Higgins v. United States Department of Justice , 919 F. Supp. 2d 131 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
:
OLIVER J. HIGGINS, :
:
Plaintiff, :
:
v. : Civil Action No. 10-1485 (RLW)
:
UNITED STATES DEPARTMENT :
OF JUSTICE, et al., :
:
Defendants. :
____________________________________:
MEMORANDUM OPINION
Plaintiff brings this action against the United States Departments of Justice (“DOJ”) and
Homeland Security (“DHS”), and various components of these two agencies, under the Freedom
of Information Act (“FOIA”), see 5 U.S.C. § 552. This matter is before the Court on defendants’
motion to dismiss or, alternatively, for summary judgment. For the reasons discussed below, the
motion will be granted in part and denied in part without prejudice.
I. BACKGROUND
On or about September 4, 2008, plaintiff submitted FOIA requests to the Executive
Office for United States Attorneys (“EOUSA”), the Federal Bureau of Investigation (“FBI”), the
Drug Enforcement Administration (“DEA”), the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“BATFE”), and the United States Secret Service (“Secret Service”). See Compl.,
Ex. P1 (EOUSA), P9 (FBI), P15 (DEA), P24 (ATF) & P35 (Secret Service). Each request
included the following language:
1
I request any and all documents, records, memoranda, Statements,
reports, and other information in whatever form maintained by
your agency that relates to or makes reference to me directly or
indirectly. More specifically, I request any information in the
possession or control of your agency related to the investigation
and prosecution of me by State and Federal authorities for
violation of federal controlled substance and counterfeiting laws.
This occurred in and around the Madison County, Tennessee area
(Western District of Tennessee). I am requesting all records from
January 2006 through the present.
Compl., Ex. P1 (Freedom of Information/Privacy Request to the EOUSA dated September 4,
2008) at 1.
A. Executive Office for United States Attorney
The EOUSA acknowledged receipt of plaintiff’s FOIA request, No. 08-3384, and
forwarded it to the United States Attorney’s Office for the Western District of Tennessee. Mem.
of P. & A. in Supp. of Defs.’ Mot. to Dismiss, or Alternatively, for Summ. J. (“Defs.’ Mem.”),
Decl. of John W. Kornmeier (“Kornmeier Decl.”) ¶ 5. Staff at that office located responsive
records and forwarded them to the EOUSA for processing. Kornmeier Decl. ¶ 6. The EOUSA
released 293 pages of records in full, released 10 pages in part, and withheld 39 pages in full.
Id.; see id., Ex. B (Letter to plaintiff from William G. Stewart II, Assistant Director, Freedom of
Information & Privacy Staff, EOUSA, dated February 13, 2010) at 1.
In addition to records originating at the EOUSA, the search yielded 165 pages of records
originating elsewhere. Id., Ex. B at 2. The EOUSA referred 15 pages of records to the Secret
Service, 147 pages of records to the DEA (DEA FOIA No. 10-00574-PR), and 3 pages of
records to the BATFE (Request No. 2010-644).
2
B. Federal Bureau of Investigation
The FBI acknowledged receipt of plaintiff’s FOIA request, FOIPA No. 1119833, on
September 18, 2008. Defs.’ Mem., Decl. of David M. Hardy (“Hardy Decl.”) ¶ 6. “[A] search
of the automated and manual indices of the [Central Records System] located no FBIHQ records
responsive to his request.” Hardy Decl. ¶ 7. Plaintiff pursued an administrative appeal to the
DOJ’s Office of Information Policy (“OIP”), id. ¶ 8, which affirmed the FBI’s “no records”
determination, id. ¶ 9.
C. Drug Enforcement Administration
DEA FOIA Request No. 08-1373-P
Because plaintiff’s initial request to the DEA, assigned FOIA number 08-1373-P, did not
adequately describe the records sought, see Defs.’ Mem., Decl. of William C. Little, Jr. (“Little
Decl.”) ¶ 15, plaintiff later specified that he requested a “search [of] the DEA’s Investigative
reporting and Filing System, the DEA’s Electronic Surveillance idices [sic], and any other DEA
data systems” that may contain relevant information.” Little Decl., Ex. D (Letter from plaintiff
to Kathryn L. Myrick, Freedom of Information Unit, DEA, dated December 11, 2008). The
DEA released 22 pages of records in part, released three pages in full, and withheld five pages of
records in full. Id. ¶ 19; see id., Ex. D (Letter to plaintiff from K.L. Myrick, Chief, Operations
Unit, FOI/Records Management Section, DEA, dated June 17, 2010) at 3.
DEA FOIA Request No. 10-0574-PR
The EOUSA referred 147 pages of records to the DEA. Little Decl. ¶ 22. It was
determined that only 22 of these 147 pages of records originated with the DEA. Id. n.2.
3
Although the DEA referred 10 pages of records to the FBI for its direct response to plaintiff, id. ¶
23, the disposition of these records is unknown. The remainder of the records originated with
state and local law enforcement agencies. Id. ¶ 22 n.2. Of the DEA records, 22 pages were
released in part, 62 pages were released in full, and five pages were withheld in full. Id. ¶ 24.
D. Bureau of Alcohol, Tobacco, Firearms and Explosives
Request No. 08-1538
Based on the language of plaintiff’s request, the BATFE’s search “failed to produce”
responsive records. Defs.’ Mem., Decl. of Marilyn R. LaBrie (“LaBrie Decl.”) ¶ 5. This
determination was affirmed on plaintiff’s appeal to the OIP. See id. ¶¶ 6-8.
Request No. 2010-644
The records referred by the EOUSA to the BATFE comprised a separate matter assigned
Request No. 2010-644. Id. ¶ 9; see id., Ex. H (Letter to plaintiff from Marilyn R. LaBrie, Team
Leader, Disclosure Division, BATFE, dated March 9, 2010). The records “consist[ed] of
firearms trace information that can only be provided to a law enforcement agency or a prosecutor
solely in connection with a bona fide criminal investigation or prosecution.” Id. ¶ 9. Federal law
prohibited BATFE from processing a request from a private individual, and the request therefore
was denied. Id. Plaintiff pursued an administrative appeal to the OIP which affirmed the
determination on modified grounds. Id. ¶¶ 11-12. OIP took the position that the BATFE
“properly withheld . . . information . . . protected from disclosure . . . pursuant to 5 U.S.C. §
552(b)(3),” concerning “matters specifically exempted from release by statute.” Id., Ex. J (Letter
to plaintiff from Janice Galli McLeod, Associate Director, OIP, dated July 2, 2010).
4
E. Secret Service
After plaintiff supplied certification of his identity, see Defs.’ Mem., Decl. of Keith L.
Prewitt (“Prewitt Decl.”) ¶¶ 7-9, and it was determined that Exemption 7(A) no longer applied,
see id. ¶¶ 11-12, the Secret Service released an unspecified number of pages of records in full or
in part, see generally id., Ex. I (Letter to plaintiff from Craig W. Ulmer, Special Agent In
Charge, Freedom of Information & Privacy Acts Officer, Secret Service, dated March 4, 2010). 1
It released additional records to plaintiff on August 13, 2010, December 10, 2010, and May 27,
2011. Id. ¶¶ 17-19.
II. DISCUSSION2
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court
will grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and 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 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
1
In addition, the Secret Service referred records to the EOUSA for its direct response to
plaintiff, Prewitt Decl. ¶ 15, and all were “released . . . to [plaintiff] in full on March 10, 2010.”
Kornmeier Decl. ¶ 6 n.1.
2
The Court denies defendants’ motion to dismiss on the ground that plaintiff failed to
exhaust his administrative remedies with respect to his FOIA request to the EOUSA. See Defs.’
Mem. at 4-6. By the time plaintiff received the documents from the EOUSA, he already had
filed this lawsuit. See Pl.’s Opp’n at 7-8.
5
requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001)
(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 [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 Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
B. Searches for Responsive Records
Upon receipt of a request under the FOIA, an agency generally must search its records for
responsive documents. See 5 U.S.C. § 552(a)(3)(A). “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. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. 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. U.S. Dep’t of State, 641 F.3d 504, 514
(D.C. Cir. 2011) (citations and internal quotation marks omitted). A search need not be
exhaustive. See Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1995). “The issue in
6
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).
To meet its burden, the agency may submit affidavits or declarations that explain in
reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121,
126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are
sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. On the other hand,
if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for
the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).
1. The EOUSA’s Search
The EOUSA’s declarant states only that plaintiff’s FOIA request was “forwarded [to] the
[United States Attorney’s Office] for the Western District of Tennessee for a search,” and that
that office “found records which it forwarded to EOUSA.” Kornmeier Decl. ¶ 5. He does not
describe the types of records maintained at the office, the records actually searched, the scope or
method of the search, or a description of the responsive records.3 Without additional
information, the Court cannot determine whether the search was reasonable under the
circumstances.
3
The EOUSA’s supporting declaration is deficient in one other respect. It fails to explain
the EOUSA’s rationale for withholding information under Exemptions 3, 5 and 7(C). Even if the
search were adequate, neither plaintiff nor the Court can determine whether any information has
properly been withheld. Furthermore, there is no discussion of the disposition of the 15 pages of
records referred by the EOUSA to the Secret Service.
7
2. The FBI’s Search
The FBI’s Central Records System (“CRS”) “enables the FBI to maintain information . . .
acquired in the course of fulfilling its . . . law enforcement responsibilities.” Hardy Decl. ¶ 11.
The CRS includes “administrative, applicant, criminal, personnel and other files compiled for
law enforcement purposes,” and “consists of a numerical sequence of files, called
‘classifications,’ which are broken down [by] subject matter.” Id. The subject matter of a CRS
file “may relate to an individual, organization, company, publication, activity or foreign
intelligence matter (or program).” Id. FBIHQ maintains certain CRS records; FBI field offices
maintain those CRS records “that are pertinent to specific field offices.” Id. In order to search
the CRS, “the FBI uses . . . the Automated Case Support System (‘ACS’).” Id.The ACS is “an internal computerized subsystem of the CRS,” id. ¶ 12, which makes it
possible to retrieve data from the CRS using alphabetically-arranged General Indices. Id. ¶ 13.
“The General Indices consist of index cards on various subject matters that are searched either
manually or though the automated indices.” Id. There are two categories of General Indices:
(a) A “main” entry – A “main” entry, or “main” file, carries the
name corresponding with a subject of a file contained in the CRS.
(b) A “reference” entry – A “reference” entry, sometimes called [a]
“cross reference[],” [is] generally only a mere mention or reference
to an individual, organization, or other subject matter, contained in
a document located in another “main” file on a different subject
matter.
Id. A search of the General Indices “to locate records concerning a particular subject, such as
Oliver J. Higgins, [is] made by searching the subject requested in the index.” Id. ¶ 14.
“The ACS consists of three integrated, yet separately functional, automated applications
that support case management functions for all FBI investigative and administrative cases.” Id. ¶
8
15. The Investigative Case Management application “provides for the ability to open, assign,
and close investigative and administrative cases [and to] set, assign, and track leads.” Id. ¶ 15(a).
Each new case is assigned a Universal Case File Number “which is used by all FBIHQ, as well
as all FBI field offices . . . that are conducting or assisting in the investigation.” Id. The
Electronic Case File application “serves as the central electronic repository for the FBI’s official
text-based documents.” Id. ¶ 15(b). The Universal Index application provides “a complete
subject/case index to all investigative and administrative cases.” Id. ¶ 15(c). The FBI does not
index every name in its files; individual FBI Special Agents assigned to an investigation decide
whether “to index names other than subjects, suspects, and victims.” Id. ¶ 16. Without an index
“to this enormous amount of data, information essential to ongoing investigations could not be
readily retrieved,” and the agency’s files “would thus be merely archival in nature.” Id. “[T]he
General Indices to the CRS are the means by which the FBI can determine what retrievable
information, if any, [it] may have in its CRS files on a particular subject matter or individual,
such as Oliver Junior Higgins.” Id.
Plaintiff directed his request for information about himself to the FBI’s Washington, DC
headquarters office (“FBIHQ”). See Compl., Ex. P9 at 1. Staff “conducted a search of the CRS
to identify all potentially responsive files indexed to Oliver Junior Higgins . . . using a six-way
phonetic breakdown” of his name, using “such variations as ‘Higgins, Oliver’ and ‘Junior Oliver
Higgins.’” Hardy Decl. ¶ 17. This search yielded no “main investigatory files for FBIHQ
responsive to plaintiff’s request.” Id. Nor did a subsequent search “to locate cross-references”
yield “any cross references indexed to ‘Oliver Junior Higgins.’” Id.
FBIHQ notified plaintiff that no records responsive to his FOIA request were located in
the CRS at FBIHQ, and instructed that, if plaintiff “believe[d] the records [he sought] are
9
maintained in one of [the] many FBI field offices,” he must submit a separate request to those
particular field offices. Id., Ex. C (Letter to plaintiff from David M. Hardy, Section Chief,
Record/Information Dissemination Section, Records Management Division, FBI, dated
September 23, 2008). Plaintiff “specifically requested that the [FBIHQ] advise him of any FBI
field office that may have records on him.” Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s
Opp’n”) at 10-11.
Plaintiff scoffs at the notion that a requester be “expected to contact the 100-plus FBI
field offices in an effort to discover of one of them has any records” about him, and he deems
“the FBI’s expectation in this regard” to be “obstructiveness clothed in plausible deniability.” Id.
at 11. However, as the requester, it is plaintiff’s responsibility to tell the FBI where responsive
records might be located. In fact, DOJ regulations require that, if plaintiff believed that
responsive records pertaining to activity in Tennessee existed, he must “write directly to that FBI
. . . field office address,” 28 C.F.R. § 16.3(a), rather than direct his request to FBIHQ. The FBI
does not fail to meet its obligations under the FOIA by conducting a search of FBIHQ records
only. See Brown v. FBI, 675 F. Supp. 2d 122, 127 (D.D.C. 2009) (dismissing a FOIA claim
against the FBI because plaintiff failed to mail his request directly to the appropriate field office
as is required under agency regulations).
3. The DEA’s Search
DEA staff construed the FOIA request as one “seeking criminal investigative records
held by DEA that pertained to or referenced” plaintiff. Little Decl. ¶ 25. “All criminal
investigative records maintained by DEA about any individual that is of investigative interest are
reasonably likely to be found in the DEA Investigative Reporting and Filing System (IRFS),” id.10
¶ 26, and no other, id. ¶ 27. IRFS “contains all administrative, general and investigative files
compiled by DEA for law enforcement purposes.” Id. ¶ 28. The Narcotics and Dangerous
Drugs Information System (“NADDIS”) is the index by which information is retrieved from
IRFS. Id. “NADDIS lists the investigative file number(s) and particular DEA Report of
Investigation (ROI), DEA Form-6, or other documents by date, that contain information
regarding a particular individual.” Id. ¶ 29. An individual is indexed in NADDIS by his name,
Social Security number, and date of birth. Id.
Using plaintiff’s name, Social Security number and date of birth as search terms, DEA
staff conducted a NADDIS query which yielded “two . . . criminal investigative case file
numbers, DEA Investigative Case File No[s]. GN-06-0019 and GN-86-Z002.” Id. ¶ 30.
Retrieved from these files were 31 pages of records, id. ¶ 31, were the following: a DEA
Defendant Disposition Report, a DEA Personal History Report, Reports of Investigations, an FBI
fingerprint card, and a photograph, id. ¶ 43.
Because plaintiff “was charged with violating federal controlled substance laws” and
because “[a] DEA task force investigated, arrested, and assisted in the federal prosecution,”
plaintiff dismisses as “not believable” the DEA’s claim that only 31 pages of records were
located. Pl.’s Opp’n at 12. “There must be more records than 31 pages related to Higgins’ DEA
investigation,” plaintiff surmises, and deems the dearth of records a sign that the agency’s search
was inadequate. Id.
The level of plaintiff’s satisfaction with the results of the search is not dispositive. “[T]he
issue to be resolved is not whether there might exist any other documents possibly responsive to
the request, but rather whether the search for those documents was adequate.” Weisberg, 705
11
F.2d at 1351 (citing Perry, 684 F.2d at 128). Plaintiff’s mere “speculation as to the existence of
additional records . . . does not render the search[] inadequate.” Concepción v. Fed. Bureau of
Investigation, 606 F. Supp. 2d 14, 30 (D.D.C. 2009); see Baker & Hostetler LLP v. U.S. Dep’t of
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (finding the requester’s “assertion that an
adequate search would have yielded more documents is mere speculation” and affirming district
court’s decision that agency’s search procedure was “reasonably calculated to generate
responsive documents”). Moreover, the DEA’s supporting declaration is “accorded a
presumption of good faith, which cannot be rebutted by purely speculative claims about the
existence and discoverability of other document,” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted), and here,
plaintiff fails to present evidence rebutting the agency’s initial showing of a good faith search.
See Maynard v. Central Intelligence Agency, 986 F.2d 547, 560 (1st Cir. 1993); Weisberg, 705
F.2d at 1351-52.
4. The BATFE’s Search
Upon receipt of a FOIA request, BATFE staff query TECS, the Treasury Enforcement
Communications System. LaBrie Decl. ¶ 18. TECS, “a text-based database,” is “a computerized
information system designed to identify individuals and businesses suspected of or involved in
violation of federal law.” Id. TECS serves as the BATFE’s “comprehensive . . . law
enforcement database that contains [the agency’s] investigative records.” Id. Such records
typically “contain: information compiled for the purpose of identifying criminal offenders,
alleged criminal offenders, suspects, and individuals who have been referred to [BATFE] by
other law enforcement agencies[,] and information compiled for the purpose of criminal
investigation for violations or suspected violation of the laws enforced by [BATFE].” Id.
12
According to the declarant, “TECS is the database most likely to reveal responsive records for
[plaintiff] because it contains the names of individuals referred to [BATFE] or that [BATFE] has
investigated.” Id. A TECS query yielded no responsive records. Id. ¶ 23.
The declarant explains that the case management system “N-Force” serves “as a single
point of data entry system” which “enables users to store, utilize, and query investigative
information, and to prepare investigative documents.” Id. ¶ 19. “Each criminal investigation . . .
is assigned a unique case number.” Id. The fields for data “may be populated with, among other
things: information about the type of investigation being conducted, the persons involved
(suspect, witnesses, agents, etc.), property seized reports of investigation, [and] the types of
techniques and services employed during the investigation.” Id. One queries N-Force using
“information regarding an individual, including name, date of birth or social security number, by
property or vehicles associated with an individual, or through a full text search which identifies
specific words found in [BATFE’s] Reports of Investigation.” Id. It appears that an N-Force
query identified case number 776036-06-0037 in connection with plaintiff. See id. ¶¶ 19-20.
Plaintiff’s request was referred to the BATFE’s Nashville Field Division, id. ¶ 20, and its
staff “ran an ‘N-Force’ query on Oliver Higgins, case number 776036-06-0037,” but the search
did not produce any records pertaining to plaintiff. Id. ¶ 21. Rather, “records and a disc were
found for a co-defendant in the underlying prosecution.” Id. Plaintiff was notified that, based on
the information provided in his request, BATFE’s search “failed to produce the requested
information.” Id. ¶ 5.
According to plaintiff, there are no co-defendants -- he “was arrested alone, charged
alone, prosecuted alone, and sentenced alone,” and now demands that the BATFE “be required
13
to provide further information . . . to clarify who this co-defendant is and what records are
controlled by the BATF[E] related to this individual.” Pl.’s Opp’n at 18. Missing from
plaintiff’s opposition is any rationale for the agency to have concluded that records pertaining to
a third party fall within the scope of his FOIA request. Plaintiff’s request for information about
himself does not obligate any agency to search for and disclose records pertaining to any other
individual. See, e.g., Kenney v. U.S. Dep’t of Justice, 603 F. Supp. 2d 184, 189 (D.D.C. 2009)
(“Plaintiff cannot allege that the agency failed to produce responsive records, when the records
he now identifies fall outside the scope of his appropriately narrowed request.”); cf. Kowalczyk v.
Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996) (stating that an agency “is not obliged to look
beyond the four corners of the request for leads to the location of responsive documents”).
5. The Secret Service’s Search
The Secret Service’s Common Index (“CI”) is used to search for information contained in
other systems, including the Master Central Index (“MCI”). Prewitt Decl. ¶ 20. The MCI,
described as “an on-line computer system used by all Secret Service field offices, resident
offices, protective divisions, and headquarters divisions,” serves as a recordkeeping system “for
cases and subjects of record in investigative, protective, and administrative files maintained by
the Secret Service.” Id. ¶ 21. “If the Secret Service maintains records on a particular individual,
a search of that individual’s name in the CI should result in a list of file number(s) for the
investigative or administrative file(s) associated with that individual’s name or other personal
identifier.” Id. ¶ 27.
Because plaintiff seeks information about himself, Secret Service staff conducted a
search of the CI, and that “search . . . identified a single investigative case file, J-310-735-25965-
14
S, . . . maintained by the Secret Service’s Memphis Field Office.” Id. ¶ 28. “Plaintiff’s date of
birth and social security number . . . confirm[ed] that this case file in fact concerned Plaintiff.”
Id. The file was retrieved from the Memphis Field Office. Id. ¶ 29. The records pertained to “a
counterfeit investigation,” id. ¶ 33, and they were released to plaintiff in redacted form, id. ¶ 38.4
C. Exemptions
1. Exemption 3
Exemption 3 protects records that are “specifically exempted from disclosure by statute .
. . provided that such statute (A) [requires withholding] in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular
types of matters to be withheld.” 5 U.S.C. § 552 (b)(3). The BATFE withholds “the Firearm
Trace Report pursuant to Exemption 3 and the Consolidated Appropriations Act [of 2005, Pub.
L. No. 108-447, 118 Stat. 2809, 2859 (2004)], and[/]or Exemption 3 and the Consolidated
Appropriations Act of [2008, Pub. L. No. 110-161, 121 Stat. 1844, 1904 (2008)].” Labrie Decl.
¶ 14. She quotes the following relevant provision of Public Law 108-447:
[N]o funds appropriated under this or any other Act with respect to
any fiscal year may be used to disclose part or all of the contents of
the Firearms Trace System database maintained by the National
Trace Center of the [BATFE] or any information required to be
kept by licensees pursuant to section 923(g) of title 18, United
States Code, or required to be reported pursuant to paragraphs (3)
and (7) of such section 923(g), to anyone other than a Federal,
State, or local law enforcement agency or a prosecutor solely in
connection with and for use in a bona fide criminal investigation or
4
Searches of files maintained by the Investigative Support Division, the databases of
which “contain information regarding Secret Service criminal investigations,” Prewitt Decl. ¶ 21,
and the Uniformed Division, which “provides protection to the White House Complex,” among
other places, id. ¶ 32, yielded no responsive records, id. ¶¶ 30-32.
15
prosecution . . . . [A]ll such data shall be immune from legal
process and shall not be subject to subpoena or other discovery in
any civil action in a State or Federal court or in any administrative
proceeding other than a proceeding commenced by the [BATFE] . .
. or a review of such action or proceeding.
LaBrie Decl. ¶ 15.5 More recent legislation contains similar language. See id. ¶ 16 (quoting the
Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3128-29 (2009)).
The three pages of records referred by EOUSA to BATFE, see LaBrie Decl. ¶ 10,
“consist[ed] of a Firearms Trace Report, all related to the same firearms, and which are wholly
derived from and/or related to the contents of the Firearms Trace System Database referred to in
Public Law[s] 108-447 and 111-117,” id. ¶ 17. In addition, the report is “based [on] and derived
from information required to be kept by a Federal Firearms Licensee . . . pursuant to 18 U.S.C.
[§] 923(g).” Id. In short, the declarant states that records responsive to plaintiff’s “request
contained material subject to Public Law 110-161 . . . which squarely falls within subpart (A) of
FOIA Exemption [3],” LaBrie Decl. ¶ 13, and, therefore, all three pages were withheld in full
pursuant to Exemption 3, id. ¶ 17. The Court concurs. The appropriations legislation on which
the BATFE relies explicitly bars disclosure of information “maintained by the National Trace
Center . . . or any information required to be kept by licensees pursuant to [18 U.S.C. §] 923(g) .
. . and all such data shall be immune from legal process.” Caruso v. U.S. Bureau of Alcohol,
Tobacco & Firearms, No. 11-35196, 2012 WL 3727601, at *2 (9th Cir. Aug. 29, 2012) (citation
omitted and emphasis removed); McRae v. U.S. Dep’t of Justice, 869 F. Supp. 2d 151, 163
(D.D.C. 2012) (Public Law 108-447); Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d 185, 204
(D.D.C. 2010).
5
The declarant explains that the language quoted above remains in effect notwithstanding
that various iterations of appropriations legislation passed since 2003. See LaBrie Decl. ¶¶ 15-
16.
16
2. Exemption 7
a. Law Enforcement Records
FOIA Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records 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 the 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). It is apparent not only from the nature of the FOIA request but
also from the type and content of the documents produced by the DEA and the Secret Service
that the responsive records were compiled for law enforcement purposes.
“In 2006, Oliver Higgins . . . was indicted and charged with six counts: possession with
intent to distribute cocaine base, possession with intent to distribute cocaine, possession with
intent to distribute marijuana, possession of counterfeit currency with intent to defraud, felon in
possession of a firearm, and possession of a firearm in connection with a drug-trafficking crime.”
United States v. Higgins, 557 F.3d 381, 384 (6th Cir. 2009). His convictions were affirmed on
appeal, and plaintiff now is serving an “effective sentence of life imprisonment plus five years.”
Id.; see id. at 398.
The DEA’s declarant explains that the agency’s “investigative jurisdiction derives from
the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801[] et seq.,”
which authorizes “the investigation of incidences involving the trafficking in controlled
substances, dangerous drugs and precursor chemicals and the violators who operate at interstate
17
and international levels,” and the seizure and forfeiture of assets “derived from, traceable to, or
intended to be used for illicit drug trafficking.” Little Decl. ¶ 50. The relevant records, he states,
“were compiled during criminal law enforcement investigations of the plaintiff and several third
parties.” Id. ¶ 51.
The Secret Service is described as “a criminal law enforcement agency created under title
18 of the United States Code, section 3056.” Prewitt Decl. ¶ 48; see id. ¶ 35. All the records
responsive to plaintiff’s FOIA request were “compiled in connection with the Secret Service’s
investigative mission and under its authority to conduct such investigations,” id., namely “a
counterfeit investigation,” id. ¶ 33.
Both the DEA and the Secret Service easily make the threshold showing that the relevant
records are law enforcement records for purposes of Exemption 7.
b. Exemption 7(C)
FOIA 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). “In deciding whether the release of particular information constitutes an
unwarranted invasion of privacy under Exemption 7(C), [the Court] must balance the public
interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.”
ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (internal quotation marks and
citation omitted); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007); Beck v.
U.S. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). 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
18
F.2d 84, 91-92 (D.C. Cir. 1984). When balancing the private interest against the public interest
in disclosure, “the only public interest relevant for purposes of Exemption 7(C) is one that
focuses on ‘the citizens’ right to be informed about what their government is up to.’” Davis v.
U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S.
at 773); see also Sussman, 494 F.3d at 1115. It is a FOIA requester’s obligation to articulate a
public interest sufficient to outweigh an individual’s privacy interest, and the public interest must
be significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
i. DEA Records
The DEA withholds under Exemption 7(C) “[t]he identities of DEA Special agents, and
other state and local law enforcement officers.” Little Decl. ¶ 55. The declarant explains that
release of “their identities and information pertaining to [them] would place [them] in a position
that they may suffer undue invasions of privacy, harassment and humiliation” where, as here, the
disclosure occurs “in the context of a criminal investigation.” Id. Furthermore, these officers
“were assigned to handle tasks relating to the official investigation [of] the criminal activities of
the plaintiff and other individuals,” and the declarant explains that “[t]hey were, and possibly
still are, in positions of access to information regarding official law enforcement investigations.”
Id. ¶ 56. Disclosure of their identities could render them “targets of harassing inquiries for
unauthorized access to information pertaining to ongoing and closed investigations.” Id. The
declarant balanced “the individuals’ privacy interests . . . against any discernible public interest
in disclosure of [their] identities,” Id. ¶ 53, and identifies no public interest, that is, no
information that “would inform the plaintiff or the general public about DEA’s performance of
its mission . . . and/or how [it] conducts its internal operations and investigations,” id. ¶ 54, thus
19
concluding that “release of any information about [these third parties] would constitute an
unwarranted invasion of [their] personal privacy.” Id.
“Since the [DEA] will not divulge exactly what the material is specifically, [plaintiff]
can only assume that it relates to” the DEA’s investigation and the prosecution of his criminal
case “in a general sense,” and “[s]uch information was publicly released in the news media at
that time.” Pl.’s Opp’n at 13. In addition, “much of the details related to [plaintiff’s] federal
drug case was [sic] brought out during . . . judicial proceedings in the federal District Court of
the United States,” such that DEA’s “reliance on Exemptions 7(C) and 7(D) should not be
upheld . . . .” Id. at 14.
It is true that public disclosure of information may lead to the waiver of a FOIA
exemption, but plaintiff bears the initial burden of showing that the requested information: (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. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999); Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990). “Prior disclosure of similar information does not suffice; instead, the specific information
sought by the plaintiff must already be in the public domain.” Wolfe v. CIA, 473 F.3d 370, 378
(D.C. Cir. 2007) (citation omitted) (emphasis added). Speculation as to the content of the
withheld information does not establish that it has entered the public domain. See Whalen v. U.S.
Marine Corps, 407 F. Supp. 2d 54, 59 (D.D.C. 2005) (noting that a requester’s “educated guess”
as to contents of a withheld report does not constitute a waiver of a FOIA exemption).
Furthermore, the privacy interests belong to the individuals, not to the government agency.6 For
6
The public domain doctrine does not render the DEA’s decision to withhold information
under Exemption 7(D) improper. Even if the identity of or information provided by a source had
20
example, a third party may testify in open court and maintain an interest in his personal privacy.
See, e.g., Jones v. FBI, 41 F.3d 238, 247 (6th Cir. 1994). And he maintains an interest in his
personal privacy even if the requester already knows, or is able to guess, his identity. See
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984).
ii. Secret Service Records7
The Secret Service relies on Exemption 7(C) to withhold “the names of Secret Service
personnel and law enforcement personnel from other agencies . . . to avoid subjecting [these]
public servants to harassment and annoyance either in the conduct of their official duties or their
private lives.” Prewitt Decl. ¶ 49. In addition, the agency withholds the “Secret Service
identification numbers of Agency personnel,” id. ¶ 53; see id., Ex. P-Q (Vaughn Index, Doc.
Nos. 9, 11 & 14), on the ground that release “could infringe upon the employee’s privacy rights
by allowing [someone] to gain personal information about” him or her, id. ¶ 54. Also under
Exemption 7(C), the agency withholds “the Social Security Number . . . of an individual other
been disclosed at trial or to the news media, a government agency still invokes Exemption 7(D)
to protect his or her identity. See Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1281
(D.C. Cir. 1992) (“Even when the source testifies in open court, as did the informant in this case,
he does not thereby waive the [government's] right to invoke Exemption 7(D) to withhold ...
information furnished by a confidential source not actually revealed in public.”) (citation and
internal quotation marks omitted) (brackets in original); Span, 696 F. Supp. 2d at 122 (rejecting
public domain argument based on requester’s speculation that information contained in redacted
documents had been released to newspapers, websites and other media outlets).
7
The Secret Service withholds identification numbers of agency personnel under
Exemptions 2, 6 and 7(C). Prewitt Decl. ¶¶ 44. It also withholds the names of Secret Service
personnel and law enforcement personnel from other agencies, id. ¶ 49, the Social Security
number of a third party, id. ¶ 51, and the Secret Service identification number of Secret Service
personnel, id. ¶ 53, under Exemptions 6 and 7(C). See id., Ex. P (Vaughn Index). Similarly, the
DEA withholds the identity of a source and the identities of third parties, Little Decl. ¶¶ 63-64;
see id., Ex. N (Vaughn Index at pp. 15-16, 27-31), under Exemption (C) in conjunction with
Exemption 7(F). Because this information properly is withheld under Exemption 7(C) alone,
the Court need not determine the applicability of any other exemption with respect to this same
information. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011); Simon v.
Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).
21
than [p]laintiff who was not related to the matter being investigated [yet] appeared in the results
of a records check conducted on [p]laintiff.” Id. ¶ 51; see id., Ex. P (Vaughn Index , Doc. No.
13). In no circumstance does the Secret Service identify a public interest in disclosure of this
information to outweigh the third parties’ privacy interests. See id. ¶¶ 50, 52 & 54. Plaintiff
does not challenge these withholdings. See generally Pl.’s Opp’n.
Exemption 7(C) “recognizes the stigma potentially associated with law enforcement
investigations and affords broader privacy rights to suspects, witnesses, and investigators.” Bast
v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981). The District of Columbia 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., 926 F.2d at 1206. The DEA and Secret Service decisions to
withhold this third-party information from the responsive records is proper. See, e.g., Brown v.
FBI, 873 F. Supp. 2d 388, 404 (D.D.C. 2012) (concluding that FBI “properly invoked exemption
7(C) regarding the names and identifying information of state and local law enforcement
personnel and non-FBI federal government personnel”); McRae, 869 F. Supp. 2d at 166
(concluding that ATF properly withheld “the names of and identifying information about federal
and state law enforcement agents and third parties whose names appear in the responsive
records”); Thompson v. U.S. Dep’t of Justice, 851 F. Supp. 2d 89, 99 (D.D.C. 2012) (approving
the withholding of names of and identifying information about FBI Agents and support
personnel, third parties of investigative interest to FBI, third parties merely mentioned in
documents related to criminal investigation of plaintiff, and individuals interviewed by the FBI
during the investigation).
22
c. 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) (internal quotation marks and citation omitted).
The D.C. Circuit has held that the violence and risk of retaliation attendant to drug
trafficking warrant an implied grant of confidentiality to a source. See Mays v. DEA, 234 F.3d
1324, 1329 (D.C. Cir. 2000) (withholding source supplying information about conspiracy to
distribute crack and powder cocaine). The nature of the crime investigated and the informant’s
relation to it are the most important factors in determining whether implied confidentiality exists.
Landano, 508 U.S. at 179-80; Coleman v. FBI, 13 F. Supp. 2d 75, 82 (D.D.C. 1998) (finding that
plaintiff’s conviction “of numerous violent crimes” including murder, rape and kidnaping, as
23
well as “the relation of the witnesses thereto is precisely the type that the implied confidentiality
exemption expressed in Landano is designed to encompass”).
The DEA withholds under Exemption 7(D) “material provided by individual(s), other
than a DEA agent, . . . regarding the criminal activities related to the illicit trafficking in drugs.”
Little Decl. ¶ 60. The declarant reiterates that “plaintiff was arrested for and convicted of
possession with intent to distribute cocain[e] and marijuana,” and that, “[a]t the time of his arrest,
a handgun was recovered.” Id. ¶ 61. The information provided by the source(s) pertained to
plaintiff and to third parties and their drug trafficking activities. Id. ¶¶ 63-64.
The declarant explains that, in the DEA’s experience, “violence is inherent in the trade in
illicit substances such as cocaine and marijuana,” such that “[it] is reasonable to infer that
individuals who provided information about the plaintiff would fear for their safety, if their
identities or the information they provided was revealed.” Id. Presumably these individuals
“would not have provided the information” to law enforcement officers “unless they believed
that the information and their identity [sic] would be held in confidence and not released to the
plaintiff or the public.” Id. ¶ 62. Under these circumstances, the declarant concludes,
confidentiality is implied and the information properly is withheld. Id.; see id. ¶¶ 63-64.
Furthermore, he avers, release of the names of the source(s) “could jeopardize DEA operations”
because “their cooperation and that of other similarly situated individuals could be needed in
future criminal investigations.” Id. ¶ 61.
Plaintiff’s objection to the DEA’s withholdings under Exemption 7(D) presumes
incorrectly that the protected source(s) had been granted an express assurance of confidentiality.
See Pl.’s Opp’n at 14-15. Not so – the DEA’s declarant articulates the agency’s rationale for
withholding the identities of and information provided by sources about inherently violent
24
activities in order that disclosure not subject them to reprisal and to encourage others to
cooperate with law enforcement. The DEA thus demonstrates that its decision to withhold this
material under Exemption 7(D) is proper. See Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d
82, 123 (D.D.C. 2008) (protecting interviewees who provided detailed information about
activities of plaintiff and his associates, particularly given plaintiff’s history of kidnapping,
murder and dismemberment of bodies); Truesdale v. U.S. Dep’t of Justice, No. 03-1332, 2005
WL 3294004, at *7 (D.D.C. Dec. 5, 2005) (protecting witnesses to drug trafficking activities of
plaintiff who had been “convicted of engaging in a continuing criminal enterprise, a conspiracy
to distribute cocaine, and firearms offenses”).
d. 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). Courts have held that information
pertaining to law enforcement techniques and procedures properly is withheld under Exemption
7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g.,
Morley v. CIA, 453 F. Supp. 2d 137, 157 (D.D.C. 2006) (approving the withholding of
information pertaining to security clearances and background investigations on the ground that
“disclosure of CIA security clearance and investigatory processes would risk circumvention of
those processes in the future”), rev’d on other grounds, 508 F.3d 1108 (D.C. Cir. 2007).
DEA withholds “violator identifiers” known as “G-DEP (Geographical Drug
Enforcement Program) codes and NADDIS numbers,” which are “part of DEA’s internal system
25
of identifying information and individuals” and which “reflect procedures prescribed by the DEA
Agents Manual,” Little Decl. ¶ 66, under Exemption 7(E). A G-DEP code is assigned to a case
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 activity.” Id. ¶ 69. If a G-DEP code were released, the declarant explains,
“[s]uspects could decode this information, change their behavior of drug trafficking in an effort
to respond to what they determined DEA knows about them or avoid detection and
apprehension, and allow them to create alibis for suspected activities.” Id. In short, disclosure
“would . . . thwart [DEA’s] investigative and law enforcement efforts.” Id.
A NADDIS number is a multi-digit number assigned to a drug violator, suspected drug
violator, or entity of investigative interest to the DEA. Id. ¶ 70. The number is unique to the
violator to whom it is assigned, id., and therefore is “personal to the individual to whom it is
applied.” Id. ¶ 71. “Because of the manner in which NADDIS numbers are assigned and
methods for which they are used, release of the information could allow violators to avoid
apprehension, and could place law enforcement personnel or informants in danger, since many
details of a DEA investigation would be disclosed,” the declarant explains. Id. ¶ 72.
“[V]iolators would be aware of how to respond in different situations where detection and/or
apprehension are eminent [sic].” Id.
In light of the Supreme Court’s ruling in Milner v. Dep’t of the Navy, __ U.S. __, __, 131
S. Ct. 1259, 1264-71 (2011), plaintiff argues that DEA must release G-DEP codes and NADDIS
numbers, notwithstanding its subjective belief that the release of G-DEP and/or NADDIS
material will allow all of the drug-dealing villains out there to circumvent federal controlled
substances laws and the DEA’s investigatory efforts in that regard.” Pl.’s Opp’n at 16.
26
“Conspicuously absent from the DEA’s arguments would be any attempt to describe the
techniques or procedures being protected other than the G-DEP and NADDIS materials.” Id.(emphasis in original). Plaintiff objects to these withholdings based on a rationale that DEA no
longer asserts. Notwithstanding the agency’s prior reliance on Exemption 2 to protect G-DEP
and NADDIS codes, see Little Decl. ¶ 65 n.11, the agency now relies solely on Exemption 7(E),
see id. ¶¶ 66-72. Its decision is appropriate in light of the Milner decision. See Miller v. U.S.
Dep’t of Justice, 872 F. Supp. 2d 12, 29 (D.D.C. 2012) (finding that NADDIS numbers are
properly withheld under Exemption 7(E)); see also Adionser v. U.S. Dep’t of Justice, No. 11-
5093, 2012 WL 5897172, at *2 (D.C. Cir. Nov. 5, 2012) (per curiam) (remanding “for further
proceedings with respect to the Geographical Drug Enforcement Program codes withheld by
DEA pursuant to . . . Exemption 2 . . . to allow the government to brief the issue whether . . .
Exemption 7(E) . . . applies to the material”).
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 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)).
On this topic, plaintiff’s sole objection pertains to the amount of information redacted
from Secret Service records. Because “[i]t appears that the agency wiped-out entire documents .
27
. . in an effort to protect a name” of an agent or employee, plaintiff argues that the approach “of
non-disclosure is not consistent with the exemptions assorted or the case law defining such
exemptions.” Pl.’s Opp’n at 20. He asserts that the Secret Service “has withheld information
that has no connection to legitimate material that could violate individuals’ privacy rights,” and
provides “no rationale in redacting agents’ names when those agents openly investigated Higgins
and appeared at judicial proceedings.” Id. at 20.
As discussed above, the fact that law enforcement agents may have testified in a court
proceeding does not amount to a waiver of their personal privacy interests. The Secret Service is
not obliged to release information which it rightfully protects under Exemption 7(C).
The declarants represent, that, upon careful review of the responsive records maintained
by the DEA and Secret Service, all reasonably segregable records and portions of records have
been released to plaintiff. Little Decl. ¶¶ 80-85; Prewitt Decl. ¶¶ 55-56. Based upon the Court’s
review of the declarations, Vaughn indices and copies of the redacted records, the Court concurs.
III. CONCLUSION
Defendants have shown that: (1) FBI, DEA, BATFE and Secret service have conducted
reasonable searches for records responsive to plaintiff’s FOIA request; (2) BATFE properly has
withheld information under Exemption 3; (3) DEA and Secret Service properly have withheld
information under Exemption 7(C); (4) DEA properly has withheld information under
Exemptions 7(D) and 7(E); and (5) DEA and the Secret Service have released all reasonably
segregable information to plaintiff. However, EOUSA has not demonstrated that its search was
reasonable or that its decisions to withhold information under Exemptions 3, 5 and 7(C) were
appropriate. Nor have defendants explained the disposition of the 15 pages of records referred
by the EOUSA to the Secret Service or the 10 pages of records referred to the FBI by the DEA.
28
Accordingly, defendants’ motion for summary judgment will be granted in part and denied in
part without prejudice. Defendants may file a renewed motion for summary judgment based on
additional undisputed facts or by providing additional legal arguments. An Order accompanies
this Memorandum Opinion.
Digitally signed by Judge
Robert L. Wilkins
DN: cn=Judge Robert L.
Wilkins, o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
email=RW@dc.uscourt.gov,
c=US
Date: 2013.01.30 16:36:04
DATE: January 30, 2013 -05'00'
ROBERT L. WILKINS
United States District Judge
29