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Abdul-Alim v. Wray

United States District Court, D. Massachusetts

September 29, 2017

AYYUB ABDUL-ALIM, Plaintiff,
v.
CHRISTOPHER A. WRAY, Director, Federal Bureau of Investigation, and and JEFFERSON B. SESSIONS III, Attorney General, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE

         Introduction

         Ayyub Abdul-Alim (“Abdul-Alim” or “Plaintiff”) has filed a Complaint for Injunctive Relief (Docket No. 1) against Christopher A. Wray, Director Federal Bureau of Investigations and Jefferson B. Sessions III, Attorney General (collectively, Defendants)[1] under the Freedom of Information Act, 5 U.S.C. §552 (“FOIA”) seeking disclosure and release of agency records he alleges were improperly withheld from him by the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”). In support of his request for the information, Abul-Alim asserted that he was facing criminal charges in Massachusetts state court and during a pretrial hearing, it came to light that: (1) a member of the Joint Counterterrorism Task Force was aware of him; (2) A confidential informant in his case had been paid by the FBI; (3) immediately following his (Abdul-Alim's) arrest, the agent contacted his supervisor at the Joint Counterterrorism Task Force; and (4) after his arrest, the agent and an FBI agent conducted an unrecorded interview with him at the police station. Thereafter, Abdul-Alim and his counsel attempted to obtain records of any investigation by the FBI involving him. As of the date he filed this action, Abdul-Alim had not received any records from the FBI.

         After the filing of this suit, the FBI notified Abul-Alim that it had located approximately 5, 600 pages of records and 2 CDs (containing audio and visual recordings) responsive to his requests. While the FBI has since turned over substantial amount of materials to Abdul-Alim, it has withheld some information pursuant to various exemptions set forth in the FOIA. Abdul-Alim informed the Defendants that he would only be challenging the redaction of information in 30 specific pages, which he believes are relevant to his ongoing appeal of his Massachusetts state court conviction for the unlawful possession of a firearm. Defendants' have filed a motion for summary judgment requesting a ruling from this Court that Plaintiff is not entitled to disclosure of any of the redacted information contained in those 30 pages. See Defs' Mot. For Sum. J. (Docket No. 63) and Mem. Of L. in Supp. Of Def's Mot. For Sum. J. (Docket No. 64)(“Def's Mem.”). For the reasons set forth below, that motion is granted.

         Standard of Review

         Summary Judgment is appropriate where, “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)). “‘A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.'” Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).

         When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'” Id. (citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party cannot rely on “conclusory allegations” or “improbable inferences”. Id. (citation to quoted case omitted). “‘The test is whether, as to each essential element, there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” ' ” Id. (citation to quoted case omitted).

         “In the FOIA context, a district court reviewing a motion for summary judgment conducts a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligations under the FOIA. Because the court must analyze all underlying facts and inferences in the light most favorable to the FOIA requester, summary judgment for an agency is only appropriate after the agency proves that it has ‘fully discharged its [FOIA] obligations.'” Neuman v. United States, 70 F.Supp.3d 416, 421-22 (D.D.C. 2014)(internal citations and citation to quoted case omitted); see also Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 438 (1st Cir. 2006)(“The government bears the burden of proving that withheld materials fall within one of the statutory exemptions, and district courts are required to make de novo determinations as to the validity of the asserted exemptions.” (internal citation omitted)).

         Facts

         By letter dated October 31, 2013, Abdul-Alim submitted a FOIA request to FBI Headquarters, Records Management Division, Winchester, Virginia. The request sought any and all records of investigation by the FBI involving Abdul-Alim, including Joint Task Force investigation records from his date of birth to present. By facsimile dated January 23, 2014, the FBI received a completed Form DOJ-361 from Thomas E. Robinson (“Robinson”), counsel for Plaintiff, which Abdul-Alim signed under penalty of perjury. The DOJ-361 also authorized the FBI to release information concerning Abdul-Alim to Robinson.

         In his letter, Plaintiff indicated that he was seeking the information in order to adequately prepare a defense to criminal charges in the Hampden Superior Court of Massachusetts resulting from a Joint Task Force investigation which led to him being charged with unlawful possession of a firearm. Plaintiff claims that the firearm was “planted” on him by police because he rebuffed several FBI attempts to recruit him as a confidential informer about Muslim activities in his area. He made his FOIA records request after the Massachusetts District Attorney's office opposed his obtaining information relating to the FBI's alleged lengthy interest in him as an informant. Robinson had contacted the FBI about the necessity of obtaining the requested information to assist in Abdul-Alim's trial defense and informed the FBI that due to testimony at trial and in pre-trial hearings, some information, including the name of a confidential source and name of law enforcement agents was a matter of public record. He was unable to obtain the FOIA records before trial. Without the records requested from the FBI, Abdul-Alim had nothing to corroborate his defense that the firearm had been planted. He alleges that these records could have: established times and dates of his meeting a FBI agent at a mosque; revealed the name of the FBI agent (which he now knows) who met with him and another law enforcement agent after his arrest and who could have been subpoenaed to give testimony at the trial. Abdul-Alim believes the FOIA records could have been material to his defense given that the jury twice reported being deadlocked before convicting him. Currently, he claims that the records could provide substance to a motion for new trial. Plaintiff advised the Massachusetts Appeals Court (“MAC”) of his FOIA request and that he hopes to obtain information which would corroborate his defense. The MAC in affirming Plaintiff's conviction, see Commonwealth v. Abdul-Alim, 91 Mass.App.Ct. 165 (2017), noted that he could file a post-conviction motion regarding the FBI records.[2]

         By letter dated January 31, 2014, the FBI acknowledged receipt of Robinson's request seeking information on behalf of Abdul-Alim. Additionally, the FBI advised Robinson that it was currently searching its Central Records System for responsive records and that he could check the status of his request at www.fbi.gov/foia. After numerous requests for status checks on the search, on March 13, 2014, the Public Information Officer (“PIO”) received a call from Robinson (or someone at his office) requesting an estimated date of completion. The PIO advised that the request was received on January 24, 2014, and assigned to the Initial Processing Unit. The PIO provided the current median processing time for requests at the initial processing stage. The PIO explained what occurs after the initial processing stage, and explained that processing times vary according to the size of the request.

         On April 1, 2014, Plaintiff filed his Complaint in this Court. By letter dated April 24, 2014, the FBI advised Robinson that it located approximately 5, 600 pages of paper records and 2 CDs consisting of audio recordings potentially responsive to the request.[3] By letter dated October 30, 2014, the FBI made its first interim release of records to Plaintiff. The FBI advised that 507 pages of records were reviewed and 274 pages of records were being released in full or in part. The records were denied in full pursuant to Exemption (j)(2) of the Privacy Act of 1974, 5 U.S.C.§552q(j)(2), but were processed pursuant to the FOIA to allow Plaintiff the greatest degree of access to them. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). The release letter failed to identify Exemption (b)(5) which was asserted in the processed records to withhold information on a number of pages. Additionally, the FBI advised that it referred for consultation, records which originated with or contained information concerning other government agencies (“OGAs”). The FBI informed Plaintiff it would correspond with him regarding this information when the consultations were finished. Plaintiff was also advised that he could appeal the FBI's determination to the Office of Information Policy (“OIP”) within sixty (60) days.[4]

         By letter dated November 25, 2014, the FBI made its second interim release of records to Plaintiff. The FBI advised that 631 pages of records were reviewed and 318 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). By letter dated December 22, 2014, the FBI made its third interim release of records to Plaintiff. The FBI advised that 534 pages of records were reviewed and 89 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). By letter dated March 31, 2015, the FBI made its fourth interim release of records to Plaintiff. The FBI advised that 1, 037 pages of records were reviewed and 268 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). By letter dated April 30, 2015, the FBI made its fifth interim release of records to Plaintiff. The FBI advised that 509 pages of records were reviewed and 216 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E).

         By letter dated May 29, 2015, the FBI made its sixth interim release of records to Plaintiff. The FBI advised that 182 pages of records were reviewed and 40 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(3), (b)(6), (b)(7)(C), and (b)(7)(D). By letter dated June 30, 2015, the FBI made its seventh interim release of records to Plaintiff. The FBI advised that 95 pages of records were reviewed and 30 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). The FBI advised that cross-references mentioning Abdul-Alim were processed and the FBI only considered for release pages mentioning Abdul-Alim, or pages that provided context for these mentions. By letter dated July 2, 2015, the FBI advised Robinson that the records released to him on June 30, 2015, had not been Bates stamped consistent with prior releases. Accordingly, the FBI was providing him a replacement CD containing the Bates stamped version of the records originally released to him in June 30, 2015, at no charge.

         By letter dated November 30, 2015, the FBI made its eighth interim release of records to Plaintiff. The FBI advised that 9 pages of records were reviewed and 2 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). The FBI advised that cross-references mentioning Abdul-Alim were processed and the FBI only considered for release pages mentioning Abdul-Alim, or pages that provided context for these mentions. The FBI further advised that a portion of the records previously sent to OGAs for consultation were returned to the FBI. As a result, in addition to the aforementioned pages, the FBI advised that 76 pages of records were reviewed and 65 pages of records were being released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E) and (b)(7)(F). Deletions were made by the Central intelligence Agency (“CIA”), Bureau of Prisons, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), and U.S. Immigration and Customs Enforcement (“ICE”). Plaintiff was instructed to write directly to these agencies, should he wish to appeal their denials and he could appeal the FBI's determination to OIP within 60 days.

         By letter dated February 4, 2016, the FBI made its ninth and final release of records to Plaintiff. The FBI advised that a portion of the records previously sent to OGAs for consultation were returned to the FBI. As a result, 124 pages of records were reviewed and 112 pages of records were released in full or in part. Information was withheld pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Deletions were made by CIA; the Executive Office of United States Attorneys; ATF; Department of Defense Office of Inspector General, Defense Criminal Investigative Service; Defense Intelligence Agency; Bureau of Customs and Border Protection, ICE, and the United States Marshall Service. Plaintiff was instructed to write directly to these agencies, should he wish to appeal their denials and that he could appeal the FBI's determination to OIP within 60 days.

         Plaintiff subsequently agreed to challenge only the withholdings on 30 specific pages. Those pages were produced to the Plaintiff with significant redactions. By e-mail dated July 27, 2016, Plaintiff's counsel indicated that the purpose of the request for the remaining 30 pages is his client's ongoing state court appeal of a conviction for the unlawful possession of a firearm. Explaining the circumstances surrounding Plaintiff's arrest, the letter details the specific information that is being sought through this final document request. This information details names and identifying information of law enforcement personnel, including an FBI Special Agent. Plaintiff's counsel wants to review these documents in hopes that they contain information which may help demonstrate that the firearm, which was the subject of Plaintiff's unlawful possession conviction, was planted on him due to his refusal to become a cooperative informant. By letter dated April 7, 2017, the FBI has provided Plaintiff's counsel a copy of the challenged pages containing the coded exemption markings. Plaintiff's counsel also sought a copy of the FBI report delineating a meeting between Abdul-Alim, a member of the joint counter-terrorism strike force, and an FBI agent. That document has never been produced by FBI, but came to Plaintiff obtained a copy through his present defense counsel (who is not the same counsel representing him in this case).

         Application of the FOIA Exemptions in This Case

         The Exemptions Invoked by the FBI

         The Defendants contend that all documents responsive to Plaintiff's request and subject to the FOIA were processed to achieve maximum disclosure consistent with the access provisions of the FOIA. Every effort was made to provide Plaintiff with all material in the public domain and with all reasonably segregable non-exempt information in the responsive records. No reasonably segregable, non-exempt portions have been withheld from Plaintiff. Further description of the information withheld, beyond what is provided in the declaration prepared by David M. Hardy (“Hardy”), the Section Chief of RIDS, could identify the actual exempt information that the FBI has protected. See Declaration of David M. Hardy, attached s Ex. 1 to Defs' Mem. (“Hardy Declaration”). The exemptions asserted by the FBI as grounds for non-disclosure of portions of the 30 pages being challenged by Plaintiff are FOIA exemptions 1, 3, 6, 7(C), 7(D) and 7(E), which are codified at 5 U.S.C. §§ 552 (b)(1), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). See generally id.

         The documents at issue contain, on their face, coded categories of exemptions that detail the nature of the information withheld pursuant to the provisions of the FOIA. The FBI asserted FOIA Exemption (b)(1) to protect classified information. The FBI's bases for the withholding of classified information contained in these documents is based on the standards articulated in the FOIA statute, 5 U.S.C. § 552(b)(1). Exemption (b)(1) protects from disclosure those records that are: (a) specifically authorized under criteria established by an Executive Order (“E.O.”) to be kept secret in the interest of national defense or foreign policy; and (b) are in fact properly classified pursuant to such Executive Order. The relevant executive order for the purposes of the present request is E.O. 13526, 75 Fed.Reg. 707 (Dec. 29, 2009)(“E.O. 13526”). The FBI asserted Exemption (b)(3) to withhold information which is protected by statute, specifically Section 102A(i)(1) of the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(1)(“Section 3014(i)(1)”). The FBI asserted FOIA exemption (b)(6) and (b)(7)(C) to protect against unwarranted invasions of privacy. 5 U.S.C. § 552(b)(6). 5 U.S.C. § 552(b)(7)(C). The FBI asserted FOIA exemption (7)(D) to protect confidential source information. 5 U.S.C. § 552(b)(7)(D). Specific details of the FBI's reasoning regarding the application of these exemptions will be saved for my discussion of whether the Defendants have established that invocation of these exemptions was justified.

         The FBI asserted FOIA exemption (b)(7)(E) to protect against the disclosure of investigative techniques and procedures. 5 U.S.C. § 552(b)(7)(E). The investigative techniques and procedures sought to be protected against this request concern the following: the collection and analysis of information in connection with both criminal and national security investigations; types and dates of investigations referenced in the records at issue, whether they be preliminary or full investigations; sensitive FBI case files and sub-file numbers; names of databases and database search results located through non-public databases used for official law enforcement purposes by the FBI and/or law enforcement personnel; information pertaining to the names, numbers, and/or alpha designators of certain sensitive FBI squads and units; specific sensitive law enforcement techniques utilized to conduct national security investigations; and information concerning locations, monitoring, and types of devices utilized in surveillances conducted by the FBI in relation to the investigation at issue.[5]

         Segregation of the Exempt Information from Non-Exempt Information

         Plaintiff has been provided all responsive non-exempt records or portions of records responsive to his FOIA request to the FBI. During the processing of Plaintiff's request, each responsive page was individually examined to identify for release non-exempt information that could be reasonably segregated from exempt information. All segregable information has been released to Plaintiff. The only information withheld by the FBI consists of information that would trigger reasonably foreseeable harm to one or more interests protected by the cited FOIA exemptions.

         Of the 30 pages of FBI documents the Plaintiff is challenging one page Released in Full (“RIF”) and 29 pages that were Released In Part (“RIP”) Each of these categories is discussed below to further address segregability.

(a) Page RIF. Following the segregability review, RIDS determined 1 page could be released in full without redaction as there was no foreseeable harm to any interest protected by a FOIA exemption.[6]
(b) Pages RIP. RIDS further determined, in some instances after consultation with another agency, that 29 pages could be released in part with redactions per the identified FOIA exemptions. These pages comprise a mixture of material that could be segregated for release and material that was withheld as release would trigger foreseeable harm to one or more interests protected by the cited FOIA exemptions on these pages. The protected material was either exempt itself or was so intertwined with non-exempt information that segregation of the non-exempt ...

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