White v. DOJ, No. 16-948, 2020 WL 2542953 (S.D. Ill. May 19, 2020) (Gilbert, J.)

White v. DOJ, No. 16-948, 2020 WL 2542953 (S.D. Ill. May 19, 2020) (Gilbert, J.)

Re:  Requests for a variety of records from various DOJ components

Disposition:  Denying plaintiff's motion for summary judgment; granting defendants' cross-motion for summary judgment

• Litigation Considerations:  The court relates that "DOJ argues that [plaintiff's] requests are frivolous because his allegations of nefarious government activities are fanciful."  "However, [the court finds that plaintiff] is entitled, as is any other citizen, to request records under the FOIA."
   
• Litigation Considerations, Waiver of Exemptions in Litigation:  Contrary to plaintiff's assertion, the court holds that "DOJ has . . . not waived the assertion of any exemption."  The court explains that "[t]he case at bar is before this Court for the first time" and, therefore, "[t]his is the 'first time around'" for the assertion of these exemptions.
   
• Procedural Requirements, Proper FOIA Requests:  Regarding plaintiff's requests made to the FBI, "[t]he Court agrees that [one of plaintiff's] request[s] was overbroad and did not trigger the FBI's duty to search for records."  "Unlike some of [plaintiff's] other requests for information about certain groups, it is not self-apparent from the name 'Green Star' what [plaintiff] is seeking."  Similarly, "[t]he Court agrees that [plaintiff's] requests [concerning "'all records related to' a number of ill-defined subjects with international aspects"] were overbroad and did not trigger the FBI's duty to search for records."
  
  Regarding plaintiff's requests made to ATF, the court finds that "without further information from [plaintiff], which he failed to provide when asked, his request for 'all records in your possession regarding' [a variety of subjects] did not reasonably describe the records sought."  "Therefore, the ATF was not obligated to search for them."  Specifically concerning "[plaintiff's] requests for records regarding specifically named groups, those requests are broadly for all records regarding those groups, which could potentially include any mention of those groups in any file for any ATF investigation."
  
  Regarding USMS, "[f]or the same reasons the Court found [plaintiff's] similar requests to the FBI and [ATF] to be overbroad, it finds these requests improper as well."
  
  Regarding BOP, for similar reasons, "[t]he Court agrees that [plaintiff's] request for 'all records' and 'all other documents' [concerning his imprisonment] was overbroad and did not trigger the BOP's duty to search for records based on such a vague request."
   
• Litigation Considerations, Adequacy of Search:  Regarding the FBI, for over twenty of plaintiff's requests, "[t]he Court finds the FBI searches of main file and cross-reference files that yielded no responsive records appear to be reasonably calculated to locate responsive records."  "The FBI searched all of its files using a variety of terms that appear to be designed to detect records concerning the groups [plaintiff] lists in his requests."  "[FBI's] declaration establishes that the FBI looked for responsive records in the places they would be expected to be found and in a way that would be expected to find them."  Additionally, the court finds that "the FBI was reasonable to limit its initial review to main file records, where relevant information was likely to be found."  "To the extent there may be responsive cross-reference records, the FBI was reasonable not to automatically search for those records in response to a request for 'all records.'"  "Based on the FBI's method of keeping records, such a search is unlikely to yield records revealing meaningful information about the subject searched or the functioning of the Government and threatens to subject the requester to enormous additional fees and delays in disclosure."
  
  Regarding ATF, "[t]he Court finds the ATF's search that yielded one responsive record was reasonably calculated to locate responsive records."  "The search term – [plaintiff's] name – was appropriate, and the search was done where records concerning [plaintiff] would likely be found if they existed."  "In sum, [ATF's] declaration establishes that the ATF looked for responsive records in the place they would be expected to be found and in a way that would be expected to find them."  Additionally, the court finds that "[plaintiff's] assertions that responsive records exist in ATF files which should have been produced are not enough to overcome the presumption of good faith created by [ATF's] declaration."
  
  Regarding BOP, the court finds that BOP has search the locations where information was "most likely to be found."  "That neither of these searched produced all the responsive records that might exist in the entirety of the BOP's many files or that [plaintiff] expected to exist does not mean the searches were inadequate under the FOIA."  "Absent some evidence that the BOP's search was not conducted in good faith – that is, evidence beyond [plaintiff's] speculation that certain documents 'must exist' – the presumption of the agency's good faith prevails."
   
• Exemption 6 & 7(C), Glomar:  Regarding the FBI, the court holds that "it is entirely appropriate for the FBI to issue a Glomar response until [plaintiff] could provide a consent for disclosure, proof of death, or a sufficient public interest before disclosing records containing private personal information."  "Even identifying whether an individual or an individual's address is either associated with the FBI or a subject on which the FBI maintains a file could be damaging to the third party in ways covered by Exemptions 6 and 7(C)."  Additionally, the court finds that "[b]ecause [plaintiff] never attempted to offer the FBI consent, proof of death, or a public interest justifying disclosure in connection with his requests for records concerning the [some of the] third parties . . . and because . . . there is no evidence of any public interest outweighing an individual's privacy rights, the Court finds the FBI's response concerning these individuals was proper."  As to plaintiff's assertions of government misconduct, "[t]he actual evidence [plaintiff] has presented is scant and is certainly not enough to 'warrant a belief by a reasonable person that the alleged Government impropriety might have occurred[.]'"  Also, the court finds that "[n]one of [the variety of examples offered by plaintiff] even come close to being an official acknowledgement by the FBI of information that there was a connection between the subject and the FBI such that the FBI essentially admitted that a file exists."  Finally, the court finds that "[t]o the extent [plaintiff] suggests an alternative public interest in uncovering wrongful FBI activity that led to his wrongful conviction, that interest is purely private."
  
  Regarding ATF, for the same reasons as articulated in its holding regarding the FBI, "the Court finds the ATF's response concerning these individuals was proper."
  
  Regarding USMS, for the same reasons as articulated in its holding regarding ATF, "the Court finds the USMS's response concerning these individuals was proper."
   
• Litigation Considerations & Procedural Requirements:  "The Court finds that the FBI's schedule of producing 500 pages per month is reasonable, in good faith, and in compliance with the FOIA."  The court explains that "[i]n this case, [plaintiff] seeks comprehensive information from the FBI about numerous subjects."  "He has refused to narrow his requests to make them more manageable or more likely to produce documents that actually shed light on the functioning of government."  The court finds that "[i]t is appropriate to defer to the FBI in this particular case which will require review of over 100,000 documents – as many as 270,000 if [plaintiff] is correct – balanced against the policy reasons set forth above and in the absence of any showing of a public interest in disclosure or a need for an expedited schedule."
  
  Additionally, the court holds that "it is also true that federal agencies are not private investigation agencies or copying factories for individuals seeking mountains of government documents for no articulable public purpose."  While the court notes that "[i]t is true that it is improper to inquire into the requester's motive for his request when determining whether the agency must respond, . . . [the] Court believes it is entirely appropriate to consider it when determining how and when the agency must respond."  "This and other factors should be weighed:  the existence of an articulable public interest in the records, the number of responsive records expected, the diligence of the agency in attempting to respond to the request, and potential disruption to the agency and delays to other FOIA requesters from a tighter production schedule."  "By enacting the FOIA, Congress could not have intended to allow a single requester to paralyze a federal agency by submitting thousands of FOIA requests for which there could be hundreds of thousands – even millions – of responsive records and then demanding the entire disclosure be made within a matter of weeks, or even a few years."  The court finds that "[w]hile [plaintiff] may be entitled to all of the non-excluded or non-exempt records he seeks, he is not entitled to them next week, or even next year."
   
• Exemption 6 & 7(C):  Regarding the FBI, "[t]he Court has reviewed generally the FBI's redactions of broad categories of information under Exemptions 6 and 7(C) and various other exemptions and finds no evidence the redactions were not logical, plausible, and in good faith."  "Furthermore, as the Court has already explained in connection with [plaintiff's] requests for which Glomar responses were provided, [plaintiff] has shown no public interest in disclosure of the records he request[ed] for the purpose of uncovering some speculative unlawful FBI activity."  "To the extent the FBI is reexamining its claimed exemptions for [certain] portions of [the] records . . . , the Court will not interfere with that ongoing process."
  
  Regarding BOP, in a request for "SIS Investigations of [plaintiff's] emails and contacts with [two named individuals]," the court finds that "[t]he records [plaintiff] sought, if any exist, would fall under Exemption 7(C)."  "They are records the BOP would have collected in performing its law enforcement functions by its Special Investigative Services . . ., the BOP's internal investigative unit, and generally by BOP personnel to appropriately execute sentences imposed in criminal cases, to protect inmates and staff within prisons, and to prevent further criminal activity."  "Any records referencing the two individuals 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' even if their names were redacted because the records would be associated with them by the very request."  "Additionally, [plaintiff] has not articulated any public interest in disclosure of these records."  For similar reasons, the court finds that BOP's withholding of references "mentioning an individual or details about an individual such as their separatee status, their disruptive group affiliation, or their involvement in specific prison incidents could reasonably be expected to constitute an unwarranted invasion of their personal privacy and could lead to their harassment."  "[Plaintiff] has not provided the individuals' consent to disclosure and has not provided evidence of their death."  "Instead, he relies on his assertion of a public interest in uncovering BOP misconduct through the use of torture or other inhumane, degrading treatment of inmates."
   
• Procedural Requirements, Searching for Responsive Records:  The court finds that "[plaintiff's] request was overly burdensome in that it requested information that was not able to be readily searched for in the USMS's files, which are not organized for searching by organization name."  "When a request does not describe the records in a way that they can be located with a reasonable amount of effort, they are not reasonably described for FOIA purposes."  "Here, for the USMS to find the records [plaintiff's] requests, it would have to review each individual file in its possession to locate references to the organization about which [plaintiff] asked."  The court finds that "[s]uch endeavors clearly exceed 'a reasonable amount of effort' and are not required by the FOIA."  "Thus, the USMS was not obligated to undertake such a search."
   
• Exemption 7(F):  The court holds that "it is appropriate for the BOP to withhold this information pursuant to Exemption 7(F) to protect the life and physical safety of inmates and staff."  The court finds that "[m]uch of the redacted information is the type of information the BOP must monitor to keep inmates, staff, and the public safe because it is related to interpersonal and intergroup dynamics within the prison."  "Knowing who is involved in certain incidents, who has a history of animosity toward others, and who is affiliated with groups that have displayed animosity toward each other is critical to maintaining safety and order within the institution."  "This type of information is also subject to abuse or exploitation if it is used for other purposes and may reveal and endanger the prison's confidential sources for some of that information."
   
• Attorney Fees, Eligibility:  "The Court declines to award costs to [plaintiff] because he has not carried his burden of showing he substantially prevailed in this litigation."  "[Plaintiff] has not obtained victory by judicial order; the Court has granted summary judgment for the DOJ on all counts."  "The only exception is with respect to [plaintiff's] 2013 request to the USMS for information about himself, which fell through the cracks because of a death, a resignation, and the inadvertent failure to reassign the matter."  "The USMS did not detect this oversight until [plaintiff] filed this lawsuit, so the lawsuit was, indeed, a catalyst that caused the agency to search for and release documents it had no plans to release at that time."  "However, [plaintiff's] 2013 request to the USMS for records about himself is such a miniscule portion of this lawsuit, which complains of more than 200 FOIA requests to four different agencies, that victory on that one point cannot reasonably be construed as substantially prevailing in this litigation as a whole."