Kuzma v. DOJ, No. 12-807S, 2014 WL 4829315 (W.D.N.Y. Sept. 29, 2014) (Skretny, J.)

Kuzma v. DOJ, No. 12-807S, 2014 WL 4829315 (W.D.N.Y. Sept. 29, 2014) (Skretny, J.)

Re: Request for records concerning Occupy Buffalo Movement

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[F]inding no merit in Plaintiff's contentions otherwise, [the] Court finds that Defendant conducted a reasonable search for responsive documents, thereby fulfilling its search obligations under the FOIA."  Specifically, despite plaintiff's contentions, the court finds that "the search [conducted] would have located, if they existed, documents contained in the files Plaintiff identifies, except for . . . files, which have not been used since 1978."  The court also finds that because "[t]he FBI . . . is not asserting an exemption under the FOIA based on classified status" the FBI need not provide information related to classification actions.  Lastly, "[p]laintiff offers nothing but surmise and speculation that [other] forms may exist."
   
• Litigation Considerations, "Reasonably Segregable" Requirements & In Camera Inspection:  The "[c]ourt finds that Plaintiff has failed to rebut the presumption that Defendant has complied with its segregability and non-exempt disclosure requirements under the FOIA and has failed to show cause for in camera review."  The court notes that "[d]efendant withheld all five responsive documents in their entirety, because the exempt and non-exempt portions of the records are inextricably intertwined."  The court finds that plaintiff's contention that "the FBI's segregability determination is that 'selective redactions should have been made to the responsive pages [but] [t]he FBI, however, elected not to do so'" "is insufficient to rebut the presumption of regularity that the FBI complied with the FOIA's segregability requirements."  "Nor is it cause for in camera review."
   
• Exemptions 6 and 7(C):  The "[c]ourt finds that the individuals' privacy interests outweigh the public's need for the withheld information."  The court relates that "[t]he FBI has invoked Exemptions 6 and 7(C) to protect the names or identifying information of (1) FBI Special Agents and support personnel responsible for investigating the activities reported in the records, (2) state and local law enforcement personnel, (3) third parties merely mentioned, and (4) a third party who provided information to the FBI."  The court finds that "[p]laintiff makes no effort, however, to explain how or why the disclosure of individuals' personal information would shed any light on the FBI's surveillance of Occupy Buffalo."  Additionally, the court finds that "[t]o the extent Plaintiff's submission can be read to suggest that the FBI acted improperly by assisting local law enforcement, Plaintiff must come forth with more than just that bare allegation."
   
• Exemption 7(D):  The "[c]ourt finds that Defendant has sufficiently established an implied grant of confidentiality."  The court notes that "[t]he FBI has invoked Exemption 7(D) to withhold the name, identifying data, and information provided by a confidential source under an implied assurance of confidentiality."  The court finds that "the Vaughn index establishes that the confidential source was in a position to provide unique information concerning a potential threat to local security in connection with the Occupy Buffalo Movement and did so with the expectation that the information and his or her identity would remain confidential."  Additionally, the court finds that "[g]iven [the] publicity and the singular nature of the information provided, it is reasonable to conclude that the confidential source provided the information with an expectation of confidentiality."
   
• Discretionary Disclosure and Waiver, Waiver:  The court finds that "[p]laintiff has produced no evidence that the FBI's anonymous-tip techniques and procedures are publicly available."  "[Defendant], in contrast, fully explains the secret nature of the information being withheld."  "In the absence of such a showing by Plaintiff, [the] Court finds that the FBI's withholding of this information pursuant to Exemption 7(E) is proper."  The court notes that "[t]he FBI has asserted Exemption 7(E) to protect procedures and techniques used by the FBI when it receives an anonymous tip."