Lasko v. United States Department of Justice ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LARRY LYLE LASKO, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1850 (PLF)
)
UNITED STATES DEPARTMENT )
OF JUSTICE, et al., )
)
Defendants. )
)
OPINION
This matter is before the Court on defendant’s motion for summary judgment.
Having considered defendant’s motion, plaintiff’s opposition, and the entire record in this case,
the Court will grant summary judgment for the defendant.
I. BACKGROUND
Plaintiff was convicted “(1) following a jury trial, of conspiring to manufacture 50
grams or more of a mixture or substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846, and (2) following his plea of guilty, of unlawful possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g). [He] was sentenced . . . to 210 months’
and 120 months’ imprisonment, respectively, to run concurrently.” United States v. Lasko, 146
Fed. Appx. 530, 531 (2d Cir. 2005) (affirming criminal judgment in part and remanding in part),
cert. denied, 546 U.S. 1155 (2006). On remand for reconsideration of the sentence, the trial
court “considered all the relevant sentencing factors and determined that the original sentence
was appropriate and reasonable.” United States v. Lasko, No. 3:03-CR-0210, 2008 WL 189930,
at *1 (N.D.N.Y. Jan. 18, 2008).
Plaintiff brings this action against the United States Department of Justice
(“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.1 Generally, plaintiff
alleges that the Federal Bureau of Investigation (“FBI”) and the Drug Enforcement
Administration (“DEA”), both components of DOJ, failed to release the records he requested.2
A. Request to the Federal Bureau of Investigation
In February 2008, plaintiff submitted a FOIA request to the FBI’s Philadelphia
Field Office (“PHFO”) for agency records about himself, a business identified as the Quick
Lunch Diner in Newark Valley, New York, and about seven individuals, covering the period
from January 2001 through January 2003. Memorandum of Points and Authorities in Support of
Defendants’ Motion for Summary Judgment (“Def.’s Mem.”), Declaration of David M. Hardy
1
The Court has dismissed the complaint as to defendants Thomas P. Walsh, Lisa
Peebles, James Greenwald, Mark J. Nemier, Brian Besser, Scott Paully, Daniel Ortis and the
New York State Police on the ground that the FOIA authorizes suit against federal agencies only.
Lasko v. United States Dep’t of Justice, No. 08-1850 (D.D.C. Dec. 8, 2008). For this same
reason, the Court now dismisses the complaint as to the Tioga County Sheriff’s Department, Dan
Eiklor, Patrick Hogan and John and Jane Does, the remaining parties named in the caption of the
complaint as defendants to this action. The DOJ is the proper party defendant. See 5 U.S.C. §§
551(1), 552(f)(1).
2
Although plaintiff appears to have submitted a FOIA request to the United States
Attorney’s Office for the Northern District of New York, see Compl., Attach. (April 3, 2007
letter from G.T. Suddaby, United States Attorney for the Northern District of New York), there
are no factual allegations in the instant complaint pertaining to it. The Court concludes that
plaintiff does not challenge the agency’s response to this request in this lawsuit and will not
address the matter further.
2
(“Hardy Decl.”) ¶ 12; see id., Ex. G (February 8, 2008 FOIA/PA Request) at 1-2.3 Plaintiff
asked that the FBI search both its general indices and electronic surveillance (“ELSUR”) indices.
Id., Ex. G at 2. PHFO staff forwarded the request to the FBI’s Washington, D.C. headquarters
(“FBIHQ”), and its staff divided the request into three parts and assigned each part a reference
number. See id. ¶¶ 13-15.
FBI staff returned to plaintiff the portion of the request, assigned FOIA No.
1112960, for information about the eight individuals, because he had submitted neither a privacy
waiver from each individual nor proof of each individual’s death. Hardy Decl. ¶ 13; see id., Ex.
H (March 4, 2008 letter from D.M. Hardy, Section Chief, Records Information and
Dissemination Section, Records Management Division, FBIHQ). Next, agency staff notified
plaintiff that the PHFO maintained no records pertaining to the Quick Lunch Diner or to plaintiff
himself. Hardy Decl. ¶¶ 14-15; see id., Ex. I-J (respectively, March 5, 2008 and March 10, 2008
letters from D.M. Hardy regarding FOIA Nos. 1111045 and 1111044). On administrative appeal
to the DOJ’s Office of Information and Privacy (“OIP”), the FBI’s initial determinations were
affirmed. See Hardy Decl. ¶¶ 16-18; see id., Ex. O (April 21, 2008 letter from J.G. McLeod,
Associate Director, Office of Information and Privacy, regarding Appeal Nos. 08-1404 through
08-1406).
3
Although plaintiff submitted a FOIA request to the Washington, D.C.
headquarters office of the FBI on or about October 26, 2005, see Hardy Decl. ¶ 6 & Ex. A, there
are no factual allegations in the instant complaint pertaining to this request. The Court concludes
that plaintiff does not challenge the FBI’s response to the 2005 request and will not address the
matter further.
3
B. Requests to the Drug Enforcement Administration
Plaintiff’s first request to the DEA sought only information about himself. Def.’s
Mem., Declaration of Leila Wassom (“Wassom Decl.”), Ex. A (April 28, 2008 FOIA Request) at
1. Because the DEA did not respond promptly, plaintiff submitted a separate four-page request
about two months later. Compl. ¶ 8; Wassom Decl., Ex. B (June 12, 2008 FOIA Request). In
addition to records about himself, plaintiff sought information pertaining to fourteen individuals
(seven of whom were listed in his prior request to the PHFO), and to the Quick Lunch Diner. Id.,Ex. B at 2. Plaintiff requested a waiver of fees associated with the processing of his request. Id.
at 2-3. DEA staff combined the two requests and assigned a single tracking number, DEA FOIA
No. 08-0996-P. See id., Ex. D (October 27, 2008 letter from K.L. Myrick, Chief, Operations
Unit, FOI/Records Management Section, DEA) at 1.
The DEA neither confirmed nor denied the existence of records pertaining to the
fourteen individuals, explaining that “[i]n order to receive information about a third-party[,] it
would be necessary for him to submit a release authorization from each third[] party.” Wassom
Decl. ¶ 9. Further, the DEA rejected a portion of his request because it did not constitute a
proper request. Specifically, the agency found that “his request for a search of all records
maintained by the DEA was not specific enough, and that his request for records between the
dates of January 2001 through January 2003 was tantamount to research.” Id. ¶ 10. The DEA
denied plaintiff’s request for a fee waiver. Id. Lastly, the agency conducted a preliminary search
for records pertaining to plaintiff, and that search yielded DEA Investigative Case File No. CO-
03-0048. Id. Plaintiff was instructed to notify the DEA in writing if he wanted its staff to
conduct a search for records maintained in this investigative file. Id., Ex. D at 2. Plaintiff
4
responded that he was “interested in . . . reports prior to January 29, 2003” pertaining to himself,
as well as “a full and compleat [sic] color copy of all photos taken[.]” Id., Ex. H (December 30,
2008 letter to W.C. Little, Jr.).
Even though plaintiff filed an administrative appeal to the OIP, see Wassom
Decl., Ex. E (November 3, 2008 FOIA Appeal), the DEA began to process Investigative Case
File No. CO-03-0048 and ultimately released 42 pages of records in full, released 124 pages in
part, and withheld 14 pages in full. See Wassom Decl. ¶¶ 13, 15, 17.
II. DISCUSSION
A. Summary Judgment in FOIA Case
The Court may grant a motion for summary judgment “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the
moving party’s affidavits may be accepted as true unless the opposing party submits his own
affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the
information provided in an agency’s supporting affidavits or declarations when they describe
5
“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 also Hertzberg v.
Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or 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., Inc. v. Sec. & Exch.
Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central
Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
The Court is mindful that the plaintiff is a pro se litigant whose pleadings and
other submissions are construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972).
For this reason, the Court relies on plaintiff’s general assertion that the DOJ improperly withheld
requested records, see generally Plaintiff’s Consolidated Motion for Leave as in Bequest to File a
Five-Page Extended Reply Brief to Defendants’ Opposition and with Disclosure Statement
Herein As Shown [Dkt. #19] (“Pl.’s Opp’n”), as a sign that plaintiff does not concede the
defendant’s motion, notwithstanding his utter failure to challenge the adequacy of the agency’s
searches or to address substantively any of the claimed exemptions.
B. Searches for Responsive Records
Upon receipt of a request under the FOIA, the agency must search its records for
responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under
FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to
6
uncover all relevant documents.’” Valencia-Lucena v. United States Coast Guard, 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)); see
also Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The agency
bears the burden of showing that its search was calculated to uncover all relevant documents.
Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). 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. 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 at 542; see also Valencia-Lucena v. United States Coast Guard, 180 F.3d at 326.
1. The FBI’s Searches of its Central Records System and Electronic Surveillance Index
In the Central Records System (“CRS”), the FBI maintains its “administrative, applicant,
criminal, personnel, and other files compiled for law enforcement purposes.” Hardy Decl. ¶ 19.
The records are organized by subject matter, and a file’s subject matter may relate to an
individual, organization, company, publication, activity, or foreign intelligence matter. Id.General indices arranged in alphabetical order are the means by which CRS records are retrieved.
Id. ¶ 20. Entries in the general indices are either “main” entries or “reference” entries. Id. The
former “carr[y] the name corresponding with a subject of a file contained in the CRS;” the latter
“are generally only a mere mention or reference to an individual, organization, etc., contained in
a document located in another ‘main’ file.” Id. The decision to index names other than subjects,
7
suspects, and victims is left to the discretion of the assigned Special Agent, the Supervisory
Special Agent at the field office conducting the investigation, and the Supervisory Special Agent
at FBIHQ. Id. ¶ 24. Without an index, “information essential to ongoing investigations could
not be readily retrieved. The FBI files would thus be merely archival in nature and could not be
effectively used to serve the mandated mission of the FBI.” Id. Thus, general indices to the CRS
files “are the means by which the FBI can determine what retrievable information, if any,” its
files may contain on a particular subject. Id. “Searches made in the General Indices to locate
records concerning a particular subject, such as Larry Lyle Lasko, are made by searching the
requested subject in the index.” Id. ¶ 21.
The FBI’s electronic surveillance indices (“ELSUR”) “are used to maintain
information on a subject whose electronic and/or voice communications have been intercepted as
a result of a consensual electronic surveillance or a court-ordered (and/or sought) electronic
surveillance[.]” Hardy Decl. ¶ 25. ELSUR indices are a separate automated system of records
from the CRS, and both FBI Headquarters and all FBI field offices maintain ELSUR indices. See
id. ¶¶ 26-28. The names of monitored subjects are retrievable through the FBIHQ or local field
office ELSUR indices.” Id. ¶ 28.
In response to plaintiff’s FOIA request to PHFO, FBI staff “searched the CRS for
main files using the search terms ‘Lawrence Lyle Lasko’ and ‘Larry Lasko[,]’ and ‘Quick Lunch
Diner[.]’” Hardy Decl. ¶ 31. No responsive records were found. Id. After plaintiff filed this
lawsuit, FBI staff ‘conducted expanded searches” of the CRS , id. ¶ 32,“for main files and cross
references using [several] variations of the plaintiff’s name[.]” Id. ¶ 33. “[O]ne potentially
responsive cross reference” was located but, on inspection, FBI staff “determined that it did not
8
concern plaintiff.” Id. A search of “the CRS for main files and cross references using the term
‘Quick Lunch Diner’” yielded no responsive records. Id. ¶ 34. FBI staff also searched the
ELSUR indices using variations of plaintiff’s name, and “located no responsive records as a
result of this search.” Id. ¶ 35.
2. The DEA’s Searches of its Investigative Reporting and Filing System
The DEA construed plaintiff’s FOIA requests “as requests for criminal
investigative records held by the DEA that referenced . . . the plaintiff by name” or apparently
were related to him. Wassom Decl. ¶ 18. Such records, the declarant states, were “reasonably
likely to be found in the DEA Investigative Reporting and Filing System (IFRS)[.]” Id. ¶ 19.
One “retrieves investigative reports and information from IFRS” by using the DEA Narcotics and
Dangerous Drugs Information System (“NADDIS”). Id. ¶ 21. “Individuals are indexed and
identified in NADDIS by their name[s], Social Security Number[s], and/or date[s] of birth.” Id.
A query of NADDIS using plaintiff’s name, Social Security number and date of birth yielded one
criminal investigative file. Id. ¶¶ 22-23. From this file, DEA staff identified 143 pages of
records as responsive to plaintiff’s request for information about himself. Id. ¶ 24.
3. The Agency’s Searches for Responsive Records Were Adequate
Plaintiff is intent on litigating issues pertaining to his criminal trial rather than
responding substantively to the arguments set forth in defendant’s motion for summary
judgment. See generally Pl.’s Opp’n. He contends that DEA Special Agents “knowingly and
willfully suppressed, concealed and tampered with and with[h]eld[] ‘prior field reports’ of
exculpatory evidence for Lasko and others while creating an adverse effect on or in a criminal
9
matter,” id. at 9 (page numbers designated by the Court’s electronic docket), specifically, in
framing plaintiff for the crimes of which he has been convicted. Id. Plaintiff contends that he
was denied access to evidence before or during the criminal proceedings against him, which, he
alleges, would “point[] to his minor roles and lack of involvement in the scheme overall[.]” Id.
at 14.
Nothing about plaintiff’s criminal trial pertains to the issues presented in this
FOIA action, which concern only whether the FOIA exemptions relied upon by DOJ to withhold
records have been properly invoked. Plaintiff’s personal interest in the requested records for the
purpose of attacking his conviction or sentence is not relevant to this analysis. Any interest in the
information for purposes of proving his innocence does not overcome the individuals’ privacy
interest. See Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 2002) (finding that
requester’s “personal stake in using the requested records to attack his convictions does not count
in the calculation of the public interest”), vacated and remanded, 541 U.S. 970 (2004), on
remand, 378 F.3d 115 (D.C. Cir.) (reaffirming prior decision), reh’g denied, 386 F.3d 273 (D.C.
Cir. 2004), cert. denied, 544 U.S. 983 (2005); see also United States Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989) (stating that the
requester’s identity has “no bearing on the merits of his . . . FOIA request”).
Furthermore, there is no evidence that any of the FBI or DEA agents responsible
for searching agency records to assure compliance with the FOIA had anything to do with the
investigation or prosecution of Mr. Lasko. Indeed, it is virtually impossible that there would be
any overlap in agency personnel doing FOIA work and those investigating or assisting in
10
prosecuting crimes. On this record, the Court concludes that the methods by which the FBI and
DEA staff searched for responsive records were reasonable under the circumstances.
C. Exemptions
Under the FOIA, an agency may withhold documents responsive to a FOIA
request only if the responsive documents fall within one of nine enumerated statutory
exemptions. See 5 U.S.C. § 552(b). An agency must demonstrate that “each document that falls
within the class requested either has been produced, is unidentifiable, or is wholly [or partially]
exempt from the [FOIA’s] inspection requirements.” Goland v. Central Intelligence Agency, 607
F.2d 339, 352 (D.C. Cir. 1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d
828, 833 (D.C. Cir. 2001).
1. Exemption 2
Exemption 2 shields from disclosure information that is “related solely to the
internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase
“personnel rules and practices” is interpreted to include not only “minor employment matters”
but also “other rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol,
Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The “information need
not actually be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that a
matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898
F.2d 793, 795 (D.C. Cir. 1990) (emphasis added).
Exemption 2 applies if the information that is sought meets two criteria. See Pub.
Citizen, Inc. v. Office of Mgmt. and Budget, 569 F.3d 434, 439 (D.C. Cir. 2009). First, such
11
information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol,
Tobacco and Firearms, 670 F.2d at 1074; see Nat’l Treasury Employees Union v. United States
Customs Serv., 802 F.2d 525, 528 (D.C. Cir. 1985). Second, the agency must show either that
“disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial
administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898
F.2d at 794 (citations omitted).
“Predominantly internal documents the disclosure of which would risk
circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v.
Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C. Cir. 1992). “High 2” exempt information
is “not limited . . . to situations where penal or enforcement statutes could be circumvented.” Id.
at 1208. If the material at issue merely relates to trivial administrative matters of no genuine
public interest, it is deemed “low 2” exempt material. See id. at 1207; Founding Church of
Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983).
The DEA withholds “violator identifiers” consisting of Geographical Drug
Enforcement Program (“G-DEP”) codes and NADDIS numbers. Wassom Decl. ¶ 48. The
declarant explains that a G-DEP code is assigned to each case when the investigative file is
opened, and the code “indicates the classification of the violator, the types and amount of
suspected drugs involved, the priority of the investigation and the suspected location and scope
of criminal activity.” Id. NADDIS numbers are “multi-digit numbers assigned to drug violators
and suspected drug violators known to the DEA,” as well as “entities that are of investigative
interest.” Id. “Each number is unique and is assigned to only one violator within the DEA
NADDIS indices.” Id. Both G-DEP and NADDIS numbers “are part of [the] DEA’s internal
12
system of identifying information and individuals.” Id. According to the declarant, release of G-
DEP codes “would help identify priority given to narcotic investigations, types of criminal
activities, and violator ratings.” Id. ¶ 48. With this information, suspects could change their
behavior so as to avoid detection and otherwise thwart the DEA’s investigative and law
enforcement efforts. Id.
Both G-DEP codes and NADDIS numbers fall within the scope of Exemption 2
and routinely are withheld. See, e.g., Bullock v. Fed. Bureau of Investigation, 577 F. Supp. 2d
75, 81 (D.D.C. 2008) (concluding that violator and informant identifier codes, including G-DEP
codes and NADDIS numbers, properly are withheld under Exemption 2); Barbosa v. Dep’t of
Justice, No. 06-0867, 2007 WL 1201604, at *3 (D.D.C. Apr. 23, 2007) (concluding that the DEA
properly withheld violator identifiers consisting of G-DEP codes, NADDIS numbers, and
confidential informant numbers, which are part of the agency’s internal system of identifying
information and individuals); Mendoza v. Drug Enforcement Admin., 465 F. Supp. 2d 5, 10-11
(D.D.C. 2006) (finding that “there is not a public interest sufficient to override the agency's
appropriate interest in maintaining the secrecy of . . . internal procedures” regarding violator
identifiers); Wilson v. Drug Enforcement Admin., 414 F. Supp. 2d 5, 12-13 (D.D.C. 2006)
(concluding that G-DEP codes and NADDIS numbers properly are withheld as “high 2” exempt
information, and that NADDIS numbers, insofar as they are part of the DEA’s internal system of
identifying information in which there is no public interest, properly are withheld as “low 2”
13
exempt information). The Court therefore concludes that the DEA’s decision to withhold G-
DEP codes and NADDIS numbers under Exemption 2 was proper.4
2. Exemption 7
a. Law Enforcement Records
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 Fed. Bureau of Investigation v. Abramson, 456 U.S.
615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must
establish that the records at issue were compiled for law enforcement purposes, and that the
material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster,
673 F.2d 408, 413 (D.C. Cir. 1982). In assessing whether records are compiled for law
enforcement purposes, the “focus is on how and under what circumstances the requested files
were compiled, and whether the files sought relate to anything that can fairly be characterized as
an enforcement proceeding.” Jefferson v. Dep’t of Justice, 284 F.3d 172, 176-77 (D.C. Cir.
2002) (citations and internal quotations omitted).
The DEA, the declarant explains, is responsible for “the enforcement of the
Federal drug laws including the Drug Abuse Prevention and Control Act of 1970, see 21 U.S.C.
§ 801 et seq.,” Wassom Decl. ¶ 25, and investigates incidents “involving the trafficking in
4
The DEA invokes Exemption 2 in conjunction with Exemptions 7(C) and 7(F) to
withhold NADDIS numbers assigned to third parties. Wassom Decl. ¶ 48. Because the Court
concludes that NADDIS numbers properly are withheld under Exemption 2, there is no need to
consider the applicability of Exemptions 7(C) and 7(F) with respect to the same information. See
Simon v. Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).
14
controlled substances, dangerous drugs and precursor chemicals and the violators who operate at
interstate and national levels; seize[s] and forfeit[s] assets derived from, traceable to, or intended
to be used for illicit drug trafficking[;] cooperate[s] with counterpart agencies abroad[,] and . . .
exchange[s] information in support of drug traffic prevention and control.” Id. ¶ 50. Information
collected in the course of performing these functions is “placed into DEA investigative files that
are maintained in IFRS.” Id. ¶ 25. The DEA office commencing an investigation opens the
investigative file, and the file’s title typically is “the name of the principal suspect violator or
entity known to DEA at the time the file is opened.” Id. ¶ 26. The DEA “does not maintain
separate dossier investigative case files on every individual or entity that is of investigative
interest.” Id. Information obtained in the course of an investigation “is systematically gathered
and included in the investigative case file,” and such information may “relate[] to the case
subject” or to “other individuals such as those who are suspected of engaging in criminal activity
in association with the subject of the file.” Id. ¶ 27.
The declarant describes the records responsive to plaintiff’s FOIA request as
“criminal investigative records . . . compiled during criminal law enforcement investigations of
the plaintiff and several third parties.” Wassom Decl. ¶ 51. The records include Reports of
Investigation (“ROI”) and other materials, including administrative subpoenas, reports of drugs
and other property collected, purchased or seized, chemical analysis reports, applications for
search warrants, an arrest warrant, a criminal complaint, a criminal judgment form and arrest
scene photographs. See id. ¶¶ 28-41 (describing DEA Forms 6, 6a, 7, 7a, 12, 48, 202, and 210).
The DEA has met its threshold obligation by showing that these responsive
records were compiled for law enforcement purposes.
15
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). “To determine whether Exemption 7(C) applies, [courts] ‘balance the
privacy interests that would be compromised by disclosure against the public interest in release
of the requested information.’” Sussman v. United States Marshals Serv., 494 F.3d 1106, 1115
(D.C. Cir. 2007) (quoting Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir.
1992)); see Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993).
Generally, the privacy interests of third parties mentioned in law enforcement files
are “substantial,” while “[t]he public interest in disclosure [of third-party identities] is not just
less substantial, it is insubstantial.” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F. 2d at
1205. “[U]nless 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.” Id. at 1206; see Nation Magazine v. United States Customs Serv., 71 F.3d 885, 896
(D.C. Cir. 1995).
“[T]he 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.
United States Dep’t of Justice, 968 F.2d at 1282 (quoting United States Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. at 773). If the public interest is
government wrongdoing, then the requester must “produce evidence that would warrant a belief
16
by a reasonable person that the alleged Government impropriety might have occurred.” Boyd v.
Criminal Div. of the United States Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (citing
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004)).
Under Exemption 7(C), the DEA withholds “[t]he identities of DEA Special
Agents, state/local law enforcement officers, a DEA Attorney and DEA laboratory personnel[.]”
Wassom Decl. ¶ 55. The declarant explains that the Special Agents and other law enforcement
officers and personnel “were assigned to handle tasks relating to the official investigation into the
criminal activities of the plaintiff and other individuals,” and that they were or still are “in
positions of access to information regarding official law enforcement investigations.” Id. ¶ 56;
see id. ¶ 57. If their identities were disclosed, “they could become targets of harassing inquiries
for unauthorized access to information pertaining to ongoing and closed investigations.” Id. ¶
56; see id. ¶ 57. With respect to all of these third parties, disclosure of their identities puts them
“in a position that they may suffer undue invasions of privacy, harassment and humiliation from
disclosure of their identities in the context of a criminal law enforcement investigation.” Id. ¶ 55.
Against the recognized privacy interests of these third parties, the DEA weighs the
public interest in disclosure. See Wassom Decl. ¶¶ 53-54, 56. Its declarant explains that
disclosure would not “inform the plaintiff or the general public about DEA’s performance of its
mission to enforce federal criminal statutes and the Controlled Substances Act, and/or how [the]
DEA conducts its internal operations and investigations.” Id. ¶ 54. The Court concurs.
Law enforcement personnel “have a legitimate interest in preserving the secrecy
of matters that conceivably could subject them to annoyance or harassment in either their official
or private lives” Lesar v. United States Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980).
17
Similarly, “third parties who may be mentioned in investigatory files” and “witnesses and
informants who provide information during the course of an investigation” have an “obvious”
and “substantial” privacy interest in their personal information. Nation Magazine v. United
States Customs Serv., 71 F.3d at 894; see Rugiero v. United States Dep’t of Justice, 257 F.3d
534, 552 (6th Cir. 2000) (concluding that the agency properly withheld “identifying information
on agents, personnel, and third parties after balancing the privacy interests against public
disclosure”), cert. denied, 534 U.S. 1134 (2002).
Plaintiff articulates no public interest in disclosure of the names of and identifying
information about these federal, state and local law enforcement officers and support personnel.
His intention to use information in these records to prove his claim of innocence is not a public
interest, as “an individual’s personal interest in challenging his criminal conviction is not a
public interest under FOIA because it ‘reveals little or nothing about an agency’s own conduct.’”
Willis v. United States Dep’t of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008) (quoting Reporters
Comm. for Freedom of the Press, 489 U.S. at 773). The Court concludes that the DEA properly
withheld this information under Exemption 7(C).
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 a criminal law
enforcement authority in the course of a criminal investigation. . .,
information furnished by a confidential source.
18
5 U.S.C. § 552(b)(7)(D). A confidential source may be an individual, such as a private citizen or
paid informant, or it may be a state, local or foreign law enforcement agency. Lesar v. Dep’t of
Justice, 636 F.2d at 491. There is no assumption that a source is confidential for purposes of
Exemption 7(D) solely because the source provides information to a law enforcement agency in
the course of a criminal investigation. See United States Dep’t of Justice v. Landano, 508 U.S.
165, 181 (1993). Rather, a source’s confidentiality is determined on a case-by-case basis. Id. at
179-80. “A source is confidential within the meaning of 7(D) if the source provided information
under an express assurance of confidentiality or in circumstances from which such an assurance
could reasonably be inferred.” Williams v. Fed. Bureau of Investigation, 69 F.3d 1155, 1159
(D.C. Cir. 1995) (citing United States Dep’t of Justice v. Landano, 508 U.S. at 170-74).
The declarant states that, among the records responsive to plaintiff’s FOIA request
is “material provided by [an] individual[] other than a DEA agent[.]” Wassom Decl. ¶ 59.
Plaintiff was convicted “of the manufacture, conspiracy to distribute, and possession with intent
[to distribute] methamphetamine,” and “a firearm and ammunition [were] recovered from the
plaintiff’s property.” Id. ¶ 61. The declarant asserts that in these circumstances, “[i]t is
reasonable to infer that the individual who provided information about the plaintiff would fear
for his/her safety, since violence is inherent in the trade in illicit substances such as
methamphetamine[.]” Id. In addition, the declarant asserts that release of the source’s name
“could jeopardize DEA operations, since his/her cooperation and that of similarly situated
individuals could be needed in future criminal investigations.” Id. Accordingly, the DEA
asserts, an implied assurance of confidentiality can be inferred.
19
Courts have held that the violence and risk of retaliation attendant to drug
trafficking warrant an implied grant of confidentiality to a source who provides information to
investigators. See Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1329 (D.C. Cir. 2000)
(withholding source supplying information about conspiracy to distribute crack and powder
cocaine); Mendoza v. Drug Enforcement Admin., 465 F. Supp. 2d at 13 (concluding that a source
who provided information pertaining to the requester’s methamphetamine trafficking activities
did so under an implied assurance of confidentiality); Chavez-Arellano v. United States Dep’t of
Justice, No. 05-2503, 2006 WL 2346450, at *9-10 (D.D.C. Aug. 11, 2006)), appeal dismissed,
No. 06-5279, 2007 WL 2910057 (D.C. Cir. Sept. 19, 2007) (per curiam); see also Engelking v.
Drug Enforcement Admin., 119 F.3d 980, 981 (D.C. Cir. 1997) (concluding that a source
provided information about requester’s methamphetamine distribution operation, which was the
subject of “multiple cooperative investigations by federal, state, and local law enforcement
agencies, [and] which ultimately resulted in [requester’s] conviction following the seizure of two
methamphetamine laboratories, six handguns, and a rifle,” under an implied assurance of
confidentiality), cert. denied, 522 U.S. 1094 (1998). The Court concludes that the DEA properly
withheld the identities of and information provided by the confidential sources under Exemption
7(D).
d. Exemption 7(F)
Exemption 7(F) protects from disclosure information contained in law
enforcement records that “could reasonably be expected to endanger the life or physical safety of
any individual.” 5 U.S.C. § 552(b)(7)(F). The Court has reviewed the Vaughn Index, see
20
Wassom Decl, Ex. K, and finds that the DEA relies on Exemption 7(F) in conjunction with
Exemption 7(C) with respect to the same information. Because the Court already has concluded
that the same information properly was withheld under either Exemption 7(C), there is no need
also to consider the applicability of Exemption 7(F) with respect to this information. See Simon
v. Dep’t of Justice, 980 F.2d at 785.
D. Segregability
If a record contains 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. United States Customs Serv., 177 F.3d 1022 (D.C. Cir.
1999). The 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. United States Bureau of
Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v.
United States Dep’t of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).
The Court has reviewed the DEA’s declaration and the Vaughn Index submitted in
support of its motion, and finds that these submissions adequately specify “which portions of the
document[s] are disclosable and which are allegedly exempt.” Vaughn v. Rosen, 484 F.2d 820,
827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The Court finds that the DEA has
released all reasonably segregable material.
21
III. CONCLUSION
The Court concludes that the FBI has established that its searches for records
responsive to plaintiff’s FOIA request were reasonable under the circumstances, and that its “no
records” response was appropriate. The DEA has established that its search for responsive
records was reasonable and that it properly withheld information under Exemptions 2, 7(C) and
7(D). Because no material facts are in dispute and because both the FBI and the DEA are entitled
to judgment as a matter of law, the Court will grant summary judgment in defendant’s favor. An
appropriate Order accompanies this Opinion.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: February 17, 2010
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