Watson v. U.S. Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BOBBY KEITH WATSON,
Plaintiff,
v. No. 18-cv-1645 (DLF)
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
Bobby Keith Watson, acting pro se, brings this lawsuit against the Department of Justice,
the U.S. Attorney’s Office for the Eastern District of Tennessee, and the Federal Bureau of
Investigation (FBI) under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (FOIA).
Compl., Dkt. 1. Before the Court is Watson’s Motion to Show Cause, Dkt. 30, which, along
with Watson’s premature Motion for Summary Judgment, Dkt. 13, the Court construes as a
motion for summary judgment. Also before the Court is the defendants’ Motion to Dismiss, Or
in the Alternative, Motion for Summary Judgment, Dkt. 36, which the Court considers as a
motion for summary judgment. For the reasons that follow, the Court will deny Watson’s
motion and grant the defendants’ motion.
I. BACKGROUND
In December 2011, Watson submitted a FOIA request to the FBI. See Defs.’ Statement
of Undisputed Material Facts ¶ 5, Dkt. 36. The FBI informed Watson that his request did not
contain enough information for an accurate search. Id. ¶ 6. It also provided follow-up steps for
Watson to complete his request. Id. In response, Watson provided the FBI with the information
it needed to complete the search. Id. ¶ 7. The FBI then began searching its Central Records
System (CRS) in accordance with Watson’s request. Id. In June of 2012, the FBI informed
Watson that it had reviewed over 250 pages and would release 111 of them. Id. ¶ 8. The rest
would be withheld under various statutory exemptions. Id.In September 2015, Watson submitted a FOIA request to the U.S. Attorney’s Office for
the Eastern District of Tennessee. See id. ¶ 1. He sought documents related to his prosecution in
that district. Id. The U.S. Attorney’s Office then forwarded the request to the Executive Office
for United States Attorneys (EOUSA), as required by Department of Justice policy. Id. The
EOUSA then asked the U.S. Attorney’s Office to conduct a search responsive to Watson’s
request. Id. ¶ 2. The U.S. Attorney’s Office conducted the search, and the EOUSA provided a
final response to Watson in December of 2016. Id. The EOUSA’s response informed Watson of
his right to administratively appeal the decision, yet he did not do so. Id. ¶ 4; see also Pl.’s Mot.
for Summ. J. at 20–21 (Attach. 1).
Also in December 2016, the EOUSA referred 27 pages of FBI documents from the
EOUSA back to the FBI for it to make its own disclosure determination. Defs.’ Stmt. of
Undisputed Material Facts ¶ 10. The FBI then told Watson that all of the referred documents had
already been released to him in the course of Watson’s several previous requests over the years.
Id. ¶ 11.
In March 2017, Watson administratively appealed the FBI’s decision to the Office of
Information Policy. Id. ¶ 12. The Office of Information Policy affirmed the FBI’s decision that
all responsive documents had already been released to Watson. Id. ¶ 13. It further advised
Watson that he could request duplicate copies of these already-released documents from the FBI,
should he need them. Id.2
About a year later, Watson brought this lawsuit. Id. ¶ 14. The FBI then re-reviewed the
documents referred from the EOUSA and released ten new pages of non-exempt information.
Id. ¶ 15. It also re-reviewed the 251 pages of FBI records and released four new pages of non-
exempt material (in addition to re-releasing the 111 pages it previously provided to Watson). Id.
¶ 16.
In this suit, Watson moved for summary judgment before the defendants had finished
their production of documents. Pl.’s Mot. for Summ. J. The Court denied that motion as
premature and advised Watson that he could file a motion for summary judgment at a later time.
See Minute Order of Apr. 25, 2019. After that, the defendants informed the Court that they had
been unable to reach Watson. See Defs.’ August 29, 2019 Status Report, Dkt. 22; Defs.’ Mot.
for Leave to File Status Report, Dkt. 23. The Court set a deadline for Watson to show cause why
the case should not be dismissed for failure to prosecute. Minute Order of Oct. 15, 2019. After
Watson missed that deadline, the Court dismissed this case. Order, Dkt. 24. Watson later filed a
change of address and made a motion to alter the judgment, which the Court granted. See Pl.’s
Mot. to Alter J., Dkt. 28. Watson again missed the filing deadline, and the Court ordered him to
show cause why the case should not be dismissed for a second time. See Minute Order of Jan.
31, 2020. He filed a motion to show cause which the Court construed as a motion for summary
judgment incorporating his earlier, untimely motion for summary judgment. See Minute Order
of Feb. 27, 2020. The defendants then cross-moved for summary judgment. See Defs.’ Mot. for
Summ. J. The Court warned Watson, pursuant to Fox v. Strickland, 837 F.2d 507 (D.C. Cir.
1988), of the consequences of failing to respond to the defendants’ arguments and factual
assertions under the Federal Rules of Civil Procedure and the Local Rules. See Minute Order of
July 20, 2020. The two motions for summary judgment are now ripe for the Court’s review.
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II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant
summary judgment if 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). “Materiality
is, of course, a function of the applicable legal standard, which in this case is that an agency
responding to a FOIA request must conduct a search reasonably calculated to uncover all
relevant documents, and, if challenged, must demonstrate beyond material doubt that the search
was reasonable.” Kowalczyk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996) (internal quotation
marks omitted). All facts and inferences must be viewed in the light most favorable to the
requester and the agency bears the burden of showing that it complied with FOIA. Chambers v.
U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).
“The system of disclosure established by the FOIA is simple in theory. A federal agency
must disclose agency records unless they may be withheld pursuant to one of the nine
enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian, 486 U.S. 1, 8 (1988).
“[F]ederal courts . . . rely on government affidavits to determine whether the statutory
obligations of the FOIA have been met.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)
(per curiam). The agency’s affidavit is accorded a presumption of good faith, SafeCard Servs. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and “summary judgment may be granted on the
basis of agency affidavits if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith,” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d
208, 215 (D.C. Cir. 2013) (alterations and internal quotation marks omitted). Courts in this
jurisdiction recognize that “the vast majority of FOIA cases can be resolved on summary
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judgment.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
2011).
III. ANALYSIS
FOIA creates a framework of presumptions and exemptions. If certain conditions are
met, it is presumed that the request for documents must be granted. Specifically, the Act
provides that “each agency, upon any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules stating the time, place, fees (if any),
and procedures to be followed, shall make the records promptly available to any person.” 5
U.S.C. § 552(a)(3)(A). That presumption is overcome, though, if certain exemptions are
satisfied. See id. §§ 552a(j)(2), (k)(2), 552(b). In that case, an agency may withhold the records.
Id.
A. Exhaustion of Administrative Remedies1
“[E]xhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under
FOIA, which means that a requester under FOIA must file an administrative appeal within the
1 A threshold question is whether the exhaustion question is properly considered under the
summary judgment standard. Both parties style their motions as motions for summary judgment
(for the defendants, in the alternative). That said, “the D.C. Circuit has directed that the Court
address [] exhaustion arguments under Federal Rule of Civil Procedure 12(b)(6).” Acosta v. FBI,
946 F. Supp. 2d 47, 49–50 (D.D.C. 2013). See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir.
2003). This becomes complicated when, as here, parties reference material outside of the
pleadings. See Acosta, 946 F. Supp. 2d at 49–50; see Defs.’ Mot. (attaching fifteen exhibits);
Defs.’ Mot. for Summ. J. at 6 (citing the declaration of Natasha Hudgins, Dkt. 36-14, in the
exhaustion argument). When “the defendant’s motion references matters outside the pleadings, a
court must treat the motion as one for summary judgment, not as one for dismissal based on
failure to state a claim under Rule 12(b)(6).” Pinson v. U.S. Dep’t of Justice, 61 F. Supp. 3d 164,
172–73 (D.D.C. 2015); see also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.”); Yates v. Dist. of Columbia, 324
F.3d 724, 725 (D.C. Cir. 2003) (per curiam). For this reason, the Court must treat the
defendants’ motion as a motion for summary judgment. In any case, “the result would be
identical” under either standard. Acosta, 946 F. Supp. 2d at 50.
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time limit specified in an agency’s FOIA regulations or face dismissal of any lawsuit
complaining about the agency’s response.” Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004)
(per curiam) (internal quotation marks omitted). “[T]he FOIA’s administrative scheme favors
treating failure to exhaust as a bar to judicial review.” Id. at 677 (internal quotation marks
omitted) (citing Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003)).
It is undisputed that Watson did not file an administrative appeal after the EOUSA denied
his request. See Defs.’ Stmt. of Undisputed Material Facts ¶ 4 (citing Hudgins Decl. ¶ 9); see
generally Pl.’s Stmt. of Undisputed Material Facts, Dkt. 38 (not meaningfully disputing this
fact). Watson insists that he “exhaust[ed] all of the administrative remedies,” id. ¶ 12, but does
not provide any record support to indicate that he filed an administrative appeal of the EOUSA’s
decision, see id. Because Watson failed to provide the EOUSA with the opportunity to make a
final judgment, “summary judgment on this [claim] is consistent with the purposes of exhaustion
and FOIA’s detailed administrative scheme.” Porter v. CIA, 778 F. Supp. 2d 60, 68 (D.D.C.
2011). Watson did exhaust administrative remedies against the FBI, however, see Pl.’s Stmt. of
Undisputed Material Facts ¶ 9, so the Court proceeds to the merits of those claims.
B. The Adequacy of the Search
To survive a motion for summary judgment, an 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.” Reporters Comm. for Freedom of the Press v.
FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). The adequacy of a search “is judged by a standard of reasonableness
and depends, not surprisingly, upon the facts of each case.” Weisberg v. U.S. Dep’t of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984). “[T]he issue to be resolved is not whether there might
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exist any other documents possibly responsive to the request, but rather whether the search for
those documents was adequate.” Id. at 1485 (emphasis in original); see also SafeCard, 926 F.2d
at 1201.
Courts “rely on government affidavits to determine whether the statutory obligations”
have been satisfied. Perry, 684 F.2d at 126. These affidavits are accorded a presumption of
good faith. See SafeCard, 926 F.2d at 1200. “[S]ummary judgment may be granted on the basis
of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of agency bad faith.” Judicial Watch, 726 F.3d at 215 (internal quotation marks
omitted). “Once the agency has provided a reasonably detailed affidavit describing its search,
the burden shifts to the FOIA requester to produce ‘countervailing evidence’ suggesting that a
genuine dispute of material fact exists as to the adequacy of the search.” Hunton & Williams
LLP v. EPA, 248 F. Supp. 3d 220, 236 (D.D.C. 2017) (citing Morley v. CIA, 508 F.3d 1108, 1116
(D.C. Cir. 2007)).
The FBI provided the declaration of Michael Seidel, the Acting Section Chief of the
Record/Information Dissemination Section of the Information Management Division of the FBI.
Seidel Decl., Dkt. 36-1. Seidel’s declaration describes the FBI’s Central Record System and
accompanying systems in thorough detail. It explains that the CRS is the primary records system
and is likely to contain documents responsive to Watson’s request. Id. ¶ 33. It also provides the
specific search terms the FBI used. Id. ¶ 32. And it further explains that the FBI located
Watson’s criminal file and processed those documents in accordance with his request. Id.
Thus, the FBI has met its burden of producing a “reasonably detailed affidavit”
describing its search process. See Hunton & Williams LLP, 248 F. Supp. 3d at 236. In response,
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Watson makes arguments as to whether the FBI’s reliance on the statutory exemptions was
proper—a separate issue from the adequacy of the search. Because Watson has not met his
burden of producing “countervailing evidence” to rebut the agency’s reasonably specific
declaration, any challenge to the adequacy of the FBI’s search fails as a matter of law. See id.
C. The Statutory Exemptions
The FBI invoked five exemptions to withhold in part or in full certain material that was
responsive to Watson’s FOIA request. See Defs.’ Exemption Application Index, Dkt. 36-13.
1. Exemptions 6 and 7(C)
“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in
certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). Exemption 6 protects
“personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), while Exemption 7(C) protects
“records or information compiled for law enforcement purposes” that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7)(C).
When an agency invokes both exemptions, as here, courts “focus” on Exemption 7(C)
because it “establishes a lower bar for withholding material.” Citizens for Responsibility &
Ethics in Washington v. DOJ, 746 F.3d 1082, 1091 n.2 (D.C. Cir. 2014) (internal quotation
marks omitted). In so doing, courts must balance the privacy interests inherent in the records
against the public’s interest in their disclosure. Citizens for Responsibility & Ethics in
Washington v. DOJ, 854 F.3d 675, 681 (D.C. Cir. 2017). If the withheld records implicate a
substantial privacy interest, the plaintiff “bears the burden of showing (1) that ‘the public interest
sought to be advanced is a significant one, an interest more specific than having the information
for its own sake,’ and (2) that the information [it] seeks ‘is likely to advance that interest.’” Roth
v. DOJ, 642 F.3d 1161, 1175 (D.C. Cir. 2011) (quoting Nat’l Archives & Records Admin. v.
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Favish, 541 U.S. 157, 172 (2004)). Further, “the only public interest relevant for purposes of
Exemption 7(C) is one that focuses on the citizens’ right to be informed about what their
government is up to.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007)
(internal quotation marks omitted).
Here, the FBI withheld identifying information that included names, phone numbers,
addresses, social security numbers and other personal information of people who assisted in an
FBI investigation. See Seidel Decl. at 16 n.9; id. ¶¶ 42–55. These included FBI special agents
and staff, informants, people tangentially mentioned, people of investigative interest, local law
enforcement employees, and victims. Seidel Decl. ¶¶ 42–55. No doubt, significant privacy
interests would be implicated in the disclosure of this personal identifying information—to say
nothing of the sensitive context in which the information was obtained. See SafeCard, 926 F.2d
at 1205–06 (noting the “embarrassment” and “serious reputational harm” that targets of law
enforcement investigations, potential defendants, and witnesses would face if personal
identifying information were released).
As for the public interest, the FBI considered whether the information in question would
serve the public interest by “shed[ding] light on the FBI’s performance of its mission.” Id. ¶ 44.
The FBI rightly concluded that it would not. Personal identifying information of third parties is
“simply not very probative of an agency’s behavior or performance.” SafeCard, 926 F.2d at
1205. “Indeed, unless there is compelling evidence that the agency denying the FOIA request is
engaged in illegal activity, and access to the names of private individuals appearing in the
agency’s law enforcement files is necessary in order to confirm or refute that evidence, there is
no reason to believe that the incremental public interest in such information would ever be
significant.” Id. at 1205–06.
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There is no such “compelling evidence” of illegal activity here. Id. Watson claims that
“disclosure of the requested [records] could confirm the DOJ’s affirmative misconduct in this
case or will show how the responsible officials acted negligently or otherwise improperly in the
performance of their duties by initiating the criminal proceedings against the Plaintiff without
probable cause, pursued baseless and unfounded criminal charges against the Plaintiff without
legal justifications, [and] suborned the perjury of both the leading FBI criminal investigator(s)
and the leading state criminal investigators for the DOJ in the prosecution of the Plaintiff.” See
Pl.’s Reply at 7, Dkt. 38. But with no “evidence”—let alone “compelling evidence”—beyond
these conclusory allegations of illegal activity, see SafeCard, 926 F.2d at 1205–06 (emphasis
added), Watson cannot establish a public interest to overcome the substantial privacy interests at
stake. See Dent v. Exec. Office for U.S. Attorneys, 926 F. Supp. 2d 257, 269 (D.D.C. 2013) (“It
is a FOIA requester’s obligation to articulate a public interest sufficient to outweigh an
individual’s privacy interest, and the public interest must be significant.”). For that reason,
summary judgment is proper as to Exemptions 6 and 7(C).
2. Exemptions 7(D)-(F)
The FBI invokes three other law enforcement exemptions, in addition to those described
above, to withhold documents in part or in full. Broadly speaking, Exemption 7 protects
“records or information compiled for law enforcement purposes,” so long as they fall within one
of the statute’s sub-sections. 5 U.S.C. § 552(b)(7). The FBI properly relied on several sub-
sections of Exemption 7.
Exemption 7(D) protects information that “could reasonably be expected to disclose the
identity of a confidential source.” Id. § 552(b)(7)(D). “A source is confidential within the
meaning of exemption 7(D) if the source provided information under an express assurance of
confidentiality or in circumstances from which such an assurance could be reasonably inferred.”
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Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (per curiam) (internal quotation marks
omitted). Here, the FBI exempted certain information that could reveal the identity of
confidential informants who assisted in an investigation. See Seidel Decl. ¶ 68. In particular, the
FBI withheld “the confidential source file numbers of permanent Confidential Human Sources.”
Id. Each confidential source file number is unique to one confidential source and used
repeatedly to reference him or her. Id. ¶¶ 68–69. And it is provided “under express assurances
of confidentiality.” Id. ¶ 68. Given these facts, the disclosure of the expressly confidential
source file numbers “would narrow the possibilities of the informants’ true identities,” id. ¶ 69,
and that could “reasonably be expected to disclose the identity of a confidential source,” 5
U.S.C. § 552(b)(7)(D).
Exemption 7(E) protects information that “would disclose techniques and procedures for
law enforcement investigations or prosecutions . . . if such disclosure could reasonably be
expected to risk circumvention of the law.” Id. § 552(b)(7)(E). The FBI invoked this exemption
to withhold information about “undercover operations” and “source file numbers,” a numbering
system for categorizing and assigning priority to various FBI operations. Seidel Decl. ¶¶ 72–74.
The FBI explained in great detail how public disclosure of this information would “risk
circumvention of the law” by revealing non-public investigative details (including the FBI’s
failures or omissions) to criminals who could then adapt their behavior to avoid detection. See
id. ¶¶ 70–77. For example, “publicizing details concerning unknown FBI undercover
investigative techniques and the FBI’s operational security methods during these undercover
operations” would “have devastating operational consequences.” Id. ¶ 73. “Additionally,
releasing non-public FBI file classification numbers would . . . provide criminals and foreign
adversaries the ability to discern the types of highly sensitive investigative strategies the FBI is
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pursuing whenever such file classification numbers are present within these and other sensitive
FBI investigative records.” Id. ¶ 74. Reliance on the exemption was proper.
Exemption 7(F) protects information that “could reasonably be expected to endanger the
life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). The FBI invoked this
exemption to protect the names and other identifying information of individuals who might face
violent retaliation for their cooperation in the investigation. Seidel Decl. ¶ 79. The FBI
explained that these individuals assisted in the investigation of a major drug cartel operation, and
those who assist in such investigations often face violent retribution against themselves and their
families. Id. Thus, release of their identities would “endanger the life or physical safety of an[]
individual.” 5 U.S.C. § 552(b)(7)(F).
Watson argues that “the U.S. Dept. of Justice has not met its burden of showing that the
requested records were complied [sic] for law enforcement purposes and are part of an active on-
going investigation that such production of the requested agency records ‘could reasonably be
expected to interfere with enforcement proceedings.’” Pl.’s Mot. for Summ. J. at 7 (citing 5
U.S.C. § 552(b)(7)(A)). But defendants do not invoke exemption (7)(A), they invoke
exemptions (7)(C)-(F), so this argument is of no moment.
D. Segregability
Finally, the FBI has satisfied its segregability obligations. FOIA requires that “[a]ny
reasonably segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). An agency may satisfy this
obligation by “(1) providing a Vaughn index that adequately describes each withheld document
and the exemption under which it was withheld; and (2) submitting a declaration attesting that
the agency released all segregable material.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101,
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207 (D.D.C. 2013). The segregability requirement does not apply to non-exempt material that is
“inextricably intertwined” with exempt material, Mead Data Cent., Inc. v. U.S. Dep’t of the Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977), and agencies are entitled to a presumption that they
disclosed all reasonably segregable material, Sussman, 494 F.3d at 1117.
The FBI submitted an Exemption Application Index which catalogs which documents or
passages were withheld, the extent to which they were withheld (in full or in part), the
exemptions covering the information, as well as a description of why the information was
withheld. See Defs.’ Exemption App. Index; Seidel Decl. ¶ 36 (explaining the index). Further,
the Seidel Declaration attests that “[t]he FBI did not withhold any reasonably segregable,
nonexempt portions from Plaintiff.” Id. ¶ 36; see also id. ¶ 37 (“The coded, Bates-numbered
pages together with this declaration demonstrate that all material withheld by the FBI is exempt
from disclosure pursuant to the cited FOIA exemptions, or is so intertwined with protected
material segregation is not possible without revealing the underlying protected material.”); id. ¶
80 (explaining why certain documents were released in part or withheld in full). Together, these
submissions satisfy the FBI’s segregability obligations. See Nat’l Sec. Counselors, 960 F. Supp.
2d at 207.
CONCLUSION
For the foregoing reasons, Watson’s motion for summary judgment is denied and the
defendants’ motion for summary judgment is granted. A separate order consistent with this
decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
September 10, 2020
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