UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEOFFREY NELS FIEGER,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

 /

Civil No. 2:08-14125

Hon. David M. Lawson

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

This Court should grant the Commission’s motion for summary judgment for the

following reasons.

1. Plaintiff lacks standing to seek review of attorney’s FOIA requests. Without citation

to any authority, plaintiff claims that he has standing to seek judicial review of FOIA requests

made by his attorney simply because he alleged in his complaint that he made such request “by

and through his attorney.” Pl. Opp’n at 5 (citing Doc. No. 26 at ¶¶ 6, 10). But the fact remains

that this Court lacks subject matter jurisdiction because plaintiff’s individual “name does not

appear on [either] request for records.” McDonnell v. U.S., 4 F.3d 1227, 1236-37 (3rd Cir. 1993)

(emphasis added). As a result, plaintiff “has not made a formal request within the meaning of

the statute[, and thus] . . . . has no [judicially enforceable] right to receive . . . the documents.”

Id. 

Plaintiff claims that that the agency waived the right to challenge plaintiff’s standing

because the agency processed the requests “without objection.” Pl. Opp’n at 5. However,

Case 2:08-cv-14125-DML-DAS Document 44 Filed 10/15/2009 Page 1 of 6
“[s]tanding is not an affirmative defense that must be raised at risk of forfeiture.” Community

First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir.1994). Moreover, the FEC

does not contest the validity of the requests that were made by plaintiff’s attorney. However, “an

attorney must adequately identify that he is making the FOIA request for his client in order for

the client to have standing to pursue a FOIA action.” Three Forks Ranch Corp. v. The Bureau of

Land Mgt., 358 F. Supp. 2d 1, 3 (D.D.C. 2005). This plaintiff’s attorney’s requests failed to do. 

See Exs. A & B to Def. Mot. for Sum. J. (Doc. No. 44). Thus, plaintiff lacks standing.

2. The Commission’s search for records responsive to the requests for records was

adequate under the FOIA. A plaintiff may challenge the adequacy of an agency’s FOIA search

not by questioning whether “it actually uncovered every document extant,” but rather only by

challenging “whether the search was reasonably calculated to discover the requested documents.” 

Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Despite this clearly

established precedent, plaintiff’s challenge to the adequacy of the Commission’s search is

confined solely to the FEC’s initial failure to find a particular record responsive to one of the

requests. Pl. Opp’n at 6. “But it is long settled that the failure of an agency to turn up one

specific document in its search does not alone render a search inadequate.” Duenas Iturralde v.

Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Moreover, although plaintiff

claims that the record was “never produced,” Pl. Opp’n at 6, the fact is that the agency later

search, located, and produced the responsive document, both to plaintiff and to the Court. See

Declaration of Lawrence Calvert (“Calvert Decl.”) ¶ 34 [Attached as Ex. G to Def. Mot. for Sum.

J.]; Doc. No. 30-2. As this Court has already correctly determined, the agency’s initial failure to

locate this document does not demonstrate bad faith. Hrg. Tr. on Mot. for Leave to Conduct

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Discovery, at 31:8-9 (Apr. 16, 2009) [Attached as Ex. H to Def.’s Mot. for Sum. J.]. Accord

Nat’l Inst. of Military Justice v. U.S. Dep’t of Defense, 404 F. Supp. 2d 325, 333 (D.D.C. 2005). 

Rather, the FEC’s additional search and disclosure of this record are sufficient evidence that the

agency conducted its search in good faith rather than evidence of bad faith or an inadequate

search. See Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999); W. Ctr. for

Journalism v. IRS, 116 F. Supp. 2d 1, 10 (D.D.C. 2000). Thus, plaintiff fails to legitimately

challenge the adequacy of the search.

3. Plaintiff does not challenge the Commission’s invocation of Exemptions 2, 3, 5 and

7(A). Although plaintiff claims to “contest[] many” of the FEC’s withholding determinations,

plaintiff actually challenges only the FEC’s redaction of purely personal information under FOIA

Exemption 6. See Pl. Opp’n at 7. In the absence of any challenge to the agency’s withholding of

information under FOIA Exemptions 2, 3, 5, and 7(A), this Court should grant defendant’s

motion for summary judgment with respect to these exemption determinations. See, e.g., Buggs

v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (when “a plaintiff files an opposition to a

dispositive motion and addresses only certain arguments raised by the defendant, a court may

treat those arguments that the plaintiff failed to address as conceded.”). 

4. The Commission Properly Withheld Personal Information Under FOIA Exemption 6. 

Although the Commission provided plaintiff’s counsel with all documents about which plaintiff

now seeks further disclosure, the agency properly redacted personal information about

government employees and the identities of job applicants under Exemption 6. See, e.g.,

Cowdery, Ecker & Murphy, LLC v. Dep’t of Interior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007)

(proper to withhold personal information about government employees); Core v. U.S. Postal

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Serv., 730 F.2d 946, 948-49 (4th Cir. 1984) (proper to withhold identity of job applicants). First,

contrary to plaintiff’s unsupported claim, Pl. Opp’n at 7, all information that “applies to a

particular individual” meets the threshold requirement for Exemption 6 protection. U.S. Dep’t of

State v. Washington Post Co., 456 U.S. 595, 602 (1982). Second, plaintiff claims that

information disclosed in documents at Bates Nos. 872, 880, 898, 973-74, and 1007 “seem to

suggest that certain individuals, including political appointees, were seeking favors and/ or quid

pro quo appointments to top government positions,” to such a degree that the identities of

individuals and other private information must also be disclosed. Pl. Opp’n at 7. However,

because these documents do not in any way support such a contention, plaintiff’s allegation is

insufficient. Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 175 (2004) (requiring a

“meaningful evidentiary showing” to overcome privacy interest). Moreover, information that

does not directly reveal the operations or activities of the federal government “falls outside the

ambit of the public interest that the FOIA was enacted to serve.” Reporters Cmte. for Freedom

of the Press v. Dep’t of Justice, 489 U.S. 749, 775 (1989). Here, in light of all the information in

the documents that has already been disclosed, “there is no reason to believe that the public

[would] obtain a better understanding of the workings of various agencies by learning” the purely

personal information or identities of job applicants that was withheld. Voinche v. FBI, 940 F.

Supp. 323, 330 (D.D.C. 1996), aff’d, 1997 WL 411685 (D.C. Cir. June 19, 1997). Thus, the

public interest in disclosure of the private information is non-existent. 

5. This Court need not review the withheld portions of the documents in camera.

Although the FOIA authorizes the court to review the withheld records, or a sample of the

withheld records, in camera, Simon v. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir. 1992),

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“[t]he in camera review provision is discretionary by its terms, and is designed to be invoked

[only] when the issue before the District Court could not be otherwise resolved.” NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). In this case, the agency’s declaration, see

Ex. G, and Vaughn index, Ex. I, provide sufficient detail to review the propriety of the agency’s

withholding determinations, and allow the Court to find that each determination was proper. 

Carbe v. Bureau of Alcohol, Tobacco, and Firearms, 2004 WL 2051359, at *8 n.5 (D.D.C. Aug.

12, 2004) (denying plaintiff’s request for in camera inspection, because Vaughn Index

adequately described withheld information). Accordingly, especially in the absence of bad faith,

this Court need not burden itself with reviewing the withheld documents in camera.

In sum, this Court should grant the Commission’s motion for summary judgment.

Dated: October 15, 2009 Respectfully Submitted, 

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

HARRY J. SUMMERS

Assistant General Counsel

/s/ Greg J. Mueller

GREG J. MUELLER

Attorney

FEDERAL ELECTION

COMMISSION

999 E Street, N.W.

Washington, DC 20463

Phone: (202) 694-1650

Email: gmueller@fec.gov

TONY WEST

Assistant Attorney General

TERRENCE BERG

United States Attorney

DERRI T. THOMAS, Assistant U.S. Attorney

211 W. Fort Street, Suite 2001, Detroit, MI 48226

E-mail: derri.thomas@usdoj.gov (P53439)

/s/ James D. Todd, Jr.

JOHN R. TYLER, Assistant Director 

JAMES D. TODD, JR., Senior Counsel

U.S. DEPARTMENT OF JUSTICE

Civil Division, Federal Programs Branch

20 Massachusetts Avenue N.W.

Washington, DC 20001

Phone: (202) 514-3378

Email: james.todd@usdoj.gov

Attorneys for Defendant

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Case 2:08-cv-14125-DML-DAS Document 44 Filed 10/15/2009 Page 5 of 6
CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 15, 2009, he filed the foregoing

document with the Court’s ECF system, through which a copy will be emailed to the following

counsel of record:

Michael R. Dezsi, Esq.

FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, P.C.

19390 West Ten Mile Road

Southfield, Michigan 48075

m.dezsi@fiegerlaw.com

Attorney for Plaintiff

/s/ James D. Todd, Jr.

JAMES D. TODD, JR.

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