Smith v. Executive Office for United States Attorneys , 83 F. Supp. 3d 289 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BRIAN EUGENE SMITH, )
)
Plaintiff, )
)
v ) Civil Action No. 13-1088 (RJL)
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EXECUTIVE OFFICE FOR ) E E L E 3
UNITED STATES ATTORNEYS, et al., )
) MAR i 3 201.5
Defendants. ) mm; ‘2: m«-;;.::.; «i "mils.
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MEMORAM’INION
(March [72015) [Dkt. ## 35,49]
Plaintiff brings this action under the Freedom of Information Act (“F OIA”), see 5
U.S.C. § 552, against two components of the United States Department of Justice
(“DOJ”): the Executive Office for United States Attorneys (“EOUSA”) and the Drug
Enforcement Administration (“DEA”). See Compl. [Dkt. #1]. This matter is before the
Court on the Drug Enforcement Administration’s Supplemental Motion for Summary
Judgment [Dkt. #35] ("DEA Supp. Mot") and plaintiff’s Counter Motion for Summary
Judgment [Dkt. #49]. For the reasons discussed below, the Court GRANTS the former
and DENIES the latter.I
1 Plaintiffs motion, ECF No. 49, does not comply in form or in substance to a motion for
summaryjudgment, see Fed. R. Civ. P. 56; LCvR 7(h), and therefore the motion is DENIED.
1
BACKGROUND2
In December 2010, plaintiff submitted a FOIA request to the United States
Marshals Service (“USMS”), Compl. 11 9, which in relevant part stated:
My request is to receive the chain ofcustody ofthe drugs that
were seized in the state of Indiana, on 1-70, the first week of
December, 2007.
The drugs were seized by Detective Jack Martin, with
the Wayne County Sheriffl’]s Department, Indianapolis Drug
Enforcement Agent Cody Dooley and Richmond Police
Officer Scott Owens. The drugs were seized and brought to
Pittsburgh[,] Pennsylvania for a controlled delivery to Brian
E. Smith (Case#CM080023).
Mem, ofP. & A. in Support of Defs.’ Mot. for Partial Summ. J. [Dkt. #24], Dec]. of
Katherine L. Myrick [Dkt. #24-2] ("Myrick Decl.”), Ex. H (Freedom oflnformation Act
Request dated December 22, 2010). Because the information plaintiff requested was
“under thejurisdiction of the [DEA],” the USMS forwarded the request to the DEA.
Myrick Decl., Ex. 1 (Letter to Katherine L. Myrick. Chief, Freedom ofInformation
Operations Unit, DEA, from William E. Bordley, Associate General Counsel/FOIPA
Officer. Office ofthe General Counsel. USMS, dated January 6, 201 l).
DEA staff determined that “the information [plaintiff] was seeking was identical
and/or substantially the same investigative information” sought in a previous F OIA
request submitted directly to the DEA. Myrick Decl. T 16; see id. W 5-12, 37-39. The
DEA therefore took no further action at that time and administratively closed the case.
ld.. Ex. K (Letter to plaintiff from Katherine L. Myrick dated February 22. 201 1). When
2 Relevant factual background is described in my previous Opinion in this case, Smith v. Exec. ()fficefor US.
Attorneys, _ F. Supp. 3d !. 2014 WL 4783256, at *1-2 (D.D.C. Sept. 25, 2014)
2
investigations, types of criminal activities, and violator ratings,” which in turn would
assist them in avoiding detection. Id. $1 39. The Court concludes that the DEA properly
withholds these G—DEP codes under Exemption 7(E). See, e.g., Ortiz v. US. Dep ’t of
Justice, _ F. Supp. 3d _, _, 2014 WL 4449686 at *8 (D.D.C. Sept. 9, 2014); Adionser
v. Dep ’t ofJustice, 33 F. Supp. 3d 23, 26 (D.D.C. 2014).
D. Exemption 7(F)
The DEA withholds “[t]he names of DEA Special Agents and state/local law
enforcement personnel . . . pursuant to Exemption [7(F)] in conjunction with Exemption
[7(C)].” Supp. Myrick Dec]. ‘11 41. Because this information properly is withheld under
Exemption 7(C) alone, the Court need not determine the applicability of any other
exemption. See Roth v. US. Dep’t ofJustice. 642 F.3d 1161, 1173 (DC. Cir. 2011);
Simon v. Dep’t ofJustice, 980 F.2d 782, 785 (DC. Cir. 1992).
III. 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-Para Policing Agreement v. US. Customs Serv., 177 F.3d
1022, 1027 (DC. Cir. 1999). Based on the DEA declarant’s assertion, Supp. Myrick
Decl. $1 45, the Court concludes that all reasonably segregable information has been
released.
11
CONCLUSION
The DEA demonstrates that its search for records responsive to plaintiff’s request
for “chain of custody" information was adequate, notwithstanding its apparent failure to
produce the specific documents plaintiff sought. Its supplemental motion for summary
judgment will be GRANTED. An Order is issued separately.
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“[c]oncerns [arose] as to whether DEA conducted an adequate search for chain—of-
custody documents . V . , counsel represent[ed] that a new search of the file related to
plaintiff‘s criminal case was needed.” Smith v. Exec. Oflice for US. Attorneys, _ F.
Supp. 3d _, 2014 WL 4783256. at * 3 n.2 (D.D,C. Sept. 25, 2014) (internal quotation
marks omitted). The DEA has filed a supplemental motion for summary judgment, DEA
Supp. Mot, with a supporting declaration “to provide the Court with information
regarding DEA’s search for, and the processing and release of documents, as plaintiff
describes, ‘the chain of custody of the drugs seized in the state ofIndiana. on 1-70, the
first week of December, 2007” with reference to DEA Investigative File No. CM-08-
0023.” Mem. in Support of DEA’s Supplemental Mot. for Summ. J. [Dkt. #35],
Supplemental Decl. ofKatherine L. Myrick [Dkt. #35-1] (“Supp Myrick Decl.”) 1’. 2.
LEGAL STANDARD
The Court will grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and it is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). 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 ifit
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 ofState, 257 F.3d 828, 833 (DC. Cir. 2001) (quoting Goland
v. CIA. 607 F.2d 339, 352 (DC. Cir. 1978)) (alteration in original).
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
3
"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 (DC. 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 . . . agency records.”
Span v. US. Dep ’t ofJustice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting Dep ’t of
Justice v. Tax Analysts, 492 US. 136, 142 (1989)).
ANALYSIS
1. The DEA ’s Search for “Chain of Custody” Information
“The adequacy of an agency’s search is measured by a standard of reasonableness
and is dependent upon the circumstances of the case.” Weisberg v. US. Dep ’t ofJustice,
705 F.2d 1344, 1351 (DC. Cir. 1983) (internal quotation marks and citations omitted).
An agency “fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant documents."
Ancient Coin Collectors Guild v. US. Dep’t ofState, 641 F.3d 504, 514 (DC. Cir. 2011)
(internal quotation marks and citations omitted). A search need not be exhaustive, see
Miller v. US. Dep ’t ofState. 779 F.2d 1378, 1383 (8th Cir. 1985), and as long as the
agency conducts a reasonable search, “the failure of an agency to turn up one specific
document in its search does not alone render a search inadequate,” [turralde v.
Comptroller oft/1e Currency, 315 F.3d 311. 315 (DC. Cir. 2003).
4
The DEA’s declarant explains that “[t]here is no report or other document . . .
maintained by DEA entitled “Chain of Custody’ or a ‘Chain ofCustody Log’ that would
document the receipt and release of an item of evidence from the point of seizure to
destruction in a single record.” Supp. Myrick Decl. fl 4. The case number provided by
plaintiff, CM-08—0023, is that of"a file . . . maintained in the DEA Investigative
Reporting and Filing System . . . [which] contains criminal investigative information
gathered by DEA during the course of a criminal investigation.” Id. ‘ll 15. Therefore,
DEA construes plaintiffs FOIA request as one “seeking all investigative records
maintained by DEA contained in DEA Investigative File No. CM-08-0023 associated
with Drug Exhibits 1 and 2.” Id. 1i 5. By Drug Exhibits 1 and 2, the declarant refers to a
DEA Form 7, Report of Drug Property Collected, Purchased or Seized. and a DEA Form
LS-OS-OIO, Laboratory report, which had been located and processed in response to an
earlier FOIA request from plaintiff, DEA FOIA Request No. 10-00636—P.3 Id. fl 5 n.1:
see id, Exs. T-U. These two documents, declarant explains, “are the only drug exhibits
associated with CM-08-0023.” 1d. fl l6.
Plaintiffcontends that the DEA’s search for chain ofcustody information was
inadequate and that its supporting declarations “show[] bad faith.” Pl.’s Mem. in Opp’n
to Def.’s Mot. for Summ. J. [Dkt. #44] (“PL’s Opp’n”) fl 12. According to plaintiff, DEA
staff should have conducted a search using the G-DEP identifier assigned to his case and
3 A DEA Form 7 "is a standardized multi-block form . . . used to document the seizure ofdrug
evidence.” Supp. Myrick Decl. {l 10. It “includes a description ofthe alleged drugs seized, the
quantity [of drugs] seized, and a laboratory analysis/comparison report." Id. “The DEA Form
LS-05-010 is a memorandum type form used by DEA laboratories to report the results of
forensic testing.” Id. ll 14.
the NADDIS numbers assigned to him and to Juan Carlos Hinojosa. Id. 1] 13. Had DEA
staff conducted a search using these terms instead of his name, plaintiff posits that the
search would “reveal documentation from the Indiana DEA.”4 Id. He argues that
defendant is “withholding the documents from Indiana DEA,” id. ll 14, and that it is not
entitled to summary judgment because there remains "a material fact issue on the element
of the documents which comprise the Chain of Custody of the seized [drugs] in Indiana
and transported to Pittsburgh . . . ,” id. ‘11 10. Plaintiff misunderstands not only the extent
of an agency’s obligations under the FOIA, but also the purpose of defendant’s
supplemental summary judgment motion.
Plaintiff himself identified by number the relevant file to be searched, CM-O8-
0023. The DEA’s declarant explained that, “[o]n about February 11, 2014, a search was
conducted of DEA Investigative Case File CM-08—0023 for all records associated with
Exhibits 1 and 2.” Supp. Myrick Decl. 11 16. The search revisited certain pages of the file
“in light of the recognition that Exhibits 1 and 2 related to the plaintiff and not solely to a
third party.” Id. According to the declarant, Exhibits 1 and 2 (DEA Forms 7 and LS—OS-
010) were the only drug exhibits associated with CM-08—0023. Id.
Plaintiff speculates that the DEA actually maintains responsive records,
particularly those confirming the DEA‘s participation in the criminal investigation in
Indiana prior to the controlled delivery ofthe drugs from Hinojosa to plaintiff in
Pittsburgh. Pennsylvania, yet fails to produce “documents from Indiana DEA, when the
4 The DEA’s prior search of Investigative File No. CM-08-0023 "was for all reports and records
that referenced [plaintiff 5] name or that related to him.” Myrick Decl. 11 35.
6
Indianapolis DEA adopted the case.” Pl.’s Opp’n 11 14. He neither offers support for this
proposition nor demonstrates that the DEA was required to conduct an entirely new
search. Furthermore, the DEA is not obligated to answer questions or to produce
particular records supporting plaintiff‘s many challenges, see generally Pl.’s Opp’n 1111 5,
10, to certain facts underlying his arrest and conviction. See, e.g.. Jean—Pierre v. FBI,
880 F. Supp. 2d 95, 103—04 (D.D.C. 2012) (finding that plaintiff‘s requests “are . . . not
cognizable under FOIA because they ask questions calling for specific pieces of
information rather than records”).
The DEA’s supporting declarations are “accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs. v. SEC, 926 F.2d 1 197, 1200 (DC.
Cir. 1991) (internal quotation marks omitted). The Court concludes that the DEA’S
search of Investigative Case File CM—08-0023 for “chain ofcustody" information was
reasonable.
II. Exemption 7
In addition to Exhibits 1 and 2 (DEA Forms 7 and LS-05~010), DEA stafflocated
26 pages of responsive records in DEA Investigative Case File CM-08-0023. Supp.
Myrick Decl. '11 16. On February 27, 2014, the DEA released 17 ofthese pages in part
after having redacted information under FOIA Exemptions 7(C), 7(E), and 7(F). Id. 11 17.
On July 3, 2014. DEA released portions of five additional pages after having redacted
information under these same three exemptions. Id. 11 18.
The Court issued an Order advising plaintiff ofhis obligations under the Federal
Rules of Civil Procedure and the local rules of this Court to respond to the DEA’s
supplemental motion. July 7, 2014 Order [Dkt. #36]. Specifically, the Court warned
plaintiff that. if he failed to file an opposition to the motion, the motion would be treated
as conceded. Id. The Court has reviewed plaintiff‘s opposition and finds that plaintiff
does not oppose the DEA’s decisions to withhold information under Exemptions 7(C),
7(E) and 7(F). For purposes of this Memorandum Opinion, the facts pertinent to these
claimed exemptions are deemed admitted. See LCvR 7(h)(1) (“In determining a motion
for summary judgment, the court may assume that facts identified by the moving party in
its statement of material facts are admitted, unless such a fact is controverted in the
statement of genuine issues filed in opposition to the motion”); Augustus v. McHugh,
870 F. Supp. 2d 167. 172 (BBC. 2012) (where plaintiff’s “opposition did not challenge
the Secretary‘s proffered justifications under FOIA for having redacted” information,
court treated those arguments as conceded and entered judgment in defendant’s favor).
Although the Court may treat the DEA’S unopposed arguments as conceded,
summary judgment is warranted only if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw.”
Fed. R. Civ. P. 56(a); see Alexander v. FBI, 691 F. Supp. 2d 182, 193 (D.D.C.
2010) ("[E]ven where a summary judgment motion is unopposed, it is only properly
granted when the movant has met its burden”). Here, the DEA meets its burden.
A. 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 US. 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 (DC. Cir.
201 1) (internal quotation marks and citations omitted).
The declarant readily establishes that the records at issue were compiled for law
enforcement purposes. See Supp. Myrick Decl. 1111 26-27. The DEA is authorized to
investigate "incidences involving the trafficking in controlled substances . . . and the
violators who operate at interstate and international levels,” id. 11 26, and the relevant
records "were compiled during a criminal law enforcement investigation of the plaintiff
and several third-parties,” id. 11 27.
B. 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 U.S.C. § 552(b)(7)(C). The declarant explains that, under FOIA Exemption
7(C), the DEA withheld the names of and identifying information about “individuals who
were involved or associated with plaintiff or with a law enforcement investigation,”
Supp. Myrick Decl. 11 28. including DEA Special Agents and other law enforcement
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officers. id. W 32-33. stating that their privacy interests outweigh any public interest in
disclosure of the information, id. W 29-31.
“[N]ondisclosure of names or other information identifying individuals appearing
in law enforcement records” is routinely upheld. Schrecker v. US. Dep ’t of Justice, 349
F.3d 657, 661 (DC. Cir. 2003); see also, e.g., SafeCard Sen/3., 926 F.2d at1206 (holding
“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”). The DEA’S decision to withhold this third-
party information from the responsive records is proper.
C. 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 ofthe law." 5 U.S.C. § 552(b)(7)(E). Under Exemption
7(E). the declarant states that the DEA withheld G-DEP codes, Supp. Myrick Decl. ll 34,
which not only are "part of DEA's internal system ofidentifying information and
individuals," id. 'll 36. but also “indicate the classification ofthe violator(s), the types and
amounts of suspected drugs involved. the priority of the investigation and the suspected
location and scope of criminal activity.” id. ll 37. Disclosure of G-DEP codes, the
declarant explains, “would allow violators to identify priority given to narcotics
10