Williams v. F.B.I., 1992 WL 495018 (D.D.C.1992)

Dale Andrew Baich, Ohio Public Defender Com'n, Columbus, OH, for plaintiff.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

*1 Pursuant to the Freedom of Information Act, 5 U.S.C. § 552, Plaintiff Donald Williams brings this action to compel the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) to release documents allegedly in the FBI's possession. The Defendants have moved for summary judgment, claiming that all documents responsive to the Plaintiff's request have been produced and that any remaining documents have been properly withheld on the basis of FOIA Exemptions 7(C) and 7(D), 5 U.S.C. §§ 552(b)(7)(c), (b)(7)(d) and Section j(2) of the Privacy Act. Plaintiff opposes the Motion for Summary Judgment and contends that the agency has not conducted an adequate search for the documents at issue. Upon consideration of the claims, the applicable law and the record herein, the Court shall deny the Defendants' Motion, without prejudice, and shall direct the agency to conduct a further search and to provide further explanation for the failure to produce documents responsive to the Plaintiff's request.

BACKGROUND

The Plaintiff, currently an inmate on death row at the Southern Ohio Correctional Facility, was the Minister of Defense of the Afro Set in the late 1960s and early 1970s. The FBI considered the Afro Set "a black extremist organization" which had "as its primary goal [,] complete take-over and control of the Black community" and which "teached [sic] hatred of white people and outside authority." Defendants' Motion for Summary Judgment, First Declaration of Regina Superneau, Exhibit 2, Part I, Doc. 8-96 at *2 (hereinafter, "First Superneau Declaration"). Because Plaintiff Williams was "an officer in an active black extremist group," the FBI initiated an investigation in 1970. First Superneau Declaration, Exhibit 2, Part I, Doc. 1.

In April and May of 1989, the Plaintiff requested all records pertaining to him in the files of the FBI Headquarters ("FBIHQ"), FBI's Cleveland Field Office ("CVFO"), and FBI's Cincinnati Field Office ("CIFO"). The CIFO found only one document referring to the Plaintiff, and withheld this document because it only cross-referenced Plaintiff's name in the file of another individual or organization. See Complaint, Exhibit D. The CVFO search yielded a cross-referenced document. CVFO also disclosed the existence of an investigative file, but referred this matter to FBIHQ for processing. See Complaint, Exhibit N. The Plaintiff was informed that 377 pages of material were in the FBIHQ file, and that 200 pages would be released, either in whole or in part. See Complaint, Exhibit K. The Plaintiff appealed the decisions of FBIHQ, CVFO and CIFO, and the Department of Justice Office and Information and Privacy (OIP) denied these appeals.

The Defendants filed a Motion for Summary Judgment, along with a Vaughn index and two Declarations from Regina Superneau. Rather than filing an opposition to the Defendants' Motion, the Plaintiff filed a Motion for Further Vaughn indexing and a Motion for Discovery. On August 6, 1991, this Court ordered the Defendants to provide a more complete Vaughn index of the materials withheld. See Williams v. FBI, Civ. 90-2299, slip op., (D.D.C., Aug. 6, 1991). The Court also denied the Plaintiff's Motion for Discovery as to the underpinnings of the FBI's investigation of the Afro-Set and found that the Defendant had offered a plausible basis for the FBI's investigation of the Plaintiff's activities as the alleged Minister of Defense for the Afro-Set. Id. at 3-8.

*2 Pursuant to the Court's August 6, 1991 Order, the Defendants filed a more complete Vaughn index on September 30, 1991, along with a Third Declaration from Regina Superneau. The Plaintiff opposed the Motion for Summary Judgment and again challenged the adequacy of the Government's search and the completeness of the revised Vaughn index. [n. 1] Plaintiff filed four exhibits under seal, each of which the FBI allegedly did not produce despite the fact that each document mentioned the Plaintiff by name. According to the Plaintiff, these exhibits dramatize the inadequacy of the Defendants' search. Acknowledging the discrepancies in the record pointed out by the Plaintiff, the Court ordered the Defendants to account for what appeared to be the absence of two amended pages pertaining to Documents 26 and 28. See Williams v. FBI, Civ. 90-2299, slip op., (D.D.C., Dec. 13, 1991). The Court also directed the Defendants to explain why certain documents responsive to Plaintiff's FOIA request, which Plaintiff unearthed through his own investigation, did not appear to be produced or acknowledged by the Defendants in the Vaughn indices. Id.

On December 22, 1991, the Defendants filed a Fourth Declaration of Regina Superneau to address the Court's concerns regarding the agency's good faith and the adequacy of the agency's search. The Plaintiff has renewed his opposition to the Defendants' Motion for Summary Judgment, and has argued that the agency has not demonstrated good faith and the adequacy of its search because: (1) the missing amended pages to Document 28 have not yet been accounted for; (2) the agency has not adequately explained its failure to acknowledge the existence of 03265A and 03309A, two of the documents which Plaintiff filed under seal; and (3) the agency did not search the "see reference" files pertaining to the Plaintiff in the Cincinnati Field Office (CIFO) and at FBIHQ.

ANALYSIS

Given the FOIA's presumption in favor of disclosure, the Court cannot grant the Defendants' Motion for Summary Judgment until the Defendants demonstrate that "each relevant document was produced, is unidentifiable, or is exempt from release." Southam News v. United States Immigration and Naturalization Service, 674 F.Supp. 881, 889 (D.D.C.1987) (citing, National Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973)). See also Kissinger v. Reporter's Committee for Freedom of the Press, 445 U.S. 136, 150 (1980). In order to meet this burden, the Defendants must show that they have made "a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990) (citations omitted). See also Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984); Southam News, 674 F.Supp. at 889 (agency must show that it conducted a search "reasonably calculated to locate all responsive material").

*3 Plaintiff's contention that the agency has acted in bad faith by failing to release the two amended pages pertaining to Documents 26 and 28 lacks merit. The record manifests that the agency did, in fact, disclose the two amended pages pertaining to Documents 26 and 28. See Fourth Superneau Declaration at 2, ¶¶ 3-7. In fact, the Plaintiff grudgingly acknowledges the sufficiency of the Defendants' response in this regard. See Pl. Response to Defendants' Fourth Superneau Declaration at 5 ("Although Plaintiff is generally satisfied that the FBI has explained the whereabouts of the two pages that were attached to Document 28, a greater question remains unanswered: Did the Government have a statutory basis for its investigation of Donald Williams?").

The Defendants have also adequately answered Plaintiff's concerns as to the whereabouts of certain documents allegedly in the possession of the FBI's Cleveland Field Office. The Defendants explained that Documents 03279A-03293A were not produced because the Plaintiff's name was not included on the file and was apparently not indexed. See Fourth Superneau Declaration at 4, ¶ 12. Because a review of these indices would not have shown the Plaintiff's name, the Court is satisfied that a routine search of the agency files would not have unearthed the documents. The fact that all relevant records were not produced, without more, does not indicate bad faith on the part of the agency. See Meeropol v. Meese, 790 F.2d 942, 952-953 (D.C.Cir.1986).

The Plaintiff also claims that the agency's failure to produce Documents 03265A and 03309A evidences bad faith and the inadequacy of the agency's search. Document 03265A refers explicitly to "Donald Williams, Minister of Defense of the Afro Set" and Document 03309A refers to "Donald Williams a.k.a. JaDeek Ali Moya Minister of Defense of the Afro Set." See Materials Filed under Seal by Plaintiff. Although these two documents emanate from the file of another subject of an FBI investigation, the agency did retrieve these documents by looking at the "see reference" index under the name of "Donald Williams." See Fourth Superneau Declaration at 4-5, ¶ 13. The Defendants did not release the documents, however, because "next to each of these 'see references' on the search slip, there were notations that these references were not identifiable to the Plaintiff." Id. According to Ms. Superneau, the notations on the "see reference" file cards were made because "the information contained in the four corners of those documents was insufficient to identify the Donald Williams referred therein or the requester." Id. The Fourth Superneau Declaration also avers that the agency's search of the "see reference" indices at CVFO revealed "numerous other" references to Donald Williams. Fourth Superneau Declaration at 3-4, ¶ 11. These other CVFO documents were not produced because, as Ms. Superneau claims, they were also not "identifiable" with the Plaintiff. Id.

*4 This explanation for the CVFO's failure to produce documents in the "see reference" files, including Documents 03265A and 03309A, is not satisfactory. By referring to the Plaintiff by name and by title and also by alias, it appears to the Court that these documents would be clearly identifiable to the Plaintiff herein. Although there may exist some reason why this information was insufficient to identify the Plaintiff, [n. 2] the Defendants have certainly not provided the Court with any such explanation. Thus, in order for the Court to find that the agency's search was adequate, the agency must either explain, in factual detail, why the references to Donald Williams in the CVFO's "see reference" files, including Documents 03309A and 03265A, are insufficient to identify this individual as the Plaintiff. If the Defendants cannot furnish some rational explanation, the Defendants must conduct another search at the Cleveland Field Office of all "see reference" files and must produce, either in full or in redacted form, those documents which refer to the Plaintiff by name, title and/or alias. See Southam News v. U.S. Immigration & Naturalization Service, supra (ordering the State Department to conduct a search when the Department's affidavits revealed a significant likelihood that documents responsive to the Plaintiff's request were not produced).

The Declarations of Ms. Superneau also reveal that the Defendants have not conducted a search of the FBIHQ's "see reference" indices. The Plaintiff addressed separate FOIA requests to the FBIHQ, CVFO and CIFO. See Exhibits A- C, attached to the Complaint. In each request, Plaintiff asked the agency to search for records under the names of: Donald Williams, Jadeed, Marcelus Williams, James Moore, Robert Brent, Harlell X. Jones, Harlell X., Afro Set, Black nationalist, Black nationalist Photograph Album and COINTELPRO. Id. [n. 3] Moreover, Plaintiff specifically advised the Defendants that "[t]his request includes 'main' files and 'see references'. " Id. [n. 4] (emphasis added).

Despite the clarity of the Plaintiff's request, the Defendants admit that FBIHQ did not conduct a search of the "see reference" indices. See Fourth Superneau Declaration at 3, ¶ 9. [n. 5] The Defendants claim that the FBIHQ did not process any "see references" because the Plaintiff did not respond to the FBIHQ's January 3, 1990 letter in which the FBI "advised [Plaintiff] that if he desired to have 'see references' processed in his request he should so indicate in writing." Id. This explanation for the Defendants' failure to review the "see reference" indices is insupportable. The Plaintiff's initial FOIA request unambiguously requested the Defendants to conduct a search of the "see reference" files. See Exhibits A-C, attached to the Complaint. [n. 6] The FBIHQ's January 3, 1990 letter represents an unreasonably strict reading of the Plaintiffs' initial FOIA request and places an unfair burden of the Plaintiff to file yet another, duplicative FOIA request. See, e.g., Hemenway v. Hughes, 601 F.Supp. 1002, 1005 (D.D.C.1985) ("the agency must be careful not to read the request so strictly that the requester is denied information the agency well knows exists in its files").

*5 Independently of the agency's misreading of the Plaintiff's request, the Defendants' own declarations establish the unreasonableness of FBIHQ's decision not to search those files mentioned in the "see reference" indices. The agency determined that there were likely to be records responsive to the Plaintiff's FOIA request in other files. See Exhibit K, attached to Plaintiff's Complaint ("there are additional references to [Plaintiff] in files relating to other individuals, organizations, events or activities"). [n. 7] See also First Superneau Declaration at 6, ¶ 4(V). Despite the potential that records responsive to the Plaintiff's request would be located, however, the agency did not search the "see reference" indices. The agency explained its decision not to conduct such a search because "[i]t has been our experience that such references are frequently similar to that contained in the main file." See Exhibit K, attached to Plaintiff's Complaint. The agency also justified the failure to search the "see reference" files on the basis of resource constraints. See id. [n. 8] Although an agency is not obligated to search every record system, see, e.g., Meeropol v. Meese, 790 F.2d at 952-53 (D.C.Cir.1986), an agency "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby, supra, 920 F.2d at 68. [n. 9] Before the Court can grant summary judgment in favor of the Government, the agency must present "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, supra. (emphasis added). Because the record herein reveals that the Defendants have chosen not to conduct a search of those files which the agency suspected would contain documents responsive to the Plaintiff's request, the agency is not entitled to summary judgment at this time.

CONCLUSION

For the reasons expressed herein, the Court shall deny the Defendants' Motion for Summary Judgment, without prejudice, because the agency has not established that an adequate search was conducted to ensure that all documents responsive to the Plaintiff's request would be located in the agency's files. Accordingly, the Court shall order the Defendants to provide an adequate explanation for the shortcomings in the search or, alternatively, to provide the documents in dispute to the Plaintiff, with an appropriate Vaughn v. Rosen index. The Court shall enter an Order of even date herewith consistent with the foregoing Memorandum Opinion. 

n. 1. Plaintiff also objects to the Court's consideration of Ms. Superneau's Declarations because Ms. Superneau did not work for the FBI at the time of the investigation of Plaintiff and therefore has no personal knowledge of the FBI's COINTELPRO program. See Pl.Opp. at 15, n. 12. These objections are without merit, however. Ms. Superneau's declarations rest upon a sufficient basis of personal knowledge because she has reviewed the documents at issue and knows about the agency's system for processing FOIA requests. See, e.g., Laborers Int'l Union v. U.S. Dept. of Justice, 578 F.Supp. 52, 55-56 (D.D.C.1983), aff'd, 772 F.2d 919 (D.C.Cir.1984); United States Student Ass'n v. CIA, 620 F.Supp. 565, 567-68 (D.D.C.1985). 

n. 2. For example, other individuals may have been using the same name and title, "Donald Williams, Minister of Defense of the Afro Set." If this is the case, the Defendants must so advise the Court. 

n. 3. It is undisputed that some of these record names, such as Harlell X. Jones, are not aliases of the Plaintiff. 

n. 4. The central records system (CRS) at the FBI contains a "main file", which "carries the name of the individual, organization, activity or the like, that is the main subject of a file maintained in the system." First Superneau Declaration at 7, ¶ 6. The CRS also contains a "reference" index which identifies those records containing "only a mention or reference to a particular individual or organization that is located in the file concerning the investigation of another individual, organization or event." Id. 

n. 5. The record does not clearly indicate whether the CIFO conducted a search of its "see reference" indices. The First Superneau Declaration at 3, ¶ 4(H), suggests that one cross-reference to the Plaintiff was located in the CIFO file of another individual. This suggests that a search of the "see reference" indices in the CIFO's central records system did transpire. However, in explaining the procedures employed in the search for documents responsive to the Plaintiff's request, the Fourth Superneau Declaration does not mention the CIFO at all. For this reason, the Court shall order the Defendants to confirm whether a search of the "see reference" indices was performed at the CIFO. If a search of the "see reference" indices was not performed, the Court shall direct that the agency undertake such action at the CIFO on or before May 30, 1992. 

n. 6. Plaintiff's FOIA request must have been readily understandable, as the Cleveland Field Office did conduct a search of the "see reference" files in response to the Plaintiff's initial request. See Fourth Superneau Declaration at 3-4, ¶¶ 10-11. 

n. 7. The Defendants did note, however, that "[t]hese additional mentions or references have not been reviewed to determine if in fact they are identifiable with [Plaintiff]." Exhibit K, supra. 

n. 8. The FBIHQ's January 1990 letter explained that "because of a significant increase in FOIPA requests and expanding backlog, we have given priority to the processing of main investigative files and can only complete the processing of these additional references as time and resources permit." 

n. 9. In fact, the Court of Appeals rejected the Department of State's broad explanation that it had searched those records "most likely" to contain the requested information because "[i]t [was] not clear from State's affidavit that the Central Records System is the only possible place that responsive records are likely to be located." Oglesby, 920 F.2d at 68. The affidavits in the instant case make an even stronger case against the Defendants, as the Defendants acknowledge the possible presence of responsive files in other filing systems.