UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NORMAN B. CALVERT, : : Plaintiff, : Civil Action No.: 08-1659 (RMU) : v. : Re Document No.: 9 : UNITED STATES OF AMERICA, : : Defendant. :

MEMORANDUM OPINION

DENYING THE DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff commenced this civil action under the Freedom of Information Act

(“FOIA”),

, seeking to compel the production of a signature sample from a Federal

Bureau of Investigation (“FBI”) Special Agent. He challenges the defendant’s refusal to process

the request without the agent’s authorization. The defendant moves to dismiss under Rule

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under

Rule 56.1 Upon consideration of the parties’ submissions and the entire record, the court denies

the defendant’s motion.

1 Because the defendant submitted, and the court considered, evidence outside the pleadings in support of the Rule 12(b)(6) arguments, the court treats the Rule 12(b)(6) portion of the defendants’ motion as a motion for summary judgment. See Holy Land Found. for Relief & Dev. v. Ashcroft,

(D.C. Cir. 2003) (holding that the court shall treat a Rule 12(b)(6) motion to dismiss as one for summary judgment if “matters outside the pleading are presented to and not excluded by the court”). II. FACTUAL & PROCEDURAL BACKGROUND

By letter dated August 10, 2007, the plaintiff requested from the FBI “a specimen of FBI

Special Agent Anthony John Nelson’s signature, for the specific purpose of making a comparison

with the signature that appears on [the criminal] complaint” sworn against the plaintiff on March

1, 1994, in the Eastern District of New York. Def.’s Mot., Attach. 1 (“Hardy Decl.”) & Ex. A.

By letter dated January 22, 2008, the FBI responded to the plaintiff’s request, asking that he

submit a privacy waiver from Special Agent Nelson.

Ex. B. In its response, the FBI

informed the plaintiff that without the waiver, any responsive records would be exempt from

disclosure under FOIA exemptions 6 and 7(C) set forth at

(b), but also stated that

“[t]his response should not be considered an indication of whether [responsive records] exist in

FBI files.” Hardy Decl.; Def.’s Mot., Ex. B. By letter dated January 30, 2008, the plaintiff

enclosed “a facsimile of that Privacy Waiver and Certification of Identity” and sought the FBI’s

assistance with obtaining Nelson’s privacy waiver.

Ex. C. The FBI responded with a letter

dated February 26, 2008, in which it reiterated the need for a privacy waiver or proof of Nelson’s

death prior to processing the plaintiff’s FOIA request, and the fact that it could neither confirm

nor deny the existence of responsive records.

Ex. D. By letter of March 5, 2008, the plaintiff

renewed his request for Nelson’s signature,

Ex. E, to which the defendant responded by letter

dated March 28, 2008, in the same manner as before,

Ex. F.

The plaintiff lodged an appeal with the Department of Justice’s Office of Information and

Privacy (“OIP”) by letter dated April 5, 2008, challenging the “three identical replies” he had

received from the FBI.

Ex. G. The OIP affirmed the FBI’s determination by letter dated

August 15, 2008. It explained that “[w]ithout consent, proof of death, official acknowledgment

2 of an investigation, or an overriding public interest, confirming or denying the existence of law

enforcement records concerning an individual could reasonably be expected to constitute an

unwarranted invasion of personal privacy” under FOIA exemption 7(C).

Ex. I. The plaintiff

commenced this civil action on September 29, 2008. See generally Compl. The defendant filed

the instant motion on November 17, 2008. See Def.’s Mot. On December 19, 2008, the

defendant filed a reply to the plaintiff’s opposition attaching a letter in opposition to its motion

that was apparently mailed directly and only to the United States Attorney’s office. Def.’s Reply,

Ex. 1. The defendant substantively responds to the arguments raised in the plaintiff’s opposition

and, thus, the court treats the opposition as having been properly filed.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment2

Summary judgment is appropriate when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c); see also

Celotex Corp. v. Catrett,

(1986); Diamond v. Atwood,

(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive

law on which each claim rests. Anderson v. Liberty Lobby, Inc.,

(1986). A

“genuine issue” is one whose resolution could establish an element of a claim or defense and,

therefore, affect the outcome of the action. Celotex,

; Anderson,

.

2 The defendant has not articulated a basis for granting its Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The court is satisfied that it has original jurisdiction of this action because it presents a question of federal law. See

.

3 In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson,

. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position.

. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex,

. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment.

In addition, the nonmoving party may not rely solely on allegations or

conclusory statements. Greene v. Dalton,

, 675 (D.C. Cir. 1999); Harding v. Gray,

(D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is

merely colorable, or is not significantly probative, summary judgment may be granted.”

Anderson,

(internal citations omitted).

An agency’s disclosure obligations under the FOIA are triggered by its receipt of a

properly submitted request that “reasonably describes [the requested] records” and “is made in

accordance with published rules stating the time, place, fees (if any), and procedures to be

followed.”

(a)(3)(A). The FOIA mandates full public disclosure of agency

records unless the requested records “fall squarely” within one or more of the nine statutory

exemptions. Wash. Post Co. v. Dep’t of Agric.,

(D.D.C. 1996) (quoting

Burka v. Dep’t of Health & Human Servs.,

, 515 (D.C. Cir. 1996)). Because the

disclosure of government records is presumed, FOIA exemptions are to be narrowly construed in

4 favor of disclosure. United States Dep’t of Justice v. Landano,

(1993). The

court may award summary judgment solely on the information provided in agency affidavits or

declarations that 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.” Military Audit Project v. Casey,

(D.C. Cir. 1981); see also Vaughn v.

Rosen,

(D.C. Cir. 1973), cert. denied,

(1974).

B. The Plaintiff Properly Exhausted His Administrative Remedies

The defendant argues that the plaintiff failed to exhaust his administrative remedies by

failing to follow proper procedures. Def.’s Mot. at 6-7; see Hidalgo v. FBI,

(D.C. Cir. 2003) (holding that administrative exhaustion is a condition precedent to

obtaining judicial review of a FOIA claim). In support of its contention, the defendant offers the

declaration of David M. Hardy, who is the Section Chief of the Record/Information

Dissemination Section of the FBI’s Records Management Division, who supervises

“approximately 206 employees . . . whose collective mission is to effectively plan, develop,

direct, and manage” FOIA and Privacy Act requests to the FBI. Hardy Decl. ¶¶ 1-2. He states

that he is “aware of the FBI’s treatment of the FOIA request of plaintiff Norman B. Calvert, aka

Caprice,” id. ¶ 3, and his statements are based on his “personal knowledge, upon information

provided to me in my official capacity, and upon conclusions and determinations reached and

made in accordance therewith,” id. ¶ 2. Hardy therefore is competent to testify about the issues

at hand. See SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (determining

that the person in charge of a search is “the most appropriate person to provide a comprehensive

affidavit”) (citation omitted); Barnard v. Dep’t of Homeland Sec.,

, 138

5 (D.D.C. 2008) (noting that “[a] declarant in a FOIA case satisfies the personal knowledge

requirement in Rule 56(e) if in his declaration, he attests to his personal knowledge of the

procedures used in handling a FOIA request and his familiarity with the documents in question”)

(citations and internal quotation marks and brackets omitted).

Hardy states that “no formal FOIA request was ever opened” because the plaintiff failed

to produce Nelson’s privacy waiver and certification of identity. Hardy Decl. ¶ 14. But the

applicable regulation, however, states only that “a written authorization signed by that individual

permitting disclosure of those records to you or proof that that individual is deceased (for

example, a copy of a death certificate or an obituary) will help the processing of your request.”

(emphasis added). Thus, the plaintiff was “not required” under the applicable

rule to provide the requested information prior to the FBI’s processing of the request. See Lewis

v. Dep’t of Justice,

(D.D.C. 2009) (declining the “defendant’s invitation

to read more into the regulation than what is stated”). Accordingly, the court declines to grant

summary judgment to the defendant on the grounds that the plaintiff failed to exhaust his

administrative remedies.

C. The Defendant Has Not Justified Invoking Exemptions 6 and 7(C)

The defendant relies on the privacy provisions of FOIA exemptions 6 and 7(C) to justify

its inaction, see Hardy Decl. ¶¶ 6, 8, 10, but it has not supported the instant motion with any

evidence from which the court may determine the validity of its response.

Exemption 6 of the FOIA precludes from disclosure “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.”

(b)(6). The “clearly unwarranted” privacy standard requires a showing

6 that disclosure “would compromise a substantial, as opposed to a de minimis, privacy interest.”

National Ass’n of Retired Fed. Employees v. Horner,

(D.C. Cir. 1989). “In

their capacity as public officials[,] FBI agents may not have as great a claim to privacy as that

afforded ordinarily to private citizens,” but they do “have a legitimate interest in preserving the

secrecy of matters that conceivably could subject them to annoyance or harassment in either their

official or private lives.” Lesar v. Dep’t of Justice,

(D.C. Cir. 1980) (footnote

omitted); see Nix v. United States,

, 1006 n.8 (4th Cir. 1978) (noting that

harassment does not have to rise to the level of endangerment to life or physical safety). The

recognized privacy interest of FBI agents, however, does not “imply blanket exemption[.]” Baez

v. Dep’t of Justice,

(D.C. Cir. 1980) (citing Lesar,

). To

justify its exemption 6 claim, then, the defendant must show that the threat to Nelson’s privacy in

his signature – assuming it to be an agency record – is real rather than speculative. Dep’t of Air

Force v. Rose,

, 380 n.19 (1976); see Trupei v. Drug Enforcement Admin.,

, *2 (D.D.C. Sept. 27, 2005) (rejecting the DEA’s basis for redacting DEA agent’s

signature under exemption 6) (internal citations omitted).

Similarly, to justify its exemption 7(C) claim, the defendant must establish that the

“record[] or information [was] compiled for law enforcement purposes [and that its disclosure]

could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). The current record does not establish the threshold law enforcement

purpose nor does it provides a factual basis for determining the asserted harm. See Nation, 71

F.3d at 894 (discussing the limitation of exemption 7(C)’s protection of private citizen records to

those revealing “little or nothing about an agency’s own conduct”) (citations and internal

7 quotation marks omitted); cf. Baez,

(holding that “the public interest might be

served by the release of the names of particular [FBI] agents in instances, for example, in which

the agent is called upon to testify concerning his activities, or in which the performance of a

particular agent otherwise is called into question”).

IV. CONCLUSION

For the foregoing reasons, the court denies the defendant’s motion for summary judgment

without prejudice. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 24th day of August, 2009.

RICARDO M. URBINA United States District Judge

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