ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Michael Brown has sued the U.S. Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff is an inmate at the United States Prison in Tucson, Arizona, and is proceeding pro se. Plaintiff seeks access to all records concerning a third party, Victor A. Caldwell. The FBI contends that records responsive to plaintiff's request are exempt from production under FOIA Exemptions (b)(6) and (b)(7)(C). As such, the FBI now moves for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant the FBI's motion for summary judgment.
On July 2, 2009, plaintiff submitted a "third-party request" seeking access to all records at FBI Headquarters ("FBIHQ") pertaining to Victor Caldwell.
On September 23, 2009, the Record/Information Dissemination Section ("RIDS") in the Records Management Division ("RMD") of the FBI initiated its standard protocol for verifying the privacy waiver from Caldwell submitted by plaintiff. (Id. ¶ 16.) According to David M. Hardy, the Section Chief of RIDS, the Section was concerned about the validity of Caldwell's signature on the privacy waiver based on its "institutional knowledge and prior experience dealing with similar requests." (Id.) As a result, RIDS personnel sent an electronic communication to the BI Chicago Field Office to ask that a Special Agent contact Caldwell to verify the validity of his signature. (Id. ¶ 17; see also Decl. of Special Agent Jeffrey B. Moore ["Moore Decl."] ¶ 3.) Special Agent ("SA") Jerry Moore was selected to contact Caldwell by telephone. (Hardy Decl. ¶ 17.) SA Moore was selected to communicate with Caldwell because SA Moore had established a prior relationship with Caldwell and was able to recognize his voice during telephone conversations. (Moore Decl. ¶ 3.)
In October 2009, SA Moore called Caldwell using a telephone number in SA Moore's records. (Id. ¶ 4.) Once he had recognized Caldwell's voice and confirmed his identity, SA Moore discussed the privacy waiver submitted by plaintiff. (Id.) SA Moore explained to Caldwell that the waiver meant that, upon request, plaintiff would be provided access to any of Caldwell's files that the FBI had in its possession. (Id.) According to SA Moore, although Caldwell indicated that he had signed the waiver, he had not been aware of what it meant to "waive his right to privacy of his FBI files." (Id. ¶ 5.) Hence, Caldwell "indicated that he did not want any FBI files released to anyone at th[at] time" and that "he wished to withdraw his consent to the privacy waiver." (Id. ¶ 6.) Another special agent from the Chicago Field Office, SA Frank Bochte, informed RIDS personnel of the content of the conversation between SA Moore and Caldwell on November 13, 2009. (Id. ¶ 7.)
On December 2, 2009, and again on March 31, 2010, the FBI informed plaintiff by letter that it would be unable to process his request for information on a third party because Caldwell had withdrawn his privacy waiver. (Id. ¶ 9.) The FBI stated that it had
(Hardy Decl., Ex. J.) Plaintiff filed his complaint on February 18, 2010. The FBI filed a motion for summary judgment on June 4, 2010. Attached to defendants' motion are declarations from David M. Hardy and SA Jeffrey Moore.
The FBI contends that it has properly invoked appropriate FOIA exemptions in declining to process plaintiff's request for documents concerning Caldwell and that it acted in good faith in ensuring that Caldwell's
"FOIA cases appropriately may be decided on motions for summary judgment." Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007). Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the nonmovant, that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fischer v. Dep't of Justice, 596 F.Supp.2d 34, 39-40 (D.D.C.2009) ("In a FOIA case, summary judgment may be granted to the government if `the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.'") (quoting Greenberg v. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C.1998)). To prevail in a FOIA action, the agency must show that it made "`a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990)).
A requester may challenge the government's showing by "set[ting] out specific facts showing a genuine issue for trial," Fed.R.Civ.P. 56(e), that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). However, agency affidavits "are afforded a presumption of good faith," and an adequate affidavit "can be rebutted only `with evidence that the agency's search was not made in good faith.'" Defenders of Wildlife v. Dep't of Interior, 314 F.Supp.2d 1, 8 (D.D.C.2004) (quoting Trans Union LLC v. Fed. Trade Comm'n, 141 F.Supp.2d 62, 69 (D.D.C.2001)). In other words, a requester cannot rebut the good faith presumption through "`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) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). But "if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Weisberg v. Dep't of Justice, 627 F.2d 365, 370 (D.C.Cir.1980) (internal quotation marks omitted).
Plaintiff contends that "[w]hile the FBI may corroborate the signature on a release authorization, nothing in FOIA authorizes FBI to continue explaining to the signatory FBI's interpretation of the implications of the release authorization." (Opp'n at 1.) As such, he argues that the act of the FBI in "continuing to hold Caldwell on the telephone, and to further inquire into Caldwell's actions and reasoning—after Caldwell had confirmed his signature
Plaintiff's speculation that the FBI impermissibly attempted to convince Caldwell to withdraw his privacy waiver, without any evidence of misconduct or bad faith on the part of defendant, is insufficient to overcome the presumption of good faith the Court must accord to the declarations from Hardy and SA Moore. See SafeCard Servs., Inc., 926 F.2d at 1200 ("Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'") (quoting Ground Saucer Watch, Inc., 692 F.2d at 771). Hardy states in his declaration that when RIDS is concerned with the validity of a third-party privacy waiver, it has a "standard protocol" for verifying the waiver, which it used in this instance. (Hardy Decl. ¶ 16.) There is nothing in the FOIA statute (nor does plaintiff cite any case law) suggesting that a government agency may not authenticate privacy waivers, or that it may not ensure that a signatory to such a waiver understands the implications of that waiver.
"Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984). The Court finds that the declarations submitted by Hardy and SA Moore adequately demonstrate that Caldwell no longer consents to the release of his FBI records to plaintiff. Because plaintiff presents no evidence to refute the facts as set forth by these declarations, and because there is no indication that the FBI has acted in bad faith, plaintiff's speculation that the FBI improperly contacted or influenced Caldwell is unpersuasive.
In its December 2009 response to plaintiff's request for documents concerning Caldwell, the FBI stated that because Caldwell had withdrawn his privacy waiver, defendant was "unable to process [his] request." (Hardy Decl. Ex. E.) In its March 2010 response, the FBI further stated that without a privacy waiver, "disclosure of the records [plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy pursuant to [FOIA Exemptions (b)(6) and (b)(7)]
The FBI's refusal to process plaintiff's request for records constitutes a "Glomar" response. "If an individual is the target of a FOIA request, the agency to which the FOIA request is submitted may provide a `Glomar' response: the agency may refuse to confirm or deny the existence of records or information responsive to the request on the ground that even acknowledging the existence of responsive records constitutes an unwarranted invasion of the targeted individual's personal privacy." Robinson v. Attorney General of the U.S., 534 F.Supp.2d 72, 82 (D.D.C. 2008) (citing Nation Magazine, 71 F.3d at 893, and Phillippi v. CIA, 546 F.2d 1009, 1014-15 (D.C.Cir.1976)); see also Gardels, 689 F.2d at 1103 ("We have ... agreed that an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception."). Here, the FBI contends that confirmation of the existence of the records requested by plaintiff—to wit, any FBI files concerning Caldwell—would "constitute a clearly unwarranted invasion of personal privacy" of the type FOIA Exemptions (b)(6) and (b)(7)(C) were enacted to prevent. (Hardy Decl., Ex. J.)
Despite its stated goal of agency disclosure in enacting FOIA, Congress "underst[ood] that disclosure of records containing personal details about private citizens can infringe significant privacy interests." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 766, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Further, "the mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation," and the "privacy interests of the persons mentioned in [] investigatory files do not necessarily diminish with the passage of time." Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.1987). Thus, "Exemption 7(C) `affords broad[] privacy rights to suspects,
Here, Section Chief Hardy states in his second declaration that "if [the FBI] had any information responsive to plaintiff's request, it is reasonably likely to be contained in criminal investigative files of the FBI's [CRS]" and that "no other record system within the FBI would reasonably contain information about Mr. Caldwell."
Upon a finding that there is a privacy interest in the withholding of documents responsive to a FOIA request, "[t]he government may nonetheless be required to disclose the documents if the individual seeking the information demonstrates a public interest in the information that is sufficient to overcome the privacy interest at issue." Boyd v. Criminal Div. of the U.S. Dep't of Justice, 475 F.3d 381, 386-87 (D.C.Cir.2007) (citing Reporters Comm., 489 U.S. at 762, 776, 109 S.Ct. 1468). "In order to trigger the balancing of public interests against private interests, a FOIA requester must (1) `show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,' and (2) `show the information is likely to advance that interest.'" Id. at 387 (quoting Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004)). "[P]rivacy interests are particularly difficult to overcome when law enforcement
Here, plaintiff has not attempted to articulate a public interest in the release of FBI documents concerning Caldwell. However, in earlier FOIA requests made by plaintiff to the FBI, plaintiff suggested that he was involved in "ongoing litigation(s)" and that the requested documents are responses to "possible questions about the government's integrity which affected public confidence." (Hardy Decl., Ex. A at 3.) Assuming that plaintiff seeks documents responsive to his request in order to challenge his conviction and/or bring to light possible government misconduct, the Court finds that plaintiff has not demonstrated that either of these reasons constitute a "significant" public interest in documents concerning Caldwell. There is no indication that responsive documents would reveal government wrongdoing. See Boyd, 475 F.3d at 388 (affirming withholding of documents pursuant to Exemption (b)(7)(C) where plaintiff made only "[u]nsubstantiated assertions of government wrongdoing" in support of his claim that FOIA disclosures were necessary because government had violated discovery obligations). Moreover, plaintiff's personal interest personal interest in obtaining potentially exculpatory documents in order to attack his conviction "does not count in the calculation of public interest." Oguaju v. U.S., 288 F.3d 448, 450 (D.C.Cir.2002), vacated and remanded on other grounds, 541 U.S. 970, 124 S.Ct. 1903, 158 L.Ed.2d 464 (2004), reinstated, 378 F.3d 1115 (D.C.Cir.2004); see also Engelking v. DEA, 119 F.3d 980, 980-81 (D.C.Cir.1997); Johnson v. U.S. Dep't of Justice, 758 F.Supp. 2, 5 (D.D.C.1991); Neely v. FBI, 208 F.3d 461, 464 (4th Cir.2000).
Consequently, the Court finds that there is no public interest in the release of FBI documents concerning Caldwell, if they exist. Absent a public interest to weigh against the private interest Caldwell has in the withholding of these documents, the Court finds that the FBI's Glomar response to plaintiff's request, declining to process his claim for documents concerning a third party, is appropriate.
For the reasons stated above, the Court will grant defendant's motion for summary judgment. A separate Order accompanies this Memorandum Opinion.