- Labella’s Request
- The FBI’s Search and Response
- Documents Indicating the Breadth of Gang Stalking
- Ted L. Gunderson Affidavit
- Documents Showing FBI’s FOIA Practices
Plaintiff, Keith Labella, brings this pro se action pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”) against defendants, Federal Bureau of Investigation (“FBI”), Office of Justice Programs (“OJP”), and United States Department of Justice (“DOJ”). Plaintiff seeks the production of certain documents related to “gang stalking” from defendant FBI and seeks the production of certain data related to the Supplemental Victimization Survey to the National Crime Victimization Survey 2006 (the “Survey”) from defendant OJP. Defendants and plaintiff both move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Honorable Nicholas G. Garaufis referred the parties’ motions to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the following reasons, it is respectfully recommended that plaintiffs motion for summary judgment should be denied and defendants’ motion for summary judgment should be granted.
By letter dated January II, 2010, Labella submitted a FOIA request to the FBI seeking thirty-seven categories of documents relating to “the national phenomenon of gang stalking.” (ld. ‘1[31.) The request defines “gang stalking” as follows:
Gang stalking involves groups of individuals (“gang stalking groups”) operating territorially and nationwide, and, in communication and collusion with each other, to violate the civil rights of, and disrupt, destabilize and finally destroy individuals who are put on a Stalking List for various reasons. The gang stalking groups use both intensive physical and electronic surveillance means to do this … includ[ing], but not limited to: · “street theatre,” in which targets of gang stalking are subjected in public to rudeness, loud speaking and personal references to themselves and their private activities by persons within the gang stalking conspiracy; [and] related “Fiashmobbing,” or the coming together of an often large group of individuals in the gang stalking conspiracy to disrupt, intimidate, harass and otherwise confuse a gang stalking victim ….
Labella requested that the FBI search terms such as “targeted individual(s)” (id. ‘l) 31 (5)), “publicly funded victims groups” (id. ‘l) 31(1 0)), “informants” (ilt ‘l) 31(15)), “agents provocateur” (id.), “community stalking” (ilt ‘l) 31(20)), “cause stalking” (id. ‘l) 31(22)), “school shooting” (id. ‘lJ 31 (25)), and “COINTELPRO” (id. ‘lJ 31 (26)), all as they relate to “gang stalking.”
The FBI’s Search and Response
By letter dated November 10,2010, the FBI released 298 partially redacted pages to Labella that had been previously processed for another FOIA request for information relating to gang stalking.4 (!d. ‘l)’l) 33-35.) The previous request was identical to Labella’s request with the exception that the thirty-sixth and thirty-seventh categories of documents in Labella’s request were not included in the original request. (!d. ‘l) 42.)
The search in connection with the previous request was conducted on December 9, 2009. (!d. ‘l) 42.) The FBI searched the CRS using the following search terms: gang stalking, community stalking, group stalking, organized stalking, cause stalking, revenge stalking, vigilante stalking, terrorists stalking, community-based harassment, gaslighting, gang stalking groups, street theatre, flashmobbing, gang stalking methods, flashmob, noise campaigns, work place mobbing, electronic harassment, Stalking America, stalking behavior, stalking harassment, stalking research, electronic stalking, publicly funded victim groups, gang stalking list, gang stalking members, gang stalking group members, and stalking. (!d. ‘1!43.) As a result of this search, the FBI identified two main files and one cross-reference file as potentially responsive to the request. (ld. ‘1!44.) The FBI was unable to locate one of the two main files and determined that the cross-reference file was not responsive to the December 2009 request. (Hardy Dec!. ‘1!24.) Thus, only one of the main files was determined to be responsive, and documents from this file were released to Labella with redactions. (!d.) The pre-processed release consisted of documents from the National Center for Analysis of Violent Crimes’ Research and Development Program regarding a U.S. Secret Service workshop on stalking behavior. (SUMF ‘1!’1!46-47.)
After producing these documents to Labella, the FBI realized-and Labella admits-that none of the pre-processed documents produced to Labella is related to “the national phenomenon of gang stalking” as described in Labella’s request, and that therefore Labella should not have received these documents in response to his request. (SUMF ‘I! 48; RSUMF at 2; Hardy Dec!. ‘1!25.) By letter dated November 12, 20 I 0, Labella appealed the FBI’s November I 0, 20 I 0, release to the DOJ’s Office of lnformation Policy (“OIP”). (SUMF ‘1!36.)
Documents Indicating the Breadth of Gang Stalking
First, Labella submits a number of documents indicating the breadth of the “national phenomenon of gang stalking.” (See Pl. Aff., Ex. A at 5, 12 (BJS Special Report released by OJP entitled “Stalking Victimization in the United States,” showing that over 25% of stalking victims reported either cyberstalking or electronic monitoring and that over 13% of stalking victims reported being stalked by three or more offenders), Ex. B (OJP response to Labella’s FOIA request stating that 185,050 Americans are being stalked by three or more offenders), Ex. I (news story in which police lieutenant states that “gang stalking is nothing new” and that “police are becoming more aware of gang stalking because of cyber bulling”), Ex. J (response to request Labella made ofthe Santa Cruz Police Department for records relating to gang stalking, which includes an internal police memo stating that gang stalking “has implications to workplace violence”), Ex. K (news story about gang stalking in San Antonio), Ex. L (results of internet poll entitled “how long have you been a victim of gang stalking?”), Ex. M (photograph of billboard in Los Angeles advertising “Organized Stalking & Remote Electronic Assaults”), Ex. N (news story about rise of flash mob robberies and flashmobbing), Ex. 0 (same); Pl. MSJ Mem. at 5, 8-9; Pl. Obj. at 1-2.)
These documents are neither FBI records nor contain any mention of the FBI, so presumably Labella submits them to suggest that since gang stalking is so pervasive and so well-known to several government agencies, the FBI must have documents responsive to his FOIA request. (See. e.g., Pl. Aff. ~ 20 (“[G]ang stalking is being reported in every state and country, and, nearly every city and town in the U.S.”); Pl. MSJ Reply at 7 (arguing that “[t]he FBI is the nation’s leading law enforcement agency and should be presumed to know criminal trends known to other law enforcement agencies, investigators and others”); id. at 8 (“[T]he fact that those controlling Washington policy are interested in internet conspiracy theories makes the FBI’s ‘no records’ claim on the subject suspect given that gang stalking is ablaze on the internet (and has been for years).”).)
Ted L. Gunderson Affidavit
Labella submits an affidavit of Ted L. Gunderson, a licensed private investigator in California who previously served for nearly three decades as head of three FBI field offices and as Assistant Section Chief at FBI Headquarters. (Pl. Aff., Ex. D; Pl. MSJ Mem. at 6.) Gunderson’s affidavit states that “it is [his] professional opinion that the F.B.I. is involved in and has investigative files on the subject of gang stalking, related gang stalking methods, and gang stalking groups in the F.B.I.’s vast intelligence files, that are responsive to Mr. Labella’s F.O.I.A. Complaint.” (Pl. Aff., Ex. D. ‘1[9.) Gunderson asserts that “[t]he F.B.I. may be using a unique codename and nomenclature for the gang stalking phenomenon in its records,” but that does not change his opinion that it has files on gang stalking. (IQJ The affidavit also states that “[t]he F .B.!. and other intelligence agencies are administering and covering up the rogue, covert, government criminal enterprise of gang stalking.” (I d.)
Like Labella, Gunderson-whose employment with the FBI ended in 1979-offers little more than speculation; he provides no tangible evidence supporting his theory that the FBI is involved in or has access to records on gang stalking, let alone calling into question the reasonableness of the FBI’s search for records on the subject. Gunderson vaguely asserts that “[t]he gang stalking phenomenon appears in the records of both the F.B.I. and the N.S.A. in their records pertaining to the ECHELON Program, Carnivore System, and Tempest Systems,” and “in their records pertaining to information collected by N arus systems.” (I d.) But he provides no explanation either of the basis for his assertion or of the nature of the information on gang stalking that supposedly appears in those records, without which there is no way for the court to determine whether the records (I) exist and (2) should reasonably have been discovered in the FBI’s search. And although Gunderson asserts that he has “files on numerous cases of active, programmatic, illegal government harassment currently being conducted against thousands of Americans,” Gunderson does explain the content of these files, does not explain how they are related to the FBI or to gang stalking specifically, and does not assert that the FBI has the same files that he does. (l!!J Indeed, Gunderson alleges that the FBI’s involvement in gang stalking results from the FBI being “secretly infiltrated” by a “sophisticated network of rogue operatives”-whereas “most individuals working in the F .B.l. … are honest, law-abiding public servants.” (ld., Ex. D ‘1[6.) If anything, this assertion undermines his suggestion that the FBI employees administering FOIA requests would have access to documents on gang stalking.
Gunderson also assumes that the Federal Government must be involved in gang stalking because “[t]his conspiracy is far too active to be controlled or operated by private enterprise whose goals are achieving financial gain.” (ld., Ex. D ‘1[4.) Much of his affidavit opines on the capacity of the Federal Government to conduct a widespread gang stalking campaign. (See. e.g., id., Ex. D ‘If 5 (discussing the existence of”a Central Command, located within the U.S., … whose administrators can instantly initiate surveillance, phone taps and harassment against any individual in the country,” and which has “the technology, financing and manpower to dispense illegal surveillance and harassment against anyone at any time” (emphasis added)).) Of course, the fact that the Federal Government can conduct a widespread gang-stalking campaign does not mean that it does, that the FBI is involved in the campaign, or that the FBI has records on the campaign that should have been produced in response to Labella’s request. Like Labella’s suggestion that the FBI “should be presumed” to know about gang stalking because of its scope (Pl. MSJ Reply at 7), Gunderson’s speculative statements cannot rebut the presumption of good faith afforded to the FBI’s affidavit. See Grand Cent. P’Ship, I66 F. 3d at 490; Jones-Edwards, 352 F. Supp. 2d at 422; Garcia, 181 F. Supp. 2d at 369.
Documents Showing FBI’s FOIA Practices
Finally, Labella submits documents supposedly showing misbehavior by the FBI with respect to FOIA generally. (See Pl. Aff., Ex. E (news article stating that FBI withheld records from court pursuant to FOIA exclusion without explaining basis for exclusion by affidavit), Ex. F (news article reporting that FBI used secret drives to isolate information and hide it from FOIA plaintiffs); Pl. MSJ Mem. at 6-7.) But even if these articles are fully credited, two isolated incidents of the FBI’s non-compliance with FOIA do not demonstrate that the FBI failed to conduct a reasonable search or acted in bad faith in this specific instance.