Brown v. Federal Bureau of Investigation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GARY SEBASTIAN BROWN III,

Case No. 6:20-cv-01734-MC

Plaintiff,

v. OPINION AND ORDER

FEDERAL BUREAU OF INVESTIGATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Gary Sebastian Brown III, a pro se litigant in custody at the Oregon Department

of Corrections, brings suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

against Defendant Federal Bureau of Investigation (“FBI”). Plaintiff alleges Defendant

improperly denied his FOIA request. Defendant moves for summary judgment, arguing it

correctly denied Plaintiff’s request based on two FOIA exemptions. Because Plaintiff failed to

provide sufficient evidence of a significant public interest in the disclosure of the exempted

information, Defendant’s Motion for Summary Judgment, ECF No. 35, is GRANTED.

BACKGROUND

Plaintiff filed a FOIA request with Defendant on October 10, 2019. Pl.’s Compl. 2, ECF

No. 2. He requested records containing “any witness accounts, narratives, or statements” of Sally

Abdelmageed, a witness of a mass shooting at the Inland Regional Center in San Bernardino,

California in December 2015. Pl.’s Compl. Ex. 1, at 1. Defendant provided a Glomar response1

1 A “Glomar response” is used to neither confirm nor deny the existence of requested documents where a FOIA

exemption would preclude acknowledgement of such documents. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.

denying Plaintiff’s request, citing two FOIA exemptions for protecting the personal privacy of

third parties. Pl.’s Compl. Ex. 2, at 1. Plaintiff filed an appeal with the Office of Information

Policy (“OIP”), arguing the public interest in the disclosure of the requested records outweighed

the asserted privacy interest. Pl.’s Compl. Ex. 3, at 1. The OIP affirmed Defendant’s Glomar

response and denied Plaintiff’s request, after which Plaintiff contacted the Office of Government

Information Services (“OGIS”). Pl.’s Compl. Ex. 4, at 1; Ex. 5, at 1. The OGIS affirmed

Defendant’s Glomar response and closed Plaintiff’s claim. Pl.’s Compl. Ex. 6, at 1–2.

STANDARDS

The Court must grant summary judgment if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is

“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.

Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The

Court reviews evidence and draws inferences in the light most favorable to the non-moving

party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006). When the moving

party has met its burden, the non-moving party must present “specific facts showing that there is

a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–

87 (1986) (quoting Fed. R. Civ. P. 56(e)).

1976); Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). An agency may properly issue a Glomar response to assert a

particular FOIA statutory exemption. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009); Hunt v. CIA,

981 F.2d 1116, 1117–18 (9th Cir. 1992). Here, Defendant’s Glomar response refused to confirm or deny the

existence of investigative records related to Ms. Abdelmageed so as not to constitute an unwarranted invasion of her

personal privacy. See Seidel Decl. ⁋ 5, 7, ECF No. 36; Pl.’s Compl. Ex. 2.

DISCUSSION

The purpose of the FOIA is to “ensure an informed citizenry, vital to the functioning of a

democratic society, needed to check against corruption and to hold the governors accountable to

the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). Disclosure, rather than secrecy, “is the

dominant objective of the Act.” Id. Accordingly, any person has the right to request and obtain

access to certain government records unless the records are protected from disclosure by a

statutory exemption. See 5 U.S.C. § 552.

As relevant here, Exemptions 6 and 7 concern disclosure of third-party information and

personal privacy. Under Exemption 6, disclosure is not required for “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). Under Exemption 7(C), disclosure is not required for

“records or information compiled for law enforcement purposes, but only to the extent that the

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).

When a privacy interest is protected by Exemption 7(C), the person requesting

information must provide sufficient evidence of a significant public interest in the disclosure of

the requested material. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004). If a

plaintiff asserts as the significant public interest that officials acted negligently or improperly in

the performance of their duties, the plaintiff must “establish more than a bare suspicion in order

to obtain disclosure.” Id. at 174. The evidence must “warrant a belief by a reasonable person that

the alleged Government impropriety might have occurred.” Id.; see also Lahr v. NTSB, 569 F.3d

964, 978 (9th Cir. 2009) (“[T]he evidence must show some nexus between the specific requested

information and unveiling agency misconduct.”).

Plaintiff concedes that his request constitutes an invasion of Ms. Abdelmageed’s

privacy.2 Pl.’s Resp. to Def.’s Mot. Summ. J. 13, ECF No. 40. Relying on Favish, he argues that

Ms. Abdelmageed’s witness statements will help reveal government misconduct which

outweighs the asserted privacy interest. Id. at 16–18. The respondent in Favish, similar to

Plaintiff here, believed government misconduct was afoot in the investigation of Vince Foster’s

death, who served as former Deputy Counsel to former President Clinton. 541 U.S. at 160–61.

Mr. Favish requested 10 death-scene photos of Foster, disbelieving the government’s conclusion

that Foster committed suicide. Id. at 161.

The Office of Independent Counsel denied Mr. Favish’s request under FOIA exemption

7(C), claiming the release of the photos would constitute an unreasonable invasion of personal

privacy. Id. The Supreme Court recognized that the “asserted public interest in uncovering

deficiencies or misfeasance in the Government’s investigations” is significant. Id. at 173. Even

so, to outweigh the privacy interest protected by Exemption 7(C), the Court held a FOIA

requester must produce evidence that warrants a reasonable belief that the alleged government

misconduct might have occurred. Id. at 174. The Court found Mr. Favish’s mere skepticism

insufficient. Id. at 175.

2 Plaintiff argues the Court should give little weight to Ms. Abdelmageed’s privacy interest because she gave public

statements and participated in interviews about the shooting. Pl.’s Resp. 14. The Court finds little merit in this

argument. Courts have consistently held that persons mentioned in law enforcement records, including witnesses,

have strong privacy interests which Exemption 7(C) protects. See Ayuda, Inc. v. FTC, 70 F. Supp. 3d 247, 273–74

(D.D.C. 2014); Lahr v. NTSB, 569 F.3d 964, 975 (9th Cir. 2009); Favish, 541 U.S. at 174. Ms. Abdelmageed’s

private statements to the FBI, if they exist, may differ drastically from what she chose to publicly disclose. And even

if the Court gave less weight to Ms. Abdelmageed’s privacy interest, Plaintiff still fails to provide any evidence

sufficient to warrant a reasonable belief of government impropriety.

Plaintiff alleges the officials who investigated the San Bernardino shooting acted

improperly by falsifying details of the incident. Pl.’s Compl. Ex. 3, at 2–3. In particular, Plaintiff

believes officials presented a fabricated story to the public and the media to cover up an episode

of state terrorism by government “death squads.”3 Id. at 3–4. Plaintiff points to the statements of

several witnesses of the shooting, including Ms. Abdelmageed, who described a team of men as

the true perpetrators of the shooting. Id. at 4. These descriptions, according to Plaintiff, were

“overtly military in appearance” and differed drastically from the shooters the FBI identified. Id.

Plaintiff’s evidence includes a news article about the shooting which shows the FBI

identified only two shooters while witnesses claimed to see three shooters. Pl.’s Resp. Ex. C.

Also included are two articles about another mass shooting in Florida in 2017, where witnesses

showed a similar sense of confusion surrounding the number of shooters. Pl.’s Resp. Exs. D–E.

According to Plaintiff, his evidence suggests “a covert military operation designed as a form of

political suppression and social control.” Pl.’s Compl. Ex. 3, at 4. Specifically, Plaintiff believes

the government is using death squads to commit mass shootings to “alter the public’s perspective

on the Second Amendment to the United States Constitution.” Pl.’s Resp. 31.

Plaintiff provides no evidence to support his theory that the San Bernardino shooting was

an episode of state-sponsored terrorism, or that the FBI fabricated a story to cover up said

episode. Plaintiff’s news articles and evidence of witness statements merely reflect that some

witnesses saw three shooters, while the FBI was able to affirmatively identify only two shooters.

Plaintiff provides nothing more than a “bare suspicion” of government impropriety which does

not “warrant a belief by a reasonable person” that the government staged the shooting using

death squads or engaged in a coverup. See Favish, 541 U.S. at 174. Plaintiff has therefore failed

3 “Death squad” is a term of art coined by Plaintiff. He defines it as “an armed group whose primary activity is

carrying out extra judicial killings or forced disappearances as part of political repression.” Pl.’s Resp. 30–31.

to provide sufficient evidence of a significant public interest in the disclosure of Ms.

Abdelmageed’s statements that outweighs her personal privacy interests.

CONCLUSION

For the reasons stated above, Defendant’s Motion for Summary Judgment, ECF No. 35,

is GRANTED.

IT IS SO ORDERED.

DATED this 25th day of March, 2022.

/s/ Michael McShane

Michael McShane

United States District Judge