Frederick Banks v. Department of Justice ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREDERICK BANKS, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1950 (EGS)
)
DEPARTMENT OF JUSTICE, et al., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff filed a ten-count Complaint under the Freedom of Information Act (“FOIA”), see
5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a, against various government entities,
alleging their failure to release requested information about himself, other individuals, and
corporate entities. This matter is before the Court on the parties’ cross-motions for summary
judgment with respect to plaintiff’s FOIA claims against the United States Postal Investigation
Service (“USPIS”) (Counts Five and Six) and the Federal Bureau of Prisons (“BOP”) (Counts
Nine and Ten). The Court will deny the motions without prejudice.
I. BACKGROUND
A. United States Postal Investigation Service (Counts Five and Six)
According to the Complaint, “[p]laintiff[] propounded a renewed request to the [USPIS]
under the [FOIA],” Compl. ¶ 13, and the USPIS “did not provide the requested records.” Id. ¶
14. Plaintiff neither specified a particular request by tracking number, nor indicated the date on
which he submitted the request. See id.
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According to the USPIS, between 2005 and 2009, plaintiff submitted seven FOIA
requests, three of which are relevant to this action. See Mem. of P. & A. in Supp. of Defs.’ Mot.
to Dismiss and for Summ. J. [Dkt. #54], Ex. B (“Baxter Decl.”) [Dkt. #54-3] ¶ 4. These three
requests were dated December 28, 2004, July 11, 2005, and March 19, 2006, and the USPIS
assigned each a separate tracking number. Id. ¶¶ 4-5, 11 and 14.
The Court already has granted summary judgment in the USPIS’ favor with respect to the
March 19, 2006 request (FOIA No. 2006-FPIS-00167), which the agency received on March 24,
2006. Banks v. Dep’t of Justice, 538 F. Supp. 2d 228, 234-35 (D.D.C. 2008). Remaining for this
Court’s resolution, then, are the adequacy of the USPIS’ search for records responsive to
plaintiff’s December 28, 2004, and July 11, 2005, FOIA requests (respectively, FOIA Nos. 2005-
FPIS-00020 and 2005-FPIS-00180), and the agency’s justification for withholding certain
information under Exemptions 2, 3, 5, 6 and 7. See id.; Banks v. Dep’t of Justice, 605 F. Supp.
2d 131, 142 (D.D.C. 2009).
B. Federal Bureau of Prisons (Counts Nine and Ten)
The Court already has concluded that the BOP’s search for records responsive to
plaintiff’s FOIA request was adequate and reasonable under the circumstances. See Banks, 605
F. Supp. at 140. Missing from the record at that time was an explanation for the agency’s
decision to withhold in full “four pages of records found in plaintiff’s Central and Medical Files”
under FOIA Exemptions 5, 6, 7(C), and 7(F). Id. For this reason, the Court denied summary
judgment without prejudice as to Counts Nine and Ten. Id.
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II. DISCUSSION
A. Summary Judgment in a FOIA Case
The Court may grant a motion for summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the
moving party’s affidavits may be accepted as true unless the opposing party submits his own
affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
In a FOIA case, the Court may grant summary judgment based on the information
provided in affidavits or declarations when these submissions describe “the documents and 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.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency,
692 F.2d 770, 771 (D.C. Cir. 1981)).
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B. The USPIS’ Motion for Summary Judgment Will Be Denied Without Prejudice
1. The USPIS Does Not Demonstrate that its Searches for Records
Responsive to Plaintiff’s FOIA Requests Were Adequate
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v.
Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “[T]he issue to be resolved is not whether
there might exist any other documents possibly responsive to the request, but rather whether the
search for those documents was adequate.” Weisberg v. United States Dep’t of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983) (citing Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per
curiam)). “The agency is required to set forth the search terms used and the search conducted, . .
. as well as to describe the structure of the file systems searched[.]” Int’l Counsel Bureau v.
United States Dep’t of Defense, 657 F. Supp. 2d 33, 38 (D.D.C. 2009) (citations omitted). The
agency “may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith” to
demonstrate the adequacy of its search. Weisberg, 705 F.2d at 128 (citations omitted). In the
absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an
agency’s compliance with the FOIA. Id. at 127; see Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). If the record “leaves substantial doubt as to the sufficiency of the
search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
a. The USPIS Investigative File System
The USPIS is the “law enforcement component of the United States Postal Service[.]”
Baxter Decl. ¶ 1. “The Chief Postal Inspector is the official custodian of all Inspection Service
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records, including records relating to criminal investigations that are maintained by the [USPIS].”
Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. [Dkt.
#20], Decl. of Lawrence Katz (“Katz Decl.”) [Dkt. #23-1] ¶ 2. Files containing records of the
USPIS’ active criminal, civil and administrative investigations generally are located “in the
responsible Inspection Service field division office[,] and closed case files are stored in
Inspection Service Operations Support Centers until transferred to a Federal records center.” Id.Investigative files “may contain investigative reports, notes and memoranda, background
data including arrest records, statements of informants and witnesses, laboratory reports of
evidence analysis, search warrants, [and] summons[es] and subpoenas,” and also may contain
records pertaining to consensual electronic surveillance. Katz Decl. ¶ 18. In addition, the
Investigative File System may contain personal data such as fingerprint and handwriting samples,
voiceprints, photographs, and individual personnel and payroll information. Id. In order to
retrieve personal data from these files, one uses an individual’s name or Social Security number
as a search term. Id. Two systems of records, the Inspection Service Database Information
System (“ISDBIS”) and the Inspection Service’s Integrated Information System (“ISIIS”),
“contain additional or summary duplicative case files and other information in support of
investigations.” Id. For example, the ISIIS “contains the case management system utilized by
postal inspectors to track and document USPIS criminal investigative cases.” Baxter Decl. ¶ 5.
b. Request No. 2005-FPIS-00020
In his December 28, 2004 request, plaintiff sought information pertaining to himself and
entities called Vampire Nation, Hexagon, LLC, Hexagon Records, Search Syndicate, Inc.,
Merakesh Armano, HLLC, and HLC. Katz Decl., Ex. A at 1. In addition, plaintiff requested
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records pertaining to nine individuals. Id. at 1-2. He specified that “[t]he searches should not be
limited to criminal files.” Id. at 1. The USPIS acknowledged receipt of the request, and assigned
the matter a tracking number, FOIA No. 2005-FPIS-00020. Id., Ex. B (January 7, 2005 letter
from L. Freeman, Information Disclosure Technician, Office of Counsel, USPIS). Staff
conducted “an electronic record search . . . of . . . ISIIS[,]” which yielded two files: “an open
case 0583-1407269-ECMT(1) in the [USPIS] Pittsburgh Division[,] and a closed case[,] 0472-
1163144-FC(2).” Baxter Decl. ¶ 5. USPIS staff obtained from the Procurement and
Administrative Service Center in Bala Cynwyd, Pennsylvania, a photocopy of the original case
file for closed Case No. 0472-1163144-FC(2). Id. ¶ 9. From this closed case file, the USPIS
released 99 pages of redacted records on April 15, 2005. Id. ¶ 9.
c. Request No. 2005-FPIS-00180
In his July 11, 2005 FOIA request, plaintiff sought “every record that [the USPIS has] in
every database” pertaining to the following corporate entities and individuals: VCD Street,
Intelli-Soft, Matt Anderson, Claudio Lopez, Global Business System, GHS Systems, Microsharp,
ebay@meetyourprice.com, meetyourprice.com, ADW International, Inc., Dan Wash, and Rob
Morgan. Katz Decl., Ex. M (FOIA/PA Request) at 1. The USPIS acknowledged receipt of the
request, and assigned the matter a tracking number, FOIA No. 2005-FPIS-00180. Id., Ex. N
(August 5, 2005 letter from T.A. Warner, Information Disclosure Technician, Office of Counsel,
USPIS) at 1. Staff interpreted the request as one for “all database records . . . regarding VCD
STREET, Intelli-Soft, Global Business System, GHS Systems, Microsharp, ADW International,
Inc., and four individuals.” Baxter Decl. ¶ 11. An electronic search of ISIIS for records yielded
one open case, No. 0583-1407269-ECMT(1). Id. ¶ 12.
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d. Plaintiff’s Challenge to the USPIS’ Searches
Plaintiff contends that the USPIS did not conduct adequate searches for records
responsive to his requests because the agency “only searched certain databases[,]”
notwithstanding his request that “all databases . . . be searched.” Pl.’s Reply to Defs. United
States Postal Investigation Serv. and Fed. Bureau of Prisons Mot. for Summ. J. and Pl.’s Mot. for
Summ. J. (“Pl.’s Opp’n and Cross-Mot. for Summ. J.”) at 3.
“The [C]ourt applies a ‘reasonableness’ test to determine the ‘adequacy’ of a search
methodology[.]” Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998)
(quoting Weisberg, 705 F.2d at 1351). Although an agency need not search every record system,
see Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990), an “agency
cannot limit its search to only one record system if there are others that are likely to turn up the
information requested.” Id. In this case, the USPIS, through its supporting declarations, explains
the manner by which the searches were conducted, and suggests the search terms used.
However, in light of plaintiff’s explicit request that the USPIS’ searches not be limited to
criminal files, the agency does not explain why plaintiff’s requests for information about himself
are presumed to implicate investigative files maintained in the ISIIS. Moreover, the USPIS does
not explain sufficiently its interpretations of plaintiff’s FOIA requests. With respect to Request
No. 2005-FPIS-00020, the USPIS does not explain a rationale for “routinely interpret[ing]” a
request such as plaintiff’s for information about himself and specified corporate entities as one
from “an individual seeking records maintained in the Inspection Service Investigative File
System.” Baxter Decl. ¶ 5. Nor does the USPIS explain its interpretation of Request No. 2005-
FPIS-00180 to include VCD STREET, Intelli-Soft, Global Business System, GHS Systems,
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Microsharp, ADW International, Inc., and four individuals, id. ¶ 11, while excluding
ebay@meetyourprice.com and meetyourprice.com. The USPIS, then, does not demonstrate that
it has searched the files or systems of records most likely to contain records responsive to
plaintiff’s FOIA requests.
2. The USPIS Does Not Justify Its Decisions to Withhold Records Under
Exemptions 2, 3, 5, and 6, 7(A), 7(C), 7(D), and 7(E)
Under the FOIA, an agency may withhold documents responsive to a FOIA request only
if they fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). An
agency must demonstrate that “each document that falls within the class requested either has
been produced, is unidentifiable, or is wholly [or partially] exempt from the [FOIA’s] inspection
requirements.” Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978); see
also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). “[W]hen
an agency seeks to withhold information, it must provide a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Morley v. Cent.
Intelligence Agency, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King v. United States Dep’t
of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987)) (internal quotation marks omitted). For example,
“[b]arren assertions that an exempting statute has been met cannot suffice to establish that fact.”
Founding Church of Scientology of Washington, D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824,
831 (D.C. Cir. 1979). Nor can an agency meet its obligation simply by quoting the statutory
language of an exemption. See, e.g., Army Times Pub. Co. v. Dep’t of the Air Force, 998 F.2d
1067, 1070 (D.C. Cir. 1993) (remarking that affidavits “[p]arroting the case law” were
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insufficient); Voinche v. Fed. Bureau of Investigation, 412 F. Supp. 2d 60, 69 (D.D.C. 2006)
(concluding that the FBI did not justify its decision to withhold information under Exemption
7(E) where the declaration “merely quote[d] the statutory language of Exemption (E)”); Scott v.
Cent. Intelligence Agency, 916 F. Supp. 42, 48 (D.D.C. 1996) (finding a declaration inadequate
because it failed to provide the date of the documents, the number of documents withheld, and
the nature and type of material contained in the documents).
a. Exemptions 2, 3, 5, 6 , 7(C), 7(D), and 7(E)
In support of its motion, the USPIS relies on the declaration of Lawrence Katz to explain
the agency’s decision to disclose 99 pages of records in part and to withhold 187 pages of records
in full under Exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E). See Katz Decl. ¶¶ 20-39; see id., Ex.
(“Vaughn index”). The Court has reviewed the declaration and Vaughn index, and finds the
agency’s submission inadequate. The Vaughn index dutifully lists each document by number,
offers a brief description of the nature of the document (such as “internal report” or “warrant
affidavit”), indicates whether the entire document or only a portion of the document is withheld,
and sets forth the exemption or exemptions on which it relies. The index falls short, however,
both in its failure to discuss the nature or type of information withheld and its tendency to restate
the statutory language of the exemptions claimed as its sole justification for withholding the
relevant information. The accompanying declaration offers no additional information to
compensate for the Vaughn index’s deficiencies.
For example, the USPIS relies on Exemption 2 to withhold “personal identification
information” from Documents 3, 25, 37, 38, 50, and 64-67. Katz Decl. ¶ 23. Although the
declarant explains that information such as employees’ telephone numbers and e-mail addresses
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may fall within the scope of Exemption 2, see id. ¶ 22, it is unclear from the declaration and
corresponding Vaughn index entries that information such as telephone numbers and e-mail
addresses is, indeed, the information withheld under the claimed exemption. Nor does the
USPIS’ submission establish that the withholding of information under Exemption 2 otherwise is
permissible under the prevailing law.
In another example, the USPIS withholds Document 49, described as a warrant affidavit,
in its entirety under Exemption 3 in conjunction with Rule 6(e) of the Federal Rules of Criminal
Procedure, which regulates the disclosure of matters before a grand jury. Katz Decl. ¶ 26;
Vaughn index at 20 (Doc. No. 49). In this Circuit, the grand jury exception is limited to material
which, if disclosed, would “tend to reveal some secret aspect of the grand jury’s investigation,
such . . . as the identities of witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation, the deliberations or questions of jurors, and the like.” Senate of
Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). The phrase
“grand jury” does not appear in the Vaughn index explanation, and the declaration does not state
expressly that this warrant affidavit qualifies as grand jury material within the scope of
Exemption 3.
A third example is the USPIS’ explanation for withholding Document Nos. 5, 9, 29-31,
33-36, 56, 58-59, 73-74 and 83 under Exemption 5. The declarant states that these documents
“contain information related to the deliberative process of the USPIS in its consideration of
possible criminal actions against [plaintiff] or are documents protected by the attorney client
privilege.” Katz Decl. ¶ 28. With respect to documents withheld under the deliberative process
privilege, neither the declaration nor the corresponding Vaughn index entries indicates “what
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deliberative process is involved, and the role played by the documents at issue in the course of
that process.” Heggestad v. United States Dep’t of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000)
(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)). The
USPIS is no more successful in establishing that any of these records, including the draft
pleading withheld in its entirety, see Vaughn index at 3 (Doc. No. 5), are materials prepared by
an attorney in anticipation of litigation, see Hickman v. Taylor, 329 U.S. 495 (1947), or contain
the “mental impressions, conclusions, opinions or legal theories of an attorney.” FED . R. CIV . P.
26(b)(3). The deficiencies of the USPIS’ submissions are not limited to these three examples, as
its purported justification for withholding information under Exemptions 6 and 7 offers little
more than a repetition of the statutory language.
b. Exemption 7(A)
Exemption 7(A) protects law enforcement records “to the extent that production of . . .
records or information [] could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A). “The principal purpose of Exemption 7(A) is to prevent
disclosures which might prematurely reveal the government’s cases in court, its evidence and
strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable
suspects to establish defenses or fraudulent alibis or to destroy or alter evidence.” Maydak v.
United States Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000) (citing Nat’l Labor Relations
Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 241-42 (1978)), cert. denied, 533 U.S. 950(2001). An agency “must show, by more than [a] conclusory statement, how the particular kinds
of investigatory records requested would interfere with a pending enforcement proceeding.”
Campbell v. Dep’t of Health and Human Servs., 682 F.2d 256, 259 (D.C. Cir. 1982). “[T]he
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government need not justify its withholdings document-by-document; it may instead do so
category-of-document by category-of-document.” Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986). Accordingly, the agency must define its categories
functionally, determine, document-by-document, the category into which each document falls,
and explain “how the release of each category would interfere with enforcement proceedings.”
Bevis v. Dep’t of State, 801 F.2d 1386, 1389-90 (D.C. Cir. 1986).
The USPIS withholds under Exemption 7(A) all records pertaining to open Case No.
0583-1407269-ECMT(1). Katz Decl. ¶¶ 7, 15; Baxter Decl. ¶¶ 6-8. The declarants offer no
justification for this decision beyond two conclusory statements: that these “investigatory records
[were] compiled for law enforcement purpose[s,]” and that their release “could reasonably be
expected to interfere with enforcement proceedings.” Katz Decl. ¶ 7; see id. ¶ 15. The mere fact
that the underlying investigation remains open is not a sufficient basis for withholding the entire
case file; such a decision is justified only on a showing that the release of each category of
documents could reasonably be expected to interfere with enforcement proceedings.
C. The BOP’s Motion for Summary Judgment Will Be Denied Without Prejudice
“[I]n keeping with recent developments in government FOIA policy, and in consultation
with Department of Justice employees, [the] BOP re-examined the four . . . withheld
documents.” Defs.’ Mem., Ex. A (“Herbin-Smith Decl.”) ¶ 8. The BOP since has released in its
entirety a one-page Victim Notification Record, id. ¶¶ 7-8, and has released in part “a one-page
Notification Report print out from the Victim Notification System (VNS) which allows federal
agencies to share victim information (the ‘Notification Report’)[,]” and a two-page letter from
the BOP “concerning victim-witness procedures which includes sensitive victim information (the
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‘letter’),” id. ¶ 7, after having redacted information under Exemptions 7(C) and 7(F). Id. ¶¶9-12;
see id., Ex. 4.
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S.
615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must
establish that the records at issue were compiled for law enforcement purposes, and that the
material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster,
673 F.2d 408, 413 (D.C. Cir. 1982).
As plaintiff notes in his opposition, see Pl.’s Opp’n and Cross-Mot. for Summ. J. at 1, the
BOP’s supporting declaration does not address the threshold requirement of Exemption 7.
Rather, the agency appears to rely solely on its status as a law enforcement agency as the premise
from which the Court should conclude that any record it maintains was compiled for law
enforcement purposes. Absent a showing that the relevant records were compiled for law
enforcement purposes, the BOP cannot justify its decisions to withhold the names of third
parties, the disclosure of which “could reasonably be expected to constitute an unwarranted
invasion of personal privacy,” 5 U.S.C. § 552 (b)(7)(C), or which “could reasonably be expected
to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Moreover,
with respect to the BOP’s reliance on Exemption 7(F), its supporting declaration does not explain
“whether there is some nexus between disclosure and possible harm” to such third parties. Linn
v. United States Dep’t of Justice, No. 92-1406, 1995 WL 631847, at *8 (D.D.C. Aug. 22, 1995).
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D. Plaintiff’s Motion for Summary Judgment Will Be Denied Without Prejudice
Plaintiff moves for summary judgment arguing that he is entitled to the release of all the
records requested from the USPIS and the BOP, and he advances three novel arguments in
support of his motion. First, he declares “that he is a Lakota Sioux Native American Indian of a
Federally recognized tribe” to whom the FOIA and the Privacy Act do not apply. Pl.’s Opp’n
and Cross-Mot. for Summ. J. at 1-2. He further argues that he “seeks to use [the requested
records] to challenge his criminal conviction,” and the withholding of the records violates his
right to due process. Id. at 3. Lastly, he argues that the withholding of the records violates his
First Amendment right to the free exercise of his religion. Id. at 4. According to plaintiff, “his
religion, Thelema, mandates that he access the records to purge all the negative energy from his
life in a religious ritual.” Id. None of these arguments is persuasive.
Any person, whether an individual, partnership or corporate or government entity, can
make a FOIA request. See 5 U.S.C. § 551(2) (defining the term “person” for purposes of the
FOIA). The FOIA does not concern itself with the identity of a requester or his intended use of
the requested records. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004)
(“As a general rule, citizens seeking documents subject to FOIA disclosure are not required to
explain why they seek the information.”); United States Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 771 (1989) (stating that the requester’s identity has “no
bearing on the merits of his . . . FOIA request”); see also Willis v. U.S. Dep’t of Justice, 581 F.
Supp. 2d 57, 76 (D.D.C. 2008) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at
773) (“[A]n individual’s personal interest in challenging his criminal conviction is not a public
interest under FOIA because it ‘reveals little or nothing about an agency’s own conduct.’”). Nor
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is the FOIA a means by which plaintiff can vindicate his constitutional rights. See McGehee v.
Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“A litigant seeking release of government
information under FOIA, therefore, relies upon a statutory entitlement – as narrowed by statutory
exceptions – and not upon his constitutional right to free expression.”); see also Mingo v. U.S.
Dep’t of Justice, No. 08-2197, 2009 WL 2618129, at *2 (D.D.C. Aug. 24, 2009) (rejecting
argument that the agency deliberately withheld exculpatory information in violation of the Fifth
Amendment because the government’s constitutional obligation under Brady v. Maryland, 373
U.S. 83 (1963), to disclose exculpatory material to a defendant in a criminal proceeding is not
coextensive with the agency’s statutory obligations under the FOIA). Neither plaintiff’s status as
a Native American nor his intended use of the requested records leads inexorably to the
conclusion that he is entitled to the release in full of all the records he has requested.
III. CONCLUSION
The parties have not met their respective burdens on summary judgment, and,
accordingly, the parties’ motions will be denied without prejudice. An Order accompanies this
Memorandum Opinion.
Signed: EMMET G. SULLIVAN
United States District Judge
Dated: March 26, 2010
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