The United States Court of the District of Columbia has refused a request by one Aaron Greenspan seeking to compel US security agencies to promptly release to him information, including documents relating to President Bola Ahmed Tinubu.
Judge Beryl A. Howell, in a ruling on Monday, declined Greenspan’s request on the grounds that he failed to satisfy the relevant conditions for the grant of such a prayer for a temporary relief, as contained in the emergency hearing motion, which he filed on Friday.
Greenspan had, in June, filed the civil suit, with number: 23 – 1816 under the Freedom of Information Act (FOIA), against the Executive Office for U.S. Attorneys (EOUSA), Department of State (DOS), Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Drug Enforcement Administration (DEA), and the Central Intelligence Agency (CIA)
He alleged that the defendants – EOUSA, DOS, FBI, IRS, DEA and the CIA, violated the FOIA by “failing to issue determinations within the statutory deadline,” “failing to conduct reasonable searches for records,” and “failing to produce records responsive to” his FOIA requests.
Greenspan had, in an FOIA request to the EOUSA, sought for “records from the Northern District of Illinois and/or Northern District of Indiana involving charging decisions for the following individuals – Bola Ahmed Tinubu (President of Nigeria as of 2/2023” and “Mueez Adegboyega Akande (deceased as of 11/16/2022.”
He claimed that EOUSA, in a letter denying his request, invoked FOIA Exemptions 6 and 7, which protect from disclosure of information that would constitute unwarranted invasions of personal privacy and information compiled for law enforcement purposes that may constitute an unwarranted invasion of the personal privacy of a third party.
A hearing was subsequently scheduled for October 31 for the defendants to present their responses.
Greenspan however, returned to the court on Friday to file the emergency motion, upon learning that the Nigerian Supreme Court will hear on October 23 the appeals by the presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar and that of the Labour Party (LP), Peter Obi against the September 6 judgment of the Presidential Election Petition Court (PEPC), which affirmed President Tinubu’s victory in the last presidential election and dismissed the petitions by Atiku and Obi.
He told the court, among others, that his request for prompt release of the documents, even before the hearing scheduled for October 31 was because ”the Nigerian Supreme Court will hear an appeal of a judicial tribunal’s decision confirming Mr. Tinubu as President of Nigeria on Monday, October 23, 2023.”
Greenspan claimed that the Nigerian Supreme Court deliberately moved the hearing of the appeals by Atiku and Obi to yesterday to render his suit before the U.S court nugatory, contending that the documents he requested for “would likely be directly relevant to the foreign proceedings in Nigeria.”
Judge Howell, in the ruling on Monday, held among others, that Greenspan failed to establish that he is likely to succeed on the merits; that he is likely to suffer irreparable harm if the preliminary relief he sought was not granted; that the balance of equities tips in his favour, and that the relief he seeks is in the public interest.
The judge, who also noted that Greenspan has not established that the purported documents and information he wants the court to compel the defendants to produce actually exist, further held that ”neither a preliminary injunction nor a temporary restraining order is appropriate in this case.
“Given that the FOIA request is for records that, if any exist, may be of a highly sensitive and private nature, and that the subject of those documents – Bola A. Tinubu – has had no opportunity to protect his privacy interests in any such records, the balance of equities militates strongly in favour of denying this emergency motion.”
He held that the position of the law is that, in such a case, the plaintiff bears the burden of proving that he/she is likely to succeed on the merits of the case.
Judge Howell added: “In plaintiff’s underlying FOIA request and complaint, he seeks documents relating to purported federal investigations into the President of Nigeria, Bola Ahmed Tinubu.
“As previously noted, EOUSA originally denied plaintiff’s FOIA request, invoking FOIA Exemptions 6 and 7(c), which protect information that would constitute unwarranted invasions of personal privacy and information compiled for law enforcement purposes that may constitute an unwarranted invasion of the personal privacy of a third party.
”Plaintiff has failed even to attempt to argue how his request may overcome those exemptions and achieve a likelihood of success on the merits. This failure to address this important factor in his emergency motion weighs strongly in favour of denying his motion.”
The judge also found that the plaintiff failed to demonstrate that he was going to suffer actual and real irreparable injury if the relief he sought was not granted, rather than a mere possibility or theoretical injury.
He added that the “plaintiff falls far short of satisfying this standard. He (plaintiff) has not supplied the court with any indication of a concrete, actual threat that he will suffer in the absence of an injunction. While his emergency motion states that a Nigerian Supreme Court hearing is scheduled to occur in the coming days, plaintiff cites no injury he will suffer that is in any way traceable to the relief requested in this motion.
“Granting plaintiff’s emergency motion would essentially allow him to jump the line ahead of other requests deemed similarly time-sensitive under FOIA’s expedition standards. The inherent tradeoffs implicated in ordering an agency to produce records in a specific FOIA request ahead of others by granting a preliminary injunction thus, must be considered in evaluating the balance of the equities, and weigh heavily in favour of denying such injunctive relief.
“Plaintiff has not made any representation to the court that the balance of equities tips in his favour or that the granting of his motion would further the public interest. For the foregoing reasons, it is hereby ordered that plaintiff’s emergency motion for a hearing to compel immediate document production is denied,” the judge said.
Meanwhile, President Tinubu’s lawyers have filed a motion before the court, seeking to be made a party to enable them defend the President in the suit.
Generally, information that is not on the public record cannot be obtained through the FOIA.
They include information kept in FBI or CIA files that are usually classified.
FOIA also jealously guards privacy, such as those relating to financial or health records.
For instance, the Privacy Exemption makes personnel, medical, and similar records inaccessible through FOI requests.
Such information cannot be disclosed without a “clearly unwarranted invasion” of privacy.
Privacy is an important value in the United States, both sociologically and legally.
Another such exemption protects “pre-decisional documents”.
For instance, if a U.S. government investigation is stalled and no action is taken, the papers attached to that process would be “pre-decisional.”
