The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Amil Dinsio ("Dinsio"), appearing pro se, filed the complaint in this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Federal Bureau of Investigation ("FBI"), the United States Department of Justice ("DOJ"), and the Attorney General of the United States. He seeks an order directing defendants to release certain records that plaintiff alleges defendants have wrongfully withheld from him.*fn1 Defendants have moved for summary judgment. Plaintiff has cross-moved for partial summary judgment and has filed a number of other motions seeking various relief.
Dinsio filed a FOIA request with the FBI in 1974, seeking records that the FBI had compiled concerning plaintiff. At the time, plaintiff was serving a federal sentence for conspiracy to burglarize a bank and for bank larceny.*fn2 The FBI released numerous documents to plaintiff in 1977. Complaint ¶ 2.
In 1994, Dinsio filed another FOIA request with the FBI, seeking records that would "show that FBI agents burglarized" Dinsio's garage at his home in Ohio in 1972. Dkt. #15-4 at 3. Dinsio alleges that his daughter (who is an attorney) had discovered evidence of such a burglary when in late 1993 she reviewed the records that plaintiff had received through his 1974 FOIA request. Complaint ¶¶ 7, 8. Dinsio's 1994 request related to his attempt to establish that his conviction had been unconstitutionally obtained through the unlawful actions of the FBI agents. Dkt. #15-4 at 2.
On December 3, 1999, the FBI informed Dinsio that "[t]he only records located by searches of the indices to [the] Central Records System at FBI Headquarters were [Dinsio's] previous Freedom of Information-Privacy Acts requests and [the FBI's] responses." Id. at 17. Plaintiff contends that he attempted to administratively appeal this decision, but got no response. Complaint ¶¶ 18-20.
In February 2005, Dinsio filed a third FOIA request with the FBI, seeking "any and all records complied [sic] on [him] from the year 1980 to the present date." Complaint Ex. G. On May 9, 2005, the FBI informed Dinsio by letter that it had "located material which appear[ed] to be responsive to [Dinsio's] request," and advising him that "regulations require us to notify requesters when anticipated charges may exceed $25." Dkt. #15-4 at 25. The letter asked Dinsio whether he would agree to pay the fees, or if he wanted to narrow the scope of his request to reduce the amount of the fee. The letter concluded, "If you fail to respond within thirty days from the date of this letter, your request will be considered closed administratively." Defendant contends, and Dinsio does not appear to deny, that he never responded to this letter.
Plaintiff commenced this action in April 2005. He seeks judicial review of the FBI's alleged withholding of the records that plaintiff believes exist concerning the alleged burglary and other misconduct by FBI agents in connection with the investigation and prosecution of plaintiff for the 1972 bank burglary and larceny. There are two causes of action in the complaint, the first relating to Dinsio's 1994 FOIA request, and the second to his 2005 request.
"FOIA requires that 'each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules ..., shall make the records promptly available to any person." Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999) (quoting 5 U.S.C. § 552(a)(3) (1994)). "FOIA requires the fullest possible public disclosure of government-kept records, but at the same time maintains the confidentiality of some information based on narrowly tailored exemptions intended to protect certain interests." Peltier v. F.B.I., No. 03-CV-905, 2005 WL 735964, at *3 (W.D.N.Y. Mar. 31, 2005).
"FOIA clearly contemplates judicial review of agency decisions to withhold information and provides that a reviewing court 'shall determine the matter de novo [...], and the burden is on the agency to sustain its action." Halpern, 181 F.3d at 287 (quoting 5 U.S.C. § 552(a)(4)(B)). To prevail on a motion for summary judgment in a FOIA case, the agency must show that its search for the requested materials was adequate and that any documents withheld fall within an exemption to FOIA. Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir.) cert. denied, 513 U.S. 823 (1994).
"Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Id. There is a presumption of good faith regarding affidavits submitted by a government agency, which "cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Servs., Inc., v. Security and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Therefore, the court may award summary judgment if the agency's affidavits are "adequate on their face." Carney, 19 F.3d at 812.
Unlike "the usual question raised in FOIA litigation," i.e., "whether the information withheld properly falls within the scope of the exemptions," Halpern, 181 F.3d at 287, the issue here is whether any information actually was withheld from plaintiff. Defendants contend that the FBI conducted an adequate search but that, in response to plaintiff's 1994 request for records pertaining to the alleged burglary of his home by FBI agents, the FBI found no records other than those that had already been produced in response to his first request twenty years earlier. Plaintiff, on the other hand, alleges ...