Turner v. Dep't of Treasury, No. 15-00007, 2017 WL 1106030 (E.D. Cal. Mar. 23, 2017) (Drozd, J.)

Turner v. Dep't of Treasury, No. 15-00007, 2017 WL 1106030 (E.D. Cal. Mar. 23, 2017) (Drozd, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for protective order

• Litigation Considerations, Adequacy of Search: "In light of the evidence submitted by defendant on summary judgment and plaintiff's failure to make any evidentiary showing in response, the court concludes that defendant has satisfied its burden of establishing the adequacy of its search of non-[Bank Secrecy Act ("BSA")] FinCEN Enforcement Division files made in connection with plaintiff's FOIA request." The court finds that "the declarations submitted by defendant identify the files searched, . . . [how] the search for non-BSA documents was conducted[,] . . . and specif[ies] the terms used to conduct this computerized search."
   
• Exemption 3: "With respect to plaintiff's FOIA request for a copy of a [Currency Transaction Report ("CTR")] submitted by Bank of America in his name, however, the court is not persuaded that defendant properly excluded BSA records from the search it conducted." "In its summary judgment motion, defendant invokes Exemption 3 and 31 U.S.C. § 5319 as grounds for nondisclosure of any and all BSA records." "Though it appears likely defendant may ultimately prevail on that ground, it has cited no authority for the proposition that it was under no obligation to search the BSA records in response to plaintiff's FOIA request, and the court has found no such authority." The court finds that "[i]t is certainly true that under the BSA, CTRs and other 'financial institution reports and records of reports of transactions involving the payment, receipt or transfer of United States coins and currency' are exempt from FOIA disclosure." "Here, however, defendant has not identified which, if any, documents were withheld in response to plaintiff's FOIA request for the CTR he identified." The court finds that in previous "cases it appears that although the agency was found to have properly withheld the documents in question (including CTRs), that determination was based upon the agency's search of the records followed by a reasonably detailed description of the documents being withheld as well as facts sufficient to establish the applicability of the claimed exemption."
   
• Litigation Considerations, In Camera Inspection: The court holds that "plaintiff's request for a protective order, construed as a request for in camera review, will be denied without prejudice." The court finds that "the remaining issue – plaintiff's FOIA request for a particular CTR – does not involve a lack of specificity in the declarations submitted by defendant." "Rather, that issue remains unresolved because defendant initially took the position that it need not search its BSA records and therefore did not submit a declaration addressing what, if anything, was discovered and withheld pursuant to an exemption." "It would seem that this deficiency can be cured and that in camera review of any document or documents should not be necessary."