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RABIN v. UNITED STATES DEP'T OF STATE

October 7, 1997

NORMAN CARL RABIN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY, JOHN M. DEUTCH, in his Official Capacity as Director of the Central Intelligence Agency and Individually, and THE UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 According to the plaintiff, he has been "targeted" by "United States satellite-based assault," "surveillance" and "imprisonment" from 1986 to present. (Plaintiff's Memorandum of Points and Authorities). Additionally, for reasons that need not be elaborated upon, the plaintiff believes that this "satellite" activity dovetails with plots between the United States and the former Soviet Union to free Jewish dissidents in 1986 and 1987, and with Iraq's invasion of Kuwait on August 2, 1990.

 This matter is before the Court on the plaintiff's pro se motion to compel the defendant government agencies to expedite their processing of requests, made pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 as amended, for documents allegedly evidencing the above-described government conspiracies. Also before the Court are the defendant Central Intelligence Agency's ["CIA" or "the Agency"] motion to dismiss the portion of the complaint which seeks to compel the production of documents which are not in the agency's possession, as well as the defendant United States Department of State's ["State Department" or "the Department"] motion to stay the proceedings until it has fully processed the plaintiff's FOIA request.

 I. FACTUAL BACKGROUND

 A. The CIA FOIA Request

 Apparently hoping to gather information that would support his contention of a government conspiracy against him, the plaintiff made a FOIA request to the CIA, by letter dated September 14, 1994, seeking the following four categories of documents: (1) "materials corresponding to Treason Charges, brought against U.S. Intelligence . . . in January 1986, upon their conducting satellite assault operations against [the plaintiff]" ("Item One"); (2) "The agreement . . . announced by the Reagan Administration [which lead to the] release of Anatoly B. Shcharansky from the USSR" ("Item Two"); (3) "Materials concerning any U.S. communications . . . which preceded . . . the Moscow[] Emigration Office giving permission, on []or about [] September 7, 1987, to [six] Soviet Jewish dissidents to leave the Soviet Union" ("Item Three"); and (4) "Materials concerning U.S. communications . . . which preceded Iraq's August 2, 1990 invasion of Kuwait, and which informed Iraq . . . of . . . special dates upon which Iraq might consider crossing the border of Kuwait to seize or occupy some amount of land" ("Item Four"). (12/28/95 Strickland Decl., Ex. 1)

 By letter dated November 8, 1994, the CIA acknowledged that it had received the plaintiff's FOIA request (12/28/95 Strickland Decl., Ex. 4). With respect to Item One of the request, the CIA letter noted that the agency conducted separate searches in 1990 and 1992 for information indexed to the plaintiff's name in response to requests for information on himself under the Privacy Act of 1974, 5 U.S.C. § 552a. (12/28/95 Strickland Decl., PP 6-7). The letter advised plaintiff that the first search yielded no records, and that the second search located only the plaintiff's earlier letter to the agency. Since Item One of the FOIA request would have been located during the earlier Privacy Act searches if it existed, the letter stated, the agency determined that it would not conduct a third search.

 Further, the CIA letter informed the plaintiff that his requests for Items Two and Three -- regarding the former Soviet Union's release of Anatoly Shcharansky and other Jewish dissidents -- should be directed to the Department of State. The letter also explained that Item Four did not "reasonably describe the records sought" and therefore was considered "unsearchable" within CIA records systems. The CIA letter did not notify the plaintiff of his right to an administrative appeal of this determination, and no such appeal was taken.

 B. The State Department FOIA Request

 Several months later, by letter dated March 9, 1995, the plaintiff wrote to the State Department, seeking the same four items described in the CIA FOIA request. (3/20/96 Sheils Decl., Ex. 1). In a reply dated March 29, 1995, the State Department notified the plaintiff that it had begun processing his request for Items Two and Three. (3/20/96 Sheils Decl., Ex. 4). The response noted, however, that the State Department would not search for Item One, because even if such documents existed, they would be maintained by the CIA. The letter also advised the plaintiff that it could not process Item Four because it did not "clearly and reasonably describe" the materials being sought and, hence, was "unsearchable" in the agency's records systems.

 Subsequently, by a follow-up letter to the State Department dated May 15, 1995, the plaintiff requested expedited processing of his request for Items Two and Three. With respect to Item Four of his request, the plaintiff's follow-up letter clarified that the "special dates" mentioned in Item Four of his request related to communications from the United States Government to Iraq, from May 1990 through August 1990, stating, in sum and substance, that the plaintiff "is our symbol of Soviet Jewry and/or human rights abuse who will be flying to Israel on August 1-2, 1990. Perhaps you might consider doing something on that day? Or perhaps you might consider crossing the border of Kuwait and taking or seizing or occupying some amount of land on that day?" (3/20/96 Sheils Decl., Ex. 5).

 By a reply dated May 23, 1995, the Department advised the plaintiff that his request for expedition was denied because it did not meet the criteria set forth in its rules, 22 CFR 171.12(b), namely, that "an individual's life or personal safety would be jeopardized by the Department's failure to process a case immediately" or that substantial due process rights of the requestor would be impaired and that the information sought is not otherwise available." (3/20/96 Sheils Decl., Ex. 6). The letter also advised the plaintiff of his right to an administrative appeal of this determination to the Chief of the Requests Management Division of the State Department. The letter did not state whether the agency had reached a determination regarding plaintiff's effort to clarify his request for Item Four.

 On October 23, 1995, the plaintiff filed a civil suit in this Court seeking declaratory and injunctive relief against the State Department and CIA compelling the agencies to provide him with the materials cited in his FOIA requests.

 II. THE PARTIES' POSITIONS

 A. The Plaintiff's Position

 1. The CIA FOIA Request

 At the outset, the plaintiff seemingly concedes that the CIA's referral of his requests for items Two and Three to the State Department was proper. Accordingly, that aspect of the agency's determination is not before the Court. (Plaintiff's Unpaginated Complaint, PP 115-16).

 With regard to his request for Item One, the plaintiff asserts that the CIA's prior searches pursuant to Privacy Act requests for information in the plaintiff's name would not necessarily have yielded documents of satellite assaults against the plaintiff, and accordingly, that the Agency should be compelled to initiate another search. (Plaintiff's Unpaginated Complaint, P 119). In addition, the plaintiff challenges the CIA's determination that it is impossible to conduct a search for Item Four within the Agency's record systems (Plaintiff's Unpaginated Complaint, P 122).

 2. The State Department FOIA Request

 The plaintiff urges this Court to compel the State Department to expedite its processing of that portion of his request which it determined it will respond to, namely, Items Two and Three, as well as Item Four as clarified in the plaintiff's follow-up letter to his initial FOIA request. According to the plaintiff, he is deserving of accelerated treatment because the documents sought will provide him with "notice" that he is being held a "satellite prisoner of [the United States Government's] multiple satellites' monitoring and assault" ...


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