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Sharkey v. United States Department of Justice

United States District Court, N.D. Ohio, Eastern Division

February 13, 2018




         Proceeding pro se, plaintiff John J. Sharkey (“Sharkey”) has brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552a, to compel disclosure by defendant United States Department of Justice (“USDOJ”) of records that he believes will demonstrate that some person or persons have altered records at his place of employment to discredit him and have attempted to interfere with his efforts to hire counsel. (Doc. No. 1 (Complaint [“Compl.”]).) The Federal Bureau of Investigation (“FBI”) previously responded to Sharkey's FOIA requests by advising Sharkey that it searched its main file records but was unable to locate any documents responsive to his requests. Additionally, the FBI produced certain non-exempt records related to Sharkey, even though they were not responsive to his FOIA requests. USDOJ now moves for summary judgment, maintaining that the FBI satisfied its obligations under the FOIA with respect to Sharkey's document requests. (Doc. No. 22 [“MSJ”].) Sharkey did not file a response to USDOJ's dispositive motion, and the time for responding has passed. For the reasons set forth below, the Court will grant USDOJ's motion.

         I. Background

         In his complaint, Sharkey alleges that, since 2009, he has been engaged in investigating acts of securities fraud by “extremely wealthy and powerful entities” in anticipation of filing a civil enforcement action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (Compl. ¶¶ 12, 15-17.) He believes that the government has engaged in illegal surveillance of his activities, and has attempted to interfere with his efforts to retain counsel to prosecute his civil RICO action, in a concerted effort to deny him “whistleblower bount[ies]” due by the Securities Exchange Commission (“SEC”). (Id. ¶¶ 16-17, 23-26.)

         The present lawsuit represents the second action Sharkey has filed in this Court challenging the results of FOIA document requests. In Sharkey v. Federal Bureau of Investigation, N.D. Ohio No. 5:16-cv-837 (“Sharkey I”), Sharkey sought judicial review of three document requests related to the same private investigation of alleged securities fraud. In a memorandum opinion dated August 4, 2017, the Court granted the FBI summary judgment and dismissed the action, finding that the FBI had satisfied its obligations under the FIOA with respect to the first two requests and that Sharkey had failed to exhaust his administrative remedies as to the third. See Sharkey v. F.B.I., No. 5:16-cv-837, 2017 WL 3336617 (N.D. Ohio Aug. 4, 2017). The Court assumes familiarity with the ruling in this related case. However, because the same technology was employed in both cases, the Court reproduces a portion of the decision in Sharkey I to provide context for USDOJ's summary judgment motion. In Sharkey I, the Court discussed the computer technology used by the FBI to respond to FOIA document requests as follows:

The FBI maintains a Central Record System (“CRS”) which is a database of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained in the course of fulfilling its law enforcement, counterterrorism, and intelligence duties. (Doc. No. 28-2 (Declaration of David M. Hardy [“Hardy Decl.”]) ¶ 33.)[1] The CRS spans the entire FBI organization, including its headquarters and field offices worldwide. (Id.) “The CRS consists of a numerical sequence of files, called FBI ‘classifications, ' which are organized according to designated subject categories. The broad array of CRS file classification categories include types of criminal conduct and investigations conducted by the FBI, as well as categorical subjects pertaining to counterterrorism, intelligence, counterintelligence, personnel, and administrative matters.” (Id. ¶ 34.)
The CRS is indexed in such a way as to permit navigation through the substantial information contained within the system. “The general indices are arranged in alphabetical order and comprise an index on a variety of subject matters to include individuals, organizations, events, or other subjects of investigative interest that are indexed for future retrieval.” (Id. ¶ 35.) The entries in the general indices consist of “main” entries (records indexed to the main file records) and “reference” entries (records that merely mention an individual or other subject matter). (Id. ¶ 35.)
Automated Case Support (“ACS”) is “an electronic, integrated case management system that became effective . . . on October 1, 1995.” (Id. ¶ 37.) Over 105 million CRS records were converted from the previous automated systems into a “single, consolidated case management system accessible by all FBI offices.” (Id.) ACS was specifically designed for the “operational purpose and design to enable the FBI to locate, retrieve, and maintain information in its files in the performance of its myriad missions and functions.” (Id., footnote omitted.)
The Universal Index (“UNI”) is the “automated index of the CRS and provides all offices of the FBI a centralized, electronic means of indexing pertinent investigative information to FBI files for future retrieval via index searching.” (Id. ¶ 38.) The UNI permits individual names to be recorded with applicable identifying information “such as date of birth, race, sex, locality, Social Security Number, address and/or date of an event.” (Id.) “Moreover, ACS implementation built upon and incorporated prior automated FBI indices; therefore, a search employing the UNI application of ACS encompasses data that was already indexed into the prior automated systems superseded by ACS.” (Id.) An index search using the UNI can search documents from 1995 to the present, and contains “approximately 114.3 million searchable records and is updated daily with newly indexed material.” (Id.)
“Sentinel is the FBI's next generation case management system that became effective FBI-wide on July 1, 2012.” (Id. ¶ 39.) Sentinel “provides a web-based interface” and, after July 1, 2012, “all FBI generated records are created electronically in case files via Sentinel[.]” (Id.) While Sentinel “builds on ACS and shares its operation purpose, ” it did not replace ACS, and it simply serves as “another portal to locate information within the vast CRS for FBI records[.]” (Id.)

Id. at *1-2 (footnote added).

         A. Sharkey's FOIA Requests

         1. Request No. 1347984-000

         On March 25, 2016, Sharkey submitted a request seeking records from October 2015 through March 2016. (Doc. No. 22-2 (Declaration of David M. Hardy [“Hardy Decl.”]) ¶ 6.) The document request pertained to Sharkey's allegations that certain individuals had changed the temperature logs at the Circle K conveniences store where Sharkey worked. (Id.; Doc. No. 22-3 (Mar. 25, 2016 FOIPA[2] Request) at 130-31[3]; see Compl. ¶¶ 11, 13.) By this same request, Sharkey also sought all records from April 2012 through April 2016 pertaining to alleged unauthorized surveillance of himself “as well as the ‘names and addresses of all individuals involved in these illegal surveillance events and the illegal sharing of authorized surveillance information.'” (Hardy Decl. ¶ 6, quoting Mar. 25, 2016 FOIPA Request at 132.)

         By letter dated April 7, 2016, the request was docketed as “FOIPA Request Number 1347984-000.” (Id. ¶ 7, citing Doc. No. 22-3 (Apr. 7, 2016 FOIPA Docketing Letter) at 135.) Based upon the information supplied by Sharkey, an employee of the RIDS of the FBI formulated a CRS index search employing the UNI application of ACS using three variations of Sharkey's name-“Sharkey, John James”, “Sharkey, John J” and “Sharkey, John”-“in order to identify investigatory files responsive to” Sharkey's request. (Id. ¶ 29.) The search also utilized a phonetic breakdown of Sharkey's name, and included Sharkey's dates of birth to identify responsive records. (Id.)[4] The April 7, 2016 letter advised Sharkey that the FBI's search failed to identify any main file records responsive to his request, and further advised him of his administrative appellate rights. (Id. ¶ 7; Apr. 7, 2016 FOIPA Docketing Letter at 135.)

         On April 14, 2016, Sharkey filed an administrative appeal through USDOJ's Office of Information Policy (“OIP”). (Hardy Decl. ¶ 8, citing Doc. No. 22-3 (Apr. 14, 2016 OIP Appeal Request) at 139-40.) On April 19, 2016, the OIP acknowledged receipt of the administrative appeal and assigned it Appeal Number DOJ-AP-2016-002433. (Id. ¶ 9, citing Doc. No. 22-3 (Apr. 19, 2016 OIP Docketing Letter) at 142.) By letter dated May 27, 2015, Sharkey was advised that the OIP was affirming the FBI's action on his FOIPA request, finding that the FBI's response was correct and that its search represented an adequate and reasonable search for the requested records. (Id. ¶ 10, citing Doc. No. 22-3 (May 27, 2016 OIP Decision Letter) at 144.) The decision letter also advised Sharkey of his right to request mediation or seek judicial review in federal court. (Id., citing May 27, 2016 OIP Decision Letter at 144-45.)

         2. Request ...

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