Brace for Impact

Attorney Ana Toledo knocks it out...

Attorney Ana Toledo

Case 6:24-cv-00005, Federal District Court, Victoria, Texas

Judge David S. Morales, presiding

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Attorney Ana Toledo proves her lawyering skills with this case analysis. It doesn’t get better than this in the legal profession. Readers should be impressed…

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TJ filed a FOIA request more than 10 months ago requesting information from the FBI’s Terrorist Screening Database (TSDB). We requested:

“All documents containing all the identities removed from the Terrorist Screening Databases Handling Codes 3 and 4 due to the person’s death, including date of removal.”

(Keep in mind that dead people do not have privacy rights, under U.S. law. TJ filed this request because we know Targeted Individuals that have passed, including John McAfee, Dr Robert Duncan, etc.)

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The FBI and DOJ have filed a Motion for Summary Judgement (MSJ), and claim they do not need to provide any information, in violation of the FOIA Act. Attorney Ana Toledo has prepared an amazing response.

Note that FBI Agent & Attorney Michael G. Seidel, completely contradicts himself WHILE UNDER OATH. Read Below (22).

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*Footnotes have been deleted.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
TARGETED JUSTICE, INC.
Plaintiff, CIVIL NO. 6:24-cv-0005
vs.
FEDERAL BUREAU OF INVESTIGATION
Defendant.

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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION TO COMPEL

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TO THE HONORABLE COURT:
NOW COMES the Plaintiff, Targeted Justice, Inc., through its undersigned counsel,
and respectfully states and prays:

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I. INTRODUCTION
Without producing a single document responsive to the Freedom of Information Act
request Plaintiff served eleven months ago, Defendant FBI filed a Motion for Summary Judgment (MSJ) requesting the dismissal of the case. Defendant’s request relies on a conclusory statement made under penalty of perjury, in bad faith, that fails to set forth, undisputed material facts that warrant dismissal. The MSJ should be denied because it lacks factual, statutory and legal precedent in support of it.
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Plaintiff hereby submits its reply, with the prayer that the MSJ be denied, and
Defendant be compelled to immediately produce the records that it should have produced more than 10 months ago.

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II. STATEMENT OF GENUINE ISSUES OF MATERIAL FACTS THAT PRECLUDE SUMMARY JUDGMENT

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1. Targeted Justice, Inc. (TJ) is a news media organization engaged in disseminating
information among the public about actual or alleged Federal Government activity. TJ maintains the website www.targetedjustice.com, that averages 45,000 page views per month and publishes a newsletter in www.targetedjustice.substack.com that currently has over 17,000 subscribers and over 138,000 page views per month. SeeExhibit 1, ¶¶3-6.

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2. Hence, Plaintiff meets the criteria for a news media organization contained in 5
U.S.C. § 552(a)(6)(E)(v)(II). ECF No. 1 Par. 17.

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3. On October 31, 2023, Plaintiff served on the Defendant a FOIA request requesting the following records: “All documents containing all the identities removed from the Terrorist Screening Databases Handling Codes 3 and 4 due to the person’s death, including date of removal.” ECF No. 1, ¶21 and ECF No. 1-1.

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4.Plaintiff’s FOIA request reasonably described the records sought, allowing
Defendant to determine precisely what records were being requested.

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5 The twenty working days to fully reply to the FOIA would have expired on
November 28, 2023. 5 U.S.C. § 552(a)(6)(A)(i).

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6. Under 5 U.S.C. § 552(a)(6)(E) and as a representative of the news media, TJ invoked
its right to the expedited processing of the FOIA request on the grounds that there is a ”compelling need” for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about government integrity, actual or alleged government activity. See ECF No. 1-1, ¶4.

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7. Instead of producing any records, on November 6, 2023, Defendant sent a denial letter invoking multiple exceptions to justify the withholding of records, thus refusing to produce a single one. Defendant did not produce a Vaughn Index either. ECF No.1, ¶27 and ECF No. 1-2.

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8. Defendant’s violation of FOIA compelled Plaintiff to file the instant case on March 1st, 2024. ECF No. 1.

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9. On April 8, 2024, Defendant filed its Answer. ECF No. 8. It raised as affirmative defenses, inter alia, that it had not “unlawfully withheld any records within the meaning of the FOIA” (Id., 14, ¶1) and that “[p]laintiff is not entitled to compel production of any records that FOIA or another federal law exempts from disclosure.” (Id. at page 14, ¶2).

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10. On April 22, 2024, Plaintiff served discovery on Defendant regarding the answers to the complaint and affirmative defenses invoking exceptions to avoid production of records.

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11. On May 3, 2024, Defendant sought a protective order to avoid answering the discovery under F.R.Civ.Proc. 26(c). The motion did not allege or set forth good cause or a specific need for protection, nor did it comply with F.Civ. Proc.R 26(c)(1)’s required burden of establishing “annoyance, embarrassment, oppression, or undue burden or expense.” (ECF No. 9)

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12. Nonetheless, on May 6th, 2024 the Court stayed the discovery (ECF No.10) and on June 4, 2024, the Court granted the protective order (EDC No. 17).

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13. On June 13, 2024 the Court ordered Defendants to produce within 60 days the
documents responsive to the FOIA request.

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14. Defendant did not produce a single document responsive to the FOIA request.

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15. Instead, it submitted a Statement under Penalty of Perjury signed by Mr. Michael G. Seidel dated August 9th, 2024 (“the Statement”) as well as copies of the FOIA request and the administrative procedure correspondence.

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16. Neither did Defendant produce a Vaughn Index of the records withheld. See Vaughn v. Rosen, 424 F.2d 820 (D.C. Cir. 1973).

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17. On September 11, 2024, Defendant submitted the Statement and its exhibits as the only documents in support of its MSJ. ECF No. 20-1.

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18. Defendant did not include along its MSJ, a Statement of Material Facts as to Which There Is No Genuine Issue, as required in F.Civ.PRoc.R. 56.
THE STATEMENT UNDER PENALTY OF PERJURY (ECF No. 20-1)

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19. Pages 1-2 of the Statement constitute boilerplate statements found in Mr. Seidel’s prior sworn declarations provided in the recent FOIA case Wright v. FBI. See Exhibits 2, 3, and 4.

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20. The Statement does not assert that any of the records requested are classified.
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21. Contrary to what Defendant represented to this Court in various documents
covered by F. Civ. Proc. R. 11, the Statement does not assert that any of the records requested is covered by any FOIA exemption.

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22. The Statement asserts that Defendant did not carry out “a standard search of the CRS” because it “would be unlikely to locate records.” ECF 20-1, ¶11. The Statement specifically provides:

11. In response to most FOIA requests received by the FBI, the FBI conducts a search of the Central Records System (CRS) to determine if the FBI has records about a particular subject. The CRS is where the FBI indexes information about individuals, organizations, events, or other subjects of investigative interest for future retrieval. Such information would reasonably be expected to be located in the CRS by the index search methodology. However, after reviewing Plaintiff’s FOIA request, the FBI determined that a standard search of the CRS would be unlikely to locate records potentially responsive to Plaintiff’s request because there is no specific indexable term associated with the records sought and the records are not directly connected with a specific investigation, program, subject, event, or initiative that would be indexed in the
CRS. (Emphasis added).

22b. The above statement is inaccurate, misleading, and inconsistent with a prior
declaration by Mr. Seidel. Contrary to the statement above, in previous Statement under Penalty of Perjury submitted in Wright v. FBI, supra, Mr. Seidel made a different representation to the Court. Mr. Seidel specifically asserted that beyond a mere “index”, the CRS :

(39) “…is an extensive system of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its mission and integrated functions as a law enforcement, counterterrorism, and intelligence agency to include performance of administrative and personnel functions. The CRS
spans the entire FBI organization and encompasses the records of FBI Headquarters (“FBIHQ”), FBI field offices, and FBI Legal Attaché offices (“Legats”) worldwide. See Exhibit 2, emphasis ours.

23. It is an uncontroverted fact admitted by Mr. Seidel in the Statement in this case that the FBI did not carry out a basic CRS search to reply to Plaintiff’s FOIA request even though in other documents signed by him he admits that the CRS “[s]pans the entire FBI organization.”.

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24. In Wright v. FBI, supra, Mr. Seidel also went on to discuss in detail the additional databases that the FBI searched and genuinely extraordinary efforts carried out to fulfill its obligation under the FOIA, including searching both the Sentinel system and its prior version, the Automated Case Support (“ACS”). See Exhibit 2, ¶¶ 43-45.3

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25. It is an uncontroverted fact that Mr. Seidel does not assert in the Statement of this case that Defendant searched the Sentinel or ACS to fulfill its obligations under FOIA regarding the request object of this case.

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26. Mr. Seidel went on to further assert in the Statement submitted in the case at bar:
12)….the FBI took the extraordinary step of conducting a targeted search
outside the CRS… via RIDS, [and] conducted a targeted search of the Terrorist
Screening Center (TSC) because the FBI determined that the TSC was the most
reasonably likely location to house responsive records since the TSC is
responsible for the development, maintenance, and administration of the
Terrorist Screening Dataset (TSDS) to which the records sought pertain…and
failed to locate any records responsive to Plaintiff’s request.”(Excerpts from ECF
20-1, ¶¶12,13, emphasis added).

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27. Mr. Seidel’s Statement does not deny the fact that Defendant FBI has the specific
information requested and that the documents can be produced though “the cooperation of numerous offices utilizing multiple databases to create a new set of records.” (ECF 20-1, ¶13). The conclusory Statement does fail to specify under oath what “numerous” consists of.

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28. Mr. Seidel did not assert under oath and in detail that the search for the records
requested is unduly burdensome as to preclude production.

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29. Consequently, from Mr. Seidel’s Statement, this Court can conclude that the following are undisputed facts:
a) The requested records exist;
b) Defendant has located them;
c) Defendant admits can cull them;
d) They are not exempted under FOIA; but
e) Defendant has not produced them.

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30. Conversely, in the Wright case, Defendant had no qualms about carrying out
additional tasks to comply with the FOIA:
(54) …Therefore, in view of the purpose, design, and organization of the
information stored in the CRS, the FBI conducted searches outside of the CRS to
locate records potentially responsive to Plaintiff’s request for records related to
CVE. In situations such as this where the subject matter of a FOIPA request does
not lend itself to the standard CRS search, RIDS practice is to conduct a more
individualized inquiry of specific FBI divisions and offices deemed reasonably
likely to possess potentially responsive records, based on the subject matter of
the request. Exhibit 2, ¶54.

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31. In Wright, Defendant FBI went beyond the simple search that the instant case
requires to produce the non-exempted, disclosable records under FOIA. In one of his
statements in Wright, Mr. Seidel explained the extraordinary search that FBI carried out to comply with the FOIA request.:
(55) Consequently, RIDS sent electronic communications (“EC”) to the FBI’s
Office of Partner Engagement (“OPE”) Violence Reduction Unit (“VRU”), Office
of Congressional Affairs (“OCA”),20 Training Division (“TD”),21
Counterterrorism Division (“CTD”), and Office of the Executive Secretariat
(“ExecSec”), requesting that each office conduct searches of its internal database
systems, as well as its paper files, for records responsive to Plaintiff’s request.
RIDS determined that these offices were the FBI entities likely to have either
created, implemented, utilized, maintained, or reviewed records responsive to
Plaintiff’s request, because of their responsibilities and functions within the FBI.
See Exhibit 2,¶55.

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32. The FOIA does not contemplate an exception to production of records because
multiple databases have to be searched to comply with the law.

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33. Compare Defendant FBI’s FOIA compliance documented in Exhibits 2, 3 and 4
submitted in Wright v. FBI, supra, where Mr. Seidel further admitted under penalty of perjury the following:
(48) Responsiveness determinations are made once indexed records are
gathered, analyzed, and sorted by FOIPA analysts who then make informed
scoping decisions to determine the total pool of records responsive to an
individual request. See Exhibit 2, ¶48.

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34. Even though Mr. Seidel asserted in the Statement he provided in this case that
“[t]he FBI performed adequate and reasonable searches for records” (ECF 20-1, ¶15), he:
Admitted the agency did not carry out a CRS search.
• Did not state the agency carried out a Sentinel and ACS search.
• Failed to identify the components of the search it carried out to ensure the
agency complied with the required elements of the adequacy of a search, as
it documented in his prior statements attached as exhibits hereto (Exhibit 1:
Dkt 33-3 page 24; Exhibit 2 Dkt 41-4 page 15). To wit: Index Searching, CRS
Index Search, Text Search, and Targeted Search and what did each comprise.
• Did not assert that a single FOIPA analyst made any determination after
Indexing, gathering, analyzing, and sorting records.
• Did not assert that a manual search was performed.
• Admitted that the records could be produced through a search of various
databases, but Defendant did not carry the search out.

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35. The Statement does not assert that Defendant FBI reviewed a single responsive record to comply with the FOIA or this Court’s order.

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36. Defendant FBI relied on the statements of an unidentified employee at the Terrorist Screening Center to assert that “the record does not contain details of an individual’s death as a data point.”. See ECF 20-1, ¶13.

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37. In light of the facts set forth above, it is an uncontroverted fact that Defendant FBI did not carry an adequate search for the records requested.

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38. Consequently, Mr. Seidel’s assertion contained in the Statement’s paragraph 15 that Defendant FBI carried out an adequate search is a false statement of fact set forth in bad faith.

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39. Mr. Seidel’s three exhaustive declarations in the Wright case documenting
Defendant FBI’s production of documents in that case demonstrates prima facie the agency’s bad faith in refusing to produce the documents in this case as well as its intention of disregarding its obligation under the FOIA and targeted discrimination against Plaintiff TJ in the handling of its FOIA request. See Exhibits 2, 3, and 4.

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III. ARGUMENT
The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1977). The FOIA was enacted to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010), quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). The FOIA requires federal agencies to comply with the requests to make their records available to the public unless such information is exempted under one of nine clearly delineated statutory exemptions. 5 U.S.C. § 552(a)-(b). It advances
“the citizens’ right to be informed about what their government is up to.” Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989). “FOIA mandates a strong presumption in favor of disclosure.” Nat’l Assoc. of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).

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In FOIA litigation, as in all civil cases, summary judgment is appropriate only when
the pleadings and declarations demonstrate that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242. (1986); SeeFed.R.Civ.P.56(c).In reviewing a motion for summary judgment under FOIA, the court must view the facts in the light most favorable to the requester. See Weisberg v. U.S. Dep't of Just., 745 F.2d 1476, 1485, 240 U.S. App. D.C. 339 (D.C. Cir. 1984).

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The adequacy of the agency’s search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, non-conclusory affidavits submitted in good faith. Steinberg v. U.S. Dep’t of Just., 23 F.3d 548, 551 (D.C. Cir. 1994) (internal citations omitted).

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An agency cannot rely on conclusory supporting affidavits to avoid complying with
the Act. SafeCard Servs. v. U.S. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200, 288 U.S. App. D.C. 324 (D.C. Cir. 1991) (citation omitted). The agency’s declaration in support of Summary Judgment is not entitled to a presumption of good faith if it is not detailed and factually supported. Id., 926 F.2d at 1200. Conclusory declarations are not sufficient to demonstrate that the records sought are exempt from disclosure. 5 U.S.C. § 552(a)(4)(B). When a plaintiff demonstrates 'specific facts' that establish that there is genuine issue with respect to whether the agency has improperly withheld records, summary judgment is not appropriate. United States DOJ v.Tax Analysts, 492 U.S. 136, 142 (1989).

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GROUNDS FOR DENIAL OF MSJ

The inconsistent declarations by Mr. Seidel on behalf of Defendant FBI in this and the Wright case demonstrate Defendant’s bad faith, precluding summary judgment in its favor.

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Defendant’s Statements establish that in this case, it did not carry out an adequate
search as required under the FOIA. An adequate search is one where the agency uses
“methods which can be reasonably expected to produce the information requested.” Batton v. Evers, 598 F.3d 169, 176 (5th Cir. 2010) Defendant has admitted to locating the records, knowing how to produce them but yet refuses to do so. Defendant’s search was not an adequate one and Mr. Seidel’s Statement does not suffice. “An agency may sustain its burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than merely conclusory statements.’” Lindsey v. FBI, 490 F. Supp. 3d 1, 9 (D.D.C. 2020) (quoting Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008)).

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The records sought were specified in detail, are not exempted from production, were located, are susceptible of their production without presenting an undue burden on the agency, and not a single one has been produced.

Defendant’s Statement is not only conclusory, but contradicted by its own affiant’s prior statement provided in prior FOIA cases. This situation demonstrates Defendant’s bad faith, warrants the Court’s close examination, as well as the potential imposition of sanctions on both Defendant and Mr. Seidel for misrepresenting the truth to the Court, violating the FOIA, and unnecessarily delaying a judicial procedure.

Summary judgment is not warranted. There is genuine controversy of material facts regarding the inadequacy of Defendant’s search for the documents requested, and no colorable grounds that justify their denial.

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IV. CONCLUSION

Defendant admitted under Penalty of Perjury that the records that TJ requested under FOIA exist, are not exempted, and can be culled by its personnel through a search in various databases as it has done and documented in other FOIA cases such as Wright v. FBI.

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Defendant FBI’s refusal to produce the requested records demonstrates the agency’s improper and unjustified discrimination against Plaintiff TJ. Furthermore, it causes TJ, a news media organization, irreparable harm as it interferes with its mission and First Amendment right to inform the public about the workings of the government. See Exhibit 1, ¶8.

In light of the statement disputed facts set forth in detail in section II supra, as well as the stark contrast between Defendant’s conduct in the Wright case vis a vis this one as documented in Mr. Seidel’s declarations, there exists genuine issues of material fact in controversy that preclude summary judgment.

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WHEREFORE, Plaintiff Targeted Justice Inc., respectfully requests that this Court DENY Defendant FBI’s MSJ and consequently ORDER Defendant FBI to immediately produce the records requested, now ten months overdue.

RESPECTFULLY SUBMITTED.

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Dated: October 2, 2024.

/s/Ana Luisa Toledo

ANA LUISA TOLEDO

Attorney for Plaintiffs

PO Box 15990

Houston, TX 77220

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