UNITED STATES DISTRICT COURT

F()R THE DISTRICT OF COLUMBIA F I L E D
FEB l 0 2011
JUAN ANTGNIG VAZQUEZ’ ) C|erk, U.S. District & Bankruptcy
) Courts for the District of Columbia
Plainfiff, )
)
v. ) Civil A€fion NO. 10-0039 (RJL)
)
U.S. DEPARTMENT OF JUSTICE et ¢ll., )
)
Defendants. )

?`

MEMORAND OPINION
(February , 2011)

In this action brought pro se under the Freedom of Inforrnation Act (“FOIA"), 5 U.S.C.

§ 552, and the Privacy Act, 5 U.S.C. § 552a, plaintiff challenges the denial by the Department of
justice ("DOJ") of his request for records maintained by the Federal Bureau of Investigation’s
National Crime information Center ("NCIC"). Defendants move to dismiss in part under Rule
l2(b)(6) of the Federal Rules of Civil Procedure and for summary judgment under Rule 56 [Dkt.
No. 15]. Upon consideration of the parties’ submissions and the entire record, the Court will

grant defendants’ motion.
I. BACKGR()UND

By letter of January 29, 2008, plaintiff requested "a copy of all records held by NCIC . . .
pertaining to all NCIC requests made by any law enforcement agency regarding [him]." Compl.,
Ex. l. The FBI responded with instructions on how plaintiff could obtain his FBI identification
Record of any arrests and convictions Id., Exs. 2-3. By letter of May 8, 2008, plaintiff

conveyed his dissatisfaction with having received only his criminal record and asked how he

could obtain "a copy of the NCIC record that logged in the request made by law enforcement for
my criminal background[.]" Id., Ex. 4. He clarified that he was requesting "any log or record
kept by NCIC when providing criminal background information to any one, date, time, agency,
and payment to NCIC and how was the request . . . made to NCIC, by computer, [] phone, [] fax,
or [] a dispatch officer." Id. Defendants denied plaintiff"s request by letter of July 3, 2008. They
advised that the denial "should be construed as either affirming or denying that any such inquiries
or requests were, in fact, made." Ia’., Ex. 5. They further invoked FOIA exemption (b)(2), see 5

U.S.C. § 552(b), and Privacy Act exemption (j)(Z). Id.

In response to plaintiff s administrative appeal, the Gffice of information and Privacy
("OIP"), by letter of November 24, 2008, affirmed the FBI’s determination, but "on partly
modified grounds" that the requested records were exempt from the Privacy Act’s accounting
requirement under 5 U.S.C. § 552a(j)(Z). Ia’., Ex. 8. Plaintiff filed this lawsuit on January ll,

2010.
II. DISCUSSI()N
l. Defendants’ l\/Iotion to Dismiss

Defendants argue that the NCIC. the FBI and the ()IP are not proper parties to this action.
Technically, they are correct. The FOIA provides a cause of action only against federal agencies.
See Sherwood Vcm Lines, Inc. v. U.S. Dep ’t ofNavy. 732 F. Supp. 240, 241 (D.D.C. 1990). As
observed by another judge of this Court, however, "[t]here appears to be some disagreement in
this Circuit regarding what constitutes an ‘agency’ as it pertains to the District Court’s

jurisdiction pursuant to the FOIA." Prison Legal News v. Lappin, 436 F. Supp. 2d l7, 21

(D.D.C. 2006) (Walton, J.) (citations omitted). Faced with the question of whether to dismiss a
FOIA case because the only named defendant, Bureau of Prisons ("BOP") Director Harley G.
Lappin, could not be sued under the FOIA, Judge Walton found BOP sufficiently independent to
be a proper defendant to a FOIA action. "despite its status as a component agency of the DOJ."
Id. at 22. Here, the Court need not dwell on the issue because, unlike in Prison Legal News, DOJ
is a named defendant to this action. Therefore, the Court will grant defendants’ motion to

dismiss the complaint against the DOJ components: NCIC, FBI and OIP.
2. DOJ’s Motion for Summ@/ Judgment

Summary judgment is appropriate when the moving party has shown 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. ClV. P. 56(a). “[T]he substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty L0bby, Inc., 477 U.S. 242, 248 (1986).
The Court’s jurisdiction under the FOIA depends on the improper withholding of agency
records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA,697 F.2d 1095, 1105 (D.C. Cir. 1983). In a
FOIA action, the Court may award summary judgment to an agency solely on the basis of
information provided in declarations when they describe "the justifications for nondisclosure
with reasonably specific detail . . . and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith." Mz`lz`tary Audil Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). Because agency declarations are accorded "a presumption of good faith," Long

v. U,S. Dep ’t of Justice, 450 F. Supp. 2d 42, 54 (D.D.C. 2006), it is incumbent upon the plaintiff

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to "point to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer

Watch, Inc, v. CIA, 692 F.2d 770, 77l (D.C. Cir. 1981).

A. The Dem`al of Records Under the Privacy Act
The Privacy Act provides that

[e]ach agency, with respect to each system of records under its control, shall--

(l) except for disclosures made under subsections (b)(l) or (b)(2) of this section,
keep an accurate accounting of~ (A) the date, nature, and purpose of each disclosure
of a record to any person or to another agency made under subsection (b) of this
section; and (B) the name and address of the person or agency to whom the
disclosure is made; (2) retain the accounting made under paragraph (l) of this
subsection for at least five years or the life of the record, whichever is longer, after
the disclosure for which the accounting is made; (3) except for disclosures made
under subsection (b)(7) of this section, make the accounting made under paragraph
(l) of this subsection available to the individual named in the record at his request;
and (4) inform any person or other agency about any correction or notation of
dispute made by the agency in accordance with subsection (d) of this section of any
record that has been disclosed to the person or agency if an accounting of the
disclosure was made.

5 U.S.C. § 552a(c).‘ DOJ properly denied plaintiff s request under the Privacy Act on the basis
that such records are "part of the FBl`s [Criminal justice information Services] Records System,"
which the FBI has exempted from the foregoing access provision "pursuant to Exemption (j)(2)
of the Privacy Act in conjunction with 28 C.F.R. § l6.96 (2003)." Def.’s l\/Iot., Declaration of
Kimberly J. Del Greco ("Del Greco Decl.") [Dkt. No. 15-4] il 20; see 28 C.F.R. § l6.96(g)(l)

(exempting NCIC’s records system "only to the extent that information in the system is subject to

' An accounting need not be made available to the named individual if the disclosure
was made "to another agency or to an instrumentality of any governmental jurisdiction within or
under the control of the United States for a civil or criminal law enforcement activity . . .
authorized by law . . . [in response to a written request by] thc head of the agency or
instrumentality . . . specifying the particular portion desired and the law enforcement activity for
which the record is sought[,]" 5 U.S.C. § 552a(b)(7).

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exemption pursuant to 5 U,S.C. § 552a(j)(2) and (k)(3)."). The Privacy Act does not bar
disclosure of documents that are otherwise required to be disclosed under the FOIA, however. 5

U.S.C. § 552a(b)(2); see Greentree v. Um`ted States Customs Serv., 674 F.2d 74, 79 (D.C. Cir.

1982y
B. The Dem`al of Records Under the FOIA

In its administrative response to plaintiff’ s request, DOJ neither confirmed nor denied the
existence of responsive records and invoked FOIA exemption 2. Compl., Ex. 5. DOJ now
argues that it properly denied plaintiffs request under FOIA exemptions 2 and 7(E), see Defs.’
Mem. of P. & A. in Support of Mot. to Dismiss in Part and for Summ. J. [Dkt. No. 15-2] at 10-
l4, and that it properly refused to confirm or deny the existence of such records. Defs.’ Reply to
Pl.’s Opp’n to Defs.’ Mot. to Dismiss in Part, and in the Alternative, for Summ. J. [Dkt. No. 20]
at 8-9. Commonly referred to as a Glomar response, an agency " ‘may refuse to confirm or deny
the existence of records where to answer the FOIA inquiry would cause harm cognizable under
an FOIA exception.’ "2 Wolfv. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gara'els v.

CIA, 689 F.2d ll00, 1103 (D.C. Cir. 1982)).

The Attorney General has delegated to the FBI its responsibility to "acquire, collect,
classify, and preserve identification, criminal identification, crime, and other records." Del
Greco Decl. il 5 (citing 28 U.S.C. § 534). To this end, the FBI maintains the NCIC database
described as "a nationwide computerized information system operating under a shared

management concept between the FBI and the criminal justice community, with the FBI

2 See generally Phillz'ppi v, Central Im‘ellz`gence Agency, 546 F.2d 1009 (D.C. Cir. 1976)
(addressing FOIA request for records pertaining to the ship "Hughes Glomar Explorer").

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functioning as the national manager." Ia’. ll 7. The purpose of the NCIC "is to support criminal
justice agencies . . . in their mission to uphold the law and protect the public, to wam law
enforcement of potential danger, and to promote the exchange of information which will
facilitate criminal and counter terrorism investigations." Id. ll 22. "Detection of behaviors and

activities form the basic core of pending investigative efforts." Ia’. ll 23.

FOIA exemption 2 shields from disclosure information that is "related solely to the
intema1 personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). lt applies if the
requested information meets two criteria. First, such information must be "used for
predominantly internal purposes." Crooker v. Bureau of Alcohol, Tobacco and Fz'rearms, 670
F.2d l05l. 1074 (D.C. Cir. 198l); see Nal'l Treasury Employees Um`on v. Um`led States Customs
Serv., 802 F.2d 525, 528 (D.C. Cir. 1986). Second, the agency must show either that "disclosure
[of the information] may risk circumvention of agency regulation," or that "the material relates to
trivial administrative matters of no genuine public interest." Schwaner v. Dep 't of the Air Force,
898 F.2d 793, 794 (D.C. Cir. 1990) (citations omitted). "Predominant1y internal documents the
disclosure of which would risk circumvention of agency statutes are protected by the so-called
‘bigh 2’ exemption." Schille)' v. Nal'l Labor Relatl`ons Bd., 964 F.2d 1205, 1207 (D.C. Cir.
1992); material that merely relates to trivial administrative matters of no genuine public interest
is deemed "low 2" exempt material. See Founa’ing Church of Scz`entology of Washington, D.C.,
lnc. v. Smilh, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983); accord Elliolt v. U.S. Dep ’t of

Agriculture, 596 F.3d 842, 847 (D.C. Cir. 2010).

Defendant classifies the requested information ~ the identities of law enforcement

agencies that queried the NCIC for information concerning plaintiff -- as high 2 material. Del

Greco Decl. ll 21. "High 2" material first “must fall within the exemption's language . . . . That
is, the material must be ‘used for predominantly internal purposes,’ and relate to ‘rules and

practices for agency personnel.’ " Elliolt, 596 F.3d at 847 (citations omitted). "Second, if this
threshold step is satisfied, the agency can defeat disclosure by demonstrating that release of the

material would significantly risk circumvention of federal regulations or statutes." Id.

Del Greco states that "[t]he revelation of the use of this information by any particular law
enforcement agency, including the FBl, could reasonably be expected to risk cirumvention of the
law[.]" ]d. ll 23. Disclosing such information "could impede the effectiveness ofthe FBl’s
internal law enforcement procedures," ia'. ll 21, and "may cause substantial harm to the law
enforcement investigative and intelligence gathering interests of the FBI and other law
enforcement agencies." Id. ll 22. Specifically, "if the FBI were to reveal the names of, time and
date of, and information requested by specific law enforcement organizations concerning [an]
individual, those individuals would become aware that their criminal status has come under the
scope or suspicion of certain agencies or law enforcement entities and could take actions to

thwart further discovery and apprehension." Ia’. ll 23.

Del Greco states that the "[i]nformation detailing which law enforcement agencies query
the NCIC database for information is not known to the public," ia’. ll 26, thereby satisfying the
requirement that the information be predominantly internal. In addition, she reasonably explains
how the requested information relates to the FBl’s practice of maintaining and exchanging
information pertinent to law enforcement investigations and how a targeted individual could use
such information to circumvent detection and/or contravene criminal statutes. See z`d. "[W]here

l,as here,] the asserted government interest is . . . to prevent circumvention of 1aw, the threshold

inquiry may be somewhat less demanding than for low 2 matters . . . ." Ellz'ott, 596 F.3d at 279;
see Schwaner, 898 F.2d at 795 (confirming that "inforrnation need not actually be ‘rules and
practices’ to qualify under exemption 2, as the statute provides that matter ‘related’ to rules and
practices is also exempt."). The C ourt finds that DOJ justified its Glomar response by showing
how a substantive response to plaintiff s FOIA request could cause harm addressed by exemption
2. lt therefore follows that DOJ properly invoked FOIA exemption 2 to justify withholding any
such information, if it exists. In light of this determination, the Court will not address DOJ’s
questionable invocation of exemption 7(E) to justify its denial of the same material.3 See Wolf,
473 F.3d at 375 ("Proper invocation of, and affidavit support for either lone of two exemptions],

standing alone, may justify the ClA's Glomar response.") (citation omitted).
III. CONCLUSION

For the foregoing reasons, the Court grants (1) defendants’ Rule l2(b)(6) motion to
dismiss the complaint against all named defendants except DOJ and (2) defendants’ motion for

summary judgment on the Privacy Act and FOIA claims. A separate final order accompanies this

iq~..étt,.,.,/

RICHAR¢Q¢.YLEON
United States District Judge

Memorandum Opinion.

3 FOIA exemption 7(E) protects from disclosure law enforcement records "to the extent

that the production of such law enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). lt is unclear from the
current record what law enforcement technique, procedure or guideline is at risk of being
revealed merely by identification of an agency’s utilizing the NCIC database.

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