Taitz v Colvin MDD 1:13-cv-01878-ELH #7

8/12/2019 Taitz v Colvin MDD 1:13-cv-01878-ELH #7

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ORLY TAITZ, )

)

Plaintiff, )) Civil No. ELH-13-1878

v. )

)

CAROLYN COLVIN, COMMISSIONER )

SOCIAL SECURITY ADMINISTRATION )

)

Defendant. )

DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT

Defendant, by and through undersigned counsel, respectfully moves for dismissal

pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary

judgment pursuant to Federal Rule of Civil Procedure 56(a). Attached in support of this motion

are: (1) a memorandum in support of Defendants Motion to Dismiss or for Summary Judgment;

(2) a letter dated April 26, 2013 from Plaintiff to the Social Security Administration (SSA),

attached asExhibit A; (3) a letter dated July 29, 2013 from SSA to Plaintiff, attached asExhibit

B; (4) a letter dated August 7, 2013 from SSA to Plaintiff, attached as Exhibit C; and (5) a

declaration of Dawn S. Wiggins, attached asExhibit D.

Respectfully Submitted,

ROD ROSENSTEINUnited States Attorney

By: /s/Andrew Norman,

Federal Bar No. 00242

Assistant United States Attorney

36 South Charles Street, 4th FloorBaltimore, Maryland 21201

(410) 209-4821 (Office)

Attorney for Defendant

Case 1:13-cv-01878-ELH Document 7 Filed 08/14/13 Page 1 of 1


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ORLY TAITZ, )

)


v. )

)



)

Defendant. )

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION

TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendant, the Social Security Administration (SSA or agency), by and through its

undersigned counsel, hereby submits, the following Motion to Dismiss or, in the alternative, for

Summary Judgment.

INTRODUCTION

In this action, broughtpro se, Dr. Orly Taitz (Plaintiff) sued on behalf of herself under

the Freedom of Information Act (FOIA), 5 U.S.C. 552, for information contained in Social

Security records, including information relating to individuals social-security numbers and

benefits. Specifically, Plaintiff sought SSA records about three individuals and their dependents

and/or family members.

SSA performed a search for responsive records that identified the majority of the

requested information. SSA responded to Plaintiffs FOIA request on July 29, 2013, and mailed

a supplemental response about the fees charged for the requested records on August 7, 2013.

SSA withheld information about the individuals dependents and/or family members, pursuant to

exemption 6 of the FOIA, because SSA could not identify them as deceased and SSA did not

Case 1:13-cv-01878-ELH Document 7-1 Filed 08/14/13 Page 1 of 18


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have the consent of the individuals dependents and/or family members to release information

about them in SSA records. SSA properly withheld this information because disclosure would

implicate substantial privacy interests and would serve no public interest. Because SSA has

conducted an adequate search for records, and produced all responsive documents that are not

exempt from release under FOIA, Plaintiffs request is now moot and dismissal or, in the

alternative, summary judgment should be granted in Defendants favor.

STATEMENT OF FACTS

1. Plaintiff submitted an FOIA request, dated April 26, 2013, to SSA seeking SS-51applications for Tamerlan Tsarnaev, Harrison (Harry) J. Bounel, and Stanley Ann Dunham and

documentation on any Social Security benefits received by these individuals and their families

and/or dependents. SeeLetter dated April 26, 2013 from Plaintiff to SSA (FOIA Request),

attached asExhibit A. Specifically, Plaintiff requested the following records:

a. A copy of the SS-5 application for deceased Tamerlan Tsarnaev[and] any andall information available in the SSA file for the deceased Specifically[,] any

and all documentation pertaining to any and all payments or aidto the deceased

and his family.

b. [The] SS-5 application and any and all documentation for Harrison (Harry) J.Bounel, immigrant from Russia, born in 1890, arrived in the U.S. in and around

1912, received Social Security number in the state of [Connecticut] in and around

1The Form SS-5 is the form through which an individual applies for an original or replacement social

security card. See, e.g.,http://www.socialsecurity.gov/online/ss-5.html . The Form SS-5 includes theindividuals full name, Social Security number (SSN), place of birth, date of birth, citizenship, parents

names, parents SSNs (in certain versions of the Form SS-5), and other identifying information.

http://www.socialsecurity.gov/online/ss-5.htmlhttp://www.socialsecurity.gov/online/ss-5.htmlhttp://www.socialsecurity.gov/online/ss-5.htmlhttp://www.socialsecurity.gov/online/ss-5.html


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March 28, 1977, SSN [XXX-XX-XXXX2, and] any and all documentation on any

Social Security benefits received by Mr. Bounel for himself and any and all

known depend[e]nts.

c. [The] SS-5 application for Stanley Ann Dunham...deceased 1995 [and] anyand all documentation for any and all Social Security benefits received by

M[s]. Dunham for herself and any and all depend[e]nts.

Idat 1-3. The SSA office responsible for responding to FOIA requests received Plaintiffs

request on May 31, 2013. SeeDeclaration of Dawn S. Wiggins, Division Director of the Office

of Privacy and Disclosure (Wiggins Declaration) 5, attached asExhibit D

.

2. On June 25, 2013, Plaintiff filed an action in this Court, alleging SSA violated the FOIAby failing to respond to Plaintiffs FOIA request within the required statutory period and asking

the Court to order SSA to produce the requested documents, specifically the SS-5 for

Mr. Bounel. (Dkt. No. 1.) On July 8, 2013, Plaintiff filed an amended complaint. (Dkt. No. 3.)

Plaintiff did not serve her complaint on SSA until July 10, 2013. (Dkt. No. 6.)

3. Defendant conducted searches for the SS-5s of Tamerlan Tsarnaev, Harrison J. Bounel,and Stanley Ann Dunham. See Wiggins Declaration 6. Defendant was in the process of

locating and reviewing records responsive to Plaintiffs request, when Plaintiff initiated this

action. See Wiggins Declaration 7.

4. On July 29, 2013, SSA responded to Plaintiffs FOIA request. SeeLetter datedJuly 29, 2013 from SSA to Plaintiff (FOIA Response), attached asExhibit B. As to items 1

and 3, SSA provided Plaintiff with copies of the SS-5s for decedents Mr. Tsarnaev and

2SSN redacted to protect the privacy of the Social Security number holder, if the SSN is valid.



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Ms. Dunham and advised Plaintiff that neither Mr. Tsarnaev nor Ms. Dunham had received any

Social Security benefits. See FOIA Response 3, 6. SSA withheld information under

exemption 6 of the FOIA about (1) Mr. Tsarnaevs parents on his SS-5 3and (2) any Social

Security benefits received by Mr. Tsarnaevs and Ms. Dunhams family members and/or

dependents. See FOIA Response 3, 6; Wiggins Declaration 9-11. SSA explained that the

Privacy Act of 1974, 5 U.S.C. 552a, also protects the withheld information. Id. As to item 2,

Defendant advised Plaintiff that, after completing a search of SSA records, SSA was unable to

find any information for Mr. Bounel. SeeWiggins Declaration 6;FOIA Response 7.

5.

SSA may only release personal information with written consent of the social security

number holder or if FOIA requires disclosure. See Wiggins Declaration 9; see also

5 U.S.C. 552a(b); 20 C.F.R. 401.100, 402.15, 402.45. As mentioned in Plaintiffs

Complaint, SSA also will release personal information if the social security number holder is

deceased and SSA has acceptable proof of death.4 See 20 C.F.R. 401.190. Plaintiff did not

provide the consent of Mr. Tsarnaevs parents or Mr. Tsarnaevs and Ms. Dunhams family

members and/or dependents, nor did she provide proof of their death. See FOIA Request;

Wiggins Declaration 4.

3 SSA redacted Mr. Tsarnaevs parents names and intended to redact his fathers SSN on Mr. Tsarnaevs

SS-5 application. However, SSA believes the copy mailed to Plaintiff may have inadvertently includedMr. Tsarnaevs fathers SSN. SSA is taking appropriate action to confirm and address the possible

disclosure of Mr. Tsarnaevs fathers personally identifiable information.

4SSAs policy regarding SS-5 requests and extreme age states that SSA will not disclose information

about any person in our records who is under 120 years old, except in those cases where the agency hasacceptable proof of death (e.g., death certificate, obituary, newspaper article, or police report). Also,under SSAs current policy, the agency does not release the parents names on an SS-5 application unless

the parents' are proven deceased, have a birth date more than 120 years ago, or the number holder on theSS-5 is at least 100 years of age. SSAs FOIA webpage clearly states this policy. See, e.g.,

http://ssa.gov/foia/request.html#a0=0 .

http://ssa.gov/foia/request.html#a0=0http://ssa.gov/foia/request.html#a0=0http://ssa.gov/foia/request.html#a0=0


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6. Under exemption 6, FOIA does not require an agency to release records if disclosurewould constitute a clearly unwarranted invasion of personal privacy. See5 U.S.C. 552(b)(6).

SSA concluded exemption 6 applied to information about Mr. Tsarnaevs parents and

Mr. Tsarnaevs and Ms. Dunhams family members and/or dependents because the requested

information constituted sensitive and personal information about individuals, which falls within

the category of files contemplated by exemption 6. See Wiggins Declaration 10-11.

7. On August 7, 2013, SSA mailed a supplemental response to Plaintiff updating her on thefees charged for the requested records. SeeLetter dated August 7, 2013 from SSA to Plaintiff

(Supplemental FOIA Response), attached asExhibit C

.

STANDARD OF REVIEW

A. STANDARD FOR DISMISSAL

When reviewing a 12(b)(1) motion to dismiss, "the court must accept the complaint's

well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor."

See Vanover v. Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999). "The court is not required,

however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast

as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001), aff' d, 346 F.3d

192 (D.C. Cir. 2003). In addition, the plaintiff bears the burden of persuasion, and must establish

subject-matter jurisdiction "by a preponderance of the evidence." Simmington v. Gates,

No. DKC 08-3169, 2010 U.S. Dist. LEXIS 30749, at *15 (D. Md. Mar. 30, 2010); Vanover,

77 F. Supp.2d at 98.

To determine the existence of jurisdiction, a court may look beyond the allegations of the

complaint, consider affidavits and other extrinsic information, and ultimately weigh the



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conflicting evidence. Simmington, 2010 U.S. Dist. LEXIS 30749, at *15;Rann, 154 F. Supp. at

64. A court should grant dismissal if material jurisdictional facts are not in dispute and the

moving party is entitled to prevail as a matter of law. Simmington, 2010 U.S. Dist. LEXIS

30749, at *15-16. Defendant moves for dismissal under Rule 12(b)(1), as events subsequent to

the complaint deprived the Court of subject matter jurisdiction over Plaintiff's claims. See

FED.R.CIV.P.12(b)(1).

B. STANDARD FOR SUMMARY JUDGMENTA court shall grant summary judgment if the movant shows there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law. FED

.R.

C

IV.P.

56(a). Courts typically decide FOIA cases on motions for summary judgment. Havemann v.

Astrue, No. ELH-10-1498, 2012 U.S. Dist. LEXIS 136292, at *13 (D. Md. Sept. 24, 2012),

aff' d, No. 12-2453, 2013 U.S. App. LEXIS 15838(4th Cir. Aug. 1, 2003);Defenders of Wildlife

v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). To prevail on a motion for summary

judgment in a FOIA case, an agency must demonstrate that the information that falls within the

request has been produced, is unidentifiable, or is exempt from disclosure. Taitz v. Astrue, 806

F.Supp.2d 214, 217 (D.D.C. 2011) ), aff d, No. 11-5304, 2012 U.S. App. LEXIS 10713 (D.C.

Cir. May 25, 2013); Goland v. C.I.A., 607 F.2d 339, 352 (D.C. Cir. 1978).

For motions for summary judgment, factual assertions in a moving partys affidavits or

declarations are accepted as true unless the opposing party rebuts them with affidavits or

documentary evidence. Davis v. F.B.I., 767 F.Supp.2d 201, 204 (D.D.C. 2011). In FOIA cases,

courts can grant summary judgment based solely on the information an agency provides through

employee affidavits or declarations as long as the declarations are sufficiently detailed and



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provide the information necessary to render judgment. Military Audit Project v. Casey, 656 F.2d

724, 738 (D.C. Cir. 1981). Such agency affidavits or declarations are accorded a presumption of

good faith, which a plaintiff cannot rebut with purely speculative claims. Havemann, 2012 U.S.

Dist. LEXIS 136292, at *15; Taitz, 806 F.Supp.2d at 217; SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991). Defendant moves for summary judgment because there is no

genuine dispute as to any material fact and Defendant is entitled to judgment as a matter of law.

ARGUMENT

I. THE CLAIMS IN WHICH PLAINTIFF CHALLENGES THE SSA FAILURE TO

RELEASE RECORDS RESPONSIVE TO HER FOIA REQUEST IS MOOT BECAUSE DEFENDANT

HAS CONDUCTED A REASONABLE SEARCH AND PROVIDED ALL NON-EXEMPT REQUESTED

RECORDS._______________________________________________________________

A claim for relief under FOIA becomes moot once an agency produces all the

information a plaintiff requested. Cornucopia Institute v. USDA, 560 F.3d 673, 675 (7th

Cir.

2009). Indeed, courts have found that however fitful or delayed the release of information

under FOIA may be... if we are convinced [agencies] have, however belatedly, released all

nonexempt material, we have no further judicial function to perform under FOIA. Tijerna v.

Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) (quoting Perry v. Block, 684 F.2d 121, 125 (D.C.

Cir. 1982)). The release of the information sought by Plaintiff has made it impossible for th[is]

[C]ourt to grant any effectual relief to Plaintiff, and therefore, the case must be dismissed. See

Cornucopia, 560 F.3d at 676.

Under Article III, section 2 of the Constitution, federal courts only have jurisdiction to hear

and decide actual "cases" or "controversies."Allen v. Wright, 468 U.S. 737, 750 (1984); see

National Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). This



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requirement prevents the issuance of advisory opinions, as it demands the existence of an actual

dispute between adverse parties with a stake in the outcome. See Richardson v. Ramirez, 418

U.S. 24, 36 (1974). In fact, "[n]o principle is more fundamental to the judiciary's proper role in

our system of government than the constitutional limitation of federal-court jurisdiction to actual

cases and controversies." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37

(1976) (citing Flast v. Cohen, 392 U.S. 83, 95 (1968)).

The case-or-controversy requirement must be met "through all stages of federal judicial

proceedings." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). The effect of post-

complaint changes in the facts or law on the continued existence of a particular controversy is

assessed through the lens of mootness. See Arizonans for Official English v. Arizona, 520 U.S.

43, 68 n.22 (1997) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397

(1980)). Thus, the controversy must exist at the outset of the litigation and continue throughout

the existence of the suit. See Columbian Rope Company v. West, 142 F.3d 1313, 1316 (D.C. Cir.

1998) (citingArizonans for Official English, 520 U.S. 43). As the D.C. Circuit has explained,

[e]ven where litigation poses a live controversy when filed, the [mootness] doctrine requires a

federal Court to refrain from deciding it if events have so transpired that the decision will

neither presently affect the parties' rights nor have a more-than-speculative chance of affecting

them in the future. Columbian Rope, 142 F.3d at 1316 (quoting Clarke v. United States, 915

F.2d 699, 701 (D.C. Cir. 1990) (en banc)). Once a case becomes moot, the court loses

jurisdiction. See City of Houston v. Dep't of Housing and Urban Dev., 24 F.3d 1421, 1426 (D.C.

Cir. 1994).



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In FOIA cases, an agencys release of documents eliminates any live controversy

between the parties because it gives the requester the relief sought in the FOIA complaint. See

Crooker v. United States State Dep't, 628 F.2d 9, 10 (D.C. Cir. 1980) ("Once the records are

produced [in a FOIA case] the substance of the controversy disappears and becomes moot since

the disclosure which the suit seeks has already been made."). A court can properly dismiss such

cases on mootness grounds because there is no further judicial function for the court to perform.

See Tijerina, 821 F.2d at 799; Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982); Trueblood v.

Dep't of Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996).

After conducting a reasonable and adequate search, Defendant responded to Plaintiffs

FOIA request, providing all responsive records located by Defendant that were not exempt from

disclosure. Thus, Defendant has satisfied Plaintiffs FOIA request and her request is now moot.

Accordingly, the Court should grant dismissal or, in the alternative, summary judgment in

Defendants favor on this basis.

II. SSA CONDUCTED A REASONABLE AND ADEQUATE SEARCH FOR RESPONSIVE RECORDS.

SSA is entitled to summary judgment because it released all of the records that it

collected after conducting a reasonable and adequate search for responsive records. An agency's

summary judgment motion should be granted if the agency shows that it "conduct[ed] a search

reasonably calculated to uncover all relevant documents." Kowalczyk v. DOJ, 73 F.3d 386, 388

(D.C. Cir. 1996) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also

Voinche v. FBI, 425 F. Supp. 2d 134, 135 (D.D.C. 2006). If the plaintiff challenges the nature

and extent of an agency's search for responsive documents, the agency "must demonstrate

beyond material doubt that the search was reasonable.'" Kowalczyk, 73 F.3d at 388.



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The fundamental question is not "whether there might exist any other documents possibly

responsive to the request, but rather whether the search for those documents was adequate."

Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg

v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). In other words, "the

focus of the adequacy inquiry is not on the results." Hornbostel v. United States Dep't of the

Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003);see also Meeropol v. Meese, 790 F.2d 942, 952

(D.C. Cir. 1986) (search is not unreasonable simply because it fails to produce all relevant

materials). Further, the agency is "not obligated to look beyond the four corners of the request

for leads to the location of responsive documents." Kowalczyk, 73 F.3d at 389 (holding that

agency is not required to speculate about potential leads).

An agency may use reasonably detailed, non-conclusory affidavits to demonstrate that it

conducted a reasonable search in accordance with the FOIA. See Ground Saucer Watch, Inc. v.

CIA, 692 F.2d 770, 771 (D. C. Cir.1981); see also Perry v. Block, 684 F.2d 121, 127 (D.C. Cir.

1982). Those affidavits "enjoy a presumption of good faith, which will withstand purely

speculative claims about the existence and discoverability of other documents." Ground Saucer

Watch, 692 F.3d at 771; see also Havemann, 2012 U.S. Dist. LEXIS 136292, at *15;

Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292, 294 (D.D.C. 1997) ("It is well

established that '[a]gency affidavits enjoy a presumption of good faith that withstand[s] purely

speculative claims about the existence and discoverability of other documents," (quoting

Albuquerque Publ'g Co. v. United States Dep't of Justice, 726 F. Supp. 851, 860 (D.D.C. 1989)).

Therefore, unless Plaintiff can point to specific evidence sufficient to put the agency's good faith



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into doubt, summary judgment must be granted to the agency. Ground Saucer Watch, 692 F.3d

at 771.

As detailed in the Declaration of Dawn S. Wiggins, Deputy Executive Director of the

Office of Privacy and Disclosure (Wiggins Declaration) (attached asExhibit D), SSA

conducted an adequate search for the requested documents. SSA searched its records for SS-5

applications for the three individuals named in Plaintiffs FOIA request (Mr. Tsarnaev,

Mr. Bounel, and Ms. Dunham5) and located SS-5s for all but one of the individuals

(Mr. Bounel). SeeWiggins Declaration. 6. [I]t 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. Iturralde

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

SSA was unable to locate the SS-5 for Mr. Bounel because the information provided by

Plaintiff was insufficient to locate Mr. Bounel in SSA records. SeeWiggins Declaration. 6. As

suggested in SSAs FOIA response to Plaintiff, Mr. Bounel may not have applied for a Social

Security number (SSN) or may have given different information on the application for a number

than the information that Plaintiff provided to SSA. See FOIA Response 7. In her FOIA

request, Plaintiff provided SSA with an SSN she claimed was valid for Mr. Bounel. See FOIA

Request 2. In addition, Plaintiff stated that Mr. Bounel was born in 1890, emigrated from

Russia, arrived in the United States around 1912, and received a SSN in Connecticut around

March 28, 1977. Id. However, this information was insufficient for SSA to locate a record for

Mr. Bounel in SSAs systems of records. SeeWiggins Declaration 6. SSA could not find a

5SSA previously located and released the SS-5 for Ms. Dunham to Plaintiff in a prior FOIA request. SeeTaitz v. Astrue, 806 F.Supp.2d 214 (D.D.C. 2011), aff d, No. 11-5304, 2012 U.S. App. LEXIS 10713

(D.C. Cir. May 25, 2013).



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record that matched the information provided by Plaintiff for Mr. Bounel; therefore, SSA could

not produce an SS-5 for this individual. Id.

SSA released all SS-5s located during its search and only withheld information from SSA

records that was exempt under the FOIA and protected by the Privacy Act. Because SSA

conducted an adequate search for responsive documents, it is entitled to summary judgment.

III. SSA PROPERLY WITHHELD PERSONAL INFORMATION UNDER FOIA EXEMPTION 6.

SSA is entitled to summary judgment because it properly withheld personal information

under FOIA exemption 6. In FOIA cases, a courts review of whether an agencys withholding

was proper should focus on whether the agencys determination to withhold was proper at the

time it was made. Bonner v. U.S. Dept. of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991). In the

present case, the agencys decision to withhold the information Plaintiff requested was proper

under FOIA exemption 6, given the information the agency had when it made its decision.

As Plaintiffs April 26, 2013 FOIA request makes clear, Plaintiff was seeking the Social

Security records of Mr. Tsarnaev and Ms. Dunham and information on their dependents and/or

family members contained Social Security records. SeeFOIA Request 1, 3. SSA withheld

parents names and one parent SSN on Mr. Tsarnaevs SS-5 and information about

Mr. Tsarnaevs and Ms. Dunhams dependents and/or family members. SeeFOIA Response 3,

6; Wiggins Declaration 9. Although SSA could identify Mr. Tsarnaev and Ms. Dunham as

deceased, Plaintiff did not provide the names of or any evidence that their family members or

dependents are deceased. SeeFOIA Request 1, 3. Thus, on its face, Plaintiffs request seeks

the agency to disclose information about living individuals. Id.



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Exemption 6 protects from disclosure information contained in "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). Although information in personnel and medical files is

easily identifiable, the "similar files" phrase is "intended to cover detailed government records on

an individual which can be identified as applying to that individual." United States Department

of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (citations omitted); see also Schwaner

v. Department of the Army, 696 F.Supp.2d 77, 81-82 (D.D.C. 2010). Personal privacy has been

described as an "individual's interest in avoiding disclosure of personal matters" that encompass

"the individual's control of information concerning his or her person." United States Department

of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762-63 (1989). If a privacy

interest exists, the analysis requires a balancing of the individual's right to privacy against the

public interest in disclosure. See United States DOD v. Federal Labor Relations Authority, 510

U.S. 487, 495 (1994); ); Taitz, 806 F.Supp.2d at 217. "The only relevant 'public interest in

disclosure' to be weighed is the extent to which disclosure would serve the 'core purpose of the

FOIA,' which is 'contribut[ing] significantly to public understanding of the operations or

activities of the government.'" Havemann, 2012 U.S. Dist. LEXIS 136292, at *17-18 (quoting

Federal Labor Relations Authority, 510 U.S. at 495). If the privacy interest is found to outweigh

the public interest, then the information should be withheld; otherwise, the information should be

released. See, e.g., Chang, 314 F. Supp.2d at 44.

The Social Security records Plaintiff seeks in this case about Mr. Tsarnaevs parents and

Mr. Tsarnaevs and Ms. Dunhams dependents and/or family members, if any exist, fall within

exemption 6 because the requested records contain benefits, financial and medical files and other



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similar sensitive information that SSA maintains about individuals. See U.S. Dept. of State v.

Washington Post Co., 456 U.S. 595, 602 (1982);Havemann, 2012 U.S. Dist. LEXIS 136292, at

*16 (social security records, including social security numbers, addresses, names, and

information regarding eligibility or application for benefits qualify as similar files protected

under exemption 6). The sensitivity of such Social Security records is evidenced by the fact that

Congress has prohibited disclosure of any file, record, report, or other paper, or any

information obtained by the agency in the course of discharging its duties unless authorized by

agency regulations or by other Federal law. 42 U.S.C. 1306(a)(1).6 Any unauthorized

disclosure of this information could lead to a felony conviction. Id. While SSA records indicate

Mr. Tsarnaev and Ms. Dunham are deceased and, therefore, no longer have a privacy interest in

the confidentiality of their Social Security records, the Privacy Act protects any living

individuals personal information contained in their Social Security records. See 5 U.S.C.

552a(b); 20 C.F.R 401.190. Consequently, disclosing any portion of Mr. Tsarnaevs or

Ms. Dunhams file about living individuals to Plaintiff without consent or proof of their death

would constitute a clearly unwarranted invasion of personal privacy under exemption 6 of the

FOIA.

Since Mr. Tsarnaevs parents and Mr. Tsarnaevs and Ms. Dunhams dependents and/or

family members have a privacy interest in their personal information in Social Security records,

the agency would next need to determine if there were any public interest in disclosing the

records. Under Exemption 6, the public interest that needs to be examined is whether disclosure

642 U.S.C. 1306 is not an exemption statute under FOIA exemption 3 (5 U.S.C. 552(b)(3)). See

Schechter v. Weinberger, 506 F.2d 1275, 1277 (D.C. Cir. 1974).



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will inform the public of the agencys performance of its statutory duties. U.S. Dept. of Justice v.

Reporters Committee for Freedom of Press, 489 U.S. 749, 773 (1989). It is Plaintiffs burden to

articulate a public interest, and it must be one that is significant enough to outweigh the privacy

interest at stake. See Salas v. Office of Inspector General, 577 F.Supp.2d 105, 112 (D.D.C.

2008);Havemann, 2012 U.S. Dist. LEXIS 136292, at *18.

The requesters identity or their particular purpose for seeking the information is of no

relevance in determining the publics interest. Reporters Committee, 489 U.S. at 771. Plaintiffs

personal interest in disclosure of the information is not important, instead it is the publics

interest in the information generally that courts must consider. See Moore v. U.S., 602 F.Supp.2d

189, 194 (D.D.C 2009). Indeed, to meet the public interest requirement the information must tell

the public something significant about what its government is doing. National Assn of Retired

Federal Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).

Here, Plaintiff provided no information to demonstrate that the public in general has an

interest in the disclosure of the information about Mr. Tsarnaevs parents and Mr. Tsarnaevs and

Ms. Dunhams dependents and/or family members. SeeFOIA Request 1, 3. In fact, the

Supreme Court has specifically stated that the purpose of FOIA is not fostered by the disclosure

of information about private citizens that does little or nothing to inform the public about the

agencys own conduct. Reporters Committee, 489 U.S. at 773. Thus, Plaintiff has not

demonstrated a public interest in the disclosure of the withheld information Plaintiff requested.

Because living individuals have a significant privacy interest in maintaining the confidentiality

of Social Security records, and Plaintiff, has demonstrated no public interest in this information, the



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information should be withheld under FOIA exemption 6. See Havemann, 2012 U.S. Dist. LEXIS

136292, at *18 (a court must weigh the two interests, mindful that even a very slight privacy interest

trumps an insubstantial public interest). ); Taitz, 806 F.Supp.2d at 220 (SSA properly withheld a

requested SS-5 application under FOIA exemption 6 where disclosure of the application would

implicate a substantial privacy interest while serving no public interest cognizable under FOIA).

Therefore, Defendant respectfully requests that the Court grant summary judgment in its favor on the

grounds that the agency properly withheld the information under FOIA exemption 6 when it made its

decision to withhold.



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CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court dismiss the above-

captioned caption, or, in the alternative, grant summary judgment in Defendants favor. A proposed

Order is attached.

Respectfully Submitted,

ROD ROSENSTEIN

United States Attorney

By: /s/Andrew Norman,Federal Bar No. 00242


36 South Charles Street, 4th FloorBaltimore, Maryland 21201

(410) 209-4821 (Office)

Attorney for Defendant

OF COUNSEL:

Jessica Vollmer, Attorney

Social Security Administration

Office of General CounselOffice of General Law



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 14, 2013, a copy of the foregoing Defendants

Motion for Dismissal or, in the alternative, for Summary Judgment, Memorandum in Support of

Defendants Motion to Dismiss or for Summary Judgment, Proposed Order, and attached

exhibits were dispatched via first class mail to thepro sePlaintiff at the following address:

Orly Taitz

29839 Santa Margarita Parkway, Suite 100Rancho Santa Margarita, CA 92688

/s/Andrew Norman




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Exhibit A

Letter dated April 26, 2013

from Plaintiff to Defendant



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OR ORLY AITZ. SQPRESIDE NT

DE FEND UR FRE.DOMS FOUNDATION29839 SANTAMAR6ARITA PKWY STE 1

RANCHO SANTA MARGARITA CA 9268804.26.2013Social Security AdministrationOEO FOIA Workgroup300 N. Green StreetP.O. Box 33022Baltimore, MD 21290-3022via cert ified mail, fee attachedDear Sir/Mdm,

n::conen

I am requesting under the Freedom of Information act SUS .552 followingdocuments:1. A copy of the SS-5 application for Social Security number for deceasedTamerlan Tsarnaev, 26 yeas old, immigrant from Russia last known residenceBoston MA area. Additionally I am requesting any and all information available inthe SSA file for the deceased. Please, advise if additional fee is required.Specifically I am requesting any and all documentation pertaining to any and allpayments or aid provided by the Social Security administration to the deceasedand his family.2. I am hereby requesting SS-5 application and any and all documentation forHarrison Harry J Bounel immigrant from Russia , born in 1890, arrived in theU.S. in and around 1912, received Social Security number in the state of CT in and

04.26.2013. Request for information under the Freedom of Information Act U.S. Code 5-552 1



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around March 28 1977 SSN 042-68-4425. I am seeking any and alldocumentation on any Social Security benefits received by Mr Bounel for himselfand any and all known dependants3. I am seeking a SS-5 application for Stanley Ann Dunham born in 1942 WichitaKS deceased 1995 Honolulu HI. I am seeking any and all documentation for anyand all Social Security benefits received by Mr Dunham for herself and any and alldependants.

Sincerely

Dr. Orly Taitz ESQ.- President ofDefend our Freedoms Foundation29839 Santa Margarita Pkwy ste 100Rancho Santa Margarita Ca 92688cc Congressman Darrell IssaChairmanHouse Oversight Committee2347 Rayburn ouse BuildingWashington DC 20515

cc Congressman Mike RogersChairmanHouse Intelligence Committee

04.26.2013. Request for information under the Freedom of Information Act U.S. Code 5-552 2



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Exhibit B

Letter dated July 29, 2013

from Defendant to Plaintiff



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SOCIAL SECURITY

July 29, 2013

Refer to:S9H: AL0414

Dr. Orly Taitz, EsquireDefend Our Freedoms Foundation29839 Santa Margarita ParkwaySuite 100Rancho Santa Margarita, CA 92688

Dear Dr. Taitz:

Thank you for your April 26, 2013 request for a copy of the original Applications for aSocial Security Card (Form SS-5s) and any and all Social Security benefits received byMr. Tamerlan Tsarnaev, Mr. Harrison J. Bounel, and Ms. Stanley Ann Dunham or theirdependents.

We did not receive your request until June 6, 2013. We apologize for the delay inresponding to your request and any inconvenience this may have caused.

I have enclosed a copy of the SS-5s for Mr. Tsarnaev and Ms. Dunham. We cannotdisclose the parents names listed on Mr. Tsarnaevs application without their writtenconsent or acceptable proof of their death. The Privacy Act of 1974 (5 U.S.C. 552a)provides the guidelines and limitations for disclosing the information you have requested.The information requested is also exempt from disclosure under the FOIA(5 U.S.C. 552(b)(6)). Exemption 6 of the FOIA does not require agencies to discloseinformation that would be a clearly unwarranted invasion of personal privacy.

With your request, you submitted $37.00 as payment; however, the total cost for the twoSS-5s we have enclosed is $58.00. Please submit an additional payment of $21.00 tocover the cost of processing this request.

You can pay by credit card. We accept Visa, MasterCard, Discover, American Express,and Diners Club. To pay by credit card, complete and sign the enclosed form. Include

your credit card number and expiration date. We also accept checks or money orderspayable to the Social Security Administration. Submit your payment to:

Social Security AdministrationOffice of Privacy and Disclosure

617 Altmeyer Building6401 Security Boulevard

Baltimore, MD 21235



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Page 2 Dr. Orly Taitz, Esquire

In response to your request for any and all Social Security benefits received byMr. Tsarnaev and Ms. Dunham or their dependents, neither Mr. Tsarnaev norMs. Dunham had received any Social Security benefits. The Privacy Act protectsinformation regarding benefits to their family members. Thus, we cannot disclose any

records responsive to your request.

We were unable to find any information for Mr. Bounel based on the information youprovided to us. Mr. Bounel may not have applied for a Social Security number (SSN) ormay have given different information on the application for a number.

If you disagree with this decision, you may request a review. Mail your appeal within30 days after you receive this letter to the Executive Director for the Office of Privacyand Disclosure, Social Security Administration, 6401 Security Boulevard, Baltimore,Maryland 21235. Mark the envelope "Freedom of Information Appeal."

Sincerely,

Dawn S. WigginsFreedom of Information Officer

Enclosure



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Exhibit C

Letter dated August 7, 2013

from Defendant to Plaintiff



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SOCIAL SECURITY

August 7, 2013

Refer to:S9H: AL0414

Dr. Orly Taitz, EsquireDefend Our Freedoms Foundation29839 Santa Margarita ParkwaySuite 100Rancho Santa Margarita, CA 92688

Dear Dr. Taitz:

This letter is a follow up to my July 29, 2013 response to your request for a copy of the originalApplications for a Social Security Card (Form SS-5s) for Mr. Tamerlan Tsarnaev,Mr. Harrison J. Bounel, and Ms. Stanley Ann Dunham or their dependents.

In our response letter, we requested additional payment for processing your request. However,after further review, we determined that you do not owe any additional payment; in fact, we oweyou a refund. The cost for processing your request was $85.00 ($58.00 for the two SS-5documents we provided and $27.00 search fee for the records we were unable to locate). Yousubmitted $111.00 (three $37.00 checks) as payment with your request. Therefore, you willreceive a $26.00 refund.

We apologize for any inconvenience this may have caused.

If you disagree with this decision, you may appeal it. Mail the appeal within 30 days after youreceive this letter to the Executive Director for the Office of Privacy and Disclosure, SocialSecurity Administration, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland21235. Mark the envelope Freedom of Information Appeal.

Sincerely,

Dawn S. WigginsFreedom of Information Officer



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10



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is true



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ORLY TAITZ, )

)


v. )

)



)

Defendant. )

ORDER

Upon consideration of Defendants Motion to Dismiss or, in the alternative, for Summary

Judgment it is this _____ day of ____________, 2013, ORDERED that Defendants Motion be

and hereby is GRANTED.

____________________________________________.

ELLEN L. HOLLANDERUnited States District Judge


Documents

Taitz v Colvin MDD 1:13-cv-01878-ELH #7