                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
RORY WALSH,                    )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 11-2214 (RWR)
                               )
FEDERAL BUREAU OF              )
INVESTIGATION, et al.,         )
                               )
          Defendants.          )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Pro se plaintiff Rory Walsh, on his own behalf and as the

natural guardian of minor S.J.W., brought claims under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.,

against the Federal Bureau of Investigation (“FBI”).1   The FBI

has filed a motion for summary judgment, while Walsh has filed,

among other things, a motion for recusal.   Because Walsh offers

no evidence that recusal is warranted, his motion for recusal

will be denied.   Because there are no genuine issues in dispute

and the FBI is entitled to judgment as a matter of law regarding

Walsh’s request for surveillance information and one

investigating agent’s identity, judgment will be entered for the

FBI on those portions of Walsh’s claim.   However, because the FBI


1
 He also sued the Department of Veteran Affairs (“VA”), Director
James R. Clapper of the Office of the Director of National
Intelligence (“ODNI”) in his official capacity, and the Foreign
Intelligence Surveillance Court (“FISC”). However, a previous
opinion dismissed the claim against the FISC and entered judgment
in favor of the ODNI and the VA.
                                 -2-

has not carried its burden to justify withholding the names of

the agents in charge of the Harrisburg Resident Agency, that

portion of the FBI’s motion will be denied.

                             BACKGROUND

     The background of this case is discussed more fully in Walsh

v. F.B.I., 905 F. Supp. 2d 80 (D.D.C. 2012).    Briefly, Walsh is a

former Marine Corps officer who believes that a former Marine

Commandant has been harassing him and got the FBI to make

warrantless entries into his Pennsylvania home between 2005

and 2009.    Walsh’s complaint asserts that Walsh sent a FOIA

request to the FBI seeking records related to his alleged

harassment, and that the FBI did not adequately respond to his

request.    Compl. ¶¶ 22, 25, 27, 58.

     In September 2011, the FBI received a letter from a

Congressman asking about the status of an attached letter

referred to as Walsh’s “unanswered FOIA request” which sought

“the name and FBI agent number of the Special Agent in Charge of

the Harrisburg office,” from November 2006 to the present date.

Walsh, 905 F. Supp. 2d at 86.    The FBI Chief of the

Record/Information Dissemination Section (“RIDS”), David Hardy,

said in a declaration filed in this case that after receiving

Walsh’s “unanswered FOIA request,” the FBI sent a letter to Walsh

on September 14, 2011 stating “that the Harrisburg Resident

Agency falls under the Philadelphia Field Office” and providing
                                -3-

Walsh with the office contact information and the name of the

Special Agent in Charge of the Philadelphia office,

George C. Venizelos.   FBI Mot. to Dis. or for Summ. J. [16], Ex.

2 (“First Hardy Decl.”), ¶ 7.   Walsh stated in his own

declaration that he responded by sending to the FBI’s Office of

Information Policy (“OIP”) an “appeal” letter dated September 27,

2011, requesting “[t]he name of each FBI agent in charge of the

Harrisburg Resident Agency from May 2005 to the present date,”

the name of an agent who interviewed Walsh in April 2011, and

three more requests related to information about the alleged FBI

surveillance and questioning of Walsh.    Walsh, 905 F. Supp. 2d at

86.

      The FBI interpreted the three new requests as requests
      for “any and all information on Rory M. Walsh.”
      According to Hardy, the FBI responded to these three
      new requests by sending to Walsh a letter dated
      October 12, 2011, stating that “[Walsh’s] request did
      not contain sufficient information to conduct an
      adequate search of the Central Records System” and
      seeking additional information from Walsh to assist the
      FBI in locating the information Walsh sought, including
      Walsh's full name, address, date of birth, and
      telephone number. . . . Hardy states that the letter
      advised Walsh that the FBI would close his request if
      it did not receive a response within 30 days, and that
      he could appeal the FBI’s denials within 60 days.
      . . . Hardy claims that the FBI has no record of
      receiving a response from Walsh . . . [but] Walsh
      disputes that the FBI ever sent such a letter.

Id. (internal citations omitted).     The FBI sent Walsh a letter on

December 9, 2011, telling him that the names of the agents in

charge of the Harrisburg Resident Agency would be withheld under
                                 -4-

FOIA Exemptions (b)(6) and (b)(7)(C), and telling him that he had

60 days to appeal.   Id.   Walsh responded that he filed an

administrative appeal, but the FBI’s OIP was not able to find

such an appeal in its system.    Id. at 86-87.

     The FBI initially filed a motion to dismiss or for summary

judgment based on Walsh’s purported failure to exhaust his

administrative remedies.    A November 2012 opinion denied that

motion, stating in relevant part:

     The FBI argues . . . that Walsh failed to properly file
     an administrative appeal of the FBI’s responses to his
     FOIA request and to exhaust his available
     administrative remedies. However, the FBI does not
     provide factual detail to show that its searches for
     Walsh’s responses were reasonably calculated to find
     his response, nor does the FBI provide any evidence,
     such as a return receipt, that would resolve the
     factual dispute about whether it mailed Walsh the
     October 12 letter. Therefore, the FBI’s motion for
     summary judgment will be denied.

Walsh, 905 F. Supp. 2d at 87.    The memorandum opinion also denied

motions filed by Walsh for partial summary judgment against the

FBI, for expeditious treatment of his motion for partial summary

judgment against the FBI, for a writ of mandamus, and for default

judgment against all defendants.

     The FBI has filed a new summary judgment motion, claiming

that Walsh’s request for surveillance information is now moot

because the FBI has conducted a more rigorous search, and has

found nothing responsive to Walsh’s request for any documents

pertaining to warrants or surveillance, and that the names of FBI
                                 -5-

agents can be withheld under Exemptions 6 and 7(C) of the FOIA.

Def.’s Mem. of Law in Supp. of Mot. to Dismiss or for Summ. J.

[31] (“Def.’s Second Mem.”) at 1, 6-8.    Walsh opposes the FBI’s

motion, arguing that the FBI’s search was not sufficient and that

Exemptions 6 and 7(C) do not justify withholding the names of the

agents.   Pl.’s Opp’n at 9-10, 12-16.    Walsh also has filed, among

other things, a motion to recuse the undersigned, asserting that

the November 2012 opinion demonstrated bias.2

                            DISCUSSION

I.   RECUSAL

     Walsh has moved to recuse the undersigned under 28 U.S.C.

§ 455(a), and 28 U.S.C. § 144.   According to Walsh, recusal is

warranted because the November 2012 opinion “brought forward [the

undersigned’s] open animosity and mishandling of [a related case

filed by Walsh] . . .   and [the undersigned] has denied five (5)

un-opposed motions, has made no effort to uphold the law, and

openly provided advise [sic] to the FBI for their next motion

which is not only brazen collusion with the FBI but clearly

prohibited.”   Pl.’s Ex Parte Mot. for the Recusal of

Richard W. Roberts (“Pl.’s Mot.”) at 1-2.




2
 Walsh has also moved to compel the FBI to respond to discovery
requests, for summary judgment against the FBI, and for a stay
while an interlocutory appeal of the November 2012 opinion is
decided.
                                  -6-

     Under 28 U.S.C. § 455(a), any judge “of the United States

shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.”     28 U.S.C.

§ 455(a).   Likewise, under 28 U.S.C. § 144, a judge should recuse

himself when a party “makes and files a timely and sufficient

affidavit that the judge before whom the matter is pending has a

personal bias or prejudice either against him or in favor of any

adverse party[.]”    28 U.S.C. § 144.   Thus, a judge is

disqualified from presiding over any proceeding in which he or

she has a personal bias or prejudice concerning a party, or where

his or her impartiality might reasonably be questioned.       See

Ramirez v. U.S. Dept. of Justice, 680 F. Supp. 2d 208, 211

(D.D.C. 2010).

     The substantive standard for recusal based on alleged bias

under 28 U.S.C. § 455(a) and 28 U.S.C. § 144 “is largely the

same.”   Klayman v. Judicial Watch, Inc, 744 F. Supp. 2d 264, 275

n.4 (D.D.C. 2010).    “To the extent the standard[s] under the

sections differ, it is that section 144 requires proof of actual

bias whereas section 455(a) requires only the reasonable

appearance of bias.”    Id.   The standard for disqualification “is

an objective one: whether a reasonable and informed observer

would question the judge’s impartiality.”     Ramirez, 680 F. Supp.

2d at 211 (citing In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir.

2004); United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C.
                                  -7-

Cir. 2001).   “There is a presumption against disqualification and

the moving party must demonstrate by clear and convincing

evidence that disqualification is required by Section 455(a).”

Ramirez, 680 F. Supp. 2d at 211 (citing Cobell v. Norton, 237 F.

Supp. 2d 71, 78 (D.D.C. 2003)).    Judicial rulings “almost never

constitute a valid basis for a bias or partiality motion” seeking

recusal.   Murchison v. Inter-City Mortg. Corp. Profit Sharing &

Pension Plans, 503 F. Supp. 2d 184, 187 (D.D.C. 2007) (citing

Liteky v. United States, 510 U.S. 540, 555-56 (1994)); see also

Cotton v. Washington Metro. Area Transit Auth., 264 F. Supp. 2d

39, 42 (D.D.C. 2003) (denying recusal where “claim of bias is

predicated entirely upon the [magistrate judge’s] rulings with

respect to the conduct of discovery in the instant action, and

rulings regarding discovery and other issues in three other

actions filed by Plaintiffs’ counsel”).

     Walsh bases his recusal motion upon judicial rulings, and

his complaints about the denial of his motions miss the mark.

Regardless of whether it was opposed, Walsh’s motion for default

judgment was improper because it did not provide a basis for the

Clerk to calculate an amount certain,3 nor did Walsh first seek

entry of default under Rule 55(a).      Walsh’s remaining motions




3
 Walsh filed this action pro se, yet sought $40,000 in “legal
fees.”
                                -8-

were mooted by the substance of the opinion.4   Finally, while

Walsh characterizes the portion of the opinion denying the FBI’s

motion as “openly providing [advice],” that characterization

proves too much, as that description could apply to every opinion

that explains an unsuccessful motion’s shortcomings.     The

undersigned harbors no personal bias or prejudice toward any

party in this case, and Walsh has made no showing that a

reasonable and informed observer would question this court’s

impartiality.   Walsh’s recusal motion will be denied.

II.   FBI’S MOTION FOR SUMMARY JUDGMENT

      The FBI has moved for summary judgment on Walsh’s FOIA

claim.   The FBI argues that Walsh’s request for surveillance

information is now moot because the FBI has conducted a more

rigorous search, and has found nothing responsive to Walsh’s

request for any documents pertaining to warrants or surveillance.

Def.’s Second Mem. at 1.   Specifically, Hardy states that after

the November 2012 opinion was issued, the FBI reviewed the

attachments to Walsh’s complaint to locate any identifying

information it could use to conduct a search into the FBI’s



4
 For those reasons, Walsh’s request to certify an interlocutory
appeal of the order denying his motions will be denied. Walsh
has not shown that the order involves a controlling question of
law as to which there is substantial ground for a difference of
opinion or that an immediate appeal from the order would
materially advance the ultimate termination of the litigation.
Similarly, his motion to stay this action pending an
interlocutory appeal will be denied.
                                  -9-

Central Records System (“CRS”), the tool that the FBI uses to

conduct searches that are likely to yield documents responsive to

FOIA and Privacy Act requests.     Def.’s Second Mem., Ex. 1

(“Second Hardy Decl.”) ¶¶ 8, 14.     According to Hardy, the records

maintained in the CRS “consist of administrative, applicant,

criminal, personnel, and other files compiled for law enforcement

purposes,” the subject matter of a file maintained in the CRS may

relate to an individual, and the FBI can use a mechanism to

search the CRS called the “Automated Case Support System.”       Id.

¶ 8.    One of Walsh’s attachments contained Walsh’s birth date.

According to Hardy, the FBI used Walsh’s birth date and a “six-

way phonetic breakdown of ‘Rory Walsh’” to search the CRS to

identify any potentially responsive information.     Id. ¶ 14.

Hardy states that the FBI did not locate any search or

surveillance warrants within its files that would be responsive

to Walsh’s request.    Id.   The FBI further argues that judgment

should be entered against Walsh on the request for the names of

the special agents because that information was properly withheld

under Exemptions 6 and 7(C) of the FOIA.     Def.’s Second Mem. at

6-8.    Walsh opposes, arguing that the FBI’s claim that it found

no responsive warrants is untruthful, and complaining that the

government has not provided him with discovery.     Pl.’s Opp’n

at 3.    Walsh also argues that Hardy’s assertion that the FBI

cannot find warrants or surveillance material regarding Walsh is
                                -10-

inconsistent with “the harassment” Walsh purportedly suffers at

the FBI’s behest, and that the FBI incorrectly withheld the names

of the agents.   Id. at 9-13.

     In general, FOIA cases are appropriately decided on motions

for summary judgment.5   Defenders of Wildlife v. U.S. Border

Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).   A motion for

summary judgment is appropriately granted when “the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”   Fed. R. Civ.

P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009).   The moving party bears the burden of providing a

“sufficient factual record that demonstrates the absence of a

genuine issue of material fact.”   Peavey v. Holder, 657 F. Supp.

2d 180, 187 (D.D.C. 2009).   In considering a motion for summary

judgment on a FOIA claim, a court may rely upon an agency’s

affidavits so long as they “contain sufficient detail” and “are

not ‘controverted by contrary evidence.’”   Peavey, 657 F. Supp.

2d at 188 (quoting Schrecker v. U.S. Dep’t of Justice, 217 F.

Supp. 2d 29, 33 (D.D.C. 2002)).    Agency declarations are afforded

a “presumption of good faith” and can be rebutted only with

evidence that the agency did not act in good faith.   Defenders of


5
 They also generally do not involve discovery. See Wolf v.
Central Intelligence Agency, 569 F. Supp. 2d 1, 9 (D.D.C. 2008)
(stating that “[d]iscovery is generally unavailable in FOIA
actions”) (internal quotation omitted). Walsh’s renewed motion
for discovery and for sanctions will be denied.
                                -11-

Wildlife v. U.S. Dep’t of the Interior, 314 F. Supp. 2d 1, 8

(D.D.C. 2004).

     A.   Reasonable Search

     In FOIA cases where agencies allege that they were unable to

find relevant information or plaintiffs’ requests for

information, the agencies must demonstrate that they conducted

searches reasonably calculated to uncover all relevant documents.

Peavey, 657 F. Supp. 2d at 187 (citing Weisberg v. U.S. Dep’t of

Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).    “[A]n agency

could demonstrate appropriate, reasonable search methods by

demonstrating a ‘systematic approach to document location.’”

Nance v. U.S. Federal Bureau of Investigation, 845 F. Supp. 2d

197, 202 (D.D.C. 2012) (quoting Oglesby v. U.S. Dep’t of Army,

920 F.2d 57, 68 (D.C. Cir. 1990)).     “A search does not have to be

exhaustive, and whether a search is adequate is determined by

methods, not results . . .    [and an] agency’s failure to locate a

specific responsive document will not, on its own, render an

otherwise reasonable search inadequate.”    Nance, 845 F. Supp. 2d

at 201 (citing Brown v. FBI, 675 F. Supp. 2d 122, 125-26 (D.D.C.

2009)).

     Here, the FBI has demonstrated that it is entitled to

summary judgment on Walsh’s requests for warrants and other

surveillance records.   Hardy’s declaration shows that despite the

FBI’s unsuccessful effort to get from Walsh more identifying
                                 -12-

information that would enable a reasonable search for responsive

records, the FBI resourcefully used information it gleaned from

Walsh’s submissions in this case to conduct an appropriate,

reasonable search to find the information Walsh sought.      Hardy’s

declaration explains the system used to conduct the search, why

the relevant information would be in that system, and the scope

of the search.   Walsh has not shown that the FBI’s search was

inadequate, and his bare allegation that Hardy was untruthful is

insufficient to overcome the presumption of good faith accorded

to agency declarations.

     B.   Exemptions 6 and 7(C)

     Exemption 6 of the FOIA protects “personnel and medical

files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy.”    5 U.S.C.

§ 552(b)(6).   Exemption 7(C) excludes “records of information

compiled for law enforcement purposes . . . to the extent that

production of such law enforcement records or information . . .

could reasonably be expected to constitute an unwarranted

invasion of personal privacy.”    5 U.S.C. § 552(b)(7)(C).

“A record is considered to have been compiled for law enforcement

purposes if it was created or acquired in the course of an

investigation related to the enforcement of federal laws and the

nexus between the investigation and one of the agency’s law

enforcement duties is based on information sufficient to support
                                -13-

at least a colorable claim of its rationality.”    Quinon v. FBI,

86 F.3d 1222, 1228 (D.C. Cir. 1996) (internal quotation omitted).

     Exemptions 6 and 7(C) direct that agencies and courts

“‘balance the privacy interests that would be compromised by

disclosure against the public interest in the release of the

requested information.’”    Nat’l Whistleblower Ctr. v. U.S. Dep’t

of Health and Human Services, 849 F. Supp. 2d 13, 26 (D.D.C.

2012) (quoting Beck v. U.S. Dep’t of Justice, 997 F.2d 1489, 1491

(D.C. Cir. 1993) (internal quotation omitted)).    “‘[B]ecause

Exemption 7(C) permits withholding of such records if disclosure

would constitute an unwarranted invasion of personal privacy,

while Exemption 6 requires a clearly unwarranted invasion to

justify nondisclosure, Exemption 7(C) is more protective of

privacy than Exemption 6 and thus establishes a lower bar for

withholding material.’”    Charles v. Office of the Armed Forces

Medical Examiner, Civil Action No. 09-199 (RWR), 2013 WL 1224890,

at * 8 n.7 (D.D.C. March 27, 2013) (quoting Am. Civil Liberties

Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011)

(internal quotations omitted)).    Despite the differences between

Exemptions 6 and 7(C), “the privacy inquiry for each is

‘essentially the same[,]’” with the difference being “‘the

magnitude of the public interest that is required to override the

respective privacy interests protected by the exemptions.’”

Seized Prop. Recovery, Corp. v. United States Customs & Border
                                -14-

Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007) (quoting FLRA v.

Dep’t of Veteran Affairs, 958 F.2d 503, 509 (2d Cir. 1992)).    If

an agency meets its burden to justify withholding information

under Exemption 6, it has also met the “lighter burden” under

Exemption 7(C).    Seized Prop. Recovery, Corp., 502 F. Supp. 2d at

60.

      The FBI applies Exemptions 6 and 7(C) to withhold the names

of the FBI agents in charge of the Harrisburg Resident Agency

because the agents are “responsible for conducting, supervising

and/or maintaining investigative activities[,]” and because of

“the risk of harassment of these agents[.]”   Def.’s Second Mem.

at 8.   Hardy explained that the names were “not appropriate for

discretionary release as it is the FBI’s policy to redact special

agent’s [sic] names below the level of Supervisory Agent in

Charge.”   First Hardy Decl. ¶ 15.

      Here, the FBI has failed to meet its burden to justify

withholding the names of the agents in charge of the Harrisburg

Resident Agency.   Even if FBI redaction policy rather than the

text of the FOIA and binding case law interpreting it set the

standard for measuring proper application of FOIA exemptions, the

FBI has not demonstrated that withholding the names of these

agents was even consistent with the FBI’s own policy.   Hardy

implies, but does not forthrightly declare or show, that the

agents who were in charge of the Harrisburg office were agents
                                -15-

below the level of Supervisory Agent in Charge.   The FBI’s own

website declares that its “[r]esident agencies are managed by

supervisory special agents.”   See http://www.fbi.gov/contact-us/

field (as of July 3, 2013).    And the website does not conceal the

identities of all former supervisory agents in charge of the

Harrisburg office.6   Nor does the FBI assert or demonstrate that

it has no responsive document that merely identifies an agent as

the head of the Harrisburg office that is not a covered record

compiled for law enforcement purposes in the course of an

investigation.   And it is not clear at all that the risk of

harassment of the head of an office elevates that agent’s privacy

interests above the public interest in disclosing his or her

identity.   It is especially uncertain since the FBI presents no

evidence that it conceals the names of the agents who head its

resident agencies and field offices.   Again, its website, for

example, not only names the head of the Philadelphia office, but

displays his photograph and lists the names of the five Assistant

Special Agents in Charge.   See http://www.fbi.gov/philadelphia

(as of July 3, 2013).   While it is true that law enforcement

investigators conducting investigations have a well-recognized



6
 The very agent to whom the FBI directed Walsh, George C.
Venizelos, is identified on the FBI’s website as having “served
as supervisory senior resident agent for Philadelphia Division’s
Harrisburg Resident Agency.” See
http://www.fbi.gov/philadelphia/our-leadership (as of July 3,
2013).
                               -16-

and substantial privacy interest in withholding information about

their identities, see e.g. Nat’l Whistleblower Ctr., 849 F. Supp.

2d at 28; Marshall v. FBI, 802 F. Supp. 2d 125, 134 (D.D.C.

2011),7 the FBI has not analyzed or explained how the balance of

privacy and public interests favors concealing the mere identity

of the managing head of a field office or resident agency.    That

is information that would intuitively seem to be public anyway

and not shielded otherwise by FBI practices.   The FBI’s motion

for summary judgment regarding Walsh’s request for the names of

the agents in charge of the Harrisburg Resident Agency will be

denied.8


                       CONCLUSION AND ORDER

     Walsh has not shown that recusal is justified.   In addition,

the FBI has demonstrated that it conducted a search reasonably

calculated to uncover all information relevant to Walsh’s FOIA

request through a reasonably detailed non-conclusory affidavit,

and that it properly withheld from Walsh the name of an

investigating agent.   However, the FBI has not demonstrated that

it properly withheld under Exemptions 6 and 7(C) the names of the


7
 Thus, withholding the name of the agent who interviewed Walsh
in 2011 was appropriate.
8
 Walsh moves for summary judgment against the FBI in light of
its failure to respond to discovery requests or produce documents
in response to his FOIA requests. Since discovery has not been
ordered and the merits of the remaining FOIA disputes are
addressed in this opinion, his motion will be denied.
                               -17-

agents who headed the Harrisburg Resident Agency.    Therefore, it

is hereby

     ORDERED that the plaintiff’s ex parte motion for recusal

[23] be, and hereby is, DENIED.   It is further

     ORDERED that the FBI’s motion [31] for summary judgment be,

and hereby is, GRANTED in part and DENIED in part.    Judgment is

entered for the FBI regarding Walsh’s FOIA requests to the FBI

except the request for the names of the agents in charge of the

Harrisburg Resident Agency.   The FBI shall have 30 days from the

entry of this order to either release those names and file a

notice of compliance, or seek an appealable adverse final order.

It is further

     ORDERED that the plaintiff’s motions to compel [24], for

summary judgment against the FBI [25], to certify an

interlocutory appeal of the order entered November 21, 2012 [27],

and to stay pending appeal [29], be, and hereby are, DENIED.    The

Clerk is directed to notify the Court of Appeals promptly of the

disposition of Walsh’s motion to certify an interlocutory appeal.

It is further

     ORDERED that the FBI’s motion for an extension to file a

reply brief [36] be, and hereby is, DENIED as moot.

     SIGNED this 3rd day of July, 2013.


                                     /s/
                               RICHARD W. ROBERTS
                               United States District Judge
