UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANTHONY RIIODES, ) `
n t )
Plaintiff, )
) - .
` v. l ) Civil-Action No. 16-1111_ (TNM)
)
_ )
FED'E'RAL BUREAU ]
OF INVESTIGATION, ) '
)
Defendant. ) '
MEMORANDUM OPI_NION l

Plaintiff Anthony Rhodes, appearing pro se, challenges the Federal Bureau of

- lnvestigation’s response to his Freedorn of lnformation Act (“FOIA”) request Plaintitf takes

issue specifically yvith the FBI’s- decision to neither confirm nor deny the existence of his name

on any Watch lists. Defendant has moyed for summary judgment, contending that it has fulfilled

its FOIA obligations Plaintiff has offered nothing to the contrary. Aceordingly, Defendant’s
- motion will he granted for the reasons explained more fully below, and Plaintift` s pending
motions to compel, to expedite the proceedings, and to issue an order of protection iit/ill be denied
as moot. -

I. BACKGROUND _
A. Faetual History
On'November 23, 2-()15, Plaintiff requested from the FB"I “copies of all records about

me.” Decl. of David M-. I-Iardy, Ex. A, ECF No. 10-3. He included his personal information and
a signed Certiiication of Identity Fonn. By letter dated Novernber 30, 20_15-, the FBI informed

Plaintiff thata search of its Central ~Records Systern located no responsive records _and invited `

 

 

him to provide “additional [detailed] information . . l. that you believe was of investigative l
interest to the Bureau” that might enable an additional search Hardy Deci., Ex. B. The FBI
added:l “ln accordance with standard FBI practice and pursuant to'FOIA exemption
fb)(7)(E)/Privacy Act exemption G)(Z) . . ., this response neither confirms nor denies the
existence of your subject’-s name on any watch lists.” Id. Such a response is commonly referred
to as a Glomar responsel

Plaintiff appealed the FBI’_s determination to the O_ffice of Information Policy (“QIP”) to `
the extent ‘ithat some or all of my request cannot be provided because it is exempt under the l
[FOIA].”; Hardy Decl., Ex. C. Plaintiff requested reconsideration “because: Suspicion of illegal
activities by law enforcement personnel.” Id. OIP affirmed the FBlis action in a letter dated
January 6, 2016. Hardy Decl., Ex. E. l
B. Procedural History n

`In June 2016, P'laintiff lodged with the Clerk of Court two seemingly separate actions,
which were filed as one complaint, ECF No. 1. The first action, captioned “Cornplaint 42 U.S.C.
§ 1983,” liststen purported causes based on the FBI’s “illegal acts agains-t” Plaintiff “during the
years of 2004 (to my knowledge) to this current date.” Compl. at 2. But it seeks as relief “to
compel delivery of the records which have been repeatedly denied me by the [FBI], and 7
ultimately, to be compensated in the amount of $250,000,000.00 in punitive damages for their
heinous and illegal acts.”, Id. at 3. The second action, captioned “Complaint for lnjunctive _
Relief,” is clearly brought under the FOIA. See id. at 5-12. In accordance with the.screening

requirements of the Pris_on_ Litigation Reform Act codified at 28 U.S.C. § 1915A, the complaint

 

f A G]omar response has its origins in “a case concerning a FOIA request for-records relating to an .
underwater sea craft called the ‘Glomar Explorer.’ ” Nation Magazz`ne, Wash`. Bureau v. - U.S. Customs Serv.,
71 F.3d 885, 896 n.2 (D.C._Cir. 1995) (citing th'lfippf v. CIA 546 F.2d 1009 (D.C. Cir. 19?6)).

 

`2

 

was construed as brought under the fOIA and then assigned to a district judge for further
proceedings See J'une 14, 2016 Order, _ECF No. 4. j

Upon reviewing Defendant’s brief in support of summary judgme_nt, this Court
` discovered that Defendant had not addressed the actual claim set out in the complaint and
ordered supplementation of the record by May 14, 2018. See Apr. 16, 2018 Minute Order.- Now
before the Court are Defendant’s initial motion for.surnmary judgment, ECF No. 10, which was
held in abeyance, and its supplemental motion for summary judgment, ECF Nol. 24. Plaintiff has
neither responded to De`fendant’s supplemental motion by the court~imposed deadline of May
28, 2018, see Order, ECF No. 25, nor requested additional time to respond. Therefore, as
Plaintiff was warned, the Court will proceed to the merits without his input2

II. LEGAL STANDARD

Summary judgment is appropriate where the record shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. 'See Fed. R. Civ. P.- 56(a);
Ce!otex Corp. v. Carretr, 477 U.S. 317, 322 (1986); Waterho'use v. Dfsrrz'ct ofColumbia_, 298
F.3d -989, 991 (D.C. Cir. 2002). The Court must “state on the record” why Defendant is entitled
to judgment as a matter of iaw. Fed. R Civ. P. 56(a). l

FOIA requires federal agencies to “disclose information to the public upon reasonable
request unless the records at issue fall within specifically delineated exemptions.” Judicfal
Watch, Inc. v. FBI, 522 F.,3d 364, 365-66 (D.C. Cir. 2008)`; see also 5 U.S.C. § 552(a)(3)(A)

_(records sought must be itreasonably describe[d]”). Thus,_a FOIA defendant is entitled to

 

2 Desp'ite multiple warnings about the consequences of failing to oppose a dispositive motion, Plaintiff did
not oppose Defendant’s initial motion either. See Dec. 15, 2016 Orde'r,'ECF No. 15 (denying Plaintiff"s
motions to compel and for expedited discovery and enlarging the opposition deadline to January 30, 20i7); `
Sept. 27, 2016 Order, BCF No. ll (advising Plaintiff` that his failure to respond to Defendant’s summary
judgment motion by November 14, 2016, may result in a grant of summary judgment to the Defendant)..

3 .

 

summary judgment if it demonstrates that there is no genuine dispute as to whether “each
document that falls within the class requested, either has been produced, is unidentifiableor is
wholly exempt from the Act’s inspection requirements.” See Weisberg v. Dep't ofJusti`ce, 627
F.2d 365, 368 (D.C. Cir. 1980). The “vast majority” of FOIA cases are decided on motionsfor
summary judgment See Brayron v. Ojj(z`ce ofU.S. Traa'e Rep., 641 f.3d 521, 527 (D.C. C_ir.
2011). n ' l

To show that unproduced documents are exempt from FOiA, an agency may file
“affidavits describing the materialwithheldand the manner in which it falls within the
exemption claimed.” Kz'ng v. Dep 'r of Jusn'ce, 830 F.2d 210, 217 (D.C. Cir. 1987). Although .
courts review the applicability 1of FOIA exemptions de novo, they give “substantial weight to
detailed agency explanations” of national security concerns related to the release of informationl
Id. “[ij the [very] fact of the existence or nonexistence of agency records falls within a FOlA
exemption,” a defendant may issue a Glomar response, declining to confirm or deny the
existence o_f requested records Wolfv. C]A, 473 F.3d 370, 374 (D.C. Cir. 2007). A`n agency
issuing a Glomar response must explain in as much detail as possible why it cannot confirm or
deny the existence of certain records or categories of records, which it may attempt to do by
affidavit James Madison Projecf v. Dep 't of Justice, 208 F. Supp. 3d 265, 283 (D.D.C. 2016)
l (cit_ing Phiflz`ppr', 546 F.2`d at-1013). The D.C._ Circuit instructs: '
-If an agency’s affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary
evidence in the record or by evidence of the agency’s bad faith, then summary

judgment is warranted on the basis of the affidavit alone.

ACLUv. U.S. Dep ’r ofD_ef., 628 F.3d 612, 619 (D.C. Cir. 2011) (citation omitted); '

 

“ln determining whether the existence of agency records vel non fits a FOIA exemption,
courts apply.the general exemption review standards established in non-Glomar cases.” Wolf, di
473 F.3d at 374. “Ultimat_ely, an agency’s justification ford invoking a FOIA exemption is
sufficient if it appears "logical’ or ‘pla_usible.”’ ACL U, 628 F.3d at 619 (quoting Larson v. lDep ’r
ofSraIe, 565 F.3d 857, 862 (D.C. Cir. 20_09) (internal quotation'marks omitted)). To successfully .
challenge an agency’s showing that it complied with the FOIA, “the plaintiff must come forward
with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the
- agency has improperly withheld extant agency records.l’ Span v. U.S. Dep ’t ofJusfice, 696 F.
Supp. 2d 113, 119 (D.D.C. 2010) (quoting Der ’t ofJuSrfce v. Tax Analysrs, 492 US 136,- 142
(1989)). _

III. ANALYSIS
As indicated above, it is standard practice for the FBI to neither confirm nor deny whether a

FOIA requester’s name appears on a watch list. The FBI invoked FOIA Exemption 7(E) in `
response to Plaintiff” s request. Exemption 7(E) shields from disclosure records or information
compiled for law enforcement purposes that would reveal “techniques and procedures for law
enforcement investigations or'prosecutions” or “guidelines for law enforcement investigations or '
prosecution if such disclosure could reasonably beexpected to risk circumvention of the law.” 5
U.S.C. § 552(b)f7)(E). c

Defendant’s declarant describes the watch-list information as .follows. The ‘Fco`nsolidated
` Terrorist Watchlist” supports-“the ability of front-line screening agencies to positively identify
known or suspected terrorists trying to obtain visas, enter the ciountr-y, board_aircraft, or engage
in other activity[.]” Supp. l-lardy Decl. ‘|[ 5, ECF No. 24-4. fit is “composed of many sub-lists

pertaining to various categories of criminal matter under investigation, such as the so-called ‘no-

 

fly list.”’ Id. The FBl’s “records concerning terrorist watch lists_were compiled and created in
furtherance of [its] law enforcement, national security5 and intelligence missions.” Id. 1| 10. Any
potential “watchlist records responsive to Plaintiff . . . would relate to investigative matters that
are part of the FBi’s primary law enforcement mission."’ Id. 11 8. `The threshold law.enforcement
requirement of Exemption 7(E) is without question satisfied. _

As for harrn, the declarant states that “[g]iven the sensitive information contained on the
watchlist, the mere acknowledgment of the existence or non-existence” of a name on any watch
list “could enable the targets of the watch list to avoid detection or develop countermeasures to
circumvent the [FBl’s]` ability . . . to effectively use this important law enforcement technique[.]”
Supp. Hardy Decl. 11 13. And while “the existence of no-fly lists” has been public since October
2002, “the specific criteria and standards for placing individuals on watch lists” are not “publicly
known.” ]d. Nor can they be “without compromising intelligence and security or inviting
subversion of [such] lists by individuals who will seek ways to adjust their behavior to avoid
being identified as a threat to aviation. Thus, the-success of this antiterrorism tool depends in
part on the confidentiality of the protocols for inclusion on a no-fly lis.t.’l Id. il 14. The declarant
offers specific examples of how confirmation of an individual’s watch-list status “reasonably

l could be expected to compromise investigative operations as well aslendanger investigative or
intelligence sources and methods.” Id. 1[15.

Another judge of this court has approved the FBI’s Glomar response regarding watch-list
information based on the same rationale by the same.declarant under nearly the same
circumstances In Kalu v. internal Revenue Serv'., No. l4-cv-998, 2015 Wh 4077756 (D.D.C.
July 1, 2015), Judge' Boasberg denied the FBl’s motion “insofar as it relates to watch-list

records” because, as here, the FBI had not addressed its Glomar response in its brief.. Id. ar * l.

 

Once it had, Judge Boasberg concluded that the FBI “is entitled to keep mum on the issue”
because “the agency’s supplemental declaration [of David Hardy] provides reasonable and
sufficiently specific reasons to justify its G!omar response in this case__namely, that anything
other than a ‘neither confirm nor deny’ response would tend to disclose at the very least
‘guidelines for law enforcement investigations or prosecutions’ and that such disclosure ‘could
reasonably be expected to risk circumvention of the law.”’ Kalu v. fraternal Revenue 'Serv., 159-
F. Supp. 3d 16, 19, 23 (D.D.C. 2016) (quoting § 552(b)(7)(E)- (other citation omitted)). Other
l courts have ruled similarly. See id. at 23 and Ryarz v.- Fed. Bureau offnvestigation, 113 F. Supp.
3d 356, 363 n.5 (D.D.C. 2015) (citing cases)". 'Nothing supports a departure in this case.3
IV. CONCLUSION

For the foregoing reasons, the Court concludes that Defendant has fully satisfied its

obligations under FOIA and, in theabsence of contrary evidence, is entitled to judgment as a

matter of law. A separate order will issue.

 

narea: nine 14,20131 nuevo N. i\/i AijijEN
' ~ United States District ludge

 

3 Plaintiff has expressed no dissatisfaction with the FBI’s search and no-records___res.p_on'se._.__.____:l`_h_e_.._C_o_u_n...__._______... .. ..

nevertheless finds from its review of the record that the FBI conducted an adequate search for records
otherwise responsive to Plaintiff"s request See First Hardy Decl. ‘|l‘ll 18- 22 (detailing search terms utilized
and search methods employed and averring that the search covered “the only system of records where
information about the plaintiff would likely be maintained”). -

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