Marino v. Drug Enforcement Administration ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GRISELLE MARINO,
Plaintiff,
v.
Civil Action No. 06-1255 (TJK)
DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
In this case brought under the Freedom of Information Act, Plaintiff Griselle Marino
seeks documents related to a witness who testified against her deceased spouse at his trial, at
which he was convicted on federal drug charges. The parties have cross-moved for summary
judgment. For the reasons explained below, Marino’s motion for summary judgment will be
denied, and Defendant’s cross-motion will be granted.
Background
This suit concerns a FOIA request submitted in 2004 by Carlos Marino, which sought
records connected to an individual, Everth Lopez, who testified at his criminal trial. 1 ECF No.
95 at 2. Carlos Marino was ultimately convicted. Id. In his FOIA request, he asked the Drug
Enforcement Administration (“DEA”) for “a copy of all documents indexed under No. 3049901
of the Narcotics and Dangerous Drug Information System (“NADDIS”). I am only requesting
information that is already public information or was required to be made public in public trials
. . . .” ECF No. 136 ¶ 1. NADDIS numbers are unique numbers assigned to individuals in the
1
Following Carlos Marino’s death, Griselle Marino was substituted as Plaintiff in December
2013. ECF No. 89.
DEA’s database for various reasons, e.g., because the person is a subject of an investigation,
defendant, witness, confidential source, victim, or family member. ECF No. 136-2 (“Myrick
Decl.”) ¶ 9. Carlos Marino suspected that No. 3049901 was associated with Lopez. ECF No. 95
at 6.
In response to the request, the DEA issued what is known as a Glomar response, stating it
could neither confirm nor deny the existence of the requested records because NADDIS No.
3049901 was linked to a third party. Thus, according to the DEA, there would be an
unwarranted invasion of privacy unless it was provided proof of the third party’s death or a
notarized privacy waiver. ECF No. 136 ¶ 3; Myrick Decl. ¶ 15. As a result, the DEA did not
search for any documents. Myrick Decl. ¶ 18. Carlos Marino filed this case in 2006, and the
DEA maintained its Glomar response until 2013. ECF No. 136 ¶ 4; Myrick Decl. ¶ 15.
Ultimately the DEA withdrew that response and conducted a search, but one limited to
documents that had been made public. ECF No. 95 at 10, 23. The DEA argued that its search
was reasonable based on the language of the request, and that even if the request were interpreted
more broadly, all other documents could be “categorically” withheld under Exemption 7(C),
which protects against “unwarranted invasion of personal privacy.” ECF No. 65 at 16. But
Judge Kessler, to whom this case was previously assigned, rejected the DEA’s approach and
ordered it to search for all documents indexed to NADDIS No. 3049901, no matter whether they
were made public or required to be made public at the related trials. ECF No. 95 at 23–24.
Although the DEA asserted it had already searched all its records for documents indexed to
NADDIS No. 3049901, Judge Kessler found that the DEA “offered virtually no detail as to the
methods . . . employed or the results of [the] search.” Id. at 23 n.8.
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So the DEA went back and conducted a more thorough search for NADDIS No.
3049901, which returned three case files. Myrick Decl. ¶ 19. In those files, the DEA searched
page-by-page for documents “indexed to NADDIS number 3049901,” i.e., pages “that had a
notation indicating that information on the page had been entered into NADDIS and linked to
number 3049901.” Id. This search turned up 128 responsive pages. Id. Of those, in 2015, the
DEA released 1 page in full, 35 pages with redactions, and withheld 92 pages in full. Id. ¶ 20.
The DEA moved for summary judgment, while Marino moved for in camera review. See ECF
Nos. 103, 105. Judge Kessler denied the DEA’s motion for summary judgment and granted
Marino’s motion to review the 128 pages in camera. ECF No. 110. Ultimately, Judge Kessler
upheld those redactions and withholdings. See Minute Order of June 11, 2015.
Judge Kessler then ordered the parties to submit statements of remaining issues. Minute
Order of July 28, 2015. In light of those filings and citing confusion in determining the posture
of the case, Judge Kessler instructed the parties to submit another round of motions for summary
judgment. ECF No. 127. In the meantime, the case was re-assigned to this Court. Griselle
Marino filed her current motion for summary judgment first, ECF No. 130, in which she claimed
that the DEA’s search was inadequate, the DEA’s assertion of exemptions other than 7(C) was
untimely, and the DEA had failed to produce all reasonably segregable portions of the relevant
records. The DEA then filed its current cross-motion, ECF No. 136—but not before it re-
reviewed the three case files. This time, the DEA looked for any pages referring to Lopez
regardless of whether they were indexed to NADDIS No. 3049901. Myrick Decl. ¶ 23. The
DEA identified 406 additional pages through this search. Id. ¶ 24. In 2018, it released 62 pages
in full, 260 pages with redactions, withheld 12 pages in full, and referred 73 pages to other
agencies or components of the Department of Justice (“DOJ”), only one of which is relevant to
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the instant motions, an 11-page document withheld by DOJ’s Organized Crime Drug
Enforcement Task Forces (“OCDETF”). Id. ¶¶ 24, 28.
Marino then filed her combined opposition and reply, ECF No. 138, in which she
maintained her challenges to the adequacy of the search and the timeliness of any exemption
other than exemption 7(C), clarified that she challenged the segregability of material on only 45
specific pages (34 pages redacted or withheld by the DEA in 2018, and the 11-page document
withheld by OCDETF in 2018), and asserted that while the DEA had withheld two pages in full
under exemption 7(C), it had only explained its basis for applying this exemption to one page in
its affidavit.2 ECF No. 138-1 at 2; ECF No. 138-3 at 2. Marino requested in camera review of
those 45 pages on both the timeliness issue and for segregability. ECF No. 138-1 at 2.
In response, the DEA re-processed some of the documents one more time and resolved an
indexing backlog issue. ECF No. 141-1 (“Miller Decl.”) ¶¶ 10–15. In all, in 2018, the DEA re-
processed the 34 pages identified by Marino to disclose further information and minimize
redactions. Id. ¶¶ 17(a)–(y). The DEA also realized that it had miscounted how many of those
34 pages it had withheld in full—the correct total number was ten, rather than 11. Id. ¶ 16. In
connection with the reprocessing, the DEA ultimately released five of those ten pages with
redactions, and so it continues to withhold in full only five. Id. Because of the resolution of the
backlog issue and re-processing, the Court permitted Marino to file a sur-reply addressing these
issues. Minute Order of Feb. 5, 2021. The Court also ordered the DEA to produce the 45
2
This dispute is no longer relevant to resolving the instant motions. The DEA’s count of two
pages withheld in full under exemption 7(C) turned out to be correct, but the DEA released in
part those two pages as part of subsequent re-processing described above, ECF No. 141 at 11 n.3,
and now explains the redactions on both pages, Miller Decl. ¶¶ 17(g), (w). Marino does not
challenge those explanations, and as explained below, Marino dropped her timeliness and
segregability challenges to all documents produced in 2018 except those pages that were
withheld in full.
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documents identified by Marino for in camera review. Id. Marino filed a sur-reply and clarified
that of the 34 reprocessed pages, she now “limits [her] challenge . . . to the withholding in full of
five of these pages.” ECF No. 149 at 1. She does not, however, appear to have made any
concession as to the 11-page OCDETF document.
So after all that, the disputes that remain for resolution are the following: (1) the
adequacy of the DEA’s search, (2) its invocation of exemptions other than 7(C) as untimely as to
the 92 pages withheld in 2015, the five pages the DEA withheld in full in 2018, and the 11-page
OCDETF document withheld in full in 2018; and (3) the segregability of information in the five
pages the DEA withheld in full in 2018 and the 11-page OCDETF document withheld in full in
2018.
Legal Standard
“Congress enacted the FOIA in order to ‘pierce the veil of administrative secrecy and to
open agency action to the light of public scrutiny.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C.
Cir. 2007) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)) (internal quotation
marks omitted). “FOIA ‘mandates that an agency disclose records on request, unless they fall
within one of nine exemptions.’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec. (“EPIC”),
777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)).
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “Summary judgment is
appropriately granted when, viewing the evidence in the light most favorable to the non-movants
and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in
their favor.” Lopez v. Council on Am.–Islamic Relations Action Network, Inc., 826 F.3d 492,
496 (D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed.
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R. Civ. P. 56(a)). “In the FOIA context, a district court reviewing a motion for summary
judgment conducts a de novo review of the record, and the responding federal agency bears the
burden of proving that it has complied with its obligations under the FOIA.” MacLeod v. Dep’t
of Homeland Sec., No. 15-CV-1792 (KBJ), 2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017)
(citing 5 U.S.C. § 552(a)(4)(B)); see also Cable News Network, Inc. v. Fed. Bureau of
Investigation, 271 F. Supp. 3d 108, 111 (D.D.C. 2017) (“Unlike the review of other agency
action that must be upheld if supported by substantial evidence and not arbitrary or capricious,
the FOIA expressly places the burden on the agency to sustain its action . . . .” (quoting Dep’t of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 775 (1989)) (internal quotation
marks omitted).
Analysis
A. Adequacy of the DEA’s Search
“To prevail on summary judgment [in a FOIA case], an ‘agency must show that it made a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested,’ which it can do by submitting ‘a
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
searched.’” Reporters Comm. for Freedom of Press (“RCFP”) v. Fed. Bureau of Investigation,
877 F.3d 399, 402 (D.C. Cir. 2017) (cleaned up) (quoting Oglesby v. Dep’t of Army, 920 F.2d 57,
68 (D.C. Cir. 1990)). “The agency fails to meet this burden such that summary judgment is
inappropriate when the agency fails to set forth the search terms and the type of search
performed with specificity or otherwise provides ‘no information about the search strategies of
the agency components charged with responding to a FOIA request’” and “‘no indication of what
each component’s search specifically yielded.’” Evans v. Fed. Bureau of Prisons, No. 16-cv-
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2274 (BAH), 2018 WL 707427, at *2 (D.D.C. Feb. 5, 2018) (quoting RCFP, 877 F.3d at 403)
(cleaned up). “At a bare minimum, the agency’s affidavits need to specify ‘what records were
searched, by whom, and through what process.’” Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d
26, 38 (D.D.C. 2017) (quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)).
The DEA has carried its burden. After Judge Kessler construed the FOIA request at issue
as seeking “all documents indexed to NADDIS number 3049901,” ECF No. 95 at 20–21, the
DEA searched its Investigative Reporting and Filing System (IRFS) for NADDIS No. 3049901,
Myrick Decl. ¶ 19. A search of IRFS using a NADDIS number is a worldwide search for DEA
records, including records maintained at field offices. Id. ¶ 12. The DEA’s search for NADDIS
No. 3049901 identified three case files. Id. ¶ 19. The DEA searched those files for pages
“indexed to NADDIS number 3049901,” i.e., pages with a notation showing that the information
on the page had been entered into NADDIS and linked to No. 3049901, or a notation reflecting
that information would be so entered and linked. Id. It identified 128 responsive pages. Id. As
already mentioned, the DEA later re-processed these files to look for any pages referring to
Lopez regardless of whether they were indexed to NADDIS No. 3049901. Id. ¶ 23. The DEA
identified 406 pages through that search. Id. ¶ 24.
Marino contends that the Court should find the DEA’s search inadequate and order it to
search IRFS for Lopez’s name and known aliases because “the only way to get an adequate
search is to direct the DEA to search for any documents in its investigative files that reference
Mr. Lopez.” ECF No. 130-1 at 9. By searching for NADDIS No. 3049901, the DEA construed
the request too narrowly, according to Marino, and the search was therefore not reasonably
calculated to capture all relevant documents. But the request’s plain language sets the search
parameters as documents indexed to that number. ECF No. 136 ¶ 1. Indeed, the DEA likely
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went above and beyond what the request called for by searching the three case files for all
documents referring to Lopez, even if they were not indexed to NADDIS No. 3049901.
In addition, that Marino suspects further documents must exist for various reasons, ECF
No. 138-1 at 3–4, is immaterial, see, e.g., Iturralde v. Comptroller of Currency, 315 F.3d 311,
315 (D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is generally determined not by the
fruits of the search, but by the appropriateness of the methods used to carry out the search.”);
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (presumption of good faith
accorded agency affidavits “cannot be rebutted by purely speculative claims about the existence
and discoverability of other documents”); Hedrick v. Fed. Bureau of Investigation, 216 F. Supp.
3d 84, 94–95 (D.D.C. 2016) (plaintiff cannot challenge adequacy of search based on speculation
that agency is hiding or destroyed records). She also points to evidence of bad faith at Carlos
Marino’s trial and the considerable delays in this case as reasons the Court should order a new,
broader search. ECF No. 130-1 at 15–18. Although these issues are concerning, the DEA has
shown on this go-round with detailed affidavits why its search was sufficient, and as already
explained, the Court finds the search methodology reasonable and faithful to the request’s
scope.3
B. Timeliness of Exemptions
“In addition to demonstrating the adequacy of the search, the agency must ‘demonstrate
that the records have not been improperly withheld.’” Evans, 2018 WL 707427, at *3 (quoting
Ctr. for the Study of Servs. v. Dep’t of Health & Human Servs., 874 F.3d 287, 288 (D.C. Cir.
3
Marino also previously argued that an indexing backlog issue provided a basis for ordering a
new, broader search. But Marino has since withdrawn that argument. ECF No. 149 at 1
(characterizing backlog issues as “moot” because “[t]he DEA, by re-doing its search after all
files had been entered into NADDIS, resolved the backlog issue Ms. Marino had raised”).
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2017)). “The burden is on the agency to justify withholding the requested documents, and the
FOIA directs district courts to determine de novo whether non-disclosure was permissible.”
EPIC, 777 F.3d at 522. “Summary judgment is warranted on the basis of agency affidavits when
the affidavits describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d
773, 776 (D.C. Cir. 1984)). The agency cannot rely on “conclusory and generalized allegations
of exemptions.” Morley, 508 F.3d at 1114 (quoting Founding Church of Scientology of Wash.,
D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)).
Marino does not challenge that the DEA has met the invoked exemptions’ requirements;
rather she argues that the assertion of any exemption other than 7(C) as to certain documents is
untimely under Maydak v. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000) because that is the
only exemption the DEA raised at the beginning of this litigation.4 ECF No. 138-1 at 15. In
Maydak, the D.C. Circuit held that “as a general rule,” the government “must assert all
exemptions at the same time, in the original district court proceedings.” 218 F.3d at
764. Essentially, Maydak prohibits the government from “play[ing] cat and mouse by
withholding its most powerful cannon until after the District Court has decided the case and then
4
In connection with this argument, Marino requested in camera “Maydak review” of certain
documents so that the Court could “reject[] . . . the attempt to raise new exemptions.” ECF No.
138-1 at 15. Although the Court ordered the DEA to produce certain documents for in camera
review of segregability, the Court finds that in camera review is unnecessary to resolve any
Maydak issue. Maydak is mainly a legal question about the timeliness of the DEA’s assertion of
certain exemptions, and Marino has identified no relevant factual issues that the Court’s review
of the documents in camera would illuminate. No. 138-1 at 15.
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springing it on surprised opponents and the judge.” August v. Fed. Bureau of Investigation, 328
F.3d 697, 699 (D.C. Cir. 2003) (quoting Senate of the Commonwealth of Puerto Rico (“Senate of
Puerto Rico”) v. Dep’t of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987)). But it did not establish a
“rigid ‘press it at the threshold, or lose it for all times’ approach to agenc[ies’] FOIA exemption
claims.” Id. (quoting Senate of Puerto Rico, 823 F.2d at 581). In that vein, even where the
Maydak rule would otherwise apply, this Circuit has recognized two exceptions: (1)
“extraordinary circumstances where, from pure human error, the government failed to invoke the
correct exemption and will have to release information compromising national security or
sensitive, personal, private information unless the court allows it to make an untimely exemption
claim”; and (2) “a substantial change in the factual context of the case or an interim development
in the applicable law forces the government to invoke an exemption after the original district
court proceedings have concluded.” Maydak, 218 F.3d at 767.
Marino invokes this doctrine as to the 92 pages withheld in 2015, the five pages the DEA
withheld in full in 2018, and the 11-page OCDETF document withheld in full in 2018. The
Court finds that the DEA has not run afoul of Maydak as to either the 2015 or 2018 production.
First, Judge Kessler already decided that the DEA could assert these exemptions as to the 2015
set, and the Court declines to reconsider that decision. In 2015, Judge Kessler upheld the DEA’s
withholdings under exemptions 7(C), 7(D), 7(E), and 7(F) after reviewing the documents in
camera. Marino argues that the application of Maydak to these withholdings remains an open
question because Judge Kessler only issued a minute order approving the withholdings and did
not specifically address Maydak. ECF No. 138-1 at 15. But the Maydak issue was before Judge
Kessler when she reviewed the withholdings because Marino raised it in her motion for in
camera review. ECF No. 105 at 5–6. Her review of the merits of the withholdings on that
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record therefore implicitly acknowledged the exemptions as timely raised, and that conclusion is
the law of the case. See Loma Linda Univ. Kidney Ctr. v. Burwell, 185 F. Supp. 3d 196, 199
(D.D.C. 2016) (“[T]he law-of-the-case doctrine [provides that] the same issue presented a second
time in the same case in the same court should lead to the same result.” (quoting LaShawn A. v.
Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996))); Williamsburg Wax Museum, Inc. v. Historic
Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987) (“The doctrine encompasses a court’s explicit
decisions, as well as those issues decided by necessary implication.”). And there has been no
“intervening change in the law” or demonstration that “the previous decision was ‘clearly
erroneous and would work a manifest injustice’” to justify revisiting this issue. See Loma Linda,
185 F. Supp. 3d at 200 (quoting Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999)).
Second, as to the five withheld pages from the 2018 production and the OCDETF
document withheld then as well, Maydak simply does not apply. The Maydak cases concern
instances in which the government tries to raise additional exemptions late in litigation as to the
same documents over which it previously asserted different ones. Marino has not suggested that
is what has happened here, and she cites no case in which Maydak was applied to bar invocation
of new exemptions over newly identified documents. In Maydak, the plaintiff sought his
criminal case file from a U.S. Attorney’s Office. 218 F.3d at 762. At first, DOJ asserted only
exemption 7(A), which protects documents when their release “could reasonably be expected to
interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), because the plaintiff was
litigating a series of direct and collateral challenges to his conviction. Id. The district court
granted summary judgment for DOJ, and the plaintiff appealed. Id. at 763. On appeal, once
most of the plaintiff’s conviction challenges concluded, DOJ moved to remand, stating that 7(A)
no longer applied and seeking to assert new exemptions over the same documents. Id. at
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764. The court denied the motion for remand and ordered all requested documents released to
the plaintiff because DOJ had not timely raised the exemptions before the district court and did
not qualify for either of the two Maydak exceptions. Id. at 769.
Here, in contrast, Marino does not suggest that the DEA is seeking to assert additional
exemptions over the same documents as to which it once asserted different exemptions. Rather,
the DEA asserted Exemption 7(E) the first time it addressed the five pages at issue, in its now-
pending motion for summary judgment. Myrick Decl. ¶¶ 37–39. The same goes for OCDETF:
the first time it addressed the 11-page document at issue, it asserted exemptions 5, 6, 7(C), and
7(E). ECF No. 136 at 21. And obviously, the DEA has no obligation to anticipate documents
that may be later identified as FOIA litigation runs its course and somehow preemptively raise
exemptions. Finally, that the DEA may have previously asserted 7(E) in conjunction with 7(C)
and 7(F) over these pages, but now asserts only 7(E), see ECF No. 149 at 2, does not violate
Maydak either, because the DEA has added no new exemptions.
C. Segregability
FOIA also requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt,” 5
U.S.C. § 552(b), “unless the exempt portions are ‘inextricably intertwined with exempt
portions,’” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002) (quoting Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977)). “The agency is ‘entitled to a presumption that [it] complied with the obligation to
disclose reasonably segregable material,’ but that does not excuse the agency from carrying its
evidentiary burden to fully explain its decisions on segregability,” 100Reporters LLC v. Dep’t of
Justice, 248 F. Supp. 3d 115, 165 (D.D.C. 2017) (quoting Hodge v. Fed. Bureau of Investigation,
703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original). Indeed, the agency “must . . . provide
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descriptions of excerpts deemed to be non-segregable, with explanations as to these
decisions.” Am. Immigration Council v. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 248
(D.D.C. 2013).
The DEA has met its burden. As it explained: “All responsive information was examined
to determine whether any reasonably segregable information could be released,” and information
was withheld only where it met the requirements for an exemption or where “the release of any
additional information would . . . provide no useful information, or [be] incomprehensible words
or phrases.” Myrick Decl. ¶ 49. Further, the DEA re-reviewed the documents and narrowed its
redactions and withholdings, ECF No. 141-1 ¶ 17, which the Court then reviewed in camera.
Based on the record and that review, the Court finds that the DEA redacted and withheld what it
represents it did, and that any reasonably segregable portion of these records was provided to
Marino.
Conclusion
For all the above reasons, Defendant’s motion for summary judgment, ECF No. 136, will
be granted, and Plaintiff’s motion for summary judgment, ECF No. 130, will be denied. A
separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 26, 2021
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