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Frost v. United States Department of Justice

United States District Court, N.D. California

April 4, 2018

VINTON P. FROST, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR DEFENDANT'S CERTIFICATION Re: Dkt. Nos. 65, 84, 89

          JOSEPH C. SPERO Chief Magistrate Judge

         I. INTRODUCTION

         On November 17, 2016, Plaintiff Vinton Frost submitted requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., for documents about him in the possession of the Office of the Attorney General (“OAG”) and the Federal Bureau of Investigation (“FBI”) (collectively, “FOIA Requests”). The OAG conducted a search and found no responsive records. The FBI's search uncovered eighty-seven pages of responsive records, of which forty were released to Plaintiff, with certain names redacted from thirty-seven of those pages. The FBI withheld another forty-seven pages on the basis that they were duplicates of the released documents. In this action, Frost challenges the adequacy of the responses to his FOIA Requests. Presently before the Court are the parties' cross-motions for summary judgment. Also pending is a Motion for Defendant's Certification.

         The Court finds that the motions are suitable for determination without oral argument and therefore vacates the motion hearing set for April 20, 2018 pursuant to Civil Local Rule 7-1(b).[1]For the reasons stated below, the Court GRANTS in part Defendant's Motion for Summary Judgment, DENIES in part Plaintiff's Motion for Summary Judgment, and HOLDS IN ABEYANCE the question of whether summary judgment is warranted in favor of either party as to the adequacy of the FBI's search for responsive records. The Court DENIES Plaintiff's Motion for Defendant's Certification.[2]

         II. THE MOTION FOR CERTIFICATION

         In the Motion for Defendant's Certification, Plaintiff asks the Court to require that Defendant certify that the documents produced by the FBI (attached as Exhibit F to the Hardy Declaration) are a “true and correct representation of Plaintiff's complaints and reports provided to the F.B.I.'s San Francisco Office.” As discussed further below, FOIA requires that an agency conduct a search that is reasonably calculated to uncover all relevant documents. Compliance is determined based on the reasonableness of the search effort and not on whether every responsive document is produced. See White v. U.S. Dep't of Justice, 840 F.Supp.2d 83, 88 (D.D.C. 2012), aff'd sub nom. White v. U.S. Dep't of Justice Exec. Office for U.S. Attorneys, No. 12-5067, 2012 WL 3059571 (D.C. Cir. July 19, 2012) (“The question is not whether responsive documents may exist, but whether the search itself was adequate.”). Because Plaintiff has pointed to no authority that suggests Defendant is obligated under FOIA to certify that every responsive document has been produced, the Court DENIES Plaintiff's request.

         III. THE SUMMARY JUDGMENT MOTIONS

         A. BACKGROUND

         1. OAG Request

         In his request to the OAG (“OAG Request”), Plaintiff stated that he was “seeking all documents received and/or produced by the Office of the Attorney General pertaining to [himself], [his] person.” Declaration of Daniel R. Castellano (“Castellano Decl.”) ¶ 3 & Ex. A. The Office of Information Policy (“OIP”), which responds to FOIA requests on behalf of the OAG, see Castellano Decl. ¶ 1, sent Plaintiff a letter acknowledging receipt of his request on December 21, 2016, and initiated a search for responsive records on that date. Id. ¶¶ 4, 19 & Ex. B. OIP provided its final response in a letter dated March 16, 2017. Id. ¶ 7 & Ex. E. The letter stated that “a search has been conducted in the Office of the Attorney General, as well as the electronic database of the Departmental Executive Secretariat, which is the official records repository for the Office of the Attorney General, and no records responsive to your request were located.” Id., Ex. E. Plaintiff appealed the response administratively in two administrative appeals and a final decision denying the appeals was issued on April 28, 2017. Id. ¶¶ 11, 13, 14 & Exs. F, H, I.

         2. FBI Request

         Like his OAG Request, Plaintiff's request to the FBI sought “copies of all documents pertaining to [him], [his] person.” Declaration of David M. Hardy (“Hardy Decl.”) ¶ 5 & Ex. A. The FBI responded to the request on November 30, 2016, informing Plaintiff that it had conducted a search of its Central Records System (“CRS”) and was “unable to identify main file records responsive to” his request. Id. ¶ 6 & Ex. B. The letter stated that if Plaintiff could “provide additional information pertaining to the subject which [he] believe[d] was of investigative interest” to the FBI, it would conduct an “additional search.” Id. The FBI also informed Plaintiff in the letter that its response “neither confirm[ed] nor denie[d] the existence of Plaintiff's name on any watchlists.” Id.

         On December 9, 2016, Plaintiff sent a letter to OIP stating that he had been “reporting suspected crimes against [him] to the San Francisco Office of the FBI for a period of almost three years.” Id., Ex. C. According to Plaintiff, these included reports about: 1) a possible assault and battery against him in Park City, Utah in 2007; and 2) alleged malpractice and financial fraud against Plaintiff by attorney Stanley Hopkins in 2003. Id. Plaintiff reiterated his request for “copies of all documents pertaining to me, my person, Vinton (‘Vinny') Frost, especially those dated from January 1, 2013 to today's date.” Id. He also requested that the FBI expedite its response because the documents he sought were relevant to a pending civil case in this Court, Case. No. 16-5883. Id.

         Plaintiff's December 9, 2016 letter was construed as an administrative appeal, which was denied on March 24, 2017. Id., Ex. E. The denial letter stated, inter alia, that the search of the main file records constituted an adequate search and that Plaintiff's letter sought “additional records that [he] did not originally request.” Id. The letter stated further that to the extent Plaintiff now sought documents related to “malpractice and financial fraud involving a third party, ” Plaintiff “may wish to submit a new FOIA request to the FBI.” Id. The request for an expedited appeal was denied as moot. Id.

         The FBI conducted an additional search on August 17, 2017. Id. ¶ 21. That search turned up eighty-seven documents, of which forty-seven were duplicates. Id., Ex. F. On September 20, 2017, the FBI produced to Plaintiff three pages in their entirety and thirty-seven pages from which the names of third parties and FBI agents and staff were redacted on the basis that they were exempt from disclosure under FOIA exemptions (b)(6)[3] and (b)(7)(C).[4] Id. It also invoked Exemption (b)(7)(E)[5] and Exemption (j)(2) of the Privacy Act in support of its refusal to confirm or deny whether Plaintiff's name was on any watchlists (the so-called “Glomar response”).[6] See id., Ex. E. It did not produce the duplicates. Id.

         3. Motions

         Defendant United States Department of Justice (“DOJ”) brings a motion for summary judgment asking the Court to hold as a matter of law that it conducted searches that were “reasonably calculated to uncover all relevant documents” with respect to both the FBI search and the OIP search. Docket No. 66 (“Defendant's Motion”) at 8 (citing Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 770 (9th Cir. 2015)). It further seeks summary judgment that: 1) all of the redactions of the documents produced in response to the FBI Request were proper under the FOIA exemptions it invoked; and 2) the FBI's Glomar response was proper. Id. at 10-16.

         In his opposition and cross-motion, Plaintiff contends there are material disputes of fact as to the adequacy of the searches that were conducted in response to both of his FOIA Requests. Docket No. 84 (“Plaintiff's Motion”) at 1-4. He asks the Court to deny Defendant's Motion or defer ruling on it under Rule 56(d) of the Federal Rules of Civil Procedure and to order targeted discovery and more detailed declarations from DOJ affiants to establish whether the searches were adequate. Id.

         In his briefs, Plaintiff does not challenge Defendant's assertion that the redactions of certain names from the documents produced in response to the FBI Request were proper under various FOIA exemptions.[7] Nor does he argue that the FBI's Glomar response was improper.[8]

         B. ANALYSIS

         1. Legal Standards Under FOIA

         FOIA “was enacted to facilitate public access to Government documents.” Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (internal quotation marks omitted). Congress's intention in enacting FOIA was to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.'” Id. (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (internal quotation marks omitted)). Thus, FOIA “provides public access to official information ‘shielded unnecessarily' from public view and establishes a ...


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