Dorsey v. Executive Office for the United States Attorneys , 83 F. Supp. 3d 347 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
ALVIN DORSEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0534 (EGS)
)
EXECUTIVE OFFICE FOR UNITED )
STATES ATTORNEYS, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Renewed Motion for Summary Judgment,
ECF No. 34. 1 For the reasons discussed below, the motion will be granted.
I. BACKGROUND
A. Plaintiff’s FOIA Request to the EOUSA
In June 2011, pursuant to the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552,
plaintiff submitted to the Executive Office for United States Attorneys (“EOUSA”) a request for
“[s]urveillance video, video logs, handwritten call logs, warrants D.E.A.-6, promises, agreements
and any information that is required to be released under [FOIA].” Defendant’s Memorandum of
Points and Authorities in Support of Defendant’s Motion for Summary Judgment, ECF No. 13-2,
Declaration of David Luczynski, ECF No. 13-4 (“Luczynski Decl.”), Exhibit (“Ex.”) A (FOIA
request); see Complaint Violation of the Freedom of Information Privacy Act (“Compl.”) at 2.
1
The FOIA applies only to executive branch agencies of the federal government, see 5 U.S.C. §
552(f)(1), and Court therefore proceeds as if plaintiff had named the U.S. Department of Justice,
of which the EOUSA, the DEA and the FBI are components, as the sole defendant.
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The Court has found that the EOUSA conducted a search reasonably calculated to locate
records responsive to plaintiff’s FOIA request, see Dorsey v. Exec. Office for U.S. Attorneys, 926
F. Supp. 2d 253, 256 (D.D.C. 2013), that it properly withheld information under Exemptions 3, 5
and 7(C), Memorandum Opinion and Order, ECF No. 28 at 3-10, and that it released all
reasonably segregable information to plaintiff, id., ECF No. 38 at 10-11.
Among the records responsive to plaintiff’s FOIA request to the EOUSA were records
that originated at other components of the United States Department of Justice (“DOJ”).
Luczynski Decl. ¶ 9. The EOUSA “referred [these records to] the originating agencies[.]” Id.
Defendant has moved for summary judgment with respect to these referrals. See generally
Memorandum of Points and Authorities in Support of Defendant’s Renewed Motion for
Summary Judgment, ECF No. 34-1 (“Def.’s Renewed Mem.”) at 7-18.
B. Referral to the Drug Enforcement Administration
The EOUSA referred 349 pages of records to the Drug Enforcement Administration
(“DEA”). Def.’s Renewed Mem., Declaration of Katherine L. Myrick, ECF No. 34-3 (“Myrick
Decl.”) ¶ 5. On review by DEA staff, it was determined that 159 pages of records were not
responsive to the FOIA request, that one page was blank, and that 31 pages were duplicates.
Myrick Decl. ¶ 7. The remaining pages were processed; the DEA released 8 pages in full,
released 55 pages in part, and withheld 95 pages in full, relying on Exemptions 7(C), 7(D), 7(E)
and 7(F). Id. ¶ 6.
C. Referral to the Federal Bureau of Investigation
The EOUSA referred 37 pages of records to the Federal Bureau of Investigation (“FBI”).
Def.’s Renewed Mem., Declaration of David M. Hardy, ECF No. 34-5 (“Hardy Decl.”) ¶¶ 4, 6.
Two of these pages were deemed duplicates, and “[i]n order to avoid duplication cost and to
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speed . . . processing,” the FBI did not process these two pages. Id. ¶ 4 n.1. The FBI released
three pages in full, released 16 pages in part, and withheld 16 pages in full, id. ¶ 4, relying on
Exemptions 6 and 7(C), id. ¶ 5.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
In a FOIA action to compel production of agency records, the agency “is entitled to
summary judgment if no material facts are in dispute and if it demonstrates ‘that each document
that falls within the class requested either has been produced . . . or is wholly exempt from the
[FOIA’s] inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828,
833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary
judgment may be based solely on information provided in an agency’s supporting affidavits or
declarations if they are relatively detailed and when they describe “the documents and 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 [or] by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge an agency’s showing that it
complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that
there is a genuine issue with respect to whether the agency has improperly withheld extant
agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010)
(quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
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A. Exemptions 6 and 7(F)
“The FBI’s practice is to assert Exemption 6 in conjunction with Exemption 7(C).”
Hardy Decl. ¶ 17 n.5. Review of the FBI’s submission reveals that, in each instance that the FBI
withholds information under Exemption 6, it also withholds the same information under
Exemption 7(C). See generally Hardy Decl., Ex. B (Bates-numbered copies of pages released in
full or in part and deleted information sheets reflecting pages withheld in full). The Court finds
that the relevant information properly is withheld under Exemption 7(C) alone, and it does not
consider whether Exemption 6 applies to the same information. See Roth v. U.S. Dep’t of
Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (“If the information withheld here was compiled
for law enforcement purposes, thus implicating Exemption 7(C), then we would have no need to
consider Exemption 6 separately because all information that would fall within the scope of
Exemption 6 would also be immune from disclosure under Exemption 7(C).” (internal quotation
marks omitted)).
Similarly, where the DEA withholds information under Exemption 7(F), it also relies on
either Exemption 7(C) or Exemption (7)(D) as a basis to withhold the same information. See
generally Errata to Defendant’s Renewed Motion for Summary Judgment, ECF No. 36, Ex. D
(Corrected Exhibit D to the Declaration of Katherine L. Myrick (Vaughn Index)). The Court
concludes that the relevant information properly is withheld under either Exemption 7(C) or
Exemption 7(D), and does not consider whether Exemption 7(F) applies independently to the
same information. See Roth, 642 F.3d at 1173; Simon v. Dep’t of Justice, 980 F.2d 782, 785
(D.C. Cir. 1994) (finding that, where information furnished by confidential source during course
of criminal investigation fell within the scope of Exemption 7(D), court “need not address
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whether Exemption 7(C) . . . would independently justify the FBI in withholding the requested
document”).
C. Exemption 7
1. Law Enforcement Records
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.
5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that . . .
documents were compiled for law enforcement purposes, the [agency] need only establish a
rational nexus between [an] investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations
omitted).
The FBI’s declarant states that “the FBI assisted the Pickens County Sheriff’s Office,
South Carolina, in its investigation of plaintiff for alleged drug trafficking in crack/cocaine,” and
that the relevant FBI records were compiled for this law enforcement purpose. Hardy Decl. ¶ 13.
The DEA’s declarant explains that the records referred by the EOUSA “were compiled during a
criminal law enforcement investigation of the plaintiff and several third-parties” and “are
contained in investigative case files . . . in IRFS,” Myrick Decl. ¶ 18, the DEA Investigative
Reporting and Filing System, id. ¶ 9. Thus, both components demonstrate that the referred
records fall within the scope of Exemption 7.
2. Exemption 7(C)
Exemption 7(C) protects from disclosure information in law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
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U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, the
Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1,
6 (D.C. Cir. 2011) (“In deciding whether the release of particular information constitutes an
unwarranted invasion of privacy under Exemption 7(C), we must balance the public interest in
disclosure against the [privacy] interest Congress intended the Exemption to protect.”) (internal
quotation marks and citation omitted); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115
(D.C. Cir. 2007). The privacy interest at stake belongs to the individual, not the government
agency, see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
763-65 (1989), and “individuals have a strong interest in not being associated unwarrantedly
with alleged criminal activity.” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). The D.C.
Circuit has held “categorically that, unless access to the names and addresses of private
individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to
confirm or refute compelling evidence that the agency is engaged in illegal activity, such
information is exempt from disclosure.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206
(D.C. Cir. 1991).
The FBI withholds the names and identifying information about local law enforcement
employees. 2 Hardy Decl. ¶ 17. The declarant explains that these individuals “were acting in
their official capacities and aided the FBI in the law enforcement investigative activities reflected
in the records responsive to plaintiff’s request.” Id. They were “responsible for conducting,
supervising, and/or maintaining the investigative activities” by, for example, “documenting and
2
The term ‘“identifying information’ includes, but is not limited to, dates of birth, social
security numbers, addresses, telephone numbers, and/or other personal information.” Hardy
Decl. ¶ 17 n.6.
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compiling information” and “reporting on the status of the investigation.” Id. The declarant
further states that these employees did not choose the assignment, and that “[p]ublicity (adverse
or otherwise) regarding any particular investigation [to which] they have been assigned may
seriously prejudice their effectiveness in conducting other investigations.” Id. He states that
“publicity associated with the release of [their identities] in connection with a particular
investigation could trigger hostility” and also may subject them to “unnecessary, unofficial
questioning as to the course of an investigation.” Id. These employees “come into contact with
all strata of society, conducting searches and making arrests, both of which result in reasonable
but nonetheless serious disturbances to people and their lives,” such that “an individual targeted
by such law enforcement actions [could] carry a grudge.” Id. If the identities of these
employees were released, the declarant asserts, these individuals could be subjected “to
unnecessary and unwelcome harassment that would invade their privacy.” Id. The FBI offers a
similar rationale for withholding the names of and identifying information about “personnel from
state, local, and non-FBI federal government agencies who provided information to[] or
otherwise assisted the FBI in its investigation of plaintiff and/or others.” Id. ¶ 18.
The FBI also withholds “the names and identifying information of third parties who were
merely mentioned in the criminal investigative files containing information responsive to
plaintiff’s request.” Id. ¶ 19. These persons “were not of investigative interest to the FBI,” and
appear in the records only because they had come “into contact with subjects of FBI
investigation(s).” Id. They maintain, the declarant states, a “substantial privacy interest[] in not
having this information disclosed,” as disclosure would connect them with a criminal
investigation and with it the “extremely negative connotation” that connection with an FBI
criminal investigation would bring. Id.
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The DEA withholds “[t]he identities of DEA Special Agents and other law enforcement
officers,” Myrick Decl. ¶ 23, who “were assigned to handle tasks relating to the official
investigation into the criminal activities of the plaintiff and other individuals,” id. ¶ 24. Its
declarant explains that these officers “were, and possibly still are, in positions of access to
information regarding official law enforcement investigations,” and “[i]f their identities were
released, they could become targets of harassing inquiries for unauthorized access to information
pertaining to ongoing or closed investigations.” Id. In no instance does either agency identify a
public interest in disclosure to outweigh the privacy interests of these third parties. See id. ¶¶ 22,
24; Hardy Decl. ¶¶ 17-19.
Plaintiff argues that the EOUSA failed to limit its reliance on Exemptions 7(C), 7(F) and
6 “to the specific information to which it applies (names, addresses and other identifying
information) but not the entire page or document in which the information appears.”
Plaintiff[’s] Opposition Motion to Defendant[’]s Summary Judgment, ECF No. 37 (“Pl.’s
Opp’n”) at 1. Because the Court already has determined that the EOUSA properly invoked these
exemptions, see Memorandum Opinion and Order, ECF No. 28 at 9-10, plaintiff presumably
directs his argument at the DEA and the FBI. His argument actually pertains to segregability
rather than the agencies’ reliance on the exemptions themselves. The Court therefore treats as
conceded defendant’s motion for summary judgment with respect to Exemptions 6, 7(C) and
7(F). See, e.g., Jewett v. U.S. Dep’t of State, No. 11-cv-1852, 2013 WL 550077, at *9 (D.D.C.
Feb. 14, 2013) (treating as conceded defendants’ reliance on FOIA exemption where plaintiff
“offers no rebuttal”).
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3. Exemption 7(D)
Exemption 7(D) protects from disclosure records or information compiled for law
enforcement purposes that:
could reasonably be expected to disclose the identity of a
confidential source . . . [who] furnished information on a
confidential basis, and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a
criminal investigation . . . , information furnished by a confidential
source.
5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within
the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement
agency] in the course of a criminal investigation.” U.S. Dep’t of Justice v. Landano, 508 U.S.
165, 181 (1993). Rather, a source’s confidentiality must be determined on a case-by-case basis.
Id. at 179-80. “A source is confidential within the meaning of [E]xemption 7(D) if the source
‘provided information under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred.’” Williams v. FBI, 69 F.3d 1155, 1159
(D.C. Cir. 1995) (citting Landano, 508 U.S. at 170-74).
Where an agency withholds information provided under an express grant of
confidentiality, it “is required to come forward with probative evidence that the source did in fact
receive an express grant of confidentiality.” Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1061
(3d Cir. 1995). For example, an agency might produce “contemporaneous documents from [its]
files reflecting the express grants of confidentiality [or] evidence of a consistent policy of
expressly granting confidentiality to certain designated sources[.]” Id. “When no express
assurance of confidentiality exists, courts consider a number of factors to determine whether the
source nonetheless spoke with an understanding that the communication would remain
confidential.” Roth, 642 F.3d at 1184 (internal quotation marks and citation omitted). “[T]he
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nature of the crime and the source’s relation to it” are factors relevant to determining whether
implied confidentiality exists. Landano, 508 U.S. at 179.
The DEA withholds “information . . . pertain[ing] to a coded informant with an express
grant of confidentiality.” Myrick Decl. ¶ 26. The declarant explains that a coded informant has
“a continuing cooperative association with DEA.” Id. ¶ 27. Each coded informant is “expressly
assured confidentiality in [his or her identity] and the information [he or she] provide[s] to
DEA.” Id. Further, this individual is “assured that [his or her] name[] will not be used in DEA
investigative materials,” and therefore is “assigned an identification code which is used in place
of [his or her] name” or is “referred to as CI.” Id. The declarant states that, “[b]ecause of the
nature of DEA’s criminal investigations, any information that could identify the informant could
subject [him or her] to serious harm, substantial repercussions, and possibly even death.” Id. ¶
26.
In addition, the DEA withholds information about “individuals to whom confidentiality
was implied” due to the individuals’ “involvement with the drug trafficking activities of plaintiff
and his criminal associates.” Id. ¶ 30; see id. ¶ 31. The declarant states that plaintiff and nine
others were “indicted . . . for and convicted of conspiracy to distribute cocaine and cocaine
base.” Id. ¶ 31. She notes that plaintiff “has a criminal history that includes aggravated battery,”
and that his associates’ criminal histories “include incidences of second degree murder, burglary,
robbery, aggravated battery on a law enforcement officer, and arrests that resulted in the seizure
of firearms.” Id. Because the DEA “has . . . found that violence is inherent in the trafficking of
controlled substances,” because plaintiff and his associates have a history of violence, and
because the individuals whose identities are protected were involved with the drug trafficking
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activities of plaintiff and his associates, the DEA finds that these sources “plaintiff would fear for
their safety if their identities or the information they provided was revealed. Id. ¶ 32.
Plaintiff asserts that the DEA “failed to provide express assurances of confidentiality,”
Pl.’s Opp’n at 2, yet he offers no support in the record for his assertion. In a FOIA case, an
agency’s supporting declaration is accorded a presumption of good faith, see, e.g., King v. U.S.
Dep’t of Justice, 772 F. Supp. 2d 14, 20 (D.D.C. 2010), and plaintiff presents no evidence to
rebut the presumption. The Court concludes that the DEA properly withheld under Exemption
7(D) the identity of and information provided by a coded informant under an express assurance
of confidentiality and the identities of and information provided by individuals involved in drug
trafficking activities with plaintiff and his associates under an implied assurance of
confidentiality.
4. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records “to the extent that the
production of such . . . information . . . would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions . . . if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The DEA withholds G-DEP codes and
NADDIS numbers, described as “part of DEA’s internal system of identifying information and
individuals in furtherance of [its] enforcement responsibilities,” under Exemption 7(D). Myrick
Decl. ¶ 35.
The declarant explains that a G-DEP code is assigned when a case file is opened, and it
“indicate[s] the classification of the violator(s), the types and amount of suspected drugs
involved, the priority of the investigation and the suspected location and scope of criminal
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activity.” Myrick Decl. ¶ 37. If a G-DEP code were released, the declarant states, violators
could “identify priority given to narcotic investigations, types of criminal activities involved, and
violator ratings.” Id. ¶ 39. With this knowledge, “[s]uspects could decode this information and
change their pattern of drug trafficking in an effort to respond to what they determined DEA
knows about them or avoid detection and apprehension and create excuses for suspected
activities.” Id. In short, disclosure of a G-DEP code “would . . . thwart [DEA’s] investigative
and law enforcement efforts.” Id.
A NADDIS number is a “multi-digit number[] assigned to [a] drug violator[] and
suspected drug violator[],” or to an entity of investigative interest to the DEA. Id. ¶ 38. Each
NADDIS number is “unique and personal to the individual to whom the number applies.” Id. ¶
40. “Because of the manner in which [it is] assigned and . . . used, release of [a NADDIS
number] could allow [a] violator[] to avoid apprehension, and could place law enforcement
personnel in danger, since the details of many details of a DEA investigation would be
disclosed” along with the NADDIS number Id. If details of a DEA investigation were made
public, a violator “would be aware of how to respond in different situations where detection
and/or apprehension are eminent [sic],” and thus he could “respond in a manner that would help
[him] avoid detection and arrest.” Id.
Plaintiff’s assertion that the DEA “failed to provide some explanation of what procedures
are involved and how they would be disclosed,” Pl.’s Opp’n at 2, ignores the content of the
DEA’s supporting declaration. The Court concludes that the DEA properly has withheld G-DEP
codes and NADDIS numbers under Exemption 7(E). See, e.g., Higgins v. U.S. Dep’t of Justice,
919 F. Supp. 2d 131, 151 (D.D.C. 2013) (withholding G-DEP codes and NADDIS numbers
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under Exemption 7(E)); Miller v. U.S. Dep’t of Justice, 872 F. Supp. 2d 12, 28-29 (D.D.C. 2012)
(withholding NADDIS numbers).
D. Segregability
If a record contains some information that is exempt from disclosure, any reasonably
segregable information must be released after deleting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see
Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999).
A court errs, for example, if it “simply approve[s] the withholding of an entire document without
entering a finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927
F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. U.S. Dep’t of the
Army, 611 F.2d 738, 744 (9th Cir. 1979)).
The FBI’s declarant avers that “each responsive page was individually examined to
identify non-exempt information that could be reasonably segregated from exempt information
for release,” and that “the only information withheld . . . consists of information that would
trigger reasonably foreseeable harm to one or more interests protected by the cited FOIA
exemptions.” Hardy Decl. ¶ 20. Thus, the declarant concludes, all segregable material has been
released. See id.
The DEA’s declarant avers that entire pages have been withheld only where:
the release of any additional information would (1) result in the
disclosure of no useful information, or incomprehensible words
and/or phrases that would not shed any light on how the
Government conducts business, (2) could result in compromising
the identity of and information provided by sources of information
who were granted express confidentiality or, because of the
circumstance, implied confidentiality was applicable, (3) would be
an unwarranted invasion of personal privacy when balanced
against the public interest in the release of information gathered
during the course of a criminal investigation, and/or (4) place in
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jeopardy the lives and safety of third parties which includes
sources of information, individuals associated with or mentioned in
the investigative reports, and DEA agents and other law
enforcement personnel.
Myrick Decl. ¶ 46. Thus, she concludes, there remained “no reasonably segregable information
that could be released.” Id. ¶ 47.
Plaintiff contends that defendant fails to meet its burden by showing that a document
cannot be further segregated in order that additional information be released. See Pl.’s Opp’n at
2. Contrary to plaintiff’s assertion, from the Court’s review of the supporting declarations, the
DEA’s Vaughn Index, and copies of the relevant FBI records, defendant demonstrates that all
reasonably segregable material has been released from the records referred by the EOUSA. See
Abdelfattah v. U.S. Immigration and Customs Enforcement, 851 F. Supp. 2d 141, 146 (D.D.C.
2012) (supplying an affidavit stating that documents were reviewed line-by-line, a sufficiently
detailed Vaughn index, and declarations to explain why each document was properly withheld
meets agency obligation regarding segregability).
E. Fees
Notwithstanding plaintiff’s purported reliance on the Privacy Act, see generally Compl.,
the Court and defendant have treated the complaint as one bringing claims under the FOIA.
Consequently, insofar as plaintiff demands damages, see id. at 3, the Court has construed
plaintiff’s submission titled “Substantially Prevailed,” ECF No. 40, as a motion for attorney fees
and costs (“Pl.’s Mot. for Fees”) pursuant to 5 U.S.C. § 552(a)(4)(E).
The FOIA permits a district court to “assess against the United States . . . other litigation
costs reasonably incurred in any case . . . in which the [plaintiff] has substantially prevailed.” 5
U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he has obtained relief “through . . . a
voluntary or unilateral change in position by the agency, if the complainant’s claim is not
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insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). “This provision codifies the so-called
‘catalyst theory’ of fee eligibility, under which ‘FOIA plaintiffs [are] eligible for a fee award if
the lawsuit substantially caused the agency to release the requested records,’ regardless of
whether the plaintiff obtained any court-ordered relief.” Judicial Watch, Inc. v. U.S. Dep’t of
Justice, 878 F. Supp. 2d 225, 231 (D.D.C. 2012) (quoting Davis v. U.S. Dep’t of Justice, 610
F.3d 750, 752 (D.C. Cir. 2010)). Plaintiff argues that he has substantially prevailed because, “if
it had not been for this civil action,” he would not have received any documents. Pl.’s Mot. for
Fees at 2. He demands reimbursement “for court fees of $350.00 and litigation cost[s] to be
determine[d] by the court.” Id.
“[A] FOIA plaintiff who substantially prevails becomes eligible for attorney’s fees [and
litigation costs]; whether the plaintiff is actually entitled to a fee award is a separate inquiry that
requires a court to consider a series of factors.” Edmonds v. FBI, 417 F.3d 1319, 1327 (D.C. Cir.
2005) (internal quotation marks, brackets and citations omitted) (emphasis in original). The
decision to award attorneys’ fees and costs is left to the Court’s discretion. See Nationwide Bldg.
Maint., Inc. v. Sampson, 559 F.2d 704, 705 (D.C. Cir. 1977) (commenting that § 552(a)(4)(E)
“contemplates a reasoned exercise of the courts’ discretion taking into account all relevant
factors”). In making this decision, the Court considers “(1) the public benefit derived from the
case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the
records; and (4) the reasonableness of the agency’s withholding of the requested documents.”
Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations omitted). “No one factor is
dispositive, although the [C]ourt will not assess fees when the agency has demonstrated that it
had a lawful right to withhold disclosure.” Id.
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It is apparent that plaintiff is not entitled to fees and costs. As a pro se plaintiff who is
not an attorney, plaintiff is not eligible for attorney fees. See Benavides v. Bureau of Prisons,
993 F.2d 257, 259 (D.C. Cir. 1993). He neither identifies a public benefit derived from this case
nor explains the nature of his interest in the requested information. Lastly, the EOUSA, the FBI
and the DEA adequately justify their decisions to withhold information under the claimed
exemptions, and no other factor warrants an award of fees and costs to plaintiff.
III. CONCLUSION
The Court concludes that each component has demonstrated its compliance with the
FOIA and that defendant is entitled to judgment as a matter of law. Accordingly, the Court will
grant its renewed motion for summary judgment. An Order is issued separately.
DATE: March 19, 2015 /s/
EMMET G. SULLIVAN
United States District Judge
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