Adionser v. United States Department of Justice ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DICKINSON N. ADIONSER, )
Plaintiff, pro se, §
v. § Civil Case N0. 10-27 (RJL)
DEPARTMENT OF JUSTICE et al., §
Defendants. § F I l_ E D
MAR 2 8 2014
MEMORANDUM OPINION
811 F. Supp. 2d 284 (D.D.C. 201 l) [Dkt. #47]. That decision was
summarily affirmed on appeal, but the case was remanded so I could address new factual
and legal circumstances. See Adionser v. U.S. Dep ’t of Justz``ce, N0. ll-5093, 2012 WL
5897172, at *l-2 (D.C. Cir. Nov. 5, 2012) [Dkt. #65], cert. deniea’, 134 S. Ct. 141
(2013). And so l will.
First, as part of its motion for summary affirmance on all other claims, the
government notified our Court of Appeals that "the criminal appeal serving as the basis
for invocation of [FOIA] Exemption 7(A) ha[d] concluded," thus necessitating a remand
for me to consider whether other exemptions cover the documents previously withheld on
Exemption 7(A) grounds. Appellees’ Mot. for Partial Summ. Affirinance at 1-2 [D.C.
Cir. Doc. #1376750]; see Adionser, 2012 WL 5897172, at *1. Second, the court on its
own motion directed me to consider, "in light of the Supreme Court’s recent decision in
Milner [v. Department of the Navy], 131 S. Ct. 1259 [(2011)]," whether FOIA Exemption
7(E) applies to the DEA’s Geographica1Drug Enforcement Program ("G-DEP") codes
previously withheld under Exemption 2. Adionser, 2012 WL 5897172, at *2. Adionser
and the DEA have both moved for summary judgment on these two issues, and I will
address them in turn. See Def.’s Mot. for Summ. J. ("Def.’s Mot.") [Dkt. #81]; Pl.’s
Cross Mot. for Summ. J. ("Pl.’s Cross Mot.") [Dkt. #90].1
ANALYSIS
A. G-DEP Codes Withheld Under FOIA Exemption 7(E)
1 begin with the second issue because it is discrete and simple. According to the
DEA’s Fourth Declaration of Katherine L. Myrick ("Fourth Myrick Decl.") [Dkt. #81-3],
and the attached Vaughn Index (EX. B to Fourth Myrick Decl.) [Dkt. #8l-5]_which I
find are sufficiently specific and detailed to warrant the same reliance that I and the Court
of Appeals afforded the government’s previous declarations and indices, see Adionser,
811 F. Supp. 2d at 292-93; Adionser, 2012 WL 5897172, at * l_the G-DEP codes were
the only things withheld under Exemption 7(E). See Fourth Myrick Decl. 11 28. But
plaintiff now says "he is not interested in any G-DEP codes." Pl.’s Cross Mot. at 34. On
l For the full factual background of this case and a discussion of the legal standard that applies to
my analysis, see Adionser, 811 F. Supp. 2d at 290~92.
2
that ground a1one, I grant summary judgment in the DEA’s favor on Exemption 7(E).
The DEA’s affidavit goes on to explain how G-DEP codes "identify priority given
to narcotic investigations, types of criminal activities involved, and violator ratings,"
which suspects could "decode . . . and as a result, change their pattern of drug-trafficking
in an effort to respond to what they determined DEA knows about them, develop
enforcement countermeasures, avoid detection and apprehension, created excuses for
suspected activities, and/or create alibis for suspected activities." Fourth Myrick Decl.
11 28. Even assuming the DEA did "release Adionser’s G-DEP code ‘XCHIR’ to [him]
and his co-defendants in 2()03," Pl.’s Cross Mot. at 34, plaintiff does not seriously
challenge the DEA’s assertion that further disclosure of the codes "would disclose
techniques[,] procedures . . . [and] guidelines for law enforcement investigations or
prosecutions" that "could reasonably be expected to risk circumvention of the law."
5 U.S.C. § 552(b)(7)(E); Fourth Myrick Decl. 11 29; see also Am. Immigration Lawyers
Ass ’n v. U.S. Dep ’t ofHomeland Sec., 852 F. Supp. 2d 66, 78 (D.D.C. 2012) ("While
Exemption 7(E)’s protection is generally limited to techniques or procedures that are not
well-known to the public, even commonly known procedures may be protected from
disclosure if the disclosure could reduce or nullify their effectiveness."). I therefore find
that the DEA properly asserted Exemption 7(E).
B. Inf0rmati0n Withheld Under FOIA Exemptions 7(C), 7(D), and 7(F) and
Privacy Act Exemption (j)(2)
The rest of the information at issue_which had initially been withheld pursuant to
Exemption 7(A)-is now being withheld under FOIA Exemptions 7(C), 7(D), and 7(F),
3
and Privacy Act Exemption (j)(Z). See 5 U.S.C. §§ 552(b)(7)(C), (D), (F); 552a(j)(2).
Plaintiff’s arguments concerning these documents are similar, if not identical, to the ones
he made in his initial summary judgment briefmg, so the analyses the follow are
essentially abbreviated versions of the ones set forth in my previous opinion. In short, I
find that the Fourth Myrick Declaration and the attached Vaughn Index adequately
support the DEA’s application of these exemptions to the 753 pages of documents the
DEA processed following our Circuit Court’s remand.
First, Exemption 7(C) covers any "records or information compiled for law
enforcement purposes," the production of which "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). In
determining whether the exemption applies, the Court must "balance the privacy interests
that would be compromised by disclosure against the public interest in release of the
requested information." Beck v. U.S. Dep ’t of Justice, 997 F.2d 1489, l49l (D.C. Cir.
1993) (internal quotation marks omitted). The Fourth Myrick Declaration explains that
"[m]uch of the documents in investigative case file number GW-02-()032 contain names
and other identifying information which would reveal the identity of and disclose
personal information about third-party individuals who were involved or associated with
the plaintiff or otherwise associated with the criminal investigation." Fourth Myrick
Decl. 11 l5. The information relates to "witnesses, suspects, criminal associates, non-
implicated individuals, and law enforcement officers and support personnel," z``d., and it
includes their addresses, financial account information, birth dates, Social Security
Numbers, and driver’s license numbers, ia’. 11 17.
P1aintiff has not asserted any public interest substantial enough to outweigh the
grave privacy and safety concerns implicated by his request for this information. See z``d.
1111 18-21; see also Grayj"v. FBI, 822 F. Supp. 2d 23, 33 (D.D.C. 2011) ("Exemption 7(C)
imposes a special burden on the requester to specify the public interest justification for
disclosure of the requested records." (citing Nat ’l Archz'ves & Recora’s Admin. v. Favish,
541 U.S. 157, 172 (2004))); see also Boyd v. Criminal Div. ofU.S. Dep ’t ofJustice, 475
F.3d 381, 387 (D.C. Cir. 2007). Nor has he produced evidence that anyone has waived
the 7(C) Exemption by previously disclosing the same information that he now seeks to
obtain. See Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999); Geronimo v. Exec.
Ojj‘ice ofU.S. Att 'ys, C.A. No. 05-1057, 2006 WL 1992625, at *6 (D.D.C. July 14, 2006)
(citing Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir.l990), and Davis v. U.S. Dep ’t of
Justz``ce, 968 F.2d 1276, 1279 (D.C. Cir.1992)). 1 therefore find that the DEA correctly
invoked Exemption 7(C).
Exemption 7(D), meanwhile, covers records or information compiled by law
enforcement that "could reasonably be expected to disclose the identity of a confidential
source . . . [who] furnished information on a confidential basis," as well as the actual
"inforrnation furnished by a confidential source." 5 U.S.C. § 552(b)(7)(D). Whether the
exemption is applicable "depends upon whether the particular source who furnished the
information at issue was granted confidentiality, either expressly or by imp1ication."
Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000) (citing U.S. Dep ’t of.]ustice v.
Lana’ano, 508 U.S. 165, 172 (1993)). In this case, "[t]he investigation of plaintiff
involved multiple confidential sources, thus the responsive investigative records are
replete with source-related information." Fourth Myrick Decl. 11 24. Some of the
informants were "[c]oded informants . . . who have a continuing cooperative association,
by signed written agreement, with the DEA," under which "they are expressly assured
confidentiality in their identities and the information they provide." Ia’. Others received
implied assurances of confidentiality. Plaintiff was convicted of heroin distribution, and
"any individuals who provided information about the plaintiff or his associates would
fear for their safety if their identities or the information they provided were revealed
because violence is inherent in the trade in illicit substances." Ia’. 11 26. Accordingly, the
informants "spoke with an understanding that the communication would remain
confidential." Lana’ano, 508 U.S. at 172.2 Thus, the DEA properly withheld information
pursuant to Exemption 7(D).
Under Exemption 7(F), the DEA may withhold any information collected by law
enforcement that, if disclosed, "could reasonably be expected to endanger the life or
physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). "In general, this exemption
has been interpreted to apply to names and identifying information of law enforcement
officers, witnesses, confidential informants and other third persons who may be unknown
2 See also Mays, 234 F.3d at 1329 ("[T]he cooperating individual supplied infonnation about a
conspiracy to distribute crack and powder cocaine. The pertinent question is whether the
violence and risk of retaliation that attend this type of crime warrant an implied grant of
confidentiality for such a source. They most assuredly do."); Lasko v. U.S. Dep 't of Justice, 684
F. Supp. 2d 120, 134 (D.D.C. 2010) ("Courts have held that the violence and risk of retaliation
attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides
information to investigators.").
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to the requester." Brestle v. Lappz'n, 950 F. Supp. 2d l74, 184 (D.D.C. 2013). When it is
invoked, the reviewing court must consider "whether there is some nexus between
disclosure and possible harm and whether the deletions were narrowly made to avert the
possibility of such harm." Id. at l85.
In this case, the DEA has withheld "identifying information of DEA Special
Agents (including supervisory agents), other Federal, state/ local law enforcement
officers, confidential sources of information, and supporting DEA employees (to include
chemists, laboratory personnel, and evidence custodians)." Fourth Myrick Decl. 11 30.
As law enforcement personnel_or, in the case of confidential informers, civilians who
aided law enforcement in a drug-related case-these people would be put at risk of
violence if their identities became public. Ia'. 111 31-34. This Court has recognized on
many occasions that such individuals are entitled to the privacy protection afforded by
Exemption 7(F). See e.g., Dz``az v. DEA, 555 F. Supp. 2d l24, 126 (D.D.C. 2008)
(individual who assisted DEA); Callaway v. U.S. Dep ’t of T reasury, C.A. No. 04-1506,
2007 WL 7698581, at * 16-17 (D.D.C. Aug. 3 l, 2007) (law enforcement agents, agency
personnel, and informants); Linn v. U.S. Dep ’t of Justice, C.A. No. 92-1406, 1995 WL
417810, at * 12 (D.D.C. June 6, 1995) (DEA agents and other law enforcement officers);
Durham v. U.S. Dep ’t of Justz'ce, 829 F. Supp. 428, 434 (D.D.C. 1993) (third parties who
cooperated with government). Plaintiff has not identified any public interest sufficient to
outweigh the DEA’s concern for personal safety, so once again, I find that the DEA
properly applied Exemption 7(F) in this case.3
Finally, Privacy Act Exemption (j)(Z) allows an agency "to exempt [from review
under 5 U.S.C. § 552a(d)] any system of records within the agency . . . if the system of
records is . . . maintained by an agency or component thereof which performs as its
principal function any activity pertaining to the enforcement of criminal laws."
5 U.S.C. § 552a(j)(2). The DEA records at issue here are "maintained in accordance with
DEA Investigative Reporting and Filing System (IRFS), JUSTICE/DEA-OOS, a Privacy
Act System of Records," and "DOJ has promulgated and published rules, pursuant to
[Exemption (j)(Z)], to exempt records contained in IRFS from first party access." Fourth
Myrick Decl. 11 10 (citing 28 C.F.R. § 16.98(0)(3)). Under the Privacy Act and federal
regulation, then, the DEA acted appropriately when it withheld IRFS records of its
criminal investigation into plaintiffs drug distribution activities.
C. Segregability
"FOIA § 552(b) requires that even if some materials from the requested record are
exempt from disclosure, any ‘reasonably segregable’ information from those documents
must be disclosed after redaction of the exempt information unless the exempt portions
are ‘inextricably intertwined with exempt portions."’ johnson v. Exec. Ojj‘ice of U.S,
Att ’ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)). Once again, I'
find that the DEA has met this requirement. Like the defendant in Johnson, the DEA in
this case "provided [plaintiff] with a comprehensive Vaughn index, describing each
3 Even if this exemption were inapplicable, the same information remains covered by
Exemptions 7(C) and (D). Ia’. 1{‘|] 33-34.
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document withheld, as well as the exemption under which it was withheld," in addition to
"a supplemental affidavit . . . further address[ing] the issue of segregability." Ia’. The
Myrick Declaration explains that all of the withheld documents consisted entirely (or
almost entirely) of FOIA-exempt material, such that their redaction would have left only
blank pages, plaintiff s name, and similarly worthless information. Fourth Myrick Decl.
11 36. Finding no evidence of bad faith or other wrongdoing on the part of the DEA, I am
satisfied that it has met its FOIA obligations in all respects.
CONCLUSION
For all of the foregoing reasons, the DEA’s Motion for Summary Judgment [Dkt.
#81] is GRANTED, and Adionser’s Cross Motion for Summary Judgment [Dkt. #90] is
DENIED. An appropriate order shall accompany this Memorandum Opinion.