Opinion
Civil Action No. 04-1011.
April 1, 2005
MEMORANDUM OPINION
Currently before the Court is the Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Mot.") [D.E. #3], and the Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Def.'s Mem."), [D.E. # 9]. The plaintiff, proceeding pro se, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, the Privacy Act, 5 U.S.C. § 552a(g)(1), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., to require public disclosure of all records and other documents contained in the defendant's files involving the plaintiff and another individual over whom the plaintiff allegedly had power of attorney. Complaint ("Compl".) at 1. Based upon the submissions presented to the Court, the plaintiff's motion will be denied and the Court will defer ruling on the defendant's motion for the reasons set forth below.
I. Background
On or about April 13, 2004, the plaintiff sent the Board of Governors of the Federal Reserve System (the "Board") a request pursuant to the FOIA and the Privacy Act, seeking access to a system of records known as "BGFRS-21" or the FRB-Supervisory Tracking and Reference System. Compl. ¶ 6 Exhibit ("Ex.") M1 (Letter to the Secretary of the Board of Governors of the Federal Reserve System dated April 13, 2004, requesting access to BGFRS-21). On or about April 14, 2004, the plaintiff sent the Board another nearly identical letter requesting documents relating to the Fedwire Funds Service ("Fedwire"). Compl. ¶ 11 Ex. M2 (Letter to the Secretary of the Board of Governors of the Federal Reserve System dated April 14, 2004, requesting access to the Fedwire). Both letters sought information contained under the plaintiff's social security number and the social security number of Max-K. Akamai ("Akamai"), over whom the plaintiff had power of attorney. Compl. ¶¶ 7, 11 Exs. M1 M2. The plaintiff also requested trace of funds information regarding the Phoenix Private Free Market Association, the plaintiff, Akamai, and certain other entities.Id.
BGFRS-21 is a database, jointly owned by the Board and other federal agencies that contains computerized records of suspicious activity reports ("SARs") and currency transactions reports ("CTRs") prepared by financial institutions and used by federal agencies, including the Board, for law enforcement purposes. Def.'s Mem. at 3 (citing Declaration of Susan M. Barnard ("Barnard Decl."), dated September 30, 2004) ¶¶ 3-6.
Fedwire is a specialized payment system owned and operated by the Federal Reserve Banks and used by participating institutions to initiate or receive large-dollar amount, time-critical payments. Def.'s Mem. at 3 (citing Declaration of Thomas M. Guerin ("Guerin Decl."), dated October 5, 2004) ¶¶ 3-6.
With respect to the April 13, 2004 letter, the defendant exercised its statutory right to extend the time in which it had to respond to the letter until May 27, 2004, in order to "consult with another agency or with two or more components of the Board having a substantial interest in the determination of the request." Id. ¶ 8 Exhibit M3 (Letter dated May 13, 2004, from the Board of Governors of the Federal Reserve System to Mr. Jeffrey-Gene Sciba). With respect to the April 14, 2004 letter, the defendant likewise extended the time it had to respond to the letter until June 2, 2004. Id. ¶ 14 Exhibit M4 (Letter dated May 13, 2004 from the Board of Governors of the Federal Reserve System to Mr. Jeffrey-Gene Sciba). Ultimately on June 22, 2004, the Board sent the plaintiff two additional letters. The first letter informed the plaintiff that the Board had no information responsive to his request for Fedwire records. Def.'s Mem. at 4. The second letter informed the plaintiff that the Board located six documents, totaling 10 pages, responsive to his request for information from BGFRS-21.Id. However, the Board informed the plaintiff that those documents contained records compiled for law enforcement purposes and were being withheld pursuant to Exemption 7(A) of the FOIA. Id. Additionally, the letter informed the plaintiff that the documents were exempt from the access provisions of the Privacy Act pursuant to subsection (k)(2) of the Act, 5 U.S.C. § 552a(k)(2). Id. (citing Plaintiff's Affidavit of Self-Authenticating Records and Ex. M30 (Letters dated June 22, 2004 from the Board of Governors of the Federal Reserve Board to Mr. Jeffrey-Gene Sciba)). However, prior to receiving the two letters from the Board responsive to his requests, the plaintiff filed his complaint seeking injunctive relief from this Court. Def.'s Mem. at 5. Thus, the underlying basis for the relief requested in the plaintiff's complaint was that the defendant was in default by not responding to his requests. See Compl. ¶ 16. However, after receiving the letters from the Board, the plaintiff filed his Motion for Partial Summary Judgment requesting that this Court "command" the Board to "release documents improperly held [and] search its records for further documents. . . ." Pl.'s Mot. at 1. The defendant has filed its opposition to the motion claiming that the six documents, totaling 10 pages, are the only documents in its possession that are responsive to the plaintiff's request and that they are exempt from disclosure pursuant to Exemption 3(A) of the FOIA and 31 U.S.C. § 5319, as well as other FOIA exemptions and the access provisions of the Privacy Act. Def.'s Mem. at 5.
In its June 22, 2004 letter, the Board claimed Exemption 7(A) in response to the plaintiff's April 13, 2004 letter regarding the BGFRS-21 documents. However, the Board now claims Exemptions 3(A), 6, 7(C), and 7(D) of the FOIA as alternative basis for withholding the information. Def.'s Mem. at 16-17 n. 4. The defendants cite Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992) as support for its position that "because review in district court is de novo, [the] agency [did] not waive FOIA exemptions by not claiming them in the administrative process."Id. On the other hand, in the plaintiff's opposition to the defendants motion for summary judgment, the plaintiff claims that the defendant is limited to only two defenses, namely, failure to state a claim upon which relief can be granted and Exemption 7(A). Plaintiff's Response and Reply Opposing: Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Opp'n") at 5. The plaintiff essentially argues that because the defendant's Answer and Affirmative Defenses only contained two defenses — Exemption 7(A) and "failure to state a claim" — the defendant is precluded from raising any other defenses in this lawsuit. Pl.'s Opp'n at 1-2. The plaintiff opines that "because the additional defenses contained in the [d]efendant's later filings were not first raised in the [d]efendant's Answer, filed on August 11, 2004, any additional affirmative defenses have been waived. Id. at 2. The plaintiff's position is incorrect, however, because an agency only waives FOIA Exemptions by failing to claim them in the original proceedings before the district court. See Maydak v. United States Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (government must assert all exemptions at the same time, in the original district court proceedings);Wash. Post Co. v. United States Dep't of Health and Human Servs., 795 F.2d 205, 208 (D.C. Cir. 1986) (government ordinarily must raise all its claims of exemption in the original procedings in district court, and may not thereafter assert new claims of exemption, either on appeal or on remand following appeal); Judicial Watch, Inc. v. United States Dep't of Energy, 319 F. Supp. 2d 32, 35 (D.D.C. 2004). These cases do not specify, as the plaintiff contends, that FOIA Exemptions must be made in the answer to the complaint. In fact, a fair reading of these cases leads to the conclusion that the exemption only need be raised at a point in the district court proceedings that gives the court an adequate opportunity to consider it. And the plaintiff has cited no other case that supports a different proposition.
II. Standard of Review
The Court may grant summary judgment when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56;Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). In resolving a motion for summary judgment, all reasonable inferences that may be gleaned from the facts before the Court must be construed in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a FOIA case, to satisfy this standard, the "defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the (FOIA's) inspection requirements." Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (internal quotation marks and citation omitted). When reviewing an agency's denial of a plaintiff's FOIA request, "the court shall determine the matter de novo, and . . . the burden is on the agency to sustain its action." 5 U.S.C. 552(a)(4)(B) (2000); see also Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979). In carrying its burden, reliance on "agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by [n]either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981); Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (summary judgment is appropriate in FOIA cases on the basis of affidavits.) Once the Court determines that the declarations are sufficient, it need not inquire further. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001).
III. Analysis
A. The Plaintiff's Motion for Partial Summary Judgment
The plaintiff moves the Court for entry of partial summary judgment pursuant to Rule 56(d). Aside from the blanket request for an order commanding the defendant to release all responsive documents, the plaintiff's motion has several other requests. Specifically, the plaintiff requests that this Court require the defendant to submit a Vaughn Index. Pl.'s Mot. at 11. The plaintiff also seeks a determination by this Court that the defendant's search for the BGFRS-21 documents was inadequate, and therefore order the agency to search the BGFRS-21 system of records for further documents.Id. Additionally, the plaintiff requests that this Court order the agency to submit affidavits that address how many documents, if any, were found and if any of the information was exempt from disclosure. Id.
The plaintiff later requests that, in the interest of judicial economy, this Court deem the plaintiff's motion for partial summary judgment as "dispositive," Plaintiff's Response and Reply Opposing: Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Opp'n") at 6, which presumably is a request that the Court treat that motion as addressing all issues presented to the Court in this case.
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir 1973).
However, the defendant's motion for summary judgment and its opposition to the plaintiff's motion for partial summary judgment satisfy these additional requests. Specifically, the defendant has submitted a Vaughn Index which provides a detailed description of the withheld documents and the corresponding exemptions that purportedly apply to any withheld information.See Def.'s Mem., Ex. C (Index of Withheld Material). With respect to the adequacy of the Board's search and the plaintiff's request for supporting affidavits, the defendant has provided three declarations supporting its claimed exemptions. See Def.'s Mem., Exs. 3, 4 5. However, the plaintiff has since withdrawn his request "for a second search of the records and for additional affidavits" pursuant to Federal Rule of Civil Procedure 41(a). Plaintiff's Response and Reply Opposing: Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Opp'n") at 6. Moreover, with respect to the Fedwire documents, the plaintiff makes nearly identical requests as he did with the BGFRS-21 documents. However, pursuant to Fed.R.Civ.P. 41(a), the plaintiff "with[drew] his entire second cause of action, regarding the plaintiff's access to the Fedwire Service." Id. Therefore, the plaintiff's motion for partial summary judgment must be denied. This result is called for because the plaintiff's requests for a Vaughn Index is now moot by virtue of the defendant's filing of its motion for summary judgment and accompanying Vaughn Index. The plaintiff's motion must also be denied because the other issues raised by the plaintiff concerning the adequacy of the defendant's search efforts and the Fedwire documents were withdrawn. Id. Thus, the only issues remaining are whether the BGFRS-21 documents were properly withheld pursuant to the FOIA exemptions claimed by the Board and whether the plaintiff is entitled to those same documents under the Privacy Act. These issues were addressed in the defendant's motion for summary judgment and will be resolved by the Court in the following discussion.
The defendants provided the declaration of Elaine M. Boutlier, an attorney with the Board who was responsible for processing the two FOIA requests made by the plaintiff; the declaration of Thomas M. Guerin, a Financial Services Analyst and Research Assistant with the Board; and the declaration of Susan M. Barnard, an Enforcement Analyst with the Board in the Division of Banking Supervision and Regulation Enforcement Section. See Def.'s Mem., Exs. 3, 4 5.
The plaintiff submits further argument on the Board's withholding of the documents based upon Exemption 7(A) of the FOIA. However as explained in note 3 supra, the defendant alternatively argues that the documents are being withheld pursuant to Exemption 3(A) and 31 U.S.C. § 5319 "[b]ecause the documents are so clearly exempt from disclosure under [these two statutory provisions]. . . ." See Def.'s Mem. at 16-17 n. 4. Therefore, the plaintiff's argument with respect to 7(A) will not be addressed by the Court.
B. The Defendant's Motion for Summary Judgment
1. FOIA Exemption 3(A)
The Board asserts, inter alia, Exemption 3(A) of the FOIA and 31 U.S.C. § 5319 as one of its basis for withholding the 6 documents, totaling ten pages, in their entirety from the plaintiff. Def.'s Mem. at 16. Exemption 3(A) permits the withholding of information prohibited from disclosure by another statute if that statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue." See 5 U.S.C. § 552(b)(3); Smith v. United States Dep't of Justice, 251 F.3d 1047, 1048-49 (D.C. Cir. 2001). In such situations "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978) (footnote omitted); accord Ass'n of Retired R.R. Workers v. United States R.R. Ret. Bd., 830 F.2d 331, 335 (D.C. Cir. 1987).
The defendant has claimed additional exemptions for withholding the documents, specifically, Exemptions 6 and 7(C) for documents 1 through 6, and Exemption 7(D) for documents 1 and 2. Def.'s Mem. at 17 n. 4 (citing Ex. C (Barnard Decl.)). However, the Board indicated that because the "documents are so clearly exempt from disclosure under Exemption 3(A) and 31 U.S.C. § 5319," it will not "burden the Court with a full briefing on these other bases unless the Court requests further elucidation of these matters." Def.'s Mem. at 17 n4.
"To qualify as a withholding provision, a statute must be the `product of congressional appreciation of the dangers inherent in airing particular data' and must `incorporate a formula whereby the administrator may determine precisely whether the disclosure in any instance would pose the hazard that Congress foresaw.'"Wis. Project on Nuclear Arms Control v. Dep't of Commerce, 317 F.3d 275, 280 (D.C. Cir. 2003) (quoting Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978) (alteration in original)). "In short, `only explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.'" Id. (citing Irons and Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979).
Here the defendant alleges that "an express statutory provision establishes that the documents are entirely `exempt from disclosure' under [the] FOIA. . . ." Def.'s Mem. at 18. The withheld documents consists of two suspicious activity reports ("SARs"), filed by financial institutions pursuant to 31 U.S.C. § 5318(g), and four currency transaction reports ("CTRs"), filed by financial institutions pursuant to 31 U.S.C. § 5313. Id. at 16 (citing Declaration of Susan M. Barnard ("Barnard Decl.") dated September 30, 2004) ¶¶ 3-6. Therefore, opines the defendant, section 5319 of title 31 makes all these reports "exempt from disclosure under section 552 of title 5." Id. (citing 31 U.S.C. § 5319).
On the other hand, the plaintiff does not respond in any way to the Board's Exemption 3(A) analysis. Instead, the plaintiff briefly states that "the [d]efendant filed a motion for summary judgment against the plaintiff citing a multitude of additional defenses added after the [d]efendant's first responsive pleading." Plaintiff's Opposition to Defendant's Statement of Material Facts as to Which There is No Genuine Dispute ("Pl.'s Opp'n Stmt. Mat. Facts") at 2-3. In other words, the plaintiff has taken the position that the defendant is limited to only two defenses, namely, the plaintiff's failure to state a claim and the applicability of Exemption 7(A) of the FOIA, see supra note 3, and therefore he need not respond to any other defenses raised by the defendant for the withholding of the documents. See Pl.'s Opp'n at 5. The Court disagrees with the plaintiff's position, id., and because the plaintiff did not respond to the Board's Exemption 3(A) arguments, the Court defers issuing a ruling on this issue. The Court therefore directs the pro se plaintiff to respond to arguments raised by the defendant pertaining to Exemption 3(A) within thirty days from the date of this Court's Order issued on March 31, 2005. The defendant will thereafter have the opportunity to reply to the plaintiff's response.
Because the plaintiff is proceeding pro se, the Court will also issue an Order pursuant to Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) and Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988), which will advise the plaintiff of the consequences of failing to respond to all aspects of the defendant's motion.
2. The Privacy Act
In addition to the FOIA requests, the plaintiff also requested access to the documents pursuant to the Privacy Act. The Privacy Act provides, in part:
(d) Access to records. — Each agency that maintains a system of records shall —
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;5 U.S.C. § 552a(d)(1). Thus, the Privacy Act provides a right of access by any person to information pertaining to him contained in an agency's system of records. Pursuant to subsections (j) and (k) of the Privacy Act, an agency may promulgate rules exempting identified systems of records from the access provisions of the Act. 5 U.S.C. §§ 552a(j) and (k). Subsection (k)(2) permits an agency to exempt any system of records that contains "investigatory material compiled for law enforcement purposes." 5 U.S.C. § 552a(k)(2). The Board contends that "because [the information] contains investigatory material compiled for law enforcement purposes, the Board's regulations specifically exempt all information in BGFRS-21 from the access requirements of the Privacy Act. Def.'s Mem. at 22 (citation omitted). The Board therefore concludes that "[b]ecause the Board properly exempted BGFRS-21 from the Privacy Act, the plaintiff has no Privacy Act right of access to information in that system of records . . ." Id.
Again, the plaintiff did not respond to defendant's arguments pertaining to the Privacy Act, presumably for the same reason expressed in response to the defendant raising Exemption 3(A). As previously stated, the plaintiff acknowledges that the defendant "cit[es] a multitude of additional defenses added after the [d]efendant's first responsive pleading," Pl.'s Opp'n Stmt. Mat. Facts. at 2-3. However, the plaintiff maintains that the defendant is precluded from raising any other defenses outside of Exemption 7(A) and the position that the defendant has failed to state a claim upon which relief may be granted. Again, this Court disagrees with the plaintiff and will afford the pro se plaintiff an opportunity to respond to the Board's arguments concerning the Privacy Act. Accordingly, the plaintiff is again required to submit a response to the defendant's arguments pertaining to the Privacy Act within thirty days from the date of this Court's Order issued on March 31, 2005. The defendant will thereafter have the opportunity to reply to the plaintiff's response.
IV. Conclusion
For the foregoing reasons, the plaintiff's Motion for Partial Summary Judgment is denied. The Court defers issuing a ruling on the Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment until the plaintiff has the opportunity to respond to the issues presented in the plaintiff's motion as indicated in this Memorandum Opinion
An Order consistent with this Memorandum Opinion was issued on March 31, 2005.
SO ORDERED