Davis v. Federal Bureau of Investigation ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
ADAM DAVIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0098 (EGS)
) Document No. 51
FEDERAL BUREAU )
OF INVESTIGATION et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
In what remains in this action brought against multiple federal agencies and agency
components under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, defendants have
renewed their motion for summary judgment on the Federal Bureau of Investigation’s (“FBI”)
and the Department of Justice’s (“DOJ”) withholding of documents in their entirety and the
Internal Revenue Service’s (“IRS”) search for responsive records. See Order (Mar. 16, 2011)
(granting in part and denying in part certain defendants’ summary judgment motion); Order (Mar.
7, 2011) (granting all other defendants’ summary judgment motion).
In his opposition to the instant motion, plaintiff disputes DOJ’s alleged failure to produce
(1) “the original of [a] Bond,” (2) “[a]ll relevant information about the record of campaign
contributions to George W. Bush and/or the Republican Party in 2000 and 2002,” and (3) “[a]ll
relevant records regarding the pursuit of Adam Davis” by the FBI and DOJ from June 15, 2005
through August 14, 2008.” Pl.’s Response in Opp’n to Mot. for Summ. J. [Doc. # 55] at 3-4.
However, the Court has already ruled in favor of DOJ and the FBI on the adequacy of their
respective searches for records responsive to the underlying FOIA request, see Mem. Op. (Mar.
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16, 2011) [Doc. # 47] at 13-15, which does not include a request for records pertaining to
campaign contributions. See id. at 1-2 (describing the request).
Plaintiff has not addressed defendants’ arguments relevant to the outstanding issues in
this case and, therefore, has conceded them. See Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22
(D.D.C. 2010) (“[A]n argument in a dispositive motion that the opponent fails to address in an
opposition may be deemed conceded[.]”) (citations omitted). In any event, the Court finds that
the IRS has now demonstrated through the Second Declaration of Anne M. Jensen [Doc. # 51-6]
that it performed a reasonably adequate search for responsive records. See id. ¶¶ 3-12; cf. with
Mem. Op. at 15-16 (questioning whether the search included all filing systems likely to contain
responsive records).
As to the segregability of the withheld documents, which the Court must address whether
or not contested, the Court initially found that it lacked a sufficient record to review the FBI’s
withholding of 17 pages in their entirety, see Mem. Op. at 6, and DOJ’s withholding of
documents 2, 3, 4, and 5 maintained by its Criminal Division, see id. at 9-11.
DOJ Records
DOJ has now shown through the Declaration of Catherine Gonzalez Gallego [Doc. # 51-
5] that it properly applied FOIA exemption 5 to documents 3 and 5, see id. ¶ 23, and exemptions
7(D) and 7(E) to documents 2, 3 and 5, see id ¶¶ 12-14. Furthermore, DOJ properly reassessed
its application of exemption 2 and released document number 4 to plaintiff after redacting
attorney work product under exemption 5 and the name of an FBI Special Agent under
exemptions 6 and 7(C). Gallego Decl. ¶¶ 18, 24, 26; see Mem. Op. at 6-8 (approving EOUSA’s
invocation of exemptions 5 and 7(C)). DOJ further determined that a nine-page memorandum
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referred from EOUSA was a duplicate of document 5 and that the remaining referred records
pertained to third-party individuals “and were deemed non-responsive.” Gallego Decl. ¶ 27.
According to Gallego, the foregoing withheld DOJ documents were reviewed for
segregability, and it was determined that “the only remaining information in the documents
withheld in full was assorted dates and random words [that] if disclosed . . . would have no
meaning.” Gallego Decl. ¶ 28. The Court is satisfied that DOJ released all reasonably segregable
non-exempt information. See Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C. Cir.
2000) (Entire records are exempt from disclosure when it is shown that "the exempt and
nonexempt information are 'inextricably intertwined,' such that the excision of exempt
information would impose significant costs on the agency and produce an edited document with
little informational value.") (quoting Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)).
FBI Records
Similarly, the FBI has now shown through the Declaration of Dennis J. Argall [Doc. # 51-
4] that it properly withheld what it has now determined to be 27 pages in their entirety because
they contained either grand jury material protected under FOIA exemption 3 or third-party
information protected under exemptions 6 and 7(C). See Argall Decl. ¶¶ 5-9. In addition, the
FBI has properly justified withholding 12 pages of grand jury material under exemption 3, id. ¶¶
10, 12, and “a photocopy of a picture of several [third-party] individuals” under exemptions 6
and 7(C), id. ¶ 11, that were referred from EOUSA. Argall states that each of the foregoing
documents was “re-reviewed” for segregability and it was determined that “no portion of [the]
document” was segregable because it consisted entirely of the type of information protected from
disclosure by the claimed exemption. Id. ¶¶ 9, 10, 11, 12.
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For the foregoing reasons, the Court finds that defendants have now satisfied their
disclosure obligations under the FOIA and are entitled to judgment as a matter of law. A
separate final order accompanies this Memorandum Opinion.
SIGNED: EMMET G. SULLIVAN
DATE: March 14, 2012 UNITED STATES DISTRICT JUDGE