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Sussman v. United States Dep't of Justice

July 29, 2008

MICHAEL SUSSMAN, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF TRANSPORTATION; TRANSPORTATION SECURITY ADMINISTRATION; UNITED STATES POSTAL SERVICE; UNITED STATES SECRET SERVICE; INTERNAL REVENUE SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Introduction

This case arises out of Freedom of Information Act ("FOIA") and Privacy Act ("PA") requests made by Plaintiff Michael Sussman ("Plaintiff") upon various federal agencies (collectively, "government" or "Defendants") for all investigative and collection records pertaining to or naming him. In his complaint, Plaintiff asserted seventy-one (71) different claims for relief. Both parties had previously moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. In a Memorandum and Order dated September 30, 2006 ("First Order"),*fn1 familiarity with which is presumed, the Court granted in part and denied in part Plaintiff's motion and granted in part and denied in part Defendants' motion. As a result of the First Order, sixteen (16) claims were left unresolved.

As to Counts 19-20, 23-26, 45-46, and 51-54 (collectively the "FBI Counts"), all of which pertain to information requests sent to various Federal Bureau of Investigation ("FBI") field offices, this Court granted Plaintiff's motion for summary judgment and denied Defendants' motion for summary judgment. The Court found that searches for the requested information were either not performed in good faith or not performed at all. The Court ordered the government to perform the necessary searches and release all responsive, non-exempt documents, or, if that is not possible, to provide Plaintiff and the Court with evidence of the government's good faith effort to comply with the First Order.

The Court denied both parties' motions for summary judgment as to Counts 61-62 (the "TSA Counts"), both of which pertain to the release of documents relating to how the Transportation Security Administration ("TSA") compiles its "no fly" and "selectee" watchlists. This Court was unable to determine whether certain draft documents were properly withheld from release, and it ordered an in camera review of the documents at issue.

The Court also denied both parties' motions for summary judgment as to Counts 67-68 (the "USSS Counts"). These counts pertain to information requests sent to the United States Secret Service ("USSS"). The Court was unable to determine whether the search process implemented by the government was sufficient, and it ordered the government to submit a reasonably detailed affidavit articulating why its search process was adequate.

Finally, as to Count 71 (the "BOP Count"), in so far as it pertained to the release of an agreement between the Federal Bureau of Prisons ("BOP") and Renewal, Inc., a community corrections center (hereafter, the agreement shall be referred to as the "Renewal Contract"), the Court denied both parties' motions for summary judgment. The Court was unable to determine whether the search for the documents was conducted in good faith or whether the government properly withheld certain pages of the Renewal Contract.

Defendants now renew their motion for summary judgment on the FBI Counts, the TSA Counts and the USSS Counts. For the reasons set forth below, the motion is granted in part and denied in part.

Discussion

I. Standard

In FOIA/PA cases, summary judgment is recognized as the primary mechanism by which a district court will resolve the issues presented. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified."). A moving party is entitled to summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To prevail at the summary judgment stage in a FOIA/PA case, a defending agency must demonstrate that its search for the requested material was adequate and that any withheld material is exempt from disclosure. See Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994).

II. The FBI Counts (19-20, 23-26, 45-46, and 51-54)

Defendants have renewed their summary judgment motion as to the twelve counts directed at FOIA and PA requests sent to various FBI field offices. Counts 19-20 involve a request to the District of Columbia Field Office; 23-24 involve a request to the Phoenix, Arizona Field Office; 25-26 involve a request to the Newark, New Jersey Field Office; 45-46 involve a request to the Cincinnati, Ohio Field Office; 51-52 involve a request to the El Paso, Texas Field Office; and 53-54 involve a request to the San Antonio, Texas Field Office. See Decl. of David M. Hardy, dated April 8, 2004, ¶ 5.) The Court initially denied Defendants' motion for summary judgment because the government failed to detail how the requested searches were conducted, and ordered Defendants to submit a reasonably detailed affidavit indicating the search terms for these counts.

By letter dated November 13, 2006, Defendants submitted the Fifth Declaration of David M. Hardy, dated November 13, 2006, which provides further details regarding the search for the requested documents. In that letter, Defendant also made a renewed request for summary judgment dismissing the remaining counts against the FBI. By letter dated July 23, 2007, Plaintiff notified the Court that he was withdrawing his claims in Counts 19-20, 23-26, 45-46, and 51-54 and that they could be dismissed with prejudice. Accordingly, the Court grants Defendants' motion for summary judgment as to Counts 19-20, 23-26, 45-46, and 51-54 and dismisses these claims with prejudice.

III. The TSA Counts (61-62)

Only two documents, withheld in full, remain at issue with respect to the TSA Counts.

The first withheld document is a "draft of a response to a congressional inquiry regarding the implementation of 49 U.S.C. § 114(h)" ("Draft Response"). The second document is "Draft Policy No. 7- Proposed Policy, Transportation Security Administration (TSA) Air Traveller [sic] Watch [L]ists," which is another draft "policy proposal for implementing 49 U.S.C. § 114(h)" ("Draft Policy"). Pursuant to the First Order, the government has submitted both documents for an in camera review. Since the documents at issue do not pertain to Plaintiff, the PA does not apply*fn2 and the only issue is whether the documents were withheld properly under FOIA Exemption 5. Consistent with FOIA's ...


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