MICHAEL SUSS MAN, P laintif f,
v. UNITED STAT ES MARSHALS SERVICE, Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 03-610 (HHK )

MEMORAN DUM OP INION AND ORDER Michae l Sussm an, proc eeding pro se , bring s this action ag ainst the United States Marsha ls Service ( “USMS” or “A g ency ”) a lleg ing violations of the F ree dom of Information Ac t (“F OIA”) , 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The c ase a rises fr om Sussman’s reque st from the USMS for re cords pe rtainingto himself as well as his complaints about improper disc losure of infor mation about him to thi rd par ties. Be fore the Court is the USMS’s second re newe d motion for summary judgme nt [ #93]. Upon consideration of the motion, the opposit ion thereto, a nd the re cord of

this case, the Court c oncludes that the motion should be g rante d in part and de nied in part. I
. BACK GR OUND Sussman first filed this action in March 2003. The Court resolved some por tions of the
case in August 2004. See Sussman v . U.S. Marshals Serv. , slip op. (D.D.C. Aug . 3, 2004). In October 2005, it gr anted summary judgme nt as to all remaining claims in favor

of the Ag ency . See Sussman v . U.S. Marshals Serv. , 2005 WL3213912 (D.D.C. Oc t. 13, 2005). Sussman appea led, and in Jul y

2007, the Court of Appe als for the District of Columbia Circuit affirme dpart of this Court’s dec ision and vacated and r emande d the re mainder f or fur ther proc eeding s. See Sussman v . U.S. Marshals Serv., 494 F.3d 1106, 1124 ( D.C. Cir. 2007). In September 2009, this Court denied cross-motions for summary judgme nt. See Sussman v . U.S. Marshals Serv. , Slip Op. (D.D.C. September 25, 2009). T hese opinions lay out the history

of the c ase, which the Court will not repeat in deta il here. In short, Sussman seeks, pursuant to F OIA and the Priva cy Act, re cords in the USMS’s possession relatingto or ref ere ncinghimself. The Ag ency has documents per

taining to Sussman bec ause the USMS conducted a thre at investig ation of him afte r he se nt a letter to the home of a f eder al judg e. In addition, some materials re sponsive to Sussman’s reque st appea

r in Ag ency

rec ords re g ardingan individual named Ke ith May dak, who
was a business associate of Sussman’s and who ma y have use d Sussman’s name as a n alias. Sussman also brings c laims for violation of the Privac y Act’s pr ohibition on t he Ag ency ’s disclosing infor

mation about Sussman to thi rd par ties. After rema nd from the D.C. Circuit and a narr owingof issues by

the par ties, the followingcause s of ac tion remain: portions of Count I , which see ks disclosure of r ecor ds pursuant to FO IA; Count I I , which see ks disclosure of r ecor ds under the Priva cy Act; Count I I I , which see ks damag es under the Privacy

Act for failure to keep a

n acc urate acc ounting of disclosures of infor

mation about Sussman by the USMS; and Count VI I , which see ks damag es under the Privacy

Act base d on alleg ed unlawf ul disclosures of infor

mation reg ardingSussman by the Ag ency . The USMS moves for summary judgme nt as to all of these r emainingissues.

2II
. LEGAL STANDARD

Summary judgme nt is appropriate if “the ple ading s, the discover y and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgment a s a matter of law.” F ed. R. Civ. P. 56(c). In a F OIA ac tion challeng ing a n ag ency ’s invocation of e x emptions to it s disclosure obligation, the ag ency

must just ify

its reliance on those exemptions t hrough the submission t o the court of a so-ca lled “ Vaughn index,” affidavits or de clar ations, or both. Defende rs of W ildlif e v. U.S. Border Patrol , 623 F. Supp. 2d 83, 88 (D.D .C. 2009); see also Vaughn v. Rose n , 484 F.2d 820, 827-28 (D.C. Cir 1973). The Court may awa rd summary

judgme nt solely

on the 1 information provided in such a ffidavits or de clar ations if they descr ibe “the justifications for nondisclosure with re asonably specific detail, demonstrate that the information withheld log ically falls within the claimed e x emption, and ar e not controve rted by either c ontrary

evidenc e in the
rec ord nor by

evidenc e of a g ency

bad fa ith.” Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). Her e, the USMS has submitted with it s second r enew ed motion for summary judgme nt the Four th Supplemental Decla

ration of William E. Bordley , Associate G ener al Counsel and Fr eedom of

Information/Privacy

Act Of fice r of the U SMS (“F ourth Bor dley Dec l.”), a

nd an
acc ompanying Vaughn Index. To address withholdings f rom an a dditional six pag es of r ecor ds
A Vaughn index “mustadequately descr ibe ea ch withheld docume nt, state which 1 exemption t he ag ency

claims for e ach w ithheld document, and e x plain the exemption’s rele vance .” Johnson v. Ex ecutiveOffice for U.S. Att’ys , 310 F.3d 771, 774 ( D.C. Cir. 2002). “[T] he pre cise for

m of the ag ency ’s submission—whether it be an inde x , a deta iled decla ration, or a na rrative—is imm ater ial.” People for the Am . W ay Found. v . U.S. Dep’ t of Educ. , 516 F. Supp. 2d 28, 34 (D.D.C. 2007) (c iting Gallant v. Nat’l Labor Relations Bd. , 26 F.3d 168, 173 (D.C. Cir. 1994)). 3disclosed af ter its motion was filed, the Ag ency has submitted the Fifth Supplemental Dec laration of Bor dley

(“F ifth Bor dley

Dec l.”) a nd an ac company

ing Vaughn Index. Finally , it provided a

Six th Supplemental Decla ration of B ordley

(“Six th Bordle y

Dec l.”) to addr ess questions raised by

the Court for pur

poses of c larification. III
. ANALYSIS A. F OIA Exem ptions Since the D.C. Circuit issued its opinion i n this case, the pa rties have confe rre d and substantially

narr owed their

dispute as to the FO IA disclosures. At issue now a re ( 1) thirty -seve n specific seg ments of re dacte d information that appe ar on twe nty -three pag es that we re r elea sed in part to Sussman and (2) additional reda ctions on six pag es new ly rele ased to Sussman in the
course of brief

ing the USMS’s curre nt motion. As t o the set of twe nty -three pag es, Sussman place s the reda ctions he disputes into three c ateg ories (A , B, a nd C) based on the FOIA exemptions on which the USMS relies to justify the withholding, a

nd he has ma

rked e ach individual redac tion with a number by cate g ory ( i.e. , A-1 through A-15, B -1 throug h B- 3, and C1 throug h C-19). In compliance with an orde r of the Court, the A g ency has submitted 2 unreda cted ve rsions of the twenty -three pag es as we ll as the additional six pag es for the Court’s in camera revie w.

Sussman has helpfully

included copie s of the re levant docume nts labeled with 2 these number s as Exhi bit 1 to his opposition t o the USMS’s moti on for summary judgme nt. The Court will refer

to the reda ctions by

these number s and will also indicate, usingthe USMS’s Bates-stamped numbe rs, on which pa g es the re dactions appe ar. 4The USMS moves for summary judgme nt as to Count I , arguing that all of the re dactions Sussman challeng es ar e prope r under FOIA. The Court a g ree s except as to the USMS’s failure to disclose cer

tain segreg able por

tions of tex t, describe d below. 1. Redact ions A-1 through A-15 Sussman challeng es fifte en re dactions, which he has labe led A-1 through A-15, a s to which the USMS has invoked exemption 7(C), which per mits t he withholding of

information compiled for la

w enf orce ment purposes if the r elea se of suc h information “c ould rea sonably be expected to constitute an unwa rra nted invasion of per sonal privac y .” 5 U.S.C. § 552(b)(7) (C). The e x emption “protec ts the privacy interests of a ll persons mentioned in law e nforc ement
rec ords, whethe r they

be investig ators, suspec ts, witnesses, or informa nts.” Sussman , 494 F.3d at 1115 (citing Schrec ker v . U.S. Dep’ t of Justice , 349 F.3d 657, 661 ( D.C. Cir. 2003)). Sussman
acc epts that the Ag ency

may reda ct names a

nd other identify

ing inf ormation from the doc uments rele ased to him. He a

rgues, howe ver, tha

t these fifte en par

ticular re dactions withhold such “larg e swaths of infor

mation” that they

cannot truly

include only

identifying inf

ormation. As to reda ctions A-1, A- 2, and A- 3, the USMS has invoked both exempti on 7(C) and 3 exemption 7(F). Exemption 7(F) pe rmits the withholding of infor mation “compiled for

law enfor ceme nt purposes” if tha t information “could r easona bly be expected to e ndang er the life or phy sical saf

ety of any individual.” 5 U.S.C. § 552(b)(7)( F) . The Vaughn index i ndicates tha t in addition to names and identify ing inf ormation, these r edac tions removed “inf ormation provided by a third-pa

rty individual that could pose a potential thre at to a judg e.” F ourth Bor dley Dec l., Attach. 1 ( Vaughn Index) at 8, 9, 10. Sussm an does not c halleng e the USMS’s relianc e on

These r edac tions appear

on pag es B ates-sta

mped 93, 97, and 101. 3 5exemption 7(F), and the Court’s in camera revie w satisfies it that the exemption is proper ly

invoked her e. Ac cording ly , whether exemption 7(C) also just ifies these thre e re dactions in full is irrele vant. As to the rema ining 12 r edac tions in categ ory A, the Court’s in camera revie w conf irms that eac h contains name s or other infor mation from which a

n individual could be identified. In particula r, seve ral of the reda ctions—including the longe r blocks of te x t Sussm an has ma rked A

4, A-10, a nd A-11 —descr ibe investig ators’ c onversations with i ndividuals who provided

4 information to them. The USMS has proper ly withheld information about the loca tion of those meeting s and the substanc e of the interviews, whic h are sufficie ntly specific that they

could
reve al the identities of the inter viewee s. The Court addr esses be low, in the section of this memorandum opinion reg ardingseg reg ability , the question of whe ther some non- exempt portions of the re dacte d textmust be disclosed. 2. Redact ions B -1 through B-3 Sussman objects to three r edac tions as to which the USMS has relied on e x emptions 2 and 7(E) . Ex emption 2 allows an ag ency to withhold information “related solely to the internal personne l rules and pr actice s of an a g ency .” 5 U.S.C. § 552(b)(2) . The D.C. Circuit has explained that the “hig h 2” exemption, as distinct from the “low 2” e x emption on which the USMS does not rely , require s a two step inquiry : “Fir st, the information withheld must fall within the exempti on’s languag e. . . . Second, if this threshold step is satisfied, the ag ency can defe at disclosure by

demonstratingthat rele ase of the mater ial would signific antly risk circ umvention of fede ral re gulations or statutes.” Elliott v. U.S. De

p’t of Agric. , 596 F.3d 842,
These r edac tions appear

on pag es B ates-sta

mped 103, 123, and 145. 4 6847 (D.C. Cir. 2010) (c itations omi tted). Exemption 7(E) excepts from disclosure infor mation compiled for la

w enf orce ment purposes if it “would disclose te chniques a nd proce dures f

or law enfor ceme nt investiga

tions or prosecutions, or would disclose guidelines for la w enf orce ment investigations or prosecutions if such disclosure could re asonably be expected to r isk circ umvention of the law.” 5 U.S.C. § 552(b)(7)( E). The USMS asserts that re dactions B -1, B -2, and B -3 are proper beca use disclosure of

the 5 withheld information “c ould allow persons investig ated to dete rmine investig ative methods and/or sourc es of infor

mation, and there by

permit circ umvention of the law.” Vaughn Index at 1; see also Four

th Bordle y

Dec l. ¶ 4. I t further

argues that the a

pproval by

this Court and the D.C. Circuit of its withholdi ngof “na mes of external a

nd fede ral a g ency

websites and database s used in its i nvestig ations” should control. De f.’s 2d Rene wed Mot. for Summ. J . (“D ef.’ s Mot.”) at 8. Although the vague explanation the USMS now provides would not by itself be suff

icient to support its posi tion and although the D.C. Circuit’s opinion addresse d only websites, not databa ses, see Sussman , 494 F.3d at 1112, the Court concludes that the USMS i s entitled to summary judgme nt as to this is sue. This Court ruled in its 2005 opinion i n this case that the Ag ency ’s explanation for the r edac tion of names of database s—that their disclosure w ould reve al how the USMS uses databa ses and c onducts investigations, thereby allowingfug itives to circ umvent investigative proce dures—wa s sufficient to justify withholdings pursua

nt to exemption 2. Sussman , 2005 WL3213912, at *5 (c iting Supp. Dec l. of Shaaron L . Key s ¶ 7). 5 The Court’s in camera revie w of the r eleva nt pag es re veals that no more than the name s of
These r edac tions appear

on pag es B ates-sta

mped 7 and 8. 5 The D.C. Circuit did not comment on this holdi ng . 5 7databa ses is withheld by the re dactions to which Sussman objects. Ac cording ly , the Court will g rant summary

judgme nt to the USMS as to these r edac tions. 3. Redact ions C-1 through C-19 The USMS relies for

eac h reda ction in Sussm an’s third c ateg ory on exemptions 2, 5, and 7(E). Exemptions 2 and 7(E) a re de scribed a

bove. Exemption 5 permits an ag ency to withhold “inter- ag ency

or intra- ag ency

memorandums or le tters which would not be a vailable by

law to a party other than a

n ag ency in liti g ation with the ag ency .” 5 U.S.C. § 552(b)(5)
. 6 Sussman argues that exemption 5 does not apply to these re dactions bec ause the withheld information appe ars to be the application of, r ather than deliber ation about, policy decisions. He also objects to the USMS’s relianc e on exemptions 2 and 7(E) be cause the Ag ency did not make clea r to which portions of the r edac tions those ex emptions apply . The Court is unconvince d that exemption 5 applies to t he re dactions at issue but conc ludes that summary judgme nt for the USMS i s never

theless prope r bec ause the withholdings ar e justified by exemption 7(E). 7 Redac tions C-1 and C-2 withhold ge nera l information about the methods by which the 8 USMS conducts threat a ssessments. The USMS asserts that “disclosure of these guidelines and

Her e, the USMS asserts that some mate rials ar e subjec t to this exemption on t he 6 basis of the prote ction of the de liberative pr ocess pr ivilege
. See Tax A nalysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) (e x plaining that exempti on 5 encompa sses, inter alia , the deliber ative proce ss privileg e). The deliberative proce ss privileg e “pr otects ‘c onfidential intra- ag ency advisory opinions’ and ‘mate rials re flec ting de liberative or policy -makingproce sses.’” Judicial W atch, Inc . v. U.S. De

p’t of Justice , 365 F.3d 1108, 1113 ( D.C. Cir. 2004) (quoting EPA v. M ink, 410 U.S. 73, 86 (1973)).

The Court nee d not rea ch the que stion of whether the USMS has also proper ly 7 invoked exemption 2.

These r edac tions appear

on pag es B ates-sta

mped 33 and 34. 8 8proce dures would a llow other threateningparties to by pass spec ific investig ative cha nnels and would ultimately

allow such thre atene rs to circ umvent the law a nd evade detec tion and develop counter measure s to USMS protec tive arr ang ements.” F ourth Bor dley Dec l. ¶ 14. This assertion justifies reliance on exemption 7(E), which per mits wit hholding of

information which “ would disclose technique and proc edure s for law enfor ceme nt investigations or . . . guide lines for law enfor ceme nt investiga

tions . . . if such disclosure could r easona bly be expected to r isk circ umvention of the law,” 5 U.S.C. § 552(b)(7)( E), with “r easona bly specific detail” a

nd is “not controve rted by

either c ontrary

evidenc e in the re cord nor by evidenc e of a g ency

bad fa ith,” Military Audit Project , 656 F.2d a t 738. The Court there fore conclude s that the reda ctions are proper . Redac tions C-3 through C-19 withhold information that reve als how the USMS’s threat 9 assessment proc edure s were applied to Sussman. The Court ac cepts the a ssertions in the Ag ency ’s dec laration that disclosing the use of these interna l proce dures would a llow others to circ umvent them. Four

th Bordle y

Dec l. ¶ 14; see also Schle singer v. CIA , 591 F. Supp. 60, 64 (D.D.C. 1984) ( holding that whe re a g ency decla rations in support of the invocation of exemptions are rea sonably detailed a

nd in the absenc e of e vidence that they are untrue or ma de in bad fa ith, “the cour

t need not question [the submiss ions’] veracity and must acc ord them substantial weig ht in its decision” ( citing Taylor v. Dep’ t of the Army , 684 F.2d 99, 106- 07 (D.C. Cir. 1982))). A ccor dingly , these re dactions too are proper under e x emption 7(E).

These r edac tions appear

on pag es B ates-sta

mped 56, 59, 88, 89, 90, 93, 97, 101, 9 102, 160, 161. 94. Addition al six p ages

The six page s the USMS mos t rec ently disclosed to Sussman are he avily reda cted, but

1 0 the Court conclude s that eac h reda ction is appropriate under FOIA. On the first thre e of the se pag es, the USMS relies on exemptions 2, 5, and 7(E) to 1 1 justify the re daction of se vera l larg e blocks of te x t. Upon in camera revie w of the doc uments, the Court conclude s that this tex t is properly reda cted. The withheld materia l is quit e similar to that in Sussm an’s c ateg ory C; itdescribes in g ener al how the USMS assesses thre ats and in particula r how it conduc ted its investigation and a ssessment of Sussman. The Court re lies on the statement in the F ourth Bor dley Dec laration that revea ling these methods and their a pplication would allow others to cir cumvent future USMS i nvestig ations of unlawf ul activity . Four

th Bor dley Dec l. ¶ 14. The a dditional, smaller reda ctions for whic h the USMS has invoked 7(C)
cover only names of individuals and a re the ref ore a lso justi fied. The re maining thr ee pa g es also conta in significa nt reda ctions. A website a ddress is

1 2 withheld from the top rig ht corne r of e ach pa g e pursua nt to ex emption 2; as noted, the D.C. Circuit has approve d such re dactions, Sussman , 494 F.3d at 1112, and there fore the Court conclude s that they

are appropr iate. The USMS relies on exempti on 7(C) as the ba sis for the

Sussman has not directly

objected to the r edac tions on these six pag es. At the 1 0 time he filed his opposition to t he motion for summary judgme nt curre ntly

befor e the Court, the USMS st ill withheld these pag es in their entire ty , so he did not have the requisite information to do so. Ba sed on a r epre sentation in the Six th Bordle y Dec laration that Sus sman contests the reda ctions in the six pag es, the Court will consider the ir proprie ty
.

These pa g es ar e B ates-stamped 154, 155, and 156. 1 1 These pa g es ar e B ates-stamped 157, 158, and 159. 1 2 10rema ining r edac tions. Bec ause the Court’s in camera revie w re veals that e ach w ithholds t he

name, soc ial secur ity

number, or a ddress of a

n individual, these reda ctions are also proper
. Acc ording ly , the USMS is entit led to summary judgme nt as to these six pag es of r ecor ds. 5. Segregability Where F OIA exemptions apply , “[a]ny rea sonably

seg reg able por

tion of a re cord sha ll be provided to any

person r equestingsuch re cord a fter de letion of the portions which a re e x empt.” 5 U.S.C. § 552(b). A district court must alwa y s “make specific finding s of segreg ability reg ardingthe documents to be w ithheld.” Sussman , 494 F.3d at 1116 (citing Summers v . Dep’ t of Justice , 140 F.3d 1077, 1081 ( D.C. Cir. 1998); Krikorian v. Dep’t of State , 984 F.2d 461, 467 (D.C. Cir. 1993)). Ac cording ly , the Court will now addre ss whether any reda cted infor

mation is
rea sonably

seg reg able f

rom that to which an e x emption applies. The Court is mindful in conductingthis analy sis that “FOIA mandate s disclosure of infor mation, not solely

disclosure of helpful information,” Stolt-Nielsen Trans p. Grp. Ltd. v. United States , 534 F.3d 728, 734 ( D.C. Cir. 2008), althoug h “a c ourt may decline to or der a

n ag ency to commit si g nificant time and
resour ces to the se para

tion of disjoint ed wor ds, phrase s, or eve n sentenc es which taken sepa rate ly or tog ether

have minimal or no infor mation content,” Mead D ata Cent., Inc. v. U .S. Dep’ t of the Air Force , 566 F.2d 242, 261 n.55 ( D.C. Cir. 1977).

i. Cate gory A The Court conc ludes that sever al re dactions in Sussman’s cate g ory A withhold some materia l that is segr eg able f rom the exempt information. To explain thi s conclusion, the Court ref ers to the pa g e B ates-stamped 113, on which the r edac tions S ussman has marke d A-7, A- 8, and A- 9 appea

r. On the se cond par ag raph of that pag e, the USMS reda cted names and other
11identifying inf ormation but did not withhol d phrase s around suc h information, such a s the date on which an e vent occ urre d and that someone “attempted to c ontact” some one else “by telephone.” Pl.’s Opp’n to Def.’ s Mot., Ex . 1 at 5. In other wor ds, this paragraph disclose s information re lated to but not part of the inf ormation subject to an e x emption. The Court conclude s from re viewing in camera unreda cted ve rsions of the docume nts that the reda ctions Sussman has marked A -4, A-5, A -8, A-10, A -11, A-12, a nd A-14 could have been similarly

1 3 treated. Ther efor e, the Court ca nnot hold that all reasona bly seg reg able infor

mation from these pag es has be en disclosed to Sussman.

ii. Cate gory B The Court next turns to S ussman’s ca teg ory B. B eca use the infor

mation withheld is in i ts entirety the names of

databa ses, the Court finds that no re dacte d information is seg reg able. iii. Cate gory C Wit h reg ard to Sussman’s ca teg ory C, most redactions ar e in their e ntirety the descr iptions or application of interna l proce dures pr otected by exemption 7(E). In reda ction C-9, howeve r, the USMS has—perha ps inadverte ntly

—reda cted Sussman’s own name and a ddress. I dentical infor

mation is not redacte d just above the re dactions Sussman has labele d C-4 and C-5. The Court finds that this information is seg reg able f rom the prope rly

reda cted text below and next t o it, so the USMS must disclose it t o Sussman.

These r edac tions appear

on pag es B ates-sta

mped 103, 104, 113, 123, 145, 148, 1 3 and 151. 12iv. Six ad dition al pages

Finally , the Court finds that none of the textreda cted f rom the additional six pag es most
rec ently disclosed to Sussman is reasonably seg reg able f

rom that which is exempted from FOIA’s re quirements. The texton the first three pag es, other tha n that which the USMS has alre ady disclosed, is in its entirety the mater ial to which exemption 7(E) applies. Similarly , the textreda cted f

rom the final thre e pag es conta ins nothing other tha n the identify

ing inf ormation and we bsite addre sses that fall under exemptions 7(C) and 2, r espec tively
. B. P rivacy Ac t Claim s The D.C. Circuit re manded thre e of Sussman’s c laims—Counts I I , I I I , and VI I —under the Privacy

Act. The USMS now renews its re quest for summar y judgme nt as to eac h. 1. Count II Count I I of Sussman’s complaint seeks disclosure of re cords pur suant to the Privacy Act, which mandates disclosure of rec ords “pe rtainingto” a pe rson to that person upon r equest. 5 U.S.C. § 552a(d)(1) . The D.C. Circuit interpre ted this provision to require that the r eleva nt ag ency “g ive par ties acc ess only

to their own re cords, not to all information per taining to them that happens to be contained in a sy stem of re cords.” Sussman , 494 F.3d a t 1121. Accor dingly , “the Ma rshals Service must disclose to S ussman those materia ls—and only those materia ls—contained in re cords a bout him, the relea se of whic h would not violate 5 U.S.C. § 552a(b) .” Id. Be cause this Court had not made a findingas to whose r ecor ds contained the information Sussman sought, the Court of A ppeals re manded this claim. Id. The USMS has now provided to the Court the inf ormation nec essar

y to resolve this issue. In the dec laration submi tted with its current motion, the Ag ency explains t hat it searc hed for
13rec ords per taining to Sussman in its I nappropr iate Communications/Threat Information Sy stem (“I C/TI S”), the only

one of its three sy stems of rec ords in which docume nts were indexed to Sussman’s name and/or

persona l identification number. F ourth Bor dley Dec l. ¶¶ 23-24, 33; see also id. ¶ 33 (“ Other tha

n the I C/TI S investigation of [Sussm an], the USMS di d not maintain an investigation file pertainingto [ Sussman] .”). The Court theref ore f inds that USMS has provided to Sussm an all re cords obtaine d by sear chingfor r ecor ds about Sussman. 1 4 Sussman’s arguments to the contrar y are unpersua sive. First, he sug g ests that beca use the USMS denied it had any

rec ords of a

n investigation of him when it first responded to his re quest, it cannot be trusted now . The USMS has explained that pursuant to FO IA exemption (c)(1) , it denied the e x istence of

the investig ation while it was ong oing but, now that the investigation is complete, the A g ency

has disclosed the r elated r ecor ds. Id. ¶ 25. Exemption (c)(1) pr ovides: Whenever

a re quest is made which involves a cce ss to recor ds [compil ed for law enfor ceme nt purposes] and— (A) the investigation or proce edinginvolves a possible violation of criminal law; and ( B) there is reason to be lieve that (i) the subject of the inve stigation or proce edingis not aware of its pendenc y , and (ii) disclosure of the exis tence of the re cords c ould rea sonably be expected to inter fer e with enforc ement proc eeding s, the ag ency may , duringonly

such time as that circ umstance c ontinues, treat the r ecor ds as not subject to the re quirements of this section.

The Ag ency

also sear ched f

or all re fer ence s to Suss man and c ompanies with 1 4 which Sussman was a ffiliated in re cords pe rtainingto Maydak. F ourth Bor dley Dec l. ¶¶ 27, 33- 34. This searc h was ne cessa ry to comply

with the Ag ency ’s obliga tions under FO IA, but beca use the re cords a

re a bout Maydak, not Sussman, it was not nece ssary to comply

with the Privacy

Act. 145 U.S.C. § 522(c)(1) . It is not now before the Court whether the invocation of e x emption (c)( 1) at the time of Sussman’s initial request wa s proper , but it is sufficie ntly plausible that it was that the Court finds no evidenc e of ba d faith on the pa rt of the Ag ency . 1 5 Second, Sussman contends that re cords pe rtainingto him mi g ht be locate d in the rec ords reg ardingMaydak bec ause the USMS for a time believe d the two men we re the same pe rson. But the de clar ation from the USMS states only that a wa nted poster listed “Micha el Sussman” as an alias Ma

ydak used, not that the U SMS confuse d their identities. Id. ¶ 33. Ac cordingto the Ag ency , the re cords a

bout Maydak demonstrate that the USMS learne d that Sussman was an associate of Maydak’s. Id. ¶ 33. F urthermor e, the USMS opened a separ ate investig ation into Sussman, making c lear

they wer e aw are that he wa s a diffe rent pe rson than May dak. The Court is theref ore satisfied that Sussman rece ived the re cords a bout Sussm an. Third, Sussman argues that some of the rec ords about him that the Ag ency disclosed ar e from the Ag ency ’s Warra nt Information Ne twork (“ WI N”) , demonstratingthat the USMS’s
asser tion that it onl y

maintains rec ords about him in the I C/TI S is unt ruthful. Unfor tunately , the USMS’s ex planation as to this argument is less than clea r, so the Court is not certa in why two pag es of r ecor ds ref

er to Sussman’s “WI

N I D” number , see disclosed pag es B ates-sta mped 33, 34, or what it means that “[t] he ele ctronic indice s to recor ds in the I C/TI S are ma intained in the Warrant [I ]nformation Network,” Four th Bordle y

Dec l. ¶¶ 23. B ut the USMS has indicated that it conducted a

threat investigation, not a fug itive investigation, of Sussm an, F ourth Bor dley Dec l. ¶¶ 25, 33, a

nd the Court acc epts the appa rent c ontention that the assig nment of a WI N number to
For this reason, the Court a lso rejec ts Suss man’s four th argument, that the Court 1 5 should deny

summary judgme nt as to this count because the USMS has not specified whic h pag es of disclosed r ecor ds were those the USMS init ially found but did not admit to having. 15an individual under inve stigation based on a thre at does not mea n additional rec ords existoutside the I C/TI S. The Court will therefor e not cr edit Sussman’s sugg estion that the USMS holds additional documents per taining to him that it failed to disclose. For the re asons explained, the USMS is entit led to summary judgme nt as to Count I I
. 2. Count III The D.C. Circuit re manded f or fur ther proc eeding s as to Count I I Ibeca use, althoug h the USMS requested summary judgme nt as to that claim, the Ag ency had made no argument explaining, nor did its affida vits address, why

it was entitled to such re lief. Sussman , 494 F.3d a t 1124. Count I I Iseeks da

mag es for failure by

the USMS to adequately rec ord disclosures it made to Sussm an’s a ssociates a nd others duringits investigation of Sussman. The Circuit Court explained that “[t] he cor e ele ments of the cla im are ( 1) fa ilure by the Marsha ls Service to maintain an ac curate ac countingof disclosures, a nd (2) a resultant adve rse e ffe ct on Sussman.” Id. (citing5 U.S.C. § 552a(c) (1), ( g )(1) (D))
. The Ag ency

has ag ain fa iled to make ar guments relate d to this i ssue. Acc ording ly , the 1 6 Court will not gra

nt its request for summar

y judgme nt as to Count I I I
.
The Ag ency ’s dec laration contains some information re levant to Sussman’s claim. 1 6 Specifica lly , it ex plains that the USMS uses a particula r for m to recor d disclosures fr om a sy stem of re cords a

nd may also ref ere nce disc losures “in the e lectronic rec ord or in information maintained in the pape r re cords.” Four th Bordle y

Dec l. ¶ 35. I t also indicates that the Ag ency did not locate any

acc ounting of

any disclosure in the e lectronic or pape r re cords in the I C/TI S. Id. Fur thermore , “the USMS is unawar e of a ny disclosure such a s those descr ibed by [S ussman]” in his complaint, id. , which alleg es that “[d]uring the c ourse of [i nterview s conducte d as par

t of the investig ation of Sussman], age nts of the USMS made disclsoures to the associate s, and to other pe rsons.” Am. Compl. ¶ 25. Neve rtheless, the Court will not determine in the absenc e of a

ny argument from the pa

rties about these asser

tions whether the pr ocess descr ibed is sufficient to assur e ac curate ac countingof disclosures. 163. Count VII

The D.C. Circuit also vac ated this Court’s g rant of summar y judgme nt to the USMS as to Count VI I , which alleg es, under 5 U.S.C. § 552a(g )(1) (D), f ailure to c omply

with the Privacy Act. F irst, the Court of Appea ls held that beca use as to this count, Sussman had alleg ed fa cts that might support a f

inding that “ the ag ency

acte d in a manner

which wa s intentional or willful” in failingto comply

with the Privacy

Act, id. at 1122 (quoting5 U.S.C. § 552a(g )(4) ) (inter nal quotation marks omitted), Sussman might be e ntitled to damag es. Specific ally , Sussman had alleg ed that USMS ag ents improperly disclosed information to customers of “a busine ss location of Sussman’s” c alled Chrissy ’s New s by “yelling a

nd scre amingtheir alleg ations and theorie s in an ef fort to intimidate.” Am. Compl. ¶¶ 84, 99; see also Sussman , 494 F.3d at 1122 (quoting Am. Compl. ¶ 99). This information alleg edly reg arde d “Sussman’s financ ial transac tions, employ ment history , business transac tions, and other information from [the USMS’s] fil es.” Am. Compl. ¶ 84. Next, the D.C. Ci rcuit held that the U SMS could be liable only if the informa

tion disclosed was loc ated in re cords r etrieva ble by Sussman’s name, so “f

or his action to survive, Sussman mustprese nt evidence that materia ls from rec ords about him , which the Ma rshals Service retrie ved by his name , wer e improper ly disclosed.” Id. The USMS has made no argument as to whethe r Sussman has met this burden, nor do its dec larations speak to the issue. Acc ording ly , the Court cannot grant its reque st for summary judgme nt as to Count VI I
. 1 7
Simi larly , Sussman has made no a rgument reg ardingCount VI I , but he did submit 1 7 to the Court an af

fidavit by his attorney

stating that the USMS “has never put forth spec ific fac tual information about 1) what transpire d at [Chriss y ’s New s] and 2) what information was alleg edly disclosed” a

nd seekingdiscovery

as to those issues under F eder al Rule of Civil Procedur e 56(f

). Pl.’s Opp’n to Def

.’s Mot., Aff. of

Sean J. Hartiga

n Pursuant to Fed. R. Civ. P. 17IV
. CONCLUSION

For the fore g oing r easons, it is this 1 day of September

2010, here by st ORDERED that the USMS’s moti on for summary judgme nt [ #93] i s GR

ANTED in part and DENIED in part; and it is further ORDERED that by

no later tha

n September 24, 2010, the parties sha ll submi t a joint proposed c ase ma

nag ement plan a

nd briefingschedule to gove rn the futur e proc eeding s in this
case ; and it is further ORDERED that if the par ties are unable to agree on a propose d case manag ement plan and brie fingschedule eac h party shall submit i ts own proposed plan a nd schedule by

September 24, 2010.
Henr y H. Kenne dy , J r. United States District J udg e

56(f) ¶¶ 12- 13. Insofar

as this affidavit is a moti on to hold the reque st for summary judgme nt as to Count VI Iin abeyance pendingdiscovery pursuant to Rule 56(f) , the Court denies it as moot beca use the re levant re quest for summar y judgme nt is denied. 18