McGehee v. U.S. Department of Justice ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FIELDING MCGEHEE et al.,
Plaintiffs,
v. Case No. 1:01-cv-01872 (TNM)
U.S. DEPARTMENT OF JUSTICE,
Defendant,
MEMORANDUM OPINION
In 1998, the Indianapolis Colts drafted Peyton Manning, Britney Spears released her hit
single “Baby One More Time,” and Fielding McGehee submitted a Freedom of Information
(“FOIA”) request to the FBI. While the heydays of Mr. Manning and Ms. Spears have come and
gone, Mr. McGehee’s FOIA request lingers.
In response to Mr. McGehee’s requests, the FBI has produced thousands of pages of
responsive records, CDs, audio tapes, video tapes, and photographs. After twenty years of
negotiation and litigation, the FBI insists that it has satisfied its statutory obligations and that this
litigation should be retired. Mr. McGehee and his wife Rebecca Moore (collectively the
“Plaintiffs”) disagree. Both sides have moved for summary judgment. For the reasons below,
the Plaintiffs’ motion will be denied, and Government’s motion will be granted.
I. BACKGROUND 1
In 1998, the Plaintiffs submitted a FOIA request to FBI Headquarters, beginning their
twenty-year quest for information about the victims and investigations of the Jonestown
Massacre in Jonestown, Guyana. See McGehee v. U.S. Dep’t of Justice, 800 F. Supp. 2d 220,
226 (D.D.C. 2011). The Plaintiffs eventually filed a Complaint against the FBI’s parent agency,
the Department of Justice, alleging that the production that they received from the FBI was
inadequate. Id. After years of negotiation, searches, and productions, the parties filed cross-
motions for summary judgment. Id. Judge Kessler, who was then overseeing this case, granted
in part and denied in part both motions. Id. The court ruled that the FBI’s search was adequate.
Id. at 230. It also held that the Bureau’s application of Exemptions 3, 7(C), 7(D), and 7(E) were
proper. Id. at 230–37. But it determined that FBI’s Vaughn Index was deficient, so the court
could not decide whether the FBI had disclosed all segregable information. Id. at 238. The court
did not rule on the FBI’s withholdings based on Exemptions 1 and 2 and a sealing order. Id.Instead, the court ordered the Government to file an updated Vaughn Index after it processed the
material previously withheld under Exemptions 1 and 2 and a sealing order. Id. at 239.
Processing this material, the FBI discovered and then released more material to the
Plaintiffs. Seventeenth Hardy Decl. (“Hardy Decl.”) ¶ 15, ECF No. 256-3. Eventually, in 2014,
the court ordered the Plaintiffs to “submit a final comprehensive list of document requests” to the
FBI. ECF No. 191. In response to the Plaintiffs’ list, the FBI conducted additional searches and
released more material including photographs, audio tapes, and video tapes. Hardy Decl. ¶ 23.
1
The Court will not recite the full breadth of the factual and procedural background of the case
here. Instead, the Court assumes familiarity with McGehee v. U.S. Department of Justice, 800 F.
Supp. 2d 220, 226 (D.D.C. 2011).
2
Both parties have again moved for summary judgment. Pls.’ Mot. for Summ. Judgment
(“Pls.’ Mot.”), ECF No. 253; Def.’s Cross-Mot. for Summ. Judgment (“Def.’s Mot.”), ECF No.
256.
II. LEGAL STANDARDS
The “vast majority” of FOIA cases are resolved on summary judgment motions. Brayton
v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on a motion for
summary judgment, a movant must 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); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is material if it
could alter the outcome of the suit under the substantive governing law. Anderson, 477 U.S. at
248. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id.In the FOIA context, an agency is entitled to summary judgment if it establishes “beyond
material doubt that it has conducted a search reasonably calculated to uncover all relevant
documents,” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (cleaned up), and that each
relevant record has been produced or is exempt from disclosure. Students Against Genocide v.
U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA permits agencies to withhold
information that falls under “one of nine specific exemptions, which are construed narrowly in
keeping with FOIA’s presumption in favor of disclosure.” Pub. Citizen, Inc. v. Office of Mgmt.
& Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (citations omitted).
The FBI “bears the burden of establishing that a claimed exemption applies.” Citizens
for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014). It
can carry this burden “by submitting sufficiently detailed affidavits or declarations, a Vaughn
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index of the withheld documents, or both, to demonstrate that [it] has analyzed carefully any
material withheld and provided sufficient information as to the applicability of an exemption to
enable the adversary system to operate.” Brennan Ctr. for Justice v. U.S. Dep’t of State, 296 F.
Supp. 3d 73, 80 (D.D.C. 2017). If this information “is not contradicted in the record, and if there
is no evidence in the record of agency bad faith, then summary judgment is appropriate without
in camera review of the documents.” ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 626 (D.C.
Cir. 2011). In other words, “[u]ncontradicted, plausible affidavits showing reasonable specificity
and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011).
III. ANALYSIS
In July 2018, the Court set a briefing schedule which required the Plaintiffs to file their
Opposition to FBI’s Motion for Summary Judgment by December 15, 2018. Minute Order of
July 26, 2018. The Court later granted the Plaintiffs’ motion for extension of time, allowing
them to file on or before January 4, 2019. Minute Order of Dec. 12, 2018. And again, the Court
moved the deadline, allowing the Plaintiffs to file on or before January 31, 2019. Minute Order
of Jan. 4, 2019. The January 31 deadline passed with no filing from the Plaintiffs. Minute Order
of Feb. 5, 2019. So the Court issued a show-cause order. Id. After the Plaintiffs asked for more
time to respond to the Court’s show-cause order, the Court set a revised briefing schedule,
warning the parties that further extensions would be disfavored. See ECF No. 264.
The Plaintiffs’ Opposition was due February 28, 2019, but no brief was ever filed. The
Plaintiffs have not received—or even asked for—an extension of time. Instead, they have
submitted a “Notice of Filing” in which they merely notify the Court of computer trouble and
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that they intend file their Opposition “within a week” after Plaintiffs’ counsel returns from
Singapore. 2 Notice of Filing, ECF No. 265. This is unacceptable.
District courts enjoy broad discretion when deciding case management and scheduling
matters. See, e.g., In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1210 (D.C. Cir. 2003);
McSheffrey v. Exec. Office for U.S. Attorneys, No. 00-5268, 2001 WL 674640, at *1 (D.C. Cir.
May 4, 2001). The Court, not the parties, sets the briefing schedule, and a party cannot
unilaterally alter it. The Court will thus rule on these motions now, making an independent
evaluation under Rule 56. See Winston & Strawn, LLP v. McClean, 843 F.3d 503, 505 (D.C. Cir.
2016).
A. The FBI’s Search Was Adequate.
“In order to obtain summary judgment, the agency must show that it made a good faith
effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
In their motion for summary judgment, the Plaintiffs ask this Court to order the FBI to
“review and process for release all records of the San Francisco Field Office that were
transferred to the FBI Headquarters Civil Litigation Division.” Pls.’ Mot. at 21. According to
the Plaintiffs, the FBI Headquarters had these San Francisco documents when the Plaintiffs
submitted their FOIA requests, but the FBI has not produced them. Id. at 17–19.
2
As this counsel has been warned in the past, “[t]he mere existence of a prior commitment does
not provide a legitimate excuse for non-compliance with the directives of this Court.”
Schoenman v. FBI, 841 F. Supp. 2d 69, 75 n.2 (D.D.C. 2012) (denying this counsel’s motions to
file late).
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The Court agrees with the Government that this argument is speculative. The Plaintiffs
offer no evidence that the San Francisco documents were at the FBI Headquarters when they
submitted their FOIA requests. In response, the FBI submitted a declaration (the seventeenth in
this case, to be exact) from David M. Hardy, Section Chief of the Record/Information
Dissemination Section, Information Management Division at the FBI. See Hardy Decl. ¶ 1. Mr.
Hardy’s declaration explains why the documents were not at the FBI Headquarters when the
Plaintiffs made their request. Hardy Decl. ¶ 33. These records were sent from San Francisco to
FBI Headquarters for a limited purpose and then returned to San Francisco. Id. The declaration
explains that “the FBI did not locate the 262 volumes described . . . in its numerous and
extensive searches” of the FBI Headquarters. Id.“Generally, the FBI is not obligated to undertake a search of its field office’s records
where a plaintiff's request is submitted directly to [FBI Headquarters].” Kidder v. FBI, 517 F.
Supp. 2d 17, 25 (D.D.C. 2007). At the time, FOIA regulations required the Plaintiffs to submit
their requests to the field offices that they believed had the responsive records. See 28 C.F.R.
§ 16.3(a). This “regulation by nature generally aims to promote an agency’s ability to respond to
requests in an efficient manner.” Clemente v. FBI, 867 F.3d 111, 119 (D.C. Cir. 2017). The
Plaintiffs did not submit a request to the San Francisco office; they submitted a request to FBI
Headquarters. Under the regulation at the time, the FBI had no obligation to process FBI San
Francisco field office records. See id. at 118–19.
The Court rejects the Plaintiffs’ sole objection to the FBI’s search. The FBI has
submitted a detailed declaration explaining why the San Francisco would not have been at the
FBI Headquarters when the Plaintiffs submitted their requests back in 1998. And given the
Plaintiffs’ requests, the FBI had no obligation to process material housed in San Francisco. Even
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if the Plaintiffs are correct in their bald assertion that the San Francisco documents were at FBI
Headquarters in 1998, “the adequacy of a FOIA search is generally determined not by the fruits
of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde
v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
The adequacy of any FOIA search is measured by a standard of “reasonableness” and
depends on the circumstances of the case. Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 663
(D.C. Cir. 2003). To show reasonableness at the summary judgment phase and to allow the court
to determine whether the search was adequate, an agency must provide a “reasonably detailed
affidavit, setting forth the search terms and the type of search performed, and averring that all
files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920
F.2d at 68.
As the FBI emphasizes, Judge Kessler already held that the FBI’s search was “reasonably
calculated to uncover all relevant documents.” McGehee, 800 F. Supp. 2d at 230. This Court
agrees. The FBI has since conducted another search and released more material to the Plaintiffs.
This does not undermine FBI’s position here. Rather, this only highlights the FBI’s good-faith
efforts to locate all responsive records. See Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir.
1986) (explaining “that the additional releases suggest ‘a stronger, rather than a weaker, basis’
for accepting the integrity of the search”). In sum, the Court holds, again, that the FBI’s search
was adequate.
B. The FBI Has Properly Invoked Exemption 1.
The Government argues that it properly withheld information under Exemption 1, which
protects materials that are “specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy and . . . are in fact
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properly classified pursuant to such Executive order.” 5 U.S.C.§ 552(b)(1). The FBI here relies
on Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), which prescribes a uniform
system for classifying and safeguarding national security information. So the Government must
show both that the information was classified under to the proper procedures and that the
withheld information substantively falls under this Executive Order. See Salisbury v. United
States, 690 F.2d 966, 971–72 (D.C. Cir. 1982) (analyzing a predecessor to Executive Order
13,526).
Mr. Hardy reviewed the documents and determined that the redacted information was
currently and properly classified as “confidential” or “secret” under Executive Order 13,526.
Hardy Decl. ¶ 35. Mr. Hardy explained that the information withheld by the FBI included
information that would (a) reveal the actual intelligence activities used by the FBI against
specific targets of foreign counterintelligence investigations or operations; (b) identify a target of
a foreign counterintelligence investigation; and (c) disclose the intelligence-gathering
capabilities of the activities or methods directed at specific targets. Id. ¶ 37. According to Mr.
Hardy, “[i]nformation obtained from the intelligence activities or methods protected in these
pages is very specific in nature, provided during a specific time period, and known to very few
individuals.” Id.
Because courts are generally ill-equipped to second-guess an agency’s opinion in the
national security context, “the government’s burden is a light one.” ACLU, 628 F.3d at 624. “[I]n
the FOIA context, we have consistently deferred to executive affidavits predicting harm to
national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l
Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). The Government’s
arguments need only be both “plausible” and “logical” to justify the invocation of a FOIA
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exemption in the national security context. See Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir.
2007).
Conducting a de novo review, the Court finds that it is both plausible and logical that the
disclosure of the information withheld by the FBI “reasonably could be expected to result in
damage to the national security.” Executive Order 13,526. After all, this FOIA request relates to
the murder of a congressman abroad and the second largest single loss of American civilians by a
deliberate act in history. And “finding no evidence in the record to support the opposition
conclusion, no further investigation is required.” ACLU, 628 F.3d at 625. The Court thus finds
that the FBI has properly invoked Exemption 1.
C. The FBI Has Properly Invoked Exemptions 6 and 7(C). 3
After the FBI conducted its latest search, it provided the Plaintiffs “with the best copies
available of all photographs” located. Hardy Decl. ¶ 42. But the FBI redacted information under
Exemptions 6 and 7(C). Id. According to the FBI, the Plaintiffs did not provide privacy waivers
or proof of death documentation for the individuals in these photographs. Id.Exemption 7(C) protects information compiled for law enforcement purposes if
disclosure “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether Exemption 7(C) applies, courts
balance the public interest in disclosure with the privacy interests implicated by release of the
material. Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C.
Cir. 1996).
3
Because the FBI asserted Exemption 6 coextensively with Exemption 7(C) and, as explained in
this section, the information sought was properly withheld under Section 7(C), there is no need
to address the more stringent standards of Exemption 6.
9
The FBI argues that it conducted the “same balancing of public versus privacy interests”
that Judge Kessler already approved in her earlier Memorandum Opinion. Def.’s Mot. at 10.
There, it alleged that it “asserted Exemption 7(C) to protect names and/or identifying information
of: 1) Third Parties Merely Mentioned; 2) Third Parties who Provided Information; 3) FBI
Agents and Support Personnel; 4) Non–FBI Federal Government Personnel; 5) Local and/or
State Government.” McGehee, 800 F. Supp. 2d at 233. Here, again, the FBI invokes Exemption
7(C) to justify its decision to withhold photographs “for individuals Plaintiffs have not provided
privacy waivers or proofs of death for.” Hardy Decl. ¶ 42.
Whether disclosure of private information is warranted under Exemption 7(C) turns on
whether the information “sheds light on an agency’s performance of its statutory duties.” U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). Here,
the Plaintiffs do not explain why—and indeed it is hard to see how—this information would shed
light of the FBI’s performance of its statutory duties. The D.C. Circuit has held that, “unless
access to the names and addresses of private individuals appearing in files within the ambit of
Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is
engaged in illegal activity, such information is exempt from disclosure.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). And the Plaintiffs have made no allegations of
illegal activity.
Given Mr. Hardy’s “[u]ncontradicted, plausible [declaration] showing reasonable
specificity and a logical relation to the exemption,” the Court finds that the FBI has properly
invoked Exemption 7(C). Ancient Coin Collectors Guild, 641 F.3d at 509.
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D. The FBI Has Satisfied Its Segregability Requirement.
Even if a record contains information exempt from disclosure, any reasonably segregable
information must be released after deleting the exempt portions, unless the non-exempt portions
are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b). “In order to demonstrate
that all reasonably segregable material has been released, the agency must provide a ‘detailed
justification’ for its non-segregability.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771,
776 (D.C. Cir. 2002) (cleaned up).
“Agencies are entitled to a presumption that they complied with the obligation to
disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007). The Hardy Declaration makes it clear that the FBI’s redactions occurred only
after a careful page by page, line by line review of the information and a determination whether
any of the information was reasonably segregable and thus available for disclosure. See Hardy
Decl. ¶ 46. So the burden is on the Plaintiffs to offer contrary evidence to rebut the applicable
presumption. See Sussman, 494 F.3d at 1117 (discussing standards to rebut this presumption).
And the Plaintiffs have not challenged the FBI’s segregability review here. See generally Pls.’
Mot. The Court is satisfied that the FBI disclosed all reasonably segregable, non-exempt
information.
IV. CONCLUSION
For these reasons, the Plaintiffs’ motion will be denied, and Government’s motion will be
granted. A separate order will issue.
2019.03.04
15:40:14 -05'00'
Dated: March 4, 2019 TREVOR N. McFADDEN, U.S.D.J.
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