Patino-Restrepo v. United States Department of Justice , 246 F. Supp. 3d 233 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CARLOS ARTURO PATINO-RESTREPO, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-1866 (TSC)
)
DEPARTMENT OF JUSTICE, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Carlos Arturo Patino-Restrepo seeks documents under the Freedom of
Information Act (“FOIA”) related to his own prosecution in a criminal case, as well as medical
and prison records related to his incarceration. Plaintiff was convicted by jury of various counts
involving a conspiracy to import cocaine into the United States and internationally. See United
States v. Restrepo, 547 F. App’x 34, 37 (2d Cir. 2013). Defendants the Executive Office for
United States Attorneys (“EOUSA”), Immigration and Customs Enforcement (“ICE”), Bureau of
Prisons (“BOP”), Department of State (“State”), Federal Bureau of Investigation (“FBI”),
Department of Justice (“DOJ”), and Drug Enforcement Agency (“DEA”) have all responded to
Plaintiff’s request and now move for summary judgment. For the reasons identified below,
Defendants’ motion will be GRANTED.
I. BACKGROUND
Plaintiff’s FOIA request, which was not materially different as to all five agencies,1
sought the following information:
1
The list of names contains slight variations across the requests.
1
1. Any Document, which memorializes, summarizes, reports or comments on, or is
evidence of any i) interview, ii) debriefing; iii) proffer; or iv) description of any of
the occurrences in (i) - (iii) regarding the Listed Individuals which was conducted
by the Department of Justice or its agents or conducted by or participated in by
any other person or entity, regardless of whether an employee of the Department
of Justice, in any Document within your files, records or custody or control.
2. Any Document which contains summarizes (sic), reports, comments upon or
concerns Mr. Restrepo where such information regarding Mr. Restrepo was
provided by or attributed to any of the Listed Individuals.
3. Any Document which contains information, summarizes, reports or comments
upon whether Mr. Restrepo was (or was not) a participant, member of, or
affiliated in any way with the Norte Valle Cartel.
4. Any Document concerning Bonnie Klapper and/or Romedio Viola relating or
concerning their activities that concen (sic) Mr. Restrepo.
5. Any agreement-between any Listed Individual and the United States, Department
of Justice, and/or any Assistant United States Attorneys, including, but not limited
to, any United States or foreign prosecutor or foreign prosecutorial entity or
representative.
6. A1l medical records and prison records concerning Mr. Restrepo in the
possession, custody or control of the authorities in the Eastern District of New
York.
(Wallace Decl., ECF No. 18-2 Exs. A, C; Myrick Decl., ECF No. 18-4 Ex. A; Cunningham
Decl., ECF No. 18-5 Ex. 1; EOUSA Decl., ECF No. 18-6 Ex. A; Hardy Decl., ECF No. 18-8 Ex.
A; Pineiro Decl., ECF No. 18-10 Ex. 2). The “Listed Individuals,” a list of 38 or 39 names and
various aliases and nicknames, follow the text above in each request. The agencies responded as
set forth below.
A. EOUSA
The DOJ Criminal Division, which received a January 28, 2014 FOIA request from
Plaintiff through his attorney Jeffrey C. Hoffman, (ECF No. 18-8 Ex. A), re-routed the request to
EOUSA on April 28, 2014. EOUSA also received a FOIA request on June 20, 2014 directly
from Plaintiff, containing the same language. (EOUSA Decl., ECF No. 18-6 Ex. A). EOUSA
2
consolidated the two identical requests, and informed Plaintiff that it had done so. In October
2015, EOUSA released to Plaintiff and his attorney 12 full pages and 6 partly redacted pages
pursuant to FOIA exemptions 6 and 7(C). (EOUSA Decl. ¶ 12). EOUSA informed Plaintiff that
it had referred some responsive records to other agencies to review and respond directly to
Plaintiff.
EOUSA told Plaintiff in November 2015 that it had processed 126 pages, previously
referred to ICE for review, and was withholding all 126 pages in full pursuant to FOIA
exemptions 5, 6, and 7(C). (Id. ¶ 14). EOUSA subsequently released partially redacted versions
of 16 of the 126 pages, which consisted of memoranda of interviews of Plaintiff conducted by an
Assistant United States Attorney and a law enforcement official. (Id. ¶ 15). Several weeks later,
EOUSA released an additional 16 partially redacted pages. (Id. ¶ 16). EOUSA also processed
16 pages that had previously been referred to DEA for review and ultimately determined to
belong to the United States Attorney’s Office for the Eastern District of New York (“USAO-
EDNY”), and in December 2015 released 9 pages in full and withheld 7 pages in full pursuant to
FOIA exemptions 6 and 7(C). EOUSA provided a Vaughn index describing the specific reasons
for exemption. (Id. ¶ 21; Ex. D).
EOUSA also directed USAO-EDNY, the office responsible for Plaintiff’s criminal
prosecution, to search for responsive records. (Id. ¶ 23). USAO-EDNY searched its
computerized docketing case management system, the Legal Information Network System, and
located the name of the lead AUSA on Plaintiff’s criminal case. (USAO-EDNY Decl., ECF No.
18-7 ¶¶ 10-11). The USAO-EDNY FOIA specialist obtained the lead prosecutor’s files,
consisting of attorney litigation work product documents, correspondence, witness interview
statements, law enforcement records, and selected court filings not on the docket sheet, and sent
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them to EOUSA for review. (Id. ¶ 12-14). EOUSA’s declaration does not explicitly state
whether any of the records received from USAO-EDNY were released, but it appears from the
Vaughn index that all were withheld pursuant to FOIA exemptions 5 and 6 and 7(C). (EOUSA
Decl. ¶ 21-36; Ex. D).
B. ICE
ICE directed Homeland Security Investigations (“HSI”), which investigates narcotics
smuggling, to search for records responsive to Plaintiff’s request. (Pineiro Decl., ECF No. 18-9
¶¶ 17, 33). HSI searched its offices in Mexico City, New York, and Tampa. (Id. ¶ 37). It also
searched the Records and Disclosure Unit and Treasury Enforcement Communication System,
which maintain records relevant to ICE’s mission. (Id. ¶¶ 37, 38). HSI used search terms
calculated to access investigation records, arrest records, and records related to Plaintiff’s
criminal trial. (Id. ¶ 38).
HSI provided responsive records to ICE’s FOIA office, which reviewed the records and
released 30 pages in full, and 94 partially redacted pages, pursuant to Privacy Act exemption
(k)(2) and FOIA exemptions 6, 7(C), and 7(E). (Id. ¶ 20). Plaintiff appealed the ICE response,
and ICE’s Office of the Principal Legal Advisor Government Information Law Division affirmed
the withholdings but remanded the FOIA request for a new or modified search. (Id. ¶¶ 22-23).
After the second search, ICE provided Plaintiff an additional 40 pages, redacting 39 of the pages.
(Id. ¶ 24). Plaintiff appealed again. (Id. ¶ 26). The Office of the Principal Legal Advisor closed
the appeal because the documents at issue had become the subject of federal litigation when
Plaintiff had filed this case. (Id. ¶ 28). ICE then discretionarily released some of the information
previously withheld in the 40 pages pursuant to 7(E). (Id. ¶ 29). ICE provided two Vaughn
indexes describing the redactions. (Id. ¶ 46; ECF 18-10).
C. BOP
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BOP also received an original request through Hoffman and a subsequent pro se request
from Plaintiff. It collected 732 pages in response to the original request, but closed the request
after Plaintiff did not pay a duplication fee. (Wallace Decl. ¶ 8). BOP ultimately processed 773
pages of records responsive to Plaintiff’s pro se request, releasing 100 in full and 673 with
redactions pursuant to FOIA exemptions 6, 7(C), and 7(F). (Id. ¶ 6). BOP conducted its
searches using Plaintiff’s name and federal register number in the BOP Medical and Central
Inmate File. (Id. ¶ 11). BOP did not submit a Vaughn index, but explained the nature of the
withholding in its declaration. (Id. ¶¶ 12-29).
BOP also processed 192 pages referred by EOUSA for review. (Second Wallace Decl.,
ECF No. 18-3 ¶ 6). It released in full 78 of those pages; released 102 with redactions pursuant to
FOIA exemptions 6, 7(C), and 7(F); and withheld 12 pages in their entirety pursuant to the same
exemptions. (Id. Ex. D).
D. Department of State
Plaintiff previously requested his own records from State in 2011. (Hackett Decl., ECF
No. 9-1 ¶ 5). State provided Plaintiff with 19 documents, and referred 8 to the DEA, 2 to the
FBI, and 8 to the DOJ for review. After State received the FOIA request that is the subject of
this case, State advised Plaintiff that his request for information related to the Listed Individuals
did not adequately describe the information he sought, and provided him with information about
obtaining authorization for release of third-party information. (Id. ¶ 9). Plaintiff responded,
limiting the time frame of his request to “1990 through the present date.” (Id. Ex. 4).
State’s Office of Information Programs and Services (“IPS”) determined that the State
divisions reasonably likely to contain records responsive to Plaintiff’s request were the Bureau of
Diplomatic Security, the Office of the Legal Advisor, the Bureau of International Narcotics and
Law Enforcement Affairs, the U.S. Embassy in Mexico City, the U.S. Embassy in Bogota, and
5
the Central Foreign Policy Records. (State Decl., ECF No. 18-11 ¶ 9). The Office of the Legal
Advisor searched both paper and electronic files of its Office of Law Enforcement and
Intelligence, which handles extradition matters, using search terms including Plaintiff’s name,
the names and aliases listed in Plaintiff’s request,2 the names Bonnie Klapper and Romedio
Viola, and the terms “Norte Valle” and “Norte Valle Cartel.” (Id. ¶ 14). It located 2 responsive
documents that had not been previously released to Plaintiff after his first FOIA request, and
released one with redactions. (Id. ¶ 15). It referred the other document to DOJ. (Id.). The
Bureau of Diplomatic Security searched electronic databases, the Personally Identifiable
Information shared drive, and email records. The Office of Criminal Investigations, the Threat
Investigations & Analysis Directorate, and the Office of International Programs also conducted
searches using the same terms as the Office of the Legal Advisor, and found no responsive
documents. (Id. ¶¶ 19, 28). The Bureau of International Narcotics and Law Enforcement
Officers searched the paper and electronic files of its Office of Anticrime Program and Office of
Western Hemisphere Programs, using the same search terms, and located no responsive records.
(Id. ¶ 31). The U.S. Embassy in Mexico conducted a search of its electronic files, including the
office shared drive, its Nonimmigrant Visa files, the Consular Consolidated Database, Fraud
Prevention Unit records, and email records, using the same search terms, and located no
responsive records. (Id. ¶¶ 33-35). The U.S. Embassy in Bogota conducted a similar search,
also including the American Citizens Service Plus database, and returned no responsive records.
(Id. ¶¶ 36-38). Central Foreign Policy Records searched its Central File for the listed names.
(Id. ¶ 40). Using a complex search approach, it found at least 21,314 documents; using the
2
State did not use the aliases “Cuco” and “Pepe” as search terms; the court presumes those
nicknames are too common to return records reasonably likely to be responsive.
6
“Exact Name and Alias” approach it found at least 9,188 documents; and using the “Exact
Name” approach it found at least 3,125 documents. (Id.). State informed Plaintiff that without
any personally identifying information for the Listed Individuals, such as date of birth, place of
birth, or social security number, the information he sought was exempt under FOIA exemptions
6 and 7(C). (Id. ¶¶ 41-42).
State classified as confidential one document, C05132027, pursuant to Executive Order
13526. (Id. ¶ 44). From Plaintiff’s first request, it re-released 11 documents in full, and 8
partially redacted documents, and withheld 4 documents in full. (Id. ¶ 83). State included a
Vaughn index explaining the full or partial withholding of 13 documents—one from the current
request and 12 from the previous request. (Id.).
E. Department of Justice
State referred 4 pages of records to the DOJ’s Criminal Division. (Cunningham Decl.,
ECF No. 18-5 ¶ 5). DOJ informed Plaintiff that the 4 pages were exempt pursuant to FOIA
exemptions 5, 6, 7(C), and 7(D). (Id. ¶ 7). Plaintiff appealed to the Office of Information
Policy; the court has no information as to the result or status of that appeal.
F. DEA
EOUSA forwarded 273 pages to DEA for review. (Myrick Decl., ECF No. 18-4 ¶ 5).
DEA determined that FBI was the source of 19 of the pages, which were then forwarded to FBI.
(Id. ¶¶ 7-8). DEA determined that 34 pages “were materials for which DEA could not locate the
name Carlos Arturo Patino-Restrepo or any known aliases associated with his name,” 13 pages
were illegible, 29 pages were blank, 13 pages were “photos that DEA could not associate with
the requester,” and 47 pages were hand-written in Spanish and English and DEA could not
associate them with Plaintiff. (Id. ¶ 7). DEA returned the 136 pages that were illegible, blank,
or which it could not associate with Plaintiff to EOUSA. (Id. ¶ 9). DEA informed Plaintiff that
7
it was withholding the remaining 118 pages in their entirety pursuant to Privacy Act exemption
(j)(2) and FOIA exemptions 7(A), 7(C), 7(D), 7(E), and 7(F). (Id. ¶ 10).
G. FBI
EOUSA referred documents to the FBI, which informed Plaintiff that the records were
exempt pursuant to FOIA exemption 7(A). (Hardy Decl. ¶ 6). FBI informed Plaintiff that the
records referred by DEA were similarly subject to FOIA exemption 7(A). (Id. ¶ 8).
II. LEGAL STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of
“material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of
Columbia, 298 F.3d 989, 991-92 (D.C. Cir. 2002). In determining whether a genuine issue of
material fact exists, the court must view all facts in the light most favorable to the nonmoving
party. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). “A fact is ‘material’ if a
dispute over it might affect the outcome of a suit under governing law; factual disputes that are
‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). “An issue is ‘genuine’ if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). The party
seeking summary judgment “bears the heavy burden of establishing that the merits of his case
are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d
294, 297 (D.C. Cir. 1987) (citations omitted).
FOIA cases are “typically and appropriately” decided on motions for summary judgment.
Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp.
2d 123, 130 (D.D.C. 2011) (citation omitted). Upon an agency’s request for summary judgment
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in its favor on the grounds that it has fully discharged its FOIA obligations, all underlying facts
and inferences are analyzed in the light most favorable to the FOIA requester; only after an
agency proves that it has fully discharged its FOIA obligations is summary judgment
appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996).
In cases concerning the applicability of exemptions and the adequacy of an agency’s
search efforts, summary judgment may be based solely on information provided in the agency’s
supporting declarations. See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001).
Additionally, summary judgment is warranted on the basis of the agency’s affidavit alone, if the
“affidavit describes the justifications for withholding the information with specific detail,
demonstrates that the information withheld logically falls within the claimed exemption, and is
not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith . . .
.” ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible.” Id. (quoting Larson v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009)) (citation and internal quotation marks omitted). However, a
motion for summary judgment should be granted in favor of the FOIA requester where “an
agency seeks to protect material which, even on the agency’s version of the facts, falls outside
the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C.
2004) (quoting Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992))
(internal quotation marks omitted).
In considering the adequacy of an agency’s search in response to a FOIA request:
The question is not “whether there might exist any other documents
possibly responsive to the request, but rather whether the search for
those documents was adequate. The adequacy of the search, in turn,
is judged by a standard of reasonableness and depends, not
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surprisingly, upon the facts of each case. In demonstrating the
adequacy of the search, the agency may rely upon reasonably
detailed, nonconclusory affidavits submitted in good faith.”
Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citation omitted). An
agency may prove the reasonableness of its search through a declaration of a responsible agency
official, so long as the declaration reasonably details the documents and justifications for
nondisclosure and is not controverted by contrary evidence or evidence of bad faith. Sanders v.
Obama, 729 F. Supp. 2d 148, 155 (D.D.C. 2010), aff’d sub nom. Sanders v. U.S. Dep’t of
Justice, No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011) (citing Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Although the agency is not required to search
every record system, it must make a good faith effort to reasonably search systems that are likely
to contain the requested information. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). The agency declaration can demonstrate reasonableness by “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.” Sanders, 729 F. Supp. 2d at 155 (citation and internal
quotation marks omitted). Once an agency has provided adequate affidavits, the burden shifts to
the plaintiff to demonstrate that the agency did not make good faith search. Id. The presumption
of good faith “cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (citation omitted).
III. ANALYSIS
A. EOUSA
The court finds that EOUSA conducted a reasonable search, focusing on the USAO-
EDNY where Plaintiff was prosecuted. EOUSA referred a number of records to ICE, after
which ICE determined that “it had very little equities in the referred records,” and EOUSA
10
processed them, treating the referral to ICE instead as a consultation. (EOUSA Decl. ¶ 13-14).
EOUSA also referred records to BOP, FBI, and DEA, (id. ¶ 12 n.2), after which it processed
some of the records transferred to DEA. (Id. ¶ 20). USAO-EDNY searched several of its
databases, located the lead prosecutor on Plaintiff’s case, and sent materials related to the case to
EOUSA for processing. (USAO-EDNY Decl. ¶¶ 12-14). Plaintiff does not challenge, and the
court finds sufficient, the adequacy of EOUSA’s search.
EOUSA withheld records and parts of records pursuant to FOIA exemptions 5, for
attorney work product, and 6 and 7(C), for privacy. EOUSA’s Vaughn index states that a
number of records consisting of memoranda and summaries of interviews with witnesses in the
criminal case against Plaintiff were withheld because they constitute the work product of the
government’s litigation team. (Vaughn Index at 1, EOUSA Decl. Ex. D). Accordingly, the
index states, there was no segregable information. (Id.).
FOIA exemption 5 applies to “inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in litigation with the agency. . . .”
5 U.S.C. § 552 (b)(5). Exemption 5 incorporates attorney work product privilege. See Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Attorney work product
includes “mental impressions, conclusions, opinions, or legal theories of a party’s attorney. . . .”
Fed. R. Civ. Proc. 26(b)(3)(B). In the FOIA context, the D.C. Circuit has found that the attorney
work product exemption includes “attorney notes and witness statements” that “came into being
in anticipation” of quasi-judicial proceedings. See Martin v. Office of Special Counsel, Merit
Sys. Prot. Bd., 819 F.2d 1181, 1188 (D.C. Cir. 1987). Plaintiff does not challenge, and the court
finds sufficient, EOUSA’s invocation of exemption 5 with regard to the memoranda and
summaries of witness interviews conducted in anticipation of the criminal case against Plaintiff.
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EOUSA’s Vaughn index describes other withheld information as “[p]ersonally
identifiable information that consists of the names of government attorneys on the litigation
team, law enforcement personnel, and in a few instances names and photographs of witnesses”
involved in the criminal case, and claims exemptions 6 and 7(C). (Vaughn Index at 2).
Exemption 6 exempts from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). Exemption 6 requires a court to “pursue two lines of inquiry,” first
determining whether the records at issues are personnel, medical, or similar files, and then
determining whether their disclosure would “constitute a clearly unwarranted invasion of
personal privacy,” which requires balancing “the privacy interest that would be compromised by
disclosure against any public interest in the requested information.” Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008) (citations and internal quotation marks
omitted). The Supreme Court has stated that the term “similar files” is to be construed broadly,
and includes any “disclosure of information which applies to a particular individual . . . .” U.S.
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982).
Exemption (7)(C) exempts “records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy . . . .” 5 U.S.C. § 552(b)(7)(C). Exemption 7(C), while broader than exemption 6, also
requires the court to “balance the . . . privacy interest against the public interest in disclosure.”
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (citation omitted). Once
the court finds that “the privacy concerns addressed by exemption 7(C) are present,” the
requester must “establish a sufficient reason for the disclosure” to obtain the records. Id. at 172.
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To do so, the requester must show, first, “that the public interest sought to be advanced is a
significant one, an interest more specific than having the information for its own sake,” and,
second, that “the information is likely to advance that interest.” Id.
Plaintiff argues that there is a significant public interest in the withheld information
because of possible government misconduct during the prosecution of his case. The Favish
Court held that where there are privacy interests that would exempt disclosure under exemption
7(C) and the public interest asserted is “to show that responsible officials acted negligently or
otherwise improperly in the performance of their duties, . . . the requester must produce evidence
that would warrant a belief by a reasonable person that the alleged Government impropriety
might have occurred.” Favish, 541 U.S. at 174.
Plaintiff contends that the government characterized him during trial as the “boss” of the
Norte del Valle Cartel despite statements by three members of the cartel, during interviews with
the FBI, DEA, and Assistant United States Attorneys, that Plaintiff was not a member of the
cartel. Plaintiff suggests the government may have committed violations of its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963), and also “proceeded to trial on a
theory that it knew—or should have known—was materially false.” (Opp. at 5, ECF No. 19).
To the extent that Plaintiff maintains that disclosure is appropriate because of Brady violations,
Plaintiff must allege something more than an “isolated, immaterial, or uncertain Brady
violation,” which does “not typically suffice for purposes of Exemption 7(C).” Plunkett v. Dep’t
of Justice, 2015 WL 5159489 at *8 (D.D.C. Sept. 1, 2015); see also Boyd v. Criminal Div. of
U.S. Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) (“a single instance of a Brady violation
in Boyd’s case would not suffice to show a pattern of government wrongdoing as could
overcome the significant privacy interest at stake”).
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Plaintiff has not presented evidence that a “blatant” Brady violation has occurred, see
Plunkett, 2015 WL 5159489 at *8, or of a pattern of government misconduct. Plaintiff submitted
translations of statements from Juan Carlos Giraldo Franco, Orlando Sabogal Zuluaga, Jose
Aldemar Rendon Ramirez, and Dagoberto Florez Rios,3 but did not offer any evidence that the
statements were withheld from him and his attorney, nor that the information would have
impacted the outcome of his trial. See United States v. Andrews, 532 F.3d 900, 905 (D.C. Cir.
2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)) (“A ‘true Brady violation’ has
three components: ‘The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.’”). Plaintiff has provided no
evidence, such as testimony or documentary evidence, which could lead a reasonable person to
believe that the government committed Brady violations in Plaintiff’s case.
The court’s conclusion is in accord with the Second Circuit’s decision on Plaintiff’s
direct appeal of his criminal conviction. The Second Circuit addressed Plaintiff’s claims that the
government suppressed information that three individuals, including Orlando Sabogal Zulaga,
had made statements tending to disprove that Plaintiff trafficked drugs with the cartel, and found
that there was no evidence of suppression, nor was it clear that Plaintiff would have called any of
the men as witnesses had he had the allegedly suppressed information. Restrepo, 547 F. App’x
at 42-43. The Court also found that Plaintiff failed to demonstrate any probability that the
allegedly suppressed information would have affected the outcome of his case. Id.
3
The latter stated only that he had never personally had any criminal dealings with Restrepo, not
that Restrepo was not a member of the Cartel.
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To the extent Plaintiff claims the government committed misconduct by arguing at trial
that he was a member of the cartel, separately from any Brady violations, that claim cannot
overcome the privacy interests invoked by EOUSA. Plaintiff cites Napue v. Illinois, 360 U.S.
264 (1959), in which the Supreme Court prohibited the government’s knowing use of false
evidence in a prosecution. Taking Plaintiff’s allegations as true, that several witnesses had told
law enforcement officials that Plaintiff was not a cartel member, the government was nonetheless
entitled to present to the jury evidence that would tend to prove that Plaintiff was a member of
the cartel, and the jury was entitled to make its own factual finding on the matter. Plaintiff
acknowledges that “the Government proffered evidence during Plaintiff’s [trial] that he was an
alleged member of the” cartel, (Opp. at 4), indicating that the government did have evidence that
tended to show Plaintiff’s membership. The statements Plaintiff describes by several individuals
(who had all been prosecuted for narcotics trafficking) to the contrary were not dispositive facts;
their evidentiary value was only as great as the credibility of the speakers. The government’s
conduct—assuming the facts in the light most favorable to Plaintiff—clearly does not fall within
Napue. Plaintiff has not established that there is a significant public interest that merits
disclosure of the records withheld by EOUSA pursuant to exemptions 7(C) and 6, and EOUSA
has fulfilled its obligations under FOIA.
B. ICE
Plaintiff does not argue that ICE failed to conduct an adequate search or improperly
withheld information pursuant to Privacy Act exemption (k)(2) and FOIA exemptions 6, 7(C),
and 7(E). The court is independently satisfied that the search was adequate and the withholdings
appropriate. ICE invoked FOIA exemptions 6 and 7(C) to withhold names of Plaintiff’s co-
defendants and other targets of investigation, the names of jury forepersons who signed various
superseding indictments of Plaintiff, the names of prosecuting attorneys, and the names of HSI
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agents. Plaintiff has identified no public interest in the information that would merit disclosure.
ICE also invoked FOIA exemption 7(E) as to information pertaining to non-public case numbers
and law enforcement techniques. Exemption 7(E) permits withholding of law enforcement
records that “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 court is satisfied that ICE’s 7(E) withholdings were also appropriate, and ICE
has fulfilled its FOIA obligations.
C. BOP
Plaintiff does not challenge the adequacy of BOP’s search, nor does he allege that BOP
improperly withheld information pursuant to FOIA exemptions 6, 7(C), and 7(F). The court is
independently satisfied that the search was adequate and the withholdings appropriate. BOP
withheld identifying information about third parties pursuant to exemption 6, and the direct-line
telephone extension of a law enforcement officer pursuant to exemption 7(C). Plaintiff has
identified no public interest that outweighs the privacy interests of the third parties mentioned in
the records, or the law enforcement officer in the privacy of his direct phone number. Exemption
7(F) allows withholding of law enforcement records that “could reasonably be expected to
endanger the life or physical safety of any individual . . . .” 5 U.S.C. § 552(b)(7)(F). BOP
invoked exemption 7(F) to redact information pertaining to BOP staff names and identities, as
well as to the third parties named in Plaintiff’s FOIA request. The court finds BOP performed an
adequate search and withheld only exempt information.
D. State
Plaintiff challenges the adequacy of one aspect of State’s search: the search of the Central
File of Central Foreign Policy Records for the Listed Individuals. Plaintiff claims that State did
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not satisfy its burden of demonstrating that it would be unreasonably burdensome to do a line-
by-line review of the database search results in order to locate responsive documents from the
Central File. He also challenges State’s claim that the information he seeks would be exempt
even if the search was not overly burdensome. Because Plaintiff seeks information pertaining to
specific individuals, and has not identified a public interest that would warrant disclosure despite
the privacy interests of those individuals pursuant to FOIA exemptions 6 and 7(C), the court
finds that a line-by-line review of the database search results from the Central File would both be
futile, because the information would be exempt, and unreasonably burdensome.
Plaintiff argues that State’s claim that the line-by-line search would be unduly
burdensome is vague; that State never asked him to narrow his request; that his request only
seeks “records involving the 39 other Listed Individuals insofar as those records are germane to”
his case; and that State has not explained why redactions or selective withholding would not
suffice to protect the privacy interests of the 39 individuals. (Opp. at 7-8). Defendants respond,
and the court agrees, that State is under no obligation to ask Plaintiff to narrow his request and
that it is Plaintiff’s duty to submit a request that “reasonably describes” the records sought, see 5
U.S.C. § 552(a)(3)(A)(i); that State has demonstrated with specificity the burdensome nature of
the line-by-line review (see Supplemental State Decl., ECF No. 21-1); and that redactions, even
if possible, would make the search more burdensome. The court notes that the language of
Plaintiff’s request does not state that he seeks only those records germane to his case, but rather
broadly requests “any document” pertaining to an interview, debriefing, or proffer regarding the
Listed Individuals.
The court finds that, with respect to documents pertaining to interviews, debriefings, or
proffers regarding specific individuals, it is unclear how State could redact the personal
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identifying information of those individuals in a way that would allow meaningful disclosure
while protecting the privacy interests of those individuals. It is one thing where an individual
requests records that happen to contain personal identifying information, and the personal
information can be redacted while still providing the requesting individual with the substantive
information they seek; but another thing entirely where the object of the individual’s request is
the personal identifying information. In the latter case, redaction does not make sense.
Plaintiff has not challenged the remainder of State’s search or its withholding pursuant to
FOIA exemptions 5, 6, 7(A), 7(C), 7(E), 7(F), and exemption 1, which allows withholding of
matters that are “(A) specifically authorized under criteria established by an Executive order to
be kept secret in the interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order . . . .” 5 U.S.C. § 552(b)(1). The court takes a
deferential approach toward national security exemptions, see Larson v. Dep’t of State, 565 F.3d
857, 865 (D.C. Cir. 2009), and finds State’s affidavit describing the classification of some
information contained in document C05132027 in accordance with Executive Order 13526
sufficient to justify the withholding. (State Decl. ¶¶ 45-50; 81-82).
State invokes exemption 5 for pre-decisional, deliberative information contained in a
number of documents, and has adequately described the basis for the exemption. (State Decl. ¶¶
69-72). The documents include a number of draft extradition requests with handwritten notes,
which are protected by deliberative process privilege as well as attorney work product privilege.
See Klamath, 532 U.S. at 8 (“deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated”) (internal quotations marks and citation omitted). State
invokes exemptions 6, 7(C), and 7(F) to withhold names and contact information of State
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employees from several documents, which is appropriate given the absence of any overriding
public interest in that information. State has withheld information pursuant to exemptions 7(A)
and 7(E) concerning pending investigations related to Plaintiff’s case as well as law enforcement
procedures and techniques involved in extradition. (State Decl. ¶¶ 67, 68, 79). The court finds
the exemptions appropriate and that State has fulfilled its disclosure obligations under FOIA.
E. DOJ
Plaintiff does not argue that DOJ improperly withheld information pursuant to FOIA
exemptions 5, 6, 7(C), and 7(D). DOJ was referred one document for processing by EOUSA,
which it describes as an email and attachment pertaining to Plaintiff’s arrest and extradition.
(DOJ Vaughn Index). DOJ withheld the document as attorney work product pursuant to
exemption 5, and the court finds DOJ has demonstrated that the withholding was proper. DOJ
also invoked exemptions 6, 7(C), and 7(D)—which allows withholding of law enforcement
information that “could reasonably be expected to disclose the identity of a confidential source,”
5 U.S.C. § 552(b)(7)(D)—to redact information about third parties within the same single
document. The court finds those redactions would be proper pursuant to those exemptions, even
if the entire document were not exempt as work product, as there is no public interest in the
information that would outweigh the privacy interest.
F. DEA and FBI
Plaintiff claims the DEA and FBI have not provided sufficient information for the court
to determine the appropriateness of the agencies’ withholding, nor have those agencies indicated
whether portions of the records were reasonably segregable. DEA withheld 118 pages that
consisted of Reports of Investigation, handwritten notes and charts, and summaries of
information provided by confidential sources, pursuant to FOIA exemptions 7(A), 7(C), 7(D),
7(E), and 7(F). (Myrick Decl. ¶ 21). DEA’s Vaughn index clearly states which exemptions were
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invoked for each withheld record, and describes the type of content withheld, including names
and identifiers of third parties, witnesses, and law enforcement officers; law enforcement
identifier codes used in investigation that are not public; and confidential source information.
(Id. Ex. F). Plaintiff has not identified any public interest that would weigh in favor of disclosure
with regards to the privacy-related exemption, 7(C). The court is satisfied that DEA has
provided sufficient information to justify withholding under exemptions 7(A), 7(D), 7(E), and
7(F) relating to interference with law enforcement proceedings, protecting the identity of
confidential sources, withholding records that disclose law enforcement techniques, and
withholding information that could endanger individuals.4
FBI withheld in full 2 pages of records referred by State, and 19 pages referred by DEA
(which had been referred to DEA by EOUSA), pursuant to exemption 7(A). FBI’s
accompanying affidavit states that both records are “located in an investigative file which is
exempt from disclosure.” (Hardy Decl. ¶¶ 6, 8). The FBI stated that it was unable to provide a
“description of the information withheld” because a specific description could identify the
information that the FBI sought to protect by invoking the exemption. (Id. ¶ 9). It explained that
the information was “contained in files pertaining to the FBI’s investigation of one or more
Colombian crime organizations,” which was ongoing at the time of the declaration. The records
consisted of interview forms, which the FBI uses to “memorialize interviews,” and computer
database printouts of FBI and local law enforcement record checks. (Id. ¶¶ 17-18). It is clear
that the records withheld are law enforcement records as to which exemption 7 applies, and the
court finds FBI’s justification of its withholding pursuant to 7(A) adequate. The court also finds
4
Plaintiff complains that DEA’s Vaughn index does not reference the Privacy Act exemption
invoked in DEA’s declaration, but the court need not consider this argument because
withholding is justified under FOIA’s exemptions.
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FBI’s assessment that the information could “potentially jeopardiz[e] current or prospective
investigative and/or prosecutions” reasonable. (Id. ¶ 20). It described “how” the investigation
would be harmed: disclosure would have a chilling effect on witnesses and could reveal the
scope of the investigation, alerting potential targets. (Id. ¶¶ 21-22). FBI’s description satisfies
the requirements of Campbell v. Department of Health & Human Services, 682 F.2d 256, 265
(D.C. Cir. 1982). FBI noted, and the court agrees, that withholding the information would also
be appropriate pursuant to exemption 6 and exemption 7(C), as Plaintiff has not identified an
overriding public interest and the privacy interest of individuals named in the records is strong.
Exemptions 7(D) and 7(E) also apply.
Plaintiff maintains that FBI’s use of a declaration instead of a separate Vaughn index
precludes summary judgment, but the court finds the declaration is sufficient to explain FBI’s
withholding. See Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice,
746 F.3d 1082, 1088 (D.C. Cir. 2014) (stating that it is the function of a Vaughn index, and not
the form, that matters, and a detailed affidavit can suffice).
G. Segregability
An agency is “entitled to a presumption that [it] complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007). Plaintiff has not offered any evidence to “successfully rebut[] this presumption.” Id.
Each agency conducted a segregability analysis and released information where it was
segregable from exempt information. (Hardy Decl. ¶¶ 43-44; EOUSA Decl. ¶ 25; Pineiro Decl.
¶¶ 74-77; Wallace Decl. ¶¶ 12, 29; Second Wallace Decl. ¶¶ 7, 21; Cunningham Decl. ¶ 27;
Myrick Decl. ¶ 62; State Decl. ¶ 84). The court therefore finds that the agencies have all
complied with FOIA’s segregability requirement.
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IV. CONCLUSION
For the reasons stated above, summary judgment for the Defendants will be granted.
A corresponding order will issue separately.
Dated: March 30, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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