McRae v. United States Department of Justice ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANDRE L. McRAE, )
)
Plaintiff, )
)
v ) Civil Action No. 09-2052 (RJL)
)
UNITED STATES DEPARTMENT )
0F JUSTICE, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
(Mayz(,zom)
This matter is before the Court on Defendants’ Renewed Motion for Summary Judgment
[ECF No. 40]. For the reasons discussed below, the motion will be granted.
I. BACKGROUND
Plaintiff currently is serving a lengthy prison sentence imposed by the United States
District Court for the Westem District of North Carolina:
On June 29, 2004, a federal grand jury sitting in the United States District Court
for the Western District of North Carolina indicted McRae on eight counts. Count
One charged McRae with conspiracy to possess with the intent to distribute five
kilograms or more of cocaine and fifty grams or more of crack, 21 U.S.C. §§ 841
and 846. Count One named [other individuals] as coconspirators, and alleged that
the conspiracy began on or about January 1, 2004 and ended on or about May l7,
2004 [when McRae was arrested by Charlotte-Mecklenburg Police Department
officers who were working with ATF Special Agent Terrell Tadeo]. Counts Two,
Three, and Six charged McRae with possession with the intent to distribute five
grams or more of crack, ia'. § 84l, relating to the crack recovered on April 16,
May 17, and May 26, 2004. Counts Four and Seven charged McRae with
possession of a firearm during and in relation to a drug trafficking crime, 18
U.S.C. § 924(c), relating to the firearm seizures on May 17 and May 26, 2004.
Counts Five and Eight charged McRae with possession of a firearm by a
convicted felon, id. § 922(g), again relating to the firearm seizures on May 17 and
May 26, 2004.
The case proceeded to trial, and a jury convicted McRae on all counts. On
December ll, 2007, he was sentenced to a total of 687 months’ imprisonment.
McRae received concurrent 327-month sentences on the conspiracy and the
possession with the intent to distribute crack counts; two concurrent l20-month
sentences on the § 922(g) counts; and consecutive sentences of sixty and 300
months on the § 924(0) counts.
United States v. McRae, 336 F. App’x 30l, 304 (4th Cir. 2009) (per curiam); see Pl.’s Mot. for
Summ. J. [ECF No. 21], Ex. (Judgment in a Criminal Case, United States v. McRae, No.
3:04CR-00l57 (W.D.N.C. Jan. 9, 2008) at l-2).
On October 6, 2008, plaintiff submitted a request under the Freedom of information Act
("FOIA"), see 5 U.S.C. § 552, to the Executive Office for United States Attorneys ("EOUSA"), a
component of the United States Department of Justice ("DOJ"). Compl. at 3 1[ l. The request
identified plaintiff by name, date and place of birth, and social security number; it also listed the
case number and the district in which he was prosecuted. See Mem. of P. & A. in Supp. of
Defs.’ Renewed Mot. for Summ. J. ("Defs.’ Mem."), Decl. of David Luczynski ("Luczynski
Decl."), Ex. A (Freedom of Information Act/Privacy Act request to the EOUSA dated October 6,
2008). In addition to any investigatory records the EOUSA may have held, plaintiff sought
additional items:
I am requesting "All" of A.T.F. Terrel Tadeo (Case Agent) Field and Handvvritten
investigative notes leading up to the conviction of said case # 3:04 CR l57. I also
am requesting Detective Rolando Ortiz[’s] police report from April 16, 2004, sale
and delivery of cocaine involving myself (Charlotte Meck [sic] Police Dept.)
Luczynski Decl., Ex. A; see also Compl., Ex. l (Letter to Gretchen C.F. Shappert, United States
Attomey’s Office for the Westem District of North Carolina, f``rom plaintiff dated October 16,
2008) at 2. The EOUSA notified plaintiff that some of the information he sought originated in
the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), not the EOUSA, and
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suggested that plaintiff contact the ATF directly. Luczynski Decl., Ex. C (Letter to plaintiff from
William G. Stewart II, Assistant Director, Freedom of Information/Privacy Act Unit, EOUSA,
regarding Request No. 08-3 671 dated November 6, 2008). Only after this litigation commenced
did "the EOUSA release[] seventeen pages in full [and] one page in part . . . , having redacted
certain information under Exemption 7(C)." McRae v. U.S. Dep ’t of Justice, 869 F. Supp. 2d
l5l, 156 (D.D.C. 20l2).
Having construed plaintiff’s complaint as a challenge to the EOUSA’s response, or lack
of response, to his FOIA request, see ia'. at l60, the Court denied defendant’s prior summary
judgment motion in part because defendant had "offer[ed] neither a description of the EOUSA’s
search for records responsive to plaintiffs FOIA request nor a justification for withholding
information under Exemption 7(C)." Ia'. at 160. The ATF, however, demonstrated that its
search for responsive records was reasonable, see id. at l62, and that its decisions to withhold
information under Exemptions 3, 7(C) and 7(E) were justified, see generally ia'. at 163-66, 168-
69. Because it did not show that the decision to withhold under Exemption 7(D) information
pertaining to the identities of and information provided by confidential sources was proper, its
prior summary judgment motion was denied in part. See z'a'. at 167-68.
Now before the Court is a renewed motion addressing these matters.
II. DISCUSSION
A. Summary Jua’gment in a FOIA Case
"FOIA cases typically and appropriately are decided on motions for summary judgment."
Defena’ers of Wildlife v. U.S. Bora'er Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). 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 ’l of State, 257 F.3d 828, 833 (D.C. Cir.
200l) (quoting Goland v. Cent. Intelligence Agency, 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 nor by evidence of agency bad faith."
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton,
770 F. Supp. 2d 175, 182 (D.D.C. 2011). "To successfully challenge an agency’s showing that it
complied with the FO1A, 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 Dep ’t of Justice v. T ax Analysts, 492 U.S. l36, 142 (1989)).
B. T he EOUSA ’s Search for Recora’s Responsive to Plaintzff’s FOIA Request
"The adequacy of an agency’s search is measured by a standard of reasonableness . . .
and is dependent upon the circumstances of the case." Wez'sberg v. U.S. Dep ’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted). An agency
must "demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover
all relevant documents."’ Valencz``a-Lucena v. U.S. Coast Guara', 180 F.3d 321, 325 (D.C. Cir.
1999) (quoting Truitt v. Dep ’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency may
submit affidavits or declarations that explain in reasonable detail the scope and method of the
search. Perry v. Block, 684 F.2d l2l, 126 (D.C. Cir. 1982). Absent contrary evidence, such
affidavits or declarations are sufficient to demonstrate compliance with the FOIA. Ia'. at 127.
However, if the record "leaves substantial doubt as to the sufficiency of the search, summary
judgment for the agency is not proper." Truitt, 897 F.2d at 542.
The EOUSA’s declarant explained that each United States Attomey’s Office maintains
criminal case files prosecuted by that office. Luczynski Decl. 11 11. In this case, the FOIA
Contact at the United States Attomey’s Office for the Western District of North Carolina
("USAO/NCW") conducted the search for records responsive to plaintiff s request. Id. 1[ 11.
That search included "e-mails to the Assistant United States Attomey[s] in the Criminal Division
to ascertain whether they had any responsive records," as well as a search of LIONS, "the
computer system used by United States Attorneys offices to track cases and to retrieve files
pertaining to cases and investigations." Ia’. Through LIONS, a "user can access databases
which can be used to retrieve information based on a defendant’s name, the USAO number
(United States’ Attomey’s Office internal administrative number), and the district court case
number." Ia'. Using plaintiffs name as a search terrn, the FOIA Contact located 18 pages of
records in the USAO/NCW. Ia'. 111[ ll-l2. The declarant averred that "[t]here are no other
records systems or locations within EOUSA or DOJ in which other files pertaining to
[p]laintiffs name were maintained." Id. 11 11. Nor were there "other records systems or
locations within the [USAO/NCW] in which other files pertaining to plaintiff s criminal case[]
were maintained." Id. 11 13.
Plaintiff’s challenge to the EOUSA’s search is based on the agency’s purported failure to
locate records responsive to a "new" request he submitted, on an unspecified date, asking that the
EOUSA "narrow [its] search to the [ATF Agent’s] ‘Recommendation of Report’ to the U.S.
Attomey’s Office which would include the names of any other individuals involved in the
investigation of plaintiff and any information that the ‘known’ CI provided on plaintiff, and any
other information provided on plaintif ." Pl.’s Opp’n to Defs.’ Renewed Summ. J. ("Pl.’s
Opp’n"), Decl. of Andre McRae 11 10. Nor, he contends, did the EOUSA respond to his
"request[] that the EOUSA narrow their [sic] search down to the April 16, 2004 wire-recording
to a drug deal that involved an undercover detective from the Charlotte-Mecklenburg Police
dept., the Confidential Informant and [him] self [a]s well as the transcripts that were used to aid
the jury during trial while the recording was presented as evidence." Id. , McRae Decl. 11 12.
Plaintiff argues that the EOUSA’s declaration "is silent . . . [a]nd . . . fail[s] to reasonably detail
the scope and method of [its] search within the U.S. Attomey’s Office for the W.D.N.C.
Charlotte Division. And does not explain ‘where is the April 16, 2004 drug deal recording, and
it’s [sic] transcribed transcript used to aid the jury,’ and the Detective Rolando Ortiz . . . report of
said drug deal." Id., McRae Decl. 11 16. The LIONS search, he argues, m have directed
them to where to locate the ‘specific’ requested recording played in m District Court relating
to the same defendant[’]s name, USAO number, and district court case number." Pl.’s Opp’n at
7 (emphasis in original).
"The issue in a FOIA case is not whether the [agency’s] searches uncovered responsive
documents, but rather whether the searches were reasonable." Moore v. Aspin, 916 F. Supp. 32,
35 (D.D.C. 1996) (citations omitted). Plaintiff does not attach a copy of this "new" request, and
nothing in the record demonstrates that the EOUSA received it. The October 6, 2008 request
sought a copy of Detective Ortiz’s April 16, 2004 police report, and it does not mention
specifically a recording or transcript of a recording of a drug deal occurring on that date. The
EOUSA is under no obligation to conduct another search for the recording at this late date. See
Williams v. Ashcroft, 30 F. App’x 5, 6 (D.C. Cir. 2002) (holding that the Federal Bureau of
Prisons was "not required to search for or provide tape recordings . . . because [appellant] did not
include these materials in his initial FOIA request"). The EOUSA demonstrates that its search
for records responsive to plaintiffs October 6, 2008 request was reasonable under the
circumstances, regardless of whether it produced the specific records plaintiff requested. See
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) ("[l]t is long settled
that the failure of an agency to turn up one specific document in its search does not alone render
a search inadequate . . . . After all, particular documents may have been accidentally lost or
destroyed, or a reasonable and thorough search may have missed them."); Rothschild v. Dep ’t of
Energy, 6 F. Supp. 2d 38, 40 (D.D.C. 1998) ("Perfection . . . is not the standard, and the
govemment’s failure to locate two responsive documents does not defeat the government’s
showing . . . that its search was adequate.").
C. Exemption 7(C)
Exemption 7 protects from disclosure "records or information compiled for law
enforcement purposes," 5 U.S.C. § 552(b)(7), but only to the extent that disclosure of such
records would cause an enumerated harrn. See Fed. Bureau of Investigation v. Abramson, 456
U.S. 615, 622 (1982). Exemption 7(C) protects information in law enforcement records that
"could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5
U.S.C. § 552 (b)(7)(C). In determining whether Exemption 7(C) 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 ’l of Justice, 655 F.3d 1,
6 (D.C. Cir. 201l) ("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.") (intemal
quotation marks and citation omitted); Sussman v. US. Marshals Serv., 494 F.3d 1106, 1115
(D.C. Cir. 2007). The privacy interest at stake belongs to the individual, not the govemment
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. Fea’. Bureau of Investigation, 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. & Exch.
Comm ’n, 926 F.2d 1197, 1206 (D.C. Cir. 1991).
lt is apparent from the plaintiffs criminal history and the nature of his FOIA request that
the information he seeks was compiled for law enforcement purposes, namely, "to facilitate the
investigation and criminal prosecution of the requester." Luczynski Decl. 11 15. Thus, the
EOUSA easily meets the initial burden of establishing that the responsive records at issue fall
within the scope of Exemption 7.
The EOUSA withholds under Exemption 7(C) the identities of third parties, such as
potential witnesses and law enforcement personnel, on the ground that release of this information
"could subject [them] to an unwarranted invasion of their personal privacy." Luczynski Decl. 11
16. The declarant explains that the "[r]elease of . . . personal identifiers could result in
unwanted efforts to gain further access to such persons or to personal information about them -
or subject them to harassment, harm, or exposure to unwanted and/or derogatory publicity and
inferences - all to their detriment." Id. Further, the declarant states, "there was no
countervailing public interest in the release of this privacy-protected information[] because its
dissemination would not help explain govemment activities and operations or outweigh third
party individuals’ privacy right in the information withheld under this exemption." Id. 11 17.
Plaintiff maintains that the information purportedly withheld by the EOUSA already has
entered the public domain through trial testimony and "excerpts . . . of the recording being
played to the jury" in open court to "the public that was present in the courtroom during these
proceedings." McRae Decl. 1[ 15. lt is true that public disclosure of information may lead to the
waiver of the FOIA exemption, but plaintiff does not establish that the records pertaining to the
events of April 16, 2004 are the records from which the EOUSA has redacted information under
Exemption 7(C). He bears the initial burden of showing that the requested inforrnation: (1) is as
specific as the information previously disclosed; (2) matches the information previously
disclosed; and (3) was made public through an official and documented disclosure, see Cottone
v. Ren0, 193 F.3d 550, 554 (D.C. Cir. l999), yet he fails to meet this burden. Furthermore, it is
the requester’s obligation to articulate a public interest sufficient to outweigh the individuals’
privacy interests, and the public interest must be significant. See Nat ’l Archives and Records
Admin. v. Favish, 541 U.S. 157, 172 (2004). Plaintiff articulates no such public interest, and,
therefore, the third parties’ privacy interests prevail.
The EOUSA’s decision to withhold the names of and identifying information about third
parties is entirely consistent with the prevailing law. See, e.g., Hoa'ge v. Fed. Bureau of
Investigation, 703 F.3d 575, 580 (D.C. Cir. 2013) (withholding "private information of various
investigators, witnesses, informants, and suspects" under Exemption 7(C)); Marshall v. Fed.
Bureau of Investigatz``on, 802 F. Supp. 2d 125, 134-35 (D.D.C. 2011) (withholding names and
identifying information of FBI Special Agents, FBI personnel, and third parties of investigative
interest); Fischer v. U.S. Dep ’t of Justice, 596 F. Supp. 2d 34, 47 (D.D.C. 2009) (withholding
names of and identifying information about F B1 Special Agents and support personnel, third
parties merely mentioned, third parties of investigative interest, as well as identities of and
information provided by cooperative witnesses).
D. 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). The ATF withholds under Exemption 7(D) "selected portions of ATF
Reports of Investigation[] which would reveal the identity of a confidential source . . . who
provided information regarding specifics about plaintiffs criminal activity." Defs.’ Mem., Decl.
of Peter Chisholm ("Chisholm Decl.") 11 6. Its declarant clarifies that this information "was
redacted originally under Exemption 7(C)" alone, and ATF now claims both Exemptions 7(C)
and 7(D) “for this information pursuant to this litigation." Chisholm Decl.. 11 9. The ATF’s prior
declaration, while invoking Exemption 7(D), failed to show that the information withheld had
been furnished by a confidential source and that its release could reasonably be expected to
disclose the source’s identity. Nevertheless, based on the Court’s prior rulings that all the ATF
records responsive to plaintiff s FOIA request were compiled for law enforcement purposes and
that third-party infonnation properly is withheld under Exemption 7(C), see McRae, 869 F.
Supp. 2d at 164-66, the Court need not have determined the applicability of any other exemption
with respect to this same confidential source information. See Roth v. U.S. Dep ’t of Justz``ce, 642
F.3d 1161, 1173 (D.C. Cir. 2011); Simon v. Dep ’t ofJustice, 980 F.2d 782, 785 (D.C. Cir. 1994).
Had the confidential source information been withheld solely under Exemption 7(D), the ATF’s
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latest submission demonstrates that it remains exempt from disclosure because its release could
reasonably be expected to disclose the identity of a source who furnished information on a
confidential basis to the ATF in the course of its investigation of plaintiff s criminal activities.
According to the case agent involved in the investigation, it is believed that this source
"was not a long-terrn confidential source" with whom ATF executed a signed agreement; rather,
he or she "was likely working as a cooperating defendant in the hopes that he/she would receive
consideration at sentencing in a pending criminal case." Chisholm Decl. jl 6. The declarant
articulates two bases for concluding that the source provided information under an express grant
of confidentiality, notwithstanding the absence of a written agreement or long-terin arrangement
with the ATF.
First, the declarant notes that the source’s name does not appear in the Reports of
Investigation. Ordinarily, the case agent "verbally notifies any confidential source[] . . . that all
legal means available would be used to protect his/her identity," and in this instance he "believes
that he notified the confidential source . . . that his/her identity would be protected." Ia'. 11 8.
Consistent with these assertions, the source is "referred to as ‘CI,’ which is an abbreviation for
‘confidential infonnant’ or ‘CS,’ which is an abbreviation for ‘confidential source."’ Id. He or
she "is never named in the Reports of Investigation." Id. Use of these abbreviations comports
with ATF practice “to omit names and identifying information of sources from Reports of
Investigation when a source has received an express grant of confidentiality." Ia'. In contrast,
the full name of a witness or third party providing information who has not been assured
confidentiality ordinarily would appear in a Report of Investigation. Id. The declarant considers
"the verbal promise that the case agent believes he made to this source . . . an express assurance
of confidentiality sufficient to withhold information pursuant to Exemption (b)(7)(D)." Id.
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Second, the declarant points to "the violent nature of the plaintiff s offenses" as
"contribut[ing] to the importance of keeping this agreement of confidentiality and further
supports the evidence that he/she was given a promise of confidentiality." Id. 11 9a. "The
source’s information was directly linked to [plaintiff s] criminal charges in ATF’S investigation."
Ia'. He or she "provided information . . . regarding [plaintiff s] drug activities and participated in
undercover operations involving [plaintiff] directly." Ia’. In these circumstances, the declarant
sees "the extreme likelihood he/she was guaranteed confidentiality and believed that his/her
identity would be protected from [plaintiff]." Id. Furthermore, protection of a confidential
source is necessary "to ensure his/her safety," and "to preserve ATF’s ability to recruit
confidential sources in the future under similar agreements of confidentiality." Id.
III. CONCLUSION
The Court concludes that the EOUSA’s search for records responsive to plaintiffs FOIA
request was reasonable under the circumstances, and that its decision to withhold infonnation
pertaining to third parties under Exemption 7(C) was appropriate. Although confidential source
information properly has been withheld by the ATF under Exemption 7(C) alone, through its
declarant ATF has demonstrated that the same information also would properly have been
withheld under Exemption 7(D), Accordingly, defendants’ motion for summary judgment will
be granted. An Order accompanies this Memorandum Opinion.
DATE: w
RI€HARD J. rim
2 United StatesD `` Judge
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