Dixon v. Comey ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DANIEL DIXON, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-1010 (TSC)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the court on Defendant U.S. Department of Justice’s Motion for
Summary Judgment, ECF No. 17. For the reasons discussed below, the court will GRANT the
motion.
I. BACKGROUND
Plaintiff Daniel Steve Dixon is a California state prisoner. (Compl. ¶ 1). It appears that
his criminal conviction was based in part on expert testimony regarding compositional bullet
lead analysis (“CBLA”) introduced at Plaintiff’s trial on February 18, 1981. (See id. ¶¶ 1, 7;
Mem. of P. & A. in Support of Def. U.S. Dep’t of Justice’s Mot. for Summ. J., Decl. of David M.
Hardy (“Hardy Decl.”), Ex. A at 1). The Federal Bureau of Investigation (“FBI”) “no longer
conduct[s] the examination of bullet lead” since concerns arose “relating to the interpretation of
the results of bullet lead examinations.” (Compl., Ex. A5, Attach. 2). Notwithstanding reports
that CBLA is a “discredited and abandoned forensic technique,” (id. ¶ 7), “it is the opinion of the
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FBI Laboratory that [FBI Examiner John Kilty] properly testified” at Plaintiff’s trial as a rebuttal
witness. (Id., Ex. C at 1).
On December 29, 2015, Plaintiff submitted a request to the FBI under the Freedom of
Information Act (“FOIA”), see 5 U.S.C. § 552, for “information and/or copies of the discredited
and abandoned comparative (sometimes called compositional) bullet lead analysis (CBLA)
which the [FBI] previously used prior to determining its unreliability in 2004.” (Hardy Decl.,
Ex. A at 1). Specifically, Plaintiff sought:
1. Comparative Bullet-Lead Analysis (CBLA) report, also
known as Compositional Bullet-Lead Analysis by Rochelle F.H.
Bohaty, March 2, 2009[;]
2. The FBI September 1, 2005 memorandum and/or letter
regarding Discontinuation of Bullet Lead Examinations[;]
3. Information, e.g., letter or memorandums, from the
prosecution’s office (prisoners[’] or ex-prisoners[’] names redacted)
who “used the bullet evidence at trial” to gain conviction,
specifically of those charged with cases where CBLA was used, and
later lead to reversal[;]
4. FBI letter to the state, city and county agencies, including
district attorney offices[,] declaring the FBI abandonment of CBLA
use in approximately 2,000 criminal cases, and;
5. Any further information relevant to my case, including
information from the San Joaquin County District Attorney Office
related to CBLA matters.
(Id., Ex. A at 1). Among the attachments to Plaintiff’s FOIA request was a copy of the FBI’s
September 1, 2005 press release titled “FBI Laboratory Announces Discontinuation of Bullet
Lead Examinations.” (Compl., Ex. A5, Attach. 2).
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The FBI divided Plaintiff’s FOIA request into three parts and assigned each a tracking
number. (See Hardy Decl. ¶¶ 7-10). Request Number 52976 corresponded with the third item in
Plaintiff’s request. (Id. ¶ 8). The FBI determined that Plaintiff’s request for “information from
the prosecution’s office who used bullet evidence which later lead to a conviction reversal . . .
did not contain enough descriptive information to permit a search of FBI records.” (Id.). It
provided Plaintiff “[e]xamples of specific information which could assist” FBI staff in
conducting a search, such as “names of specific individuals, [or the] date, time and locations of
events, or a specific time frame and/or location.” (Id.). Further, it provided Plaintiff instructions
for filing an administrative appeal of this determination. (See id., Ex. B at 1). Nothing in the
record suggests that Plaintiff either perfected his request or pursued an administrative appeal.
FOIPA Request Number 1343144-000 corresponded with the second and fourth items of
Plaintiff’s FOIA request for “Reports, Memorandum, etc[.] for CBLA letters of abandonment[.]”
(Id. ¶ 9). FOIPA Request Number 1343107-001 corresponded to the fifth item of Plaintiff’s
FOIA request for information about himself. (Id. ¶ 16). An initial search of the Central Records
System yielded five pages of records which the FBI released in full or in part on August 22,
2016. (Id. ¶ 17). With this release the FBI responded to the other items of his FOIA request:
In response to item 1 of your December 29, 2015 FOIA request, the
requested document . . . is not a document prepared by the FBI nor
has the FBI incorporated the report into its files . . . . In response to
item 2 of your request, there are no additional records responsive to
this item aside from the memo . . . you attach[ed] to your request.
In regard to item 3, this item is too vague in order to permit the FBI
to conduct a reasonable search for responsive records. In response
to item 4, enclosed is a processed copy of the standard FBI form
letter regarding the discontinuation of Bullet Lead Examinations
that was sent to prosecutor’s offices. In regard to item 5 of your
request, a search of the Sacramento Field Office was conducted and
potentially responsive pages will be processed . . . .
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(Id., Ex. J at 2). On September 23, 2016, the FBI released 19 additional pages of records in full
or in part. (Id. ¶ 18). Where the FBI withheld information, it relied on FOIA Exemptions 6 and
7(C). (Id. ¶¶ 17-18).
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
ViroPharma Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012)
(citations omitted). The court grants summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). Summary judgment in a FOIA case may be based solely on information
provided in an agency’s supporting affidavits or declarations, if they are relatively detailed and
when they describe “the documents and the justifications for nondisclosure with reasonably
specific detail . . . and are not controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
B. Request Number 52976
“[E]ach agency, upon any request for records which (i) reasonably describes such records
and (ii) is made in accordance with published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). “Omitting one of the two threshold requirements for a proper FOIA request . . .
warrants dismissal.” Lowe v. DEA, No. 06-CV-1133, 2007 WL 2104309, at *5 (D.D.C. July 22,
2007) (citations omitted). Records are reasonably described “if a professional employee of the
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agency familiar with the subject matter can locate the records with a reasonable amount of
effort.” Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C. 1991) (citations and internal quotation
marks omitted).
Although Plaintiff does not mention Request Number 52976 in his Complaint, in his
opposition to Defendant’s motion, he objects to the “disingenuous and less than half hearted
response” he received when “[D]efendant stated that [he] was not specific enough in his
request.” (Pl.’s Opp’n at 7). 1 The court, however, concurs with the FBI’s assessment that the
third item of Plaintiff’s FOIA request does not reasonably describe the records requested.
Furthermore, a substantive response to Request Number 52976 would require that FBI staff
locate letters or memoranda from prosecutors’ offices throughout the country, identify each
criminal matter for which the FBI conducted comparative bullet lead analysis, and determine the
cases resulting in a conviction which subsequently was reversed after CBLA had been
discontinued. Where, as here, an agency’s response to a FOIA request calls for “an unreasonably
burdensome search,” Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce,
632 F. Supp. 1272, 1278 (D.D.C. 1986) (citing Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir.
1978)), the agency need not honor the request.
C. FOIPA Request Numbers 1343107-001 and 1343144-000
“The Court applies a reasonableness test to determine the adequacy of search
methodology . . . consistent with the congressional intent tilting in favor of disclosure.”
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Plaintiff’s response to Defendant’s summary judgment motion, ECF No. 22, includes an
introduction, Plaintiff’s declaration, and his memorandum of points and authorities, on
sequentially numbered pages, along with exhibits designated by letters A through S. The court
refers to this submission (“Pl.’s Opp’n”) using the page numbers designated by Plaintiff.
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Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (citations and internal
quotation marks omitted). An agency “fulfills its obligations under FOIA if it can demonstrate
beyond material doubt that its search was reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir.
2011) (citations and internal quotation marks omitted). The agency may submit a declaration to
explain the method and scope of its search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir.
1982), and its declaration is “accorded a presumption of good faith, which cannot be rebutted by
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) (internal quotation marks and citation
omitted). However, if the record “leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542
(D.C. Cir. 1990).
1. The Central Records System
The Central Records System (“CRS”) includes “applicant, investigative, personnel,
administrative, and general files compiled and maintained by the FBI in the course of fulfilling
its integrated missions and functions as a law enforcement, counterterrorism, and intelligence
agency[.]” (Hardy Decl. ¶ 19). The CRS is made up of a “numerical sequence of files, called
FBI ‘classifications.’” (Id. ¶ 20). CRS “file classification categories include types of criminal
conduct and investigations conducted by the FBI,” and “categorical subjects pertaining to
counterterrorism, intelligence, counterintelligence, personnel, and administrative matters.” (Id.).
When a case file is opened, it is assigned a three-part Universal Case File Number consisting of a
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CRS file classification number, an abbreviation for the office of origin, and an individual case
file number for that particular subject matter. (Id. ¶ 20).
The FBI’s declarant, David M. Hardy, explains that “general indices are the index or
‘key’ to locating records within the . . . CRS.” (Id. ¶ 21). Indices are arranged alphabetically
“and comprise an index on a variety of subject matters to include individuals, organizations,
events, or other subjects of investigative interest that are indexed for future retrieval.” (Id.).
There are two categories of general indices. A main entry “carries the name of an individual,
organization, or other subject matter that is the designated subject of the file.” (Id. ¶ 21a). A
reference entry, or cross-reference, “merely mention[s] or reference[s] an individual,
organization, or other subject matter that is contained in [the] ‘main’ file record about a different
subject matter.” (Id. ¶ 21b). “The Universal Index (‘UNI’) is the automated index of the
CRS[.]” (Id. ¶ 24). It provides “a centralized, electronic means of indexing pertinent
investigative information to FBI files for future retrieval via index searching.” (Id.). For
example, an individual’s name can be recorded with identifying information, such as his date of
birth, race, sex, and Social Security number. (Id.).
Since 1995, FBI Headquarters, Field Offices and Legal Attaches use the Automated Case
Support (“ACS”) system, described as “an electronic, integrated case management system . . .
design[ed] to enable the FBI to locate, retrieve, and maintain information in its files in the
performance of its myriad missions and functions.” (Id. ¶ 23). ACS is “built upon and
incorporate[s] prior automated FBI indices[, and] a search employing the UNI application of
ACS encompasses data that was already indexed into the prior . . . systems[.]” (Id. ¶ 24). Thus,
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“a UNI search in ACS is capable of locating FBI records created before its . . . implementation
[in 1995] in both paper and electronic format.” (Id.). 2
2. The FBI’s Search for Responsive Records
FBI staff determined that an index search of CRS was appropriate given the
“comprehensive nature and scope” of the CRS, and because the CRS is the location “where the
FBI indexes information about individuals, organizations, events, and other subjects of
investigative interest for future retrieval.” (Id. ¶ 29). Accordingly, they “conducted a CRS index
search for responsive main and cross-reference records employing the UNI application of ACS
and the manual index” using variations of Plaintiff’s name as search terms. (Id. ¶ 27). To
“facilitiate the identification of responsive records,” staff “used information in [P]laintiff’s
request letter, such as his date of birth.” (Id.). The search yielded “two Sacramento serials[.]”
(Id.).
Because “potentially responsive records would have logically been located at the FBI lab
in Quantico, VA,” (id. ¶ 29), staff at the lab searched “its records to locate any responsive
material requested in [P]laintiff’s multi-part request,” (id. ¶ 28). This search yielded three
memoranda, including a copy of the September 1, 2005 memo, (id.), which is essentially the
same press release Plaintiff attached to his FOIA request, (see Pl.’s Opp’n at 4, 6).
2
In July 2012, the FBI adopted a case management system called Sentinel. (Hardy Decl. ¶ 25).
Because Plaintiff’s jury trial occurred in 1981, the records Plaintiff sought “would only have
existed before the . . . implementation of Sentinel,” and, therefore, “any responsive information
would be located via an index search of ACS and the manual indices.” (Id. ¶ 27).
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The FBI released a total of 24 pages of records, copies of which “have been
consecutively numbered ‘16-cv-1010-1 through 16-cv-1010-24’ at the bottom of each page.”
(Hardy Decl. ¶ 33; see generally id., Ex. L).
3. Plaintiff’s Challenges to the FBI’s Search
Plaintiff contends that the FBI “failed to provide . . . letters and reports that lead to
overturning murder convictions that resulted from [CBLA and] unredacted requested CBLA
information.” (Pl.’s Opp’n at 1). Some of the documents released by the FBI in redacted form
are copies of the same documents Plaintiff already had obtained in unredacted form. (Id. at 6, 8).
Plaintiff likens his case to that of Gary L. Kretchmar, whose FOIA request to the FBI “seeking
release of his bullet-lead case file,” among other items, led to the release “of 110 responsive
pages, consisting of a copy of the FBI Laboratory’s July 17, 2009 letter as well as the three
reviewers’ work papers which includes copies of the transcript from plaintiff’s state criminal trial
used to review the FBI witness’ CBLA testimony at plaintiff's criminal trial.” Kretchmar v. FBI,
882 F. Supp. 2d 52, 55 (D.D.C. 2012) (internal quotation marks and citation omitted). Further,
Plaintiff notes that one of the documents released by the FBI, (see Hardy Decl., Ex. L at 1),
“clearly stated that it had enclosed . . . the ‘FBI Laboratory report that describes the status of the
examinations at the time this decision [to discredit and abandon CBLA] was announced,” (Pl.’s
Opp’n at 8 (brackets in original)), yet the FBI failed to release this report. It appears that
Plaintiff expected the FBI to locate and release information not only pertaining to his criminal
case, but also proving that the now-discredited CBLA performed in his case undermines his
criminal conviction. The court presumes that Plaintiff is challenging the adequacy of the FBI’s
search because it did not yield the precise records he requested.
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An agency’s search is judged on the basis of its methods and scope, not the results. See
Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007). “[T]he issue
to be resolved is not whether there might exist any other documents possibly responsive to the
request, but rather whether the search for those documents was adequate.” Weisberg v. U.S.
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry, 684 F.2d at 128). The
Hardy Declaration explains the agency’s recordkeeping systems and the method and scope of its
search for records responsive to Plaintiff’s FOIA request for information about himself in
relation to CBLA. The declaration enjoys a presumption of good faith. Plaintiff offers no
evidence to overcome the presumption by, for example, showing that the FBI “failed to search
particular offices or files where the document might well have been found” or “ignored
indications in documents found in its initial search that there were additional responsive
documents elsewhere.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003) (citations omitted). The court concludes that the FBI conducted a search reasonably
calculated to uncover responsive records.
D. Exemption 7(C) 3
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm,
see FBI v. Abramson, 456 U.S. 615, 622 (1982), including where disclosure “could reasonably
be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C).
“To show that the disputed documents were compiled for law enforcement purposes, the
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Because the court concludes that all of the responsive records were compiled for a law
enforcement purpose, it addresses the FBI’s decision to withhold information under Exemption
7(C) only. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
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[agency] need only establish a rational nexus between the investigation and one of the agency’s
law enforcement duties and a connection between an individual or incident and a possible
security risk or violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011)
(internal quotation marks and citations omitted).
The Hardy Declaration explains that “[t]he FBI compiled the records pertaining to CBLA
pursuant to its assistance to law enforcement,” namely its assistance “to local law enforcement in
its investigation of violent crimes[.]” (Hardy Decl. ¶ 38). Thus, the FBI makes its threshold
showing that the records responsive to Plaintiff’s FOIA request were compiled for law
enforcement purposes within the scope of Exemption 7.
Exemption 7(C) protects from disclosure information in law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,
the court must balance the privacy interest of individuals mentioned in the records against the
public interest in disclosure. See Am. Civil Liberties Union v. Dep’t of Justice, 655 F.3d 1, 6
(D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not the government
agency, see Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65
(1989), and “individuals have a strong interest in not being associated unwarrantedly with
alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an
individual’s privacy interest against the public interest in disclosure, “the only public interest
relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed
about what their government is up to.’” Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.
Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773).
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“Each instance of information withheld on the [released] documents is accompanied by a
coded designation that corresponds to [one of five] categories[.]” (Hardy Decl. ¶ 35). Under
Exemption 7(C), the FBI withholds the names of and identifying information about “FBI Special
Agents and support personnel who were responsible for conducting, supervising, and/or
maintaining the investigative activities reflected in the documents,” (id. ¶ 43), “the names and
[of] and identifying information [about] third parties who were merely mentioned in the
documents,” (id. ¶ 45), the name of a third party of investigative interest to the FBI, (id. ¶ 46),
the name of a local law enforcement employee, (id. ¶ 47), and “the name of a third party . . . who
has a criminal record with the FBI and/or other law enforcement agencies,” (id. ¶ 48).
Plaintiff’s opposition does not address the claimed exemptions. He does not argue that
the third parties have no privacy interests. Nor does he assert a public interest of such magnitude
as to outweigh the third parties’ privacy interests. Based on the court’s review of the Hardy
Declaration and copies of the redacted documents themselves, Defendant properly has withheld
third party information under Exemption 7(C). See, e.g., SafeCard Servs., 926 F.2d at1206
(holding “categorically that, unless access to the names and addresses of private individuals
appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity, such information is exempt
from disclosure”); Kretchmar, 882 F. Supp. 2d at 56-57.
E. Segregability
If a record contains some information that is exempt from disclosure, any reasonably
segregable information not exempt from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5
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U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1027 (D.C. Cir. 1999). The court has reviewed the Hardy Declaration and copies of the redacted
documents, and finds that the FBI has released all reasonably segregable information.
III. CONCLUSION
The FBI has demonstrated that its search for records responsive to Plaintiff’s FOIA
request was reasonable, and that its decision to withhold information under Exemption 7(C) was
proper. Accordingly, the court will grant Defendant’s motion for summary judgment. An Order
is issued separately.
DATE: August 22, 2017 /s/
TANYA S. CHUTKAN
United States District Judge
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