Ryan v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CINA A. RYAN )
)
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-1422 (TSC)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Cina A. Ryan filed a FOIA request with the FBI seeking his “complete FBI file.”
The FBI conducted a search and found no responsive records, a result Plaintiff challenges in this
lawsuit. Presently before the court is Defendants’ motion for summary judgment (ECF No. 4)
and Plaintiff’s opposition thereto (ECF Nos. 7, 8). Defendants did not file a reply in support of
their motion. 1 For the following reasons, the court GRANTS in part and DENIES without
prejudice in part Defendants’ motion.
1
Plaintiff requested oral argument to explain “under oath, all the facts of [his] affidavit and his complaint, including
what transpired the night of the FBI’s staged rape case,” an event which Plaintiff avers was part of the FBI’s
surveillance of him. (Pl. Affidavit, ECF No. 7 at 2-3). Plaintiff also sought to “subpoena some of the individuals
mentioned in his affidavit to be questioned by the Plaintiff and testify before the Court,” (Pl. Opp’n, ECF No. 7 at
7), referring to a number of his Iranian-American acquaintances he believes have been assisting the FBI in its
surveillance of him. (Pl. Affidavit, ECF No. 7 at 3-4). In response to this request, the court scheduled and held oral
argument on the motion for summary judgment. In lieu of hearing live testimony about matters only tangentially
related to the adequacy of the FBI’s search, the court invited Plaintiff and the FBI to submit any supplemental
materials in writing in advance of the hearing, which the parties did. (ECF Nos. 10-11). Plaintiff responded to
Defendants’ additional submission on May 8, 2015. (ECF No. 12). In light of lingering questions at the conclusion
of the May 14, 2015 hearing, the FBI submitted a Third Hardy Declaration (ECF No. 16). The court considered all
of this material in reaching the conclusions described in this opinion.
1
I. BACKGROUND
Plaintiff believes he has been under constant FBI surveillance since shortly after the
terrorist attacks of September 11, 2001. (Compl. ¶ 8). In an effort to confirm this belief his
counsel submitted a Freedom of Information Act request to the FBI in April 2010 for all records
kept on him. (Compl. ¶ 24; Declaration of David Hardy [“Hardy Decl.] Ex. A at 3). The FBI
responded with a letter stating there was no arrest record for Cina Ryan. (Hardy Decl. Ex. A at
4). Dissatisfied with this response, Plaintiff personally submitted a second FOIA request in
October 2010 for his “complete FBI file.” (Hardy Decl. ¶ 6, Ex. A at 1). The FBI responded on
November 10, 2010 to state it located no responsive records and, to the extent Plaintiff sought
“access to records that would either confirm or deny an individual’s placement on any
government watch list,” the FBI would neither confirm nor deny the existence of such
documents, pursuant to FOIA exemptions 2 and 7(E). 2 (Hardy Decl. Ex. E). Plaintiff appealed
that response on December 2, 2010. (Hardy Decl. Ex. F). The Department of Justice’s Office of
Information Policy (OIP) affirmed the FBI’s response on June 21, 2011. 3 (Hardy Decl. Ex. H).
This suit followed.
A. The FBI’s Records Systems
The FBI uses the Automated Case Support System (“ACS”) to conduct FOIA searches of
its Central Records System (“CRS”). (Hardy Decl. ¶ 15). The CRS contains “administrative,
applicant, criminal, personnel, and other files compiled for law enforcement purposes.” (Id.).
The system “consists of a numerical sequence of files, called FBI classifications, which are
2
The court inquired at oral argument why Plaintiff’s previous correspondence with the FBI was not located during
the FBI’s searches. The FBI notes that it is difficult to prove a negative, but surmises that these letters were not
indexed to Plaintiff’s name because it was not deemed pertinent either to the agency or any investigation. (3d Hardy
Decl. ¶¶ 12-13). The court finds this explanation reasonable.
3
The OIP affirmed the response about watch list documents only under Exemption 7(E). (Hardy Decl. Ex. H).
2
broken down according to subject matter.” (Id.). The ACS is an “internal computerized
subsystem of the CRS.” (Id. at ¶ 16). The CRS cannot be queried for data, so the information is
instead “duplicated and moved to the ACS so that it can be searched.” (Id.). A search of the
ACS is accomplished by using alphabetized General Indices. (Id. ¶ 17). The General Indices
include main entries, which carry “the name corresponding with a subject of a file contained in
the CRS,” and reference entries, also called cross-references, which are “generally only a mere
mention or reference to an individual, organization, or other subject matter contained in a
document located in another main file on a different subject matter.” (Id.). Certain records
contained in the CRS are maintained at FBI headquarters, while some are maintained in field
offices. (Id. ¶ 15).
The ACS contains three integrated “applications that support case management functions
for all FBI investigative and administrative cases.” (Id. ¶ 19). Investigative Case Management
(“ICM”) “provides the ability to open, assign, and close investigative and administrative cases as
well as set, assign, and track leads.” (Id.). Electronic Case File (“ECF”) is the “central
electronic repository for the FBI’s official text-based documents.” (Id.). The Universal Index
(“UI”) is a “complete subject/case index to all investigative and administrative cases.” (Id.).
The UI contains approximately 115.4 million records, and it “functions to index names to cases,
and to search names and cases for use in FBI investigations.” (Id.) The FBI “does not index
every name in its files; rather, it indexes only that information considered to be pertinent,
relevant, or essential for future retrieval.” (Id.) “The General Indices to the CRS files are the
means by which the FBI can determine what retrievable information, if any, the FBI may have in
its CRS files on a particular subject matter or individual, e.g., ‘Cina A. Ryan.’” (Id.). Data is
input into these systems by both FBI headquarters and field offices. (Id. ¶ 19).
3
The Electronic Surveillance indices (“ELSUR”) “are used to maintain information on
subjects whose electronic and/or voice communications have been intercepted as the result of a
consensual electronic surveillance or a court-ordered (and/or sought) electronic surveillance
conducted by the FBI.” (Id. ¶ 21). The ELSUR indices are separate from the CRS. They
include “individuals who were the (a) targets of direct surveillance, (b) participants in monitored
conversations, and (c) owners, lessors, or licensors of the premises where the FBI conducted
electronic surveillance.” (Id. ¶ 22). ELSUR indices are maintained both in field offices and at
FBI headquarters. (Id. ¶ 24).
B. The FBI’s searches
In response to Plaintiff’s FOIA request, the FBI “conducted a phonetic search of its
automated indices to the CRS using plaintiff’s first name, middle initial and last name, ‘Cina A.
Ryan,’ and his alias ‘Alireza Shishechi.’” (Id. ¶ 25). A phonetic search “breaks names down”
based on their phonetic characteristics, such that any alternative spellings with an 80% phonetic
match to the search used; for instance documents containing the name “Sina Ryan” would also
have been returned. (Id. ¶ 25 n.3). The search is also run so that records containing any
matching name will be located even if the name is arranged in one of several permutations, e.g.
First Name, Last Name; Last Name, First Name; Last Name, First Name, Middle Initial; etc. (3d
Hardy Decl. ¶ 7(a)). The FBI used Plaintiff’s date of birth “to facilitate the identification of
potentially responsive files.” (Hardy Decl. ¶ 25) This search was of main entries only, pursuant
to the FBI’s FOIA policy of searching only main entries as an initial matter. (Id. ¶ 25 n.4). The
FBI searched the ELSUR indices for those same names. (Id. ¶ 26). No responsive documents
subject to FOIA were found. (Id. ¶¶ 25-26). After Plaintiff initiated this litigation, the FBI again
searched the CRS for “Cina A. Ryan,” “Alireza Shishechi,” and “Sina Ryan.” (Id. ¶ 27). No
main or cross reference entries subject to FOIA were found. (Id.). The terms “Cina A. Ryan,”
4
“Alireza Shichechi,” 4 and “Sina Ryan” were used to search the ELSUR indices a second time,
with similar negative results. Id. ¶ 28.
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the “initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . which it believes demonstrate the absence of a genuine issue of
material fact.” Celotrex Corp., 477 U.S. at 323 (internal quotation marks omitted). The
nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or by
the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). “If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986) (citations omitted).
FOIA cases are typically and appropriately decided on motions for summary judgment.
Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d
123, 130 (D.D.C. 2011) (citations omitted). Upon an agency’s motion for summary judgment on
4
The FBI has alternatively spelled Plaintiff’s alias as “Shishechi” and “Shichechi.” However, the CRS and ELSUR
were each searched at least once (Hardy Decl. ¶¶ 25-26) with the spelling “Shishechi,” the spelling provided by
Plaintiff (Compl. Ex. 10), so the discrepancy is of no consequence here.
5
the grounds that it has fully discharged its FOIA obligations, all underlying facts and inferences
are analyzed in the light most favorable to the FOIA requester; only after an agency proves that it
has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin,
916 F. Supp. 32, 35 (D.D.C. 1996); Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C.
Cir. 1983). An agency will be granted summary judgment on the adequacy of its search if it
“show[s] 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).
“The question is not whether there might exist any other documents possibly responsive
to the request, but rather whether the search for those documents was adequate.” Steinberg v.
U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (emphasis in original). An agency need
not search each of its records systems. Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). Instead, a search may be reasonable if it includes all systems “that are likely to turn
up the information requested.” Id. Furthermore, the “adequacy of the search . . . is judged by a
standard of reasonableness and depends, not surprisingly, on the facts of each case.” Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Courts are mindful, however, that
“congressional intent tilt[s] the scale in favor of disclosure.” Morley, 508 F.3d at 1114 (internal
citation omitted).
To meet its burden, “the agency may rely upon reasonably detailed, nonconclusory
affidavits submitted in good faith.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d at 1485. These
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, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted). Furthermore, an
agency can show “reasonableness” in its affidavit by “setting forth the search terms and the type
6
of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.” Sanders v. Obama, 729 F. Supp. 2d 148, 155 (D.D.C. 2010), aff’d
sub nom., Sanders v. U.S. Dep’t of Justice, No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21,
2011) (citation omitted).
III. ANALYSIS
The parties dispute whether the FBI adequately conducted its search. 5 Plaintiff
challenges the adequacy of the FBI’s search on several grounds.
A. Failure to Search Outside the FBI
Plaintiff, pointing to DOJ guidance that records in the possession of a government
contractor for record management are subject to FOIA, argues that the FBI’s search was
inadequate because the FBI interpreted his request “to exclude records sent to outside third
parties” and to “exclude records originating from outside third parties.” (Pl. Aff., ECF No. 7, at
2). Plaintiff’s argument is based on his apparent belief that “his records have been transferred
from the FBI sometimes [sic] ago to other 17-18 different government homeland security
agencies or their private contractors, who have been conducting this intense surveillance on
him.” (Pl. Opp’n, ECF No. 7, at 6). In support of his argument, Plaintiff correctly points out that
5
Plaintiff does not appear to challenge the FBI’s refusal to confirm or deny the existence of documents that would
confirm or deny whether Plaintiff is on any government watch list pursuant to FOIA Exemption 7(E). Defendants
raised the argument in their motion (Def. Mot. at 6-8) but Plaintiff has not addressed the exemption in any of his
submissions. Absent a compelling challenge, the response survives the court’s review. A similar response to a
similar request was affirmed by Judge Townes of the Eastern District of New York in Platsky v. Nat’l Sec. Agency,
No. 11-cv-4816 (filed Sept. 29, 2011). Plaintiff there requested “any files in [the FBI’s] possession that contain my
name.” Op. at 2, ECF No. 20, Jan. 30, 2013. The FBI responded that it could neither “confirm nor deny the
existence of certain records which would tend to indicate whether an individual is or ever was listed on any
government terrorist watch list.” Id. The court affirmed that response, which was based, as is the FBI’s response
here, on FOIA Exemption 7(E). Id. at 7-8, aff’d 547 Fed. Appx. 81 (2d Cir. 2013); see also Skurow v. U.S. Dep’t of
Homeland Sec., 892 F. Supp. 2d 319, 331 (D.D.C. 2012) (TSA properly withheld, as information specifically
prohibited from disclosure by statute and pursuant to Exemption 3, documents which could be used to determine
whether an individual was on the No Fly list); Vazquez v. U.S. Dep’t of Justice, 887 F. Supp. 2d 114, 117-18
(D.D.C. 2012) (FBI properly asserted Exemption 7(E) to refuse to confirm or deny existence of documents
concerning requester in the National Crime Information Center, which would reveal whether plaintiff was in any one
of a number of sensitive law enforcement databases).
7
documents “maintained for an agency by an entity under Government contract, for the purposes
of records management” are subject to FOIA. 5 U.S.C. § 552(f)(2)(B). However that obligation
is not triggered, and has not been violated, in this case.
This provision primarily addresses the availability of physical documents committed to
the custody of a third-party for storage, and does not necessarily impose an affirmative
obligation to search for and produce documents in the possession of third party contractors. Am.
Small Business League v. U.S. Small Business Admin., 623 F.3d 1052, 1053-54 (9th Cir. 2010).
Nothing in the record suggests that the FBI has transferred any of its records to a government
contractor for records management, or that any documents so transferred would not have been
found in the searches described above. To the contrary, records in the systems searched by the
FBI for the time period during which Plaintiff claims he was under electronic surveillance are all
electronically indexed. (Hardy Decl. ¶ 16 (ACS was implemented in October 1995); id. ¶ 17 n.2
(General Indices became fully automated in 1987); id. ¶ 21 (ELSUR indices date to 1960 and
were automated in 1991)). If those indices did indicate the existence of any records about
Plaintiff, and if those records were located in an offsite third-party storage facility, FOIA and
DOJ’s implementing guidance confirm that those records would be subject to Plaintiff’s FOIA
request. But since the FBI’s search revealed the existence of no responsive records, the FBI was
under no obligation to locate and determine the custodial status of any responsive records. And,
to the extent Plaintiff believes that documents about him generated by the FBI have since been
given into the custody of other national security agencies, the FBI has stated (and Plaintiff has
provided no evidence to call that statement into doubt) that if the FBI had given its records about
Plaintiff to another federal agency, there would be a record of that transfer in the CRS – and that
no such records were located. (2d Hardy Decl. ¶ 10).
8
Plaintiff also seems to argue that the FBI was required to conduct a search for records
held by any and all federal agencies that might be engaged in surveillance of Plaintiff. FOIA,
however, requires only that the agency search for and produce documents in its possession, not
search for records across the entire federal government. See, e.g., McGhee v. C.I.A., 697 F.2d
1095, 1109 (D.C. Cir. 1983) (adopting rule that “all records in an agency’s possession, whether
created by the agency itself or by other bodies covered by the Act, constitute ‘agency records’”).
If the FBI had located documents created by a different agency, it might under certain
circumstances refer Plaintiff’s FOIA request to that agency. Keys v. U.S. Dep’t of Homeland
Sec., 570 F. Supp. 2d 59, 66-67 (D.D.C. 2008) (describing referral procedures). That referral,
however, is distinct from an affirmative obligation to search for records in all agencies, which
does not exist under FOIA. Lewis v. U.S. Dep’t of Justice, 867 F. Supp. 2d 1, 13 (D.D.C. 2011).
B. Failure to Search Other Records Systems
Plaintiff argues that the FBI must search “any and all records systems and indices
pertaining to the FBI’s Surveillance Data Warehouse,” “both main file and cross-reference
searches of the FBI’s ‘Bureau Mailing Lists,” and “all of FBI’s indices, filing systems, and
locations, including those that the Plaintiff has not specified by name and those of which the
Plaintiff’s [sic] may not be aware.” (Pl. Aff., ECF No. 7 at 2).
As a matter of law, a requester’s demand that certain records systems be searched does
not obligate the agency to search those systems. To the contrary, an “agency’s search
obligations are dictated by whether the scope of the search is reasonably calculated to uncover all
relevant documents.” Mobley v. C.I.A., 924 F. Supp. 2d 24, 44 (D.D.C. 2013) (citing Morley, 508
F.3d at 1114) (internal quotation omitted). The agency might need to search the records systems
specified by the requester if the agency could reasonably expect to locate responsive documents
on that system. “Mere speculation that as yet uncovered documents may exist does not
9
undermine the finding that the agency conducted a reasonable search for them.” SafeCard
Servs., Inc., 926 F.2d at 1201. Plaintiffs in Light v. U.S. Dep’t of Justice, 968 F. Supp. 2d 11(D.D.C. 2013) made a similar argument. Plaintiffs there had filed a series of FOIA requests
seeking records on the Occupy Wall Street movement. Id. at 19-21. The FBI conducted a search
of CRS for various iterations of “Occupy” and conducted text searches of ECF (in light of the
fact that the “Occupy Movement has been widely publicized”). Id. at 24-25. Plaintiffs argued
that the FBI ought to have also searched ELSUR and “Physical Surveillance (FISUR) records
systems, the FBI’s email system, or shared drives used by FBIHQ and field offices.” Id. at 25.
The Court rejected that argument and found that a search of only CRS was adequate because
“records responsive to Plaintiffs’ requests would normally be found in this comprehensive
system” and that files in shared drives and ELSUR would have been identified through the CRS
search. Id. That search was “reasonably calculated to discover the requested documents.” Id.
(citing SafeCard Servs., Inc., 926 F.2d at 1201); see also Brown v. F.B.I., 873 F. Supp. 2d 388,
399 (D.D.C. 2012) (search of ELSUR and CRS in response to FOIA request for all files related
to Plaintiff was adequate).
As a factual matter, the FBI has demonstrated that the records systems which Plaintiff
says should have been searched would not be expected to contain responsive records. According
to the FBI, the Data Warehouse System exists “to analyze evidence gathered during criminal
investigations” and since there is no record of the FBI “having conducted ELSUR on
Plaintiff…it would not be reasonable to conclude that there would be any responsive records in a
system specifically designed to analyze ELSUR information.” (2d Hardy Decl. ¶ 7). Similarly,
the “Bureau Mailing List” is a list of people and groups that receive FBI publications, which
have nothing to do with surveillance. (Id. ¶ 8).
10
In addition to the locations discussed above, Plaintiff refers in his supplemental
memorandum to the existence of shared storage drives called I-drives, S-drives, and H-drives
which the FBI allegedly uses to store files that are not indexed and therefore are not located in
FOIA searches. (ECF No. 10 at 2).
Specifically, Plaintiff appended excerpts from testimony and evidence in other cases
implying that the FBI has in the past strategically stored files in unindexed drives in order to
avoid disclosure obligations in criminal discovery and FOIA. First, Plaintiff attached an
affidavit from 2001 in what appears to be a state criminal proceeding in Oklahoma in which a
former FBI agent described a deliberate system of keeping certain records, referred to as “zero
files,” outside the official case file to avoid turning those records over to parties in a criminal
matter. (Pl. Ex. F, ECF No. 10-1 at 2). Plaintiff also attached trial testimony from Trentadue v.
CIA et al., No. 08-cv-788, a lawsuit currently pending in U.S. District Court for the District of
Utah, concerning FOIA requests for specific records related to the Oklahoma City Murrah
Federal Building bombing. In a recent bench trial (resolution of which appears to be stayed), the
court heard testimony confirming the existence of shared storage drives. (Pl. Exs. G-H, ECF No.
10-1 at 4-7). Testimony in that matter also alluded to a finding by the court in Islamic Shura
Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114 (S.D. Cal. 2011) that the FBI, through a
declaration by Mr. Hardy, had deliberately provided that court with misinformation. The FBI’s
misrepresentation was revealed in 2011, at the same time the FBI’s motion for summary
judgment was pending in Trentadue. In light of the revelation, the Trentadue court required the
FBI to provide an additional certification that all of the information the FBI had supplied to the
court was true. (Pl. Ex. I, ECF No. 10-1 at 8; see also Trentadue v. CIA, No. 08-cv-788, Order
(ECF No. 82), Apr. 13, 2011). Plaintiff argues that these practices (assuming they are ongoing)
11
demonstrate bad faith by the FBI and also prove that the FBI’s search was not adequate because
it did not search those unindexed shared drives.
The Court is aware that prior acts of bad faith do “not defeat the presumption of good
faith in all subsequent cases.” Williams v. F.B.I., No. 13-cv-56, 2014 WL 1320262, at *5-6 (D.
Utah Mar. 31, 2014). Even so, it must address the allegations Plaintiff has raised. The FBI
responded to these concerns in the Third Hardy Declaration. There, Mr. Hardy explains that the
S and H drives are not single drives, but rather shared (S) drives used in various FBI offices and
home (H) drives assigned to individual employees. (3d Hardy Decl. ¶15(b)). Mr. Hardy also
explains that the I drive is no longer in existence but when it did exist, prior to 2001, it was used
to hold draft work product before it was finalized and indexed to the CRS. (3d Hardy Decl. ¶
15(a)). The FBI explains that the “comprehensive searches of the CRS and ELSUR Indices
failed to locate any information about plaintiff – or even give any indication at all that the FBI
has ever had any investigative or other interest in him.” (3d Hardy Decl. ¶15(b)). Given the lack
of responsive documents in the comprehensive record systems, the FBI argues it was reasonable
to conclude that searching less comprehensive records systems – i.e. individual office and
employee drives – was unnecessary. The Court agrees.
C. Failure to Search FBI Field Offices
Plaintiff argues that, since the alleged surveillance of him began in Florida, the FBI must
conduct searches of FBI field offices in Florida. (Supplemental Memorandum, ECF No. 10 at 6-
7). As noted above, it is not for Plaintiff to dictate where the FBI searches – the FBI need not
“conform its search to the dictates of a requester, but rather [must] conduct a search that is
reasonably expected to produce the information requested.” Span v. U.S. Dep’t of Justice, 696 F.
Supp. 2d 113, 120 (D.D.C. 2010). Given the universal nature of the records systems that were
12
searched, there is no reason to believe that documents created, or physically located, in field
offices would not have been indexed in those records systems.
D. Use of Improper Search Terms
Finally, Plaintiff argues the FBI did not utilize an appropriate set of search terms.
Plaintiff asserted that the search should have included the name “Cina Ryan,” in light of
Plaintiff’s realization that certain forms of government-issued identification do not include his
middle initial. (Pl. Opp’n, ECF No. 7, at 7). The FBI’s first search of the CRS was for “Cina A.
Ryan,” and the Hardy Declaration asserted that this search would pick up any documents with
the name “Cina Ryan” based on the phonetic similarity to the name “Cina A. Ryan.” (Hardy
Decl. ¶ 25 n.3). The FBI moreover asserted that any records containing the name “Cina Ryan”
that might have been erroneously excluded in the “Cina A. Ryan” search were nonetheless
included when the FBI conducted a second search for “Sina Ryan.” (Id. ¶ 27). In response to
Defendant’s motion for summary judgment, Plaintiff asserted for the first time that there were
additional alternative spellings of his name, including “Cina A. Rayan” and “Sina Rayan.” (Am.
Affidavit, ECF No. 8, at 1). The FBI conducted a search using those alternatives and still located
no results. (2d Hardy Decl. ¶ 9). Plaintiff noted that the FBI did not search for one particular
alternative variation of his name: Cina Ryan, the variation which appears on Plaintiff’s
government-issued identification. (Reply to 2d Hardy Decl., ECF No. 12 at 2). The Third Hardy
Declaration explains that this was unnecessary, because the search was conducted based on
phonetic similarity and for different breakdowns of the name (i.e. with and without middle
initials), such that any records containing the name “Cina Ryan” would have been located from
the previously-run searches. (3d Hardy Decl. ¶ 7). And, to the extent any records identifying
Plaintiff as “Cina Ryan” had been excluded, the FBI also conducted a separate search for that
name and located no responsive records. (Id. ¶ 9). The FBI has unquestionably now searched
13
the CRS with all reasonable permutations of Plaintiff’s name, and its search methodology
indicates that documents with alternative spellings not in the record could have been located as
well. This is more than adequate.
The same cannot be said with regard to ELSUR. Hardy declares that “the FBI’s ELSUR
Indices were searched using both the names ‘Cina A. Ryan,’ and ‘Cina Ryan,’ as well as the
other names [Plaintiff] provided. As explained in [Hardy’s] first declaration, those searches
yielded negative results.” (3d Hardy Decl. ¶ 10). It is not clear precisely what Hardy means to
convey in this paragraph. This could be read to assert that the FBI searched ELSUR for “Cina
Ryan” at some point before May 14. If so, that assertion is contradicted by Hardy’s previous
declarations, which establish that the FBI ran searches in ELSUR only for “Cina A. Ryan,”
“Alireza Shishechi,” (Hardy Decl. ¶¶ 25-26) and “Sina Ryan.” (Id. ¶ 28). Other names (“Cina
Rayan,” “Sina Rayan,” “Cina A. Rayan,” “Sina A. Rayan,” (2d Hardy Decl. ¶ 9), and “Cina
Ryan” (3d Hardy Decl. ¶ 9)) were used to search CRS but are not specifically identified as
having been used to search ELSUR. Given this ambiguity, summary judgment on the search of
ELSUR is not warranted at this time.
Alternatively, the FBI may believe that, based on the phonetic search function, running
an additional search for “Cina Ryan” in ELSUR would be unnecessarily duplicative. This is a
reasonable belief, based on the FBI’s explanation of how the phonetic search function functions.
However, the record does not demonstrate that searches in ELSUR apply a phonetic search
function – Hardy’s explanation of that function appears to apply only to ACS. (3d Hardy Decl. ¶
7 (the FBI “used the phonetic search capabilities of ACS”)). Because the court is without
evidence to conclude that a search of ELSUR was conducted in such a way that the name on
14
Plaintiff’s government-issued identification was included in the search, summary judgment is
denied as to this search.
IV. CONCLUSION
Plaintiff’s arguments attempt to impose a burden on Defendants inconsistent with the
requirements of FOIA, and the FBI has demonstrated that it conducted a search reasonably
calculated to locate responsive records. Summary judgment must therefore be GRANTED in
favor of the FBI on the issue of whether the FBI searched appropriate locations. However,
summary judgment must be DENIED, without prejudice, because the record does not clearly
demonstrate that the ELSUR database was searched in a way that would reveal documents
indexed to all variations of Plaintiff’s name.
A corresponding order will issue separately.
Dated: July 10, 2015
15