UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KENNETH J. DILLON, : : Plaintiff, : Civil Action No.: 17-1716 (RC) : v. : Re Document Nos.: 38, 42 : U.S. DEPARTMENT OF JUSTICE, : : Defendant. : MEMORANDUM OPINION GRANTING DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This FOIA suit arises from a series of events that began nearly twenty years ago. Over a three-week period in fall of 2001, five individuals were killed and seventeen others were infected by the anthrax spores contained in letters mailed to U.S. senators in Washington, D.C., and news media organizations in New York City and Florida. After a multi-year criminal investigation, the Federal Bureau of Investigation (“FBI”) determined that Dr. Bruce Ivins, a United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”) scientist, was responsible for the attacks. But in July 2008, before any criminal charge was filed, Dr. Ivins committed suicide. Within two years, the FBI formally closed its investigation, concluding that Dr. Ivins had acted alone, declining to charge any other parties, and issuing a ninety-six-page Investigative Summary outlining the FBI’s findings. Plaintiff, an historian and author, has doubts about the conclusions the FBI draws in its Investigative Summary. Kenneth J. Dillon questions Dr. Ivins’s involvement in the attacks at all and, seeking evidence to support his stance, has submitted two separate requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In his first request, Mr. Dillon sought certain evidence that he believes to be in the FBI’s possession, namely particular email correspondence including Dr. Ivins and some of the lab notebooks that Dr. Ivins possessed. In his second request, Mr. Dillon sought thirty-eight pages of the FBI’s Interim Major Case Summary (“IMCS”), which is a 2,000-page report that was produced in 2006, four years before the FBI issued its ultimate findings with respect to the attacks. The requested pages consist of a twenty-two-page table of contents and sixteen pages that discuss Dr. Ivins. After nearly two years of administrative appeals and correspondence concerning both requests, Mr. Dillon grew dissatisfied with the FBI’s response and filed this lawsuit in 2017. This Court previously addressed Defendant’s motion for summary judgment and Plaintiff’s cross-motion for summary judgment with respect to both requests. See Dillon v. U.S. Dept. of Justice (Dillon I), No. 17-cv-1716, 2019 WL 249580 (D.D.C. Jan. 17, 2019). This Court denied both parties’ motions. For the first FOIA request, the Court found that Plaintiff’s factual allegations of seemingly responsive, yet unproduced, emails created a genuine dispute as to the adequacy of the FBI’s search. Id. at *1. Thus, the Court directed the government to file a notice “providing possible explanations for why the identified emails were not produced.” Id. For the records located in response to Mr. Dillon’s second request, which the FBI had withheld in its entirety under claims of deliberative process privilege, the Court directed DOJ to produce the thirty-eight pages for in camera review ...
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