Ulis v. FBI, No. 23-636, 2023 WL 8620632 (D.D.C. Dec. 13, 2023) (Cobb, J.)

Ulis v. FBI, No. 23-636, 2023 WL 8620632 (D.D.C. Dec. 13, 2023) (Cobb, J.)

Re:  Request for clip-on necktie

Disposition:  Granting defendant’s motion to dismiss

• Procedural Requirements, “Agency Records”:  The court relates that, “as Defendants point out in their motion to dismiss for failure to state a claim, [plaintiff] is not seeking anything that could even arguably be considered an ‘agency record.’”  “Instead, he seeks a clip-on necktie.”  “Of course, [plaintiff] does not seek any old tie, but specifically the tie of the infamous ‘D.B. Cooper,’ the man who, in late 1971, hijacked a commercial airliner, exchanged passengers for a ransom upon landing, ordered the plane to take off again, and then jumped out of the plane at 10,000 feet altitude while strapped with a parachute and $200,000 in cash.”  “The crime remains unsolved, but the ‘skinny black JC Penney Towncraft #3 clip-on tie’ that [plaintiff] removed before his mid-flight farewell represents one of the key (and only) pieces of physical evidence recovered by investigators.”  “[Plaintiff] believes there may be untested DNA in the tie’s ‘spindle apparatus’ – a belief that led him to file a FOIA request ‘seeking limited access to Mr. Cooper’s tie’ so that he could, at his own expense, ‘attempt[ ] to secure a complete DNA sequence for any DNA found upon the spindle.’”  “The FBI denied his request, which prompted this suit.”  “Regardless of the intrigue and mystery that shroud the case of D.B. Cooper, however, FOIA only compels production of ‘records,’ not tangible objects.”  “At the very least, not this tangible object.”  “A necktie – even a necktie that might contain DNA of a prominent figure like D.B. Cooper – struggles to find a place within the common understanding of ‘record,’ is incapable of replication or copying and thus is not ‘reproducible,’ and is similar if not identical in kind to the physical items that courts have already rejected as beyond the scope of FOIA.”  “Indeed, if the shirt and coat worn by President John F. Kennedy during his assassination do not qualify, then certainly the necktie of rogue hijacker D.B. Cooper warrants the same treatment.”  “True enough, the D.C. Circuit has yet to delineate the precise limits of what is and is not a ‘record,’ noting only (in dicta) that there must be some ‘boundary of reasonableness.’”  “For this case, however, it suffices to say that to call a clip-on necktie an ‘agency record’ is not reasonable.”