole universe of documents at issue. See id.

IV. ANALYSIS

To frame the discussion, the Court notes that DOJ's motion for summary judgment is largely uncontested. Plaintiffs' opposition is brief, comprising just twelve double-spaced pages set in large, bolded font. See general Pls.' Opp'n. Its main argument appears to attack the adequacy of DOJ's search for responsive records. See id. at 4 ("A central issue in this case from the outset has been the Government's attempt to pretend that no components of the FBI had records that were responsive to Oglesby/DiBacco's requests."). Otherwise, it does not object to the (1) the use of sampling procedures as the basis for summary judgment (procedures which were, after all, jointly proposed by the parties) or the composition of the two Vaughn indices that resulted from that sampling process, (2) any of the specific exemptions invoked by DOJ, or (3)DOJ's representation that all non-exempt, segregable information within each record was released. See generally id.

A. Adequacy of the Search

The Court first considers the adequacy of the FBI's search. See Steinberg, 23 F.3d at 551. As Defendant notes, the FBI has conducted "multiple searches" during the course of the litigation. Def.'s MSJ at 10; see also Hardy Decl. ¶ 52 (mentioning various searches, described in affidavits, that were undertaken from 1999 through 2011). However, Defendant sensibly suggests that the Court focus on the search conducted after the 2011 reprocessing order, when the FBI conducted a fresh round of searches for documents responsive to Plaintiffs' request. Def.'s MSJ at 10.

Relying on the Declaration of FBI employee David M. Hardy (Section Chief of the Record/Information Dissemination Section, Information Management Division), Defendant details at length the steps taken to locate responsive documents at that time. See Def.'s MSJ at 8-16. Given Mr. Oglesby's request for "records pertaining to himself," the FBI searched its Central Records System ("CRS"), where the agency "indexes information about individuals, organizations, events, and other subjects of investigative interest for future retrieval." Id. at 10 (citing Hardy Decl. ¶ 56). As search terms, the FBI used thirty-five variations of Mr. Oglesby's name. Id. at 12. According to Mr. Hardy, "[b]ecause CRS is indexed by individual names, organizations and events, the FBI's search terms...