Adionser v. United States Department of Justice ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DICKINSON N. ADIONSER,
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Plaintiff, pro se,
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v. ) Civil Case No. 10-027 (RJL)
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DEPARTMENT OF JUSTICE, et al.,
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Defendants.
MEMORANBuM OPINION
(Septemberf-5, 2011) [#16 and #26]
Plaintiff Dickinson Norman Adionser ("plaintiff') brings this pro se action against
the Department of Justice ("DOJ" or "defendant"), Executive Office for United States
Attorneys ("EOUSA"), Federal Bureau of Investigation ("FBI"), Federal Bureau of
Prisons ("BOP"), and Drug Enforcement Administration ("DEA") for failure to disclose
information pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act. I
Plaintiff seeks material to challenge collaterally convictions that resulted in his
imprisonment. Before this Court is defendant's Motion for Summary Judgment and
plaintiffs Cross-Motion for Summary Judgment. After due consideration of the parties'
I Defendants move to dismiss EOUSA, FBI, DEA, and BOP, contending they are not
proper parties to this action. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 4, July 12,
2007. FOIA provides a cause of action against federal agencies only. See Sherwood Van
Lines, Inc. v. Us. Dep 'f o/Navy, 732 F. SUpp. 240, 241 (D.D.C. 1990). Components of
federal agencies are not covered by FOIA. Blackwellv. FBI, 680 F. SUpp. 2d 79,86 n.1
(D.D.C.2010). Because EOUSA, FBI, DEA, and BOP are components ofDOJ, and it is
DOJ that is an agency covered by FOIA, DOJ is the proper defendant in this case. See 5
U.S.C. § 552(£)(1). Thus, EOUSA, FBI, DEA, and BOP are dismissed.
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pleadings, the relevant law, and the entire record herein, defendant's motion is
GRANTED and plaintiffs motion is DENIED.
BACKGROUND
Plaintiff is a federal inmate incarcerated at the McRae Correctional Facility in
Georgia. See Docket Entry No.8, Mar. 22, 2010. Plaintiff pleaded guilty to and is
currently serving a sentence of 240 months in prison for conspiracy to distribute and
possession with intent to distribute heroin in violation of21 U.S.C. §§ 846, 841(a)(1),
and 841(b)(1)(A)(i). Adionser v. United States, 2006 WL 2709694, at *1-2 (E.D. Va.
Sept. 21, 2006).
Between the years of 2004 and 2009, plaintiff submitted a total of twelve FOIA
requests to defendant. Specifically, he submitted three requests to EOUSA (Request Nos.
07-3339,08-4329,09-1047); two to FBI (Request Nos. 1074188-00 and 1117918-00);
two to BOP (Request Nos. 2005-01434 and 2007-05753); and five to DEA (Request Nos.
07-0749-P, 07-0730-F, 08-0101-F, 08-1431-P, 09-0386-P).2 Although EOUSA, FBI,
BOP, and DEA released in full and, in part, some of the documents responsive to
plaintiffs request, it redacted or withheld from release the remainder pursuant to Federal
Rule of Criminal Procedure 6( e) ("Rule 6( e)"); FOIA exemptions 2, 3, 5, 6, 7(A), 7(C),
2See EOAUSA Ex. C to Def.'s Mot.; EOUSA Ex. 0 to Def.'s Mot., Nov. 18,2008;
EOUSA Ex. R to Def.'s Mot., Jan. 6, 2009; FBI Ex. B to Def.'s Mot., Feb. 9,2007; FBI
Ex. D to Def.'s Mot., July 30, 2008; BOP Ex. C to Def.'s Mot., Nov. 18,2004; BOP Ex.
W to Def.'s Mot., Apr. 16,2007; DEA Ex. F to Def.'s Mot., Feb. 9,2007; DEA Ex. H to
Def.'s Mot., July 25, 2007; DEA Ex. U to Def.'s Mot., July 12,2007; DEA Ex. CC to
Def.'s Mot., July 30, 2008; DEA Ex. MM to Def.'s Mot., Jan. 7,2009.
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7(D), 7(E), 7(F); and Privacy Act exemptionj(2).3 Further, DEA and BOP declined to
release documents and recordings for which third party authorization was not provided. 4
On January 6, 2010, plaintiff filed this lawsuit against defendant, alleging it had
failed to comply with FOIA and the Privacy Act. 5 See Docket Entry l. On July 9, 2010,
defendant filed a motion for summary judgment contending that it fulfilled its FOIA and
Privacy Act obligations. Def.'s Mot. at l. On December 20,2010, plaintiff filed a cross-
motion for summary judgment, asserting that defendant has not shown that it conducted
adequate searches for responsive documents, did not reasonably segregate non-exempt
information from statutorily exempt information, and did not establish that any of the
exemptions claimed were appropriate. See Pl.'s Opp'n at 3-4 (EOUSA), 12-14 (FBI), 22
(DEA), 40 (BOP).6 Plaintiff further asserts that the declaration of David M. Hardy
("Hardy Decl."), Section Chief of the FBI's Record Management Division in charge of
3 See EOUSA Ex. H to Def.'s Mot., May 28, 2008; EOUSA Ex. Q to Def.'s Mot., Mar.
20,2009; EOUSA Ex. T to Def.'s Mot., June 11,2009; FBI Ex. C to Def.'s Mot., Apr. 2,
2007; FBI Ex. E to Def.'s Mot., Aug. 20, 2008; FBI Ex. F to Def.'s Mot., Sept. 17,2008;
FBI Ex. H to Def.'s Mot., Dec. 31,2008; DEA Ex. L to Def.'s Mot., Oct. 17,2007; DEA
Ex. S to Def.'s Mot., Mar. 19,2008; DEA Ex. T to Def.'s Mot., Mar. 26, 2008; DEA Ex.
Z to D to Def.'s Mot., June 18,2008; DEA Ex. Z to Def.'s Mot., June 18,2008; DEA Ex.
HH to Def.'s Mot., May 14,2009; DEA Ex. RR to Def.'s Mot., June 25, 2009.
4 See BOP Ex. H to Def.'s Mot., Mar. 17,2005; BOP Ex. J to Def.'s Mot., May 8, 2005;
BOP Ex. R to Def.'s Mot., Apr. 24,2006; BOP Ex. X to Def.'s Mot., May 23,2007;
DEA Ex. H to Def.'s Mot., July 25, 2007.
5 FBI subsequently conducted a second search for responsive documents for FOIA
request number 1074188-00. 5 Declaration of David M. Hardy ~ 22, FBI Ex. A, June 28,
2010. DEA also conducted a second search for responsive documents for FOIA request
numbers 08-1431-P, 07-0749-P, and 09-0386-P. Declaration of Katherine L. Myrick ~
49, DEA Ex. A to Def.'s Mot., June 7, 2010.
6 Plaintiff does not challenge the reasonableness of the search conducted by BOP.
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responding to FOIA and Privacy Act requests, and the Vaughn indices 7 submitted by
EOUSA and DEA are inadequate. 8 See PI. Opp'n at 4 (EOUSA), 12 (FBI), and 29
(DEA). For all the reasons set forth below, this Court disagrees and GRANTS summary
judgment in favor of defendant.
ANALYSIS
I. Summary Judgment Standard
"When assessing a motion for summary judgment under FOIA, the Court shall
determine the matter de novo." Judicial Watch, Inc. v. Us. Dep't a/Homeland Sec., 598
F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B». Summary judgment is
appropriate when the record demonstrates that there is no genuine issue of material fact in
dispute and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ.
P. 56( a). The moving party bears the burden, and the court will draw "all justifiable
inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
u.S. 242, 255 (1986). Nevertheless, the non-moving party "may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial." Id. at 248 (internal quotations omitted). Factual
assertions in the moving party's affidavits may be accepted as true unless the opposing
party submits its own affidavits, declarations, or documentary evidence to the contrary.
Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992).
In a FOIA action, an agency must "demonstrate beyond material doubt that its
7 A Vaughan index is an index of documents that include justifications for an agency's
full or partial withholdings.
8 Plaintiff does not challenge the adequacy of the Vaughn index submitted by BOP.
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search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena
v. us. Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't a/State,
897 F.2d 540, 542 (D.C. Cir. 1990)). 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, which, in the absence of contrary evidence, are sufficient to demonstrate
an agency's compliance with FOIA. See Perry v. Block, 684 F.2d 121,126-27 (D.C. Cir.
1982) (per curiam).
Further, with respect to an agency's non-disclosure decisions, the court may rely
on affidavits or declarations if they describe "the justifications for non disclosure 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). 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." Sa/eCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (internal quotation omitted). "Ultimately, an agency's justification
for invoking a FOIA exemption is sufficient ifit appears logical or plausible." Wolfv.
CIA, 473 F.3d 370,374-75 (D.C. Cir. 2007) (internal quotations omitted).
II Adequacy a/the EOUSA and DEA Vaughn Indices and the Hardy Declaration
The EOUSA Vaughn Index and the DEA Vaughn Index, together with the
declaration of Katherine L. Myrick ("Myrick Declaration"), are sufficiently specific,
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detailed, and separable to satisfy defendant's burden under Vaughn. See Johnson v. Exec.
Office for Us. Attys., 310 F.3d 771,774 (D.C. Cir. 2002); Judicial Watch, Inc. v. FDA,
449 F.3d 141, 146 (D.C. Cir. 2006). They provide a detailed description of each
document withheld in whole or in part, including the total number of pages of the
document, date of the document (when applicable), and the author and intended recipient
of the document (when known). See EOUSA Vaughn Index; DEA Vaughn Index.
Further, they provide the statutory provisions under which the information is withheld for
each document and an explanation as to why that information should be exempted under
the applicable statutory provisions. Id.Additionally, the Hardy Declaration is sufficiently specific, detailed, and separable
to satisfy defendant's burden under Vaughn because the declaration provides "a
reasonable basis to evaluate [each] claim of privilege." See Judicial Watch, 449 F.3d at
146 (internal quotation omitted); see also Fischer v. Us. Dep 't ofJustice, 596 F. Supp.
2d 34, 43-44 (D.D.C. 2009). In particular, the Hardy Declaration explains that each
redaction or withheld page is annotated with one or more codes that reference the FBI's
reasoning for why documents are redacted or withheld and that refer back to detailed
explanations laid out in the Declaration. Hardy Decl. `` 25-26; FBI Ex. I to Def.'s Mot.
The explanations contain the statutory provisions under which the information is
withheld as well as the subcategories, which explain in more detail what the information
is and why the information should be exempted under the applicable statutory provisions.
See Hardy Decl. `` 27; 30, 32,42,44,46,49, 52.
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III. Adequacy of the Searches
An agency's search is adequate if its methods are reasonably calculated to locate
records responsive to a FOIA request. See Oglesby v. us. Dep 't of the Army, 920 F.2d
57,68 (D.C. Cir. 1990). An agency need not search every records system so long as it
conducts "a reasonable search tailored to the nature of a particular request." Campbell v.
us. Dep't ofJustice, 164 F.3d 20, 28 (D.C. Cir. 1998). Indeed, "the adequacy of a FOIA
search is generally determined not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search." Iturralde v. Comptroller of the Currency,
315 F .3d 311, 315 (D.C. Cir. 2003) (internal citation omitted); see Hornbostel v. Us.
Dep 't of the Interior, 305 F. Supp. 2d 21,28 (D.D.C. 2003).
Here, plaintiff is challenging the adequacy of the EOUSA's search based on the
results of the search rather than the actual method by which the EOUSA conducted its
search. See Pl.'s Opp'n `` 6-7,9-12. However, as our case law makes clear, ultimately,
the results of a search do not determine whether the search is adequate. Here, the
procedures described in the declarations of Dione J. Steams ("Steams Decl.") and Doreen
Gonzoph ("Gonzoph Decl. ") explain in reasonable detail the scope and method of the
EOUSA's search. See Steams Decl. `` 12,27; Gonzoph Decl. `` 5-7, 9-10. The
database searched allowed EOUSA to conduct a search by using an individual's name or
case number-which is appropriate given plaintiffs request for records pertaining to his
criminal case. See Steams Decl. `` 5, 19,23,27; Gonzoph Decl. ~ 5. Thus, Steams and
Gonzoph declarations sufficiently demonstrate the EOUSA's compliance with FOIA's
search requirements.
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a. FBI Search
Although plaintiff challenges the adequacy of the FBI's search for records
pursuant to request number 1074188-00, plaintiff has failed to exhaust his administrative
remedies and, therefore, judicial review is barred. 9 See Hidalgo v. FBI, 344 F.3d 1256,
1258-59 (D.C. Cir. 2003); Dettmann v. Us. Dep't 0/ Justice, 802 F.2d 1472, 1476
(D.D.C. 1986) ("[E]xhaustion of [administrative] remedies is required in FOIA cases.").
b. DEA Search
The Myrick Declaration sufficiently demonstrates the DEA's compliance with
FOIA's search requirements. 10 See Perry, 684 F.2d at 127. Although it is unclear on
what basis plaintiff is challenging the adequacy of the DEA's searches,1I the procedures
9 Plaintiff alleges for the first time that the FBI failed timely to respond to his FOIA
request within the statutorily required twenty days. Pl.'s Opp'n,-r 51; see 5 U.S.C. §
552(a)(6)(C)(i); Citizens/or Responsibility & Ethics in Washington v. Bd. o/Governors
o/Fed. Reserve Sys., 669 F. Supp. 2d 128,129 (D.D.C. 2009). However, because FBI
responded to plaintiffs request prior to the filing of his complaint, plaintiff has not
constructively exhausted his administrative remedies and judicial review is barred. Id.("[W]hen an agency responds to the request after the twenty-day statutory window but
before the requester initiates a lawsuit, the administrative exhaustion requirement still
applies and judicial review is barred."). Although plaintiff exhausted his administrative
remedies with respect to request number 1117908-00, see Compl. at p. 4, he does not
challenge the adequacy and reasonableness of that search. See Pl.'s Opp'n,-r,-r 55-64.
10 Because EOUSA identified responsive documents and referred them to DEA for
Request Numbers 06-0565-P and 08-1343-P, DEA did not conduct a separate search for
responsive documents for those requests.
II A liberal reading of the briefing suggests that plaintiff challenges the adequacy of
DEA's original searches based on the timeliness of the searches. Pl.'s Opp'n,-r,-r 102-04,
110-l2, 122, 125-27, 134. However, an "untimely response does not entitle plaintiff to
judgment in his favor." Jacobs v. Federal Bureau 0/ Prisons, 725 F. Supp. 2d 85, 89
(D.D.C. 2010) (internal citation omitted). "Once the Court determines that the agency
has, however belatedly, released all nonexempt material, [it has] no further judicial
function to perform under the FOIA." Id. (internal quotation omitted); see Tijerina v.
Walters, 821 F.2d 789,799 (D.C. Cir. 1987). As discussed in Section VI, DEA has
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described in the Myrick Declaration explain in reasonable detail the scope and method of
the agency's search, and sufficiently demonstrates the DEA's compliance with FOIA's
search requirements. See Myrick Decl. `` 56, 58-60; Campbell, 164 F.3d at 28; Perry,
684 F.2d at 127. Because the Investigative Reporting and Filing System ("IRFS") is the
only DEA records system that would contain criminal investigative records responsive to
plaintiffs request seeking all DEA records relating to him, see Myrick Decl. ~ 53, it is
reasonable that documents pertaining to plaintiff and his criminal case would be found
within the IRFS. DEA used the Narcotics and Dangerous Drugs Information System
("NADDIS") to retrieve records from IRFS. Id. ~ 55. Thus, the search was reasonably
tailored to plaintiffs request. See Campbell, 164 F.3d at 28.
IV Segregability
An agency claiming that a document is exempt under FOIA must, after excising
the exempted information, release any reasonably segregable information unless the non-
exempt information is inextricably intertwined with the exempt information. Trans-Pac.
Policing Agmt. v. Us. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999).
Here, the EOUSA, FBI, DEA, and BOP released all reasonably segregable non-
exempt material. As the Stearns Declaration adequately states, "[ e]ach document was
evaluated [by EOUSA] to determine if any information could be segregated and released"
and the documents withheld could not be released "without destroying the integrity of the
released all non-exempt material and therefore, this issue is moot. See Crooker v. us.
State Dep't, 628 F.2d 9,10 (D.C. Cir. 1980) ("Once the records are produced the
substance of the controversy disappears and becomes moot since the disclosure which the
suit seeks has already been made.") (internal citation omitted).
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document." Steams Decl. ,-r 56. Additionally, the Hardy Declaration sufficiently states
that "[ e]very effort has been made [by the FBI] to provide plaintiff with all material in the
public domain and with all reasonably segregable portions of releasable material." Hardy
Decl. ,-r,-r 22, 53. Further, as the Myrick Declaration adequately explains, "[a]ll responsive
pages were examined [by DEA] to determine whether any reasonably segregable
information could be released" and, with regard to the records withheld in full, the non-
exempt information was inextricably intertwined with the exempt information, such that
redaction would result in incomprehensible document. Myrick Dec. ,-r 104. Finally, as
the declaration of Larry Collins ("Collins Decl.") sufficiently states, plaintiff did not
provide consent of all third parties to the calls for release of their portions of the
conversations, and because BOP does not have the equipment necessary to edit digitally
stored recordings, the "withheld recordings of telephone conversations cannot be
segregated and release of the unedited recordings would result in an unwarranted
invasion of personal privacy of other individuals." Collins Decl. ,-r,-r 39, 41.
In the absence of contrary evidence or specific cites to potentially unsegregated
documents, the declarations are afforded the presumption of good faith.12 See SafeCard
Servs., 926 F.2d at 1200. The Vaughn indices, declarations, and annotations identify the
12 Plaintiff cites as an example of DEA's failure to segregate, the 762 pages withheld by
DEA. See Pl.'s Opp'n at,-r,-r 146,205. Although plaintiff contends the documents solely
belong to him, plaintiff provides no support for his contention. Id. The Myrick
Declaration, which lists the exemptions claimed for each document, together with Ms.
Myrick's description of the documents, are sufficient for this Court to assess whether
Defendant has properly invoked the exemptions. See infra Sec. IV. This Court finds,
therefore, that plaintiff has failed to provide evidence controverting the Myrick
Declaration's claims.
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exemptions claimed for each individual document and indicate that any information that
could be segregated, was released. Therefore, I easily find that all reasonably segregable
non-exempt material has been released.
V. FOIA and Privacy Act Exemptions
Under the law of our Circuit, "[i]f an agency's statements supporting exemption
contain reasonable specificity of detail as to demonstrate that the withheld information
logically falls within the claimed exemption and evidence in the record does not suggest
otherwise, ... the court should not conduct a more detailed inquiry." Larson, 565 F.3d at
865. Here, plaintiff challenges defendant's invocation ofFOIA Exemptions 2, 3, 5, 6,
7(A), 7(C), 7(D), 7(E), and 7(F), and Privacy Act Exemptionj(2).13 Plaintiff fails,
however, to put forth any evidence to counter the detailed explanations regarding these
claimed exemptions included in the Vaughn indices and declarations. Therefore, based
on the Vaughn indices, Myrick Declaration, and Hardy Declaration, this Court finds, for
the following reasons, that defendant's justifications for invoking these FOIA exemptions
are sufficient under the law of our Circuit. See id. at 862.
A. FOIA Exemption 2
Exemption 2 shields from disclosure information that is "related solely to the
13 Plaintiff also challenges DEA's withholding of four pages of sealed records. Myrick
Decl. ,-; 73. Plaintiff contends that pages 1284-88 consist of one document, which he
concedes was correctly withheld by DEA. Pl.'s Opp'n'-; 153. However, plaintiff notes
that DEA refers to "documents" withheld; therefore, plaintiff challenges the withholding
of any pages beyond pages 1284-88. Id. The only pages under seal withheld by DEA are
pages 1284-88, which consist of the government's motion for downward departure and a
memorandum in support of that motion. Myrick Decl. ,-; 73. I thus believe that plaintiff
mistakenly considers those two documents as one document. Because plaintiff concedes
that DEA properly withheld pages 1284-88, no challenge remains.
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internal personnel rules and practices of an agency." 5 U.S.C. § 552(b )(2). DEA asserted
Exemption 2 to protect the release of the following: Geographical Drug Enforcement
Program ("G-DEP") identifier codes, NADDIS numbers, and internal phone and fax
numbers of DEA employees. See Myrick Decl. ~ 83; DEA Vaughn Index Doc. Nos. 1-2,
17-312,564-65,751,790-828,837-48,853-919, 922-23, 933-93,1001,1003,1012,
1020-24, 1028-38. As other judges in our court have concluded previously, G-DEP,
NADDIS, telephone, and fax numbers are properly withheld pursuant to Exemption 2.
See Wilson v. Drug Enforcement Admin., 414 F. Supp. 2d 5, 12-l3 (D.D.C. 2006); Ray v.
FBI, 441 F. Supp. 2d 27,33 (D.D.C. 2006).
B. FOIA Exemption 3
Exemption 3 allows an agency to withhold information otherwise exempted by
statute. 5 U.S.C. § 552(b)(3). The EOUSA withheld information based on Rule 6(e),
which relates to matters "occurring before the grand jury." Fed. R. Crim. P. 6( e).
Information can be withheld under Rule 6( e) if "disclosure would tend to reveal some
secret aspect of the grand jury's investigation[,] such matters as ... the strategy or
direction of the investigation." Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d
728, 732 (D.C. Cir. 2008) (citations omitted).
EOUSA asserted Exemption 3 (in combination with Exemptions 5, 6, 7( c), and
7(d)) to protect grand jury records that are prohibited from release pursuant to Rule 6(e).
See EOUSA's Vaughn Index, Doc. 24. The Steams Declaration clearly states that the
material withheld consists of "grand jury transcripts and attorney notes associated with a
grand jury proceeding," the release of which "would reveal the scope of the grand jury
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and the direction of the investigation by providing the identities of the targets of the
investigation, the source of the evidence, as well as the actual evidence produced before
the grand jury." Stearns Decl.,-r,-r 36-37. Because the release of such infonnation is
prohibited, I conclude that EOUSA properly withheld the grand jury records under
Exemption 3.
The FBI withheld records consisting of intercepted communications, which are
specifically protected from disclosure by Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510-2520. See Hardy Decl.,-r 32
("Information withheld includes telephone subscriber information and names of targeted
individuals for the Title III intercepts."). Because Exemption 3 allows the withholding of
infonnation relating to the lawful interception of communications by the FBI pursuant to
Title III, the FBI properly withheld the records under Exemption 3. Delviscovo v. FBI,
903 F. Supp. 1,2 (D.D.C. 1995); see Lam Lek Chong v. us. Drug Enforcement Admin.,
929 F.2d 729, 733 (D.C. Cir. 1991).
C. FOIA Exemption 5
FOrA Exemption 5 exempts from disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for this
exemption, a document "must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it." Dep 't of
the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1, 8 (2001). Courts have
incorporated certain civil discovery privileges into Exemption 5, such as attorney-work
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product and the "deliberative process" privilege. See Nat 'I Labor Relations Ed. v. Sears,
Roebuck & Co., 421 U.S. 132,148-49 (1975); Coastal States Gas Corp. v. Dep't of
Energy, 617 F .2d 854, 862 (D.C. Cir. 1980). Here, EOUSA asserts attorney-work
product for documents 4-13, 15, 17-20, and 22-24; and deliberative process privilege for
documents 5, 13, 15, 17-20, and 22-24. See EOUSA Vaughn List.
The attorney-work product doctrine protects records prepared by or for an attorney
in anticipation oflitigation. See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947);
Coastal States Gas Corp., 617 F.2d at 864. The materials disclosed by EOUSA were
prepared by or at the request of an Assistant U.S. Attorney in anticipation of or during
litigation of plaintiff's criminal case. 14 Steams DecI. ,-r 40. As clearly stated by the
Steams Declaration, the materials were withheld to protect records reflecting "such
matters as trial preparation, trial strategy, interpretations, and personal evaluations and
opinions pertinent to Plaintiff's criminal case." Id. Thus, EOUSA properly withheld
these materials pursuant to Exemption 5.
The deliberative process privilege exempts from disclosure documents containing
14 Plaintiff contends EOUSA has falsely asserted Exemption 5. Plaintiff cites to a two-
page unsigned letter dated June 14,2005 written by AUSA Laura P. Tayman, which
EOUSA withheld under Exemption 5. See PI.'s Opp'n,-r 32; EOUSA Vaughn Index,
Doc. 4. Plaintiff contends this letter falsely was withheld because AUSA Tayman had
sent a copy of that same letter to Plaintiff. See PI.'s Opp'n,-r 32, PI. Ex. 46. However,
the letter Plaintiff received was a final, signed version of the letter, whereas EOUSA
withheld an unsigned, draft of the letter. See EOUSA Vaughn Index, Doc. 4. Plaintiffis
not entitled under Exemption 5 to that draft. Plaintiff further contends that an e-mail
falsely was withheld under Exemption 5 because it was written after Plaintiff was
convicted. PI.'s Opp'n ,-r 32. The e-mail, however, pertains to continued litigation,
specifically Plaintiff's pending post-conviction motion, and was not withheld pursuant to
Exemption 5. See EOUSA Vaughn Index, Doc. 21.
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deliberations comprising part of a process by which governmental decision and policies
are made so long as they are "predecisional." See Klamath, 532 U.S. at 8; Sears, 421
U.S. at 151-53. EOUSA asserted the deliberative process privilege to protect a witness
immunity request, handwritten attorney's notes, a warrant affidavit, a property list, a case
timeline, and attorney correspondence, all of which "contain pre-decisional and
deliberative information related to matters that were being considered by the USAO and
other federal and state agencies for possible criminal action against Plaintiff." Steams
Decl. ~ 41; see EOUSA Vaughn Index Doc. Nos. 5, 13, 15, 17-20,22-24. As sufficiently
stated by the Steams Declaration, "[ d]isclosure would jeopardize the candid and
comprehensive discussions that are essential for efficient and effective agency decision-
making" with respect to litigation strategy. Steams Decl. ~ 4l. Therefore, EOUSA
properly invoked Exemption 5 to protect these records.
D. FOIA Exemption 7(A)
DEA withheld information under FOIA exemption 7(A), which protects from
disclosure "records or information compiled for law enforcement purposes" if disclosure
"could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. §
552(b)(7)(A). To justify withholding information pursuant to Exemption 7(A), the
agency must demonstrate that "disclosure (1) could reasonably be expected to interfere
with (2) enforcement proceedings that are (3) pending or reasonably anticipated."
Mapother v. Us. Dep't ofJustice, 3 F.3d 1533,1540 (D.C. Cir. 1993).
Here, DEA invoked Exemption 7(A) (in conjunction with Exemptions 2, 7(C),
7(D), and 7(F)) to protect from disclosure information relating to file number GW-02-
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0032. See Myrick Decl. ~ 81; DEA Vaughn Index, Page Nos. 313-563, 566-750, 752-84,
787-89,829-36,849-52,920-21,924-32,1017-18, 1039-1283, 1289, and 1305-14. That
file is a criminal investigative record compiled pursuant to DEA's law enforcement
authority, see 21 U.S.C. § 801, et. seq., and consists of criminal law investigations of
plaintiff and third parties. See Myrick Decl. `` 78-79. The file relates to an open
proceeding-specifically, a co-defendant's pending criminal appeal. Myrick Decl. `` 80-
81. For purposes of Exemption 7(A), a pending appeal of a criminal conviction qualifies
as an ongoing law enforcement proceeding. See Kidder v. FBI, No. 05-1094, 2007 WL
1020784, at *8 (D.D.C. Mar. 29, 2007); Kansi v. Us. Dep 't ofJustice, 11 F. Supp. 2d 42,
44 (D.D.C. 1998). Further, because co-defendant's conviction is not final, disclosure of
the withheld materials could reasonably be expected to interfere with the ongoing
criminal proceeding. As the Myrick Declaration clearly states, disclosure of details from
the withheld material "would reveal the scope, direction, nature and pace of the
investigation as well as reveal information that could harm the government's prosecution
in the criminal appellate process." Myrick Decl. ~ 8l. "If the information is released, the
individuals who are of investigative interest in this case could use the information to
develop alibis, create factitious defenses or intimidate, harass or harm potential
witnesses." Id.; see Kansi, 11 F. Supp. 2d at 44 ("The potential for interference with
witnesses and highly sensitive evidence that drives the 7(A) exemption exists at least
until [the] conviction is final.") (internal citations omitted).
Therefore, because the file was created for law enforcement purposes and
disclosure of the withheld information could reasonably be expected to interfere with a
16
pending law enforcement proceeding, DEA has properly asserted Exemption 7(A).
E. FOIA Exemption 7(C/ 5
Exemption 7 applies to "records or information compiled for law enforcement
purposes," if disclosure of such records would lead to one of various enumerated harms.
5 U.S.C. § 552(b)(7). Exemption 7(C), in particular, protects information that "could
reasonably be expected to constitute an unwarranted invasion of personal privacy." 5
U.S.C. § 552(b)(7)(C). Thus, in determining the applicability of Exemption 7(C), the
Court must balance the interests advanced by FOIA's disclosure requirements against the
privacy interests of the individuals mentioned in the records. Beck v. Us. Dep 't of
Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). "Because the FOIA is concerned with the
right of the general public to know what their government is up to, the identity and
interest of the party requesting the document are irrelevant to this balancing." Mays v.
DEA, 234 F.3d, 1324, 1327 (D.C. Cir. 2000). This applies equally to individuals, like
plaintiff, seeking information to challenge a criminal conviction. See Willis v. Us. Dep't
15Both Exemption 7(C) and Exemption 6 protect individual's privacy interest, when
balanced against the public interest in disclosure. Accordingly, the Stems and Hardy
Declarations makes clear that all information withheld under Exemption 6 is also
withheld under Exemption 7(C). See Steams Decl. ~ 47; Hardy Decl. ~ 37. Further,
plaintiffs challenges to Exemption 6 are combined with his challenges to Exemption
7(C). PI. Opp'n `` 35, 77. Therefore, because the analysis under both is also the same,
see Durrani v. us. Dep't ofJustice, 607 F. Supp. 2d 77, 90, n.4 (D.D.C. 2009), this
Court will only undertake an analysis under Exception 7(C).
17
ofJustice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008); Pl.'s Opp'n `` 13-15,26,60,95,97.
Here, EOUSA, FBI, DEA, and BOP asserted Exemption 7(C) to withhold
information clearly compiled for "law enforcement purposes." See 5 U.S.C. § 552(b)(7);
EOUSA Vaughn Index, Docs. 1-3,5-24; Hardy Decl. ~ 42-46; Myrick Decl. ~ 92; Collins
Decl. ~ 38. The declarations state that information withheld under Exemption 7(C)
relates to the identity of third parties, special agents, government employees, and local
law enforcement personnel who participated in the investigation and prosecution of
plaintiffs case. Steams Decl. `` 43-44; Hardy Decl. `` 38,43,45; Myrick Decl. ~ 92;
Collins Decl. ~ 38. It is well settled that these individuals have a substantial interest in
their anonymity. Nation Magazine v. Us. Customs Serv., 71 F.3d 885, 893-96 (D.C. Cir.
1995); Coleman v. FBI, 13 F. Supp. 2d 75, 80 (D.D.C. 1998). As there is no public
interest asserted by plaintiff that outweighs such a substantial privacy interest, see Mays,
234 F .3d at 1327, defendant correctly withheld the information under Exemption 7(C).16
F. FOIA Exemption 7(D)
Exemption 7(D) protects "the identity of a confidential source," if the information
16 Plaintiff contends that certain documents should be released because he is aware of the
identities of some of the parties involved. See Pl.'s Opp'n `` 38,41,78, 162. "The fact
that the requester might be able to figure out the individuals' identities through other
means or that their identities have been disclosed elsewhere does not diminish their
privacy interests for purposes" of Exemption 7. Judicial Watch, Inc. v. FBI, 2001 WL
35612541, at *6 (D.D.C. 2001) (internal citation omitted); Weisbergv. Dep'tofJustice,
745 F.2d 1476, 1491 (D.C. Cir. 1984). While public disclosure of documents may lead to
the waiver of the FOIA exemption, the 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). Plaintiff has failed to meet
this burden.
18
was furnished on a confidential basis, and "information furnished by a confidential
source," if compiled by a law enforcement authority during the course of a criminal
investigation. 5 U.S.C. § 552(b)(7)(D). As FOIA exemptions must be narrowly
construed, an agency is not entitled to a presumption of confidentiality with respect to its
sources. Us. Dep'tofJustice v. Landano, 508 U.S. 165, 181 (1993). The exemption's
applicability, therefore, "depends upon whether the particular source who furnished the
information at issue was granted confidentiality, either expressly or by implication."
Mays, 234 F.3d at 1328.
Here, there is no question that the information provided by the FBI was compiled
for law enforcement purposes, by a criminal law enforcement authority, and during the
course of a criminal investigation. Plaintiff, however, contends that the defendant has
failed to provide information sufficient for this Court to determine whether the
information was provided by a confidential source and on a confidential basis, either
expressly or by implication. 17 PI. Opp'n `` 45, 50, 91, 169. I disagree.
Here, EOUSA, FBI, and DEA asserted Exemption 7(D) to protect the identities of
confidential informants and the information they provided to law enforcement officers.
Stearns Deci. `` 53-54; see EO USA Vaughn Index Doc. Nos. 5-12,19,24; Hardy Deci. ``
48-49; Myrick Deci. `` 93,97. Of the third parties who provided information to
17Plaintiff also asserts that the documents were improperly withheld because some of the
confidential informants have been revealed. See PI.'s Opp'n ~ 87. This argument,
however, is irrelevant to this analysis. What is dispositive is whether the source
understood that the information provided would be kept confidential at the time the
information was disclosed. See Landano, 508 U.S. at 172; Sellers v. Us. Dep't of
Justice, 684 F. Supp. 2d 149, 162 (D.D.C. 2010).
19
EOUSA, FBI, and DEA, some provided information pursuant to an express assurance of
confidentiality, while others provided information under circumstances supporting an
inference of an assurance of confidentiality. Steams Decl. ~ 53; Hardy Decl. ~ 48;
Myrick Decl. ~ 93.
With respect to information withheld based on an express grant of confidentiality,
the Steams and Myrick Declarations, along with the Vaughn Indices, refer to notations on
the withheld documents-specifically the EOUSA's "CI" notation and the DEA
confidential informant code. See Steams Decl. ~ 53; EOUSA Vaughn Index; Myrick
Decl. ~ 94; DEA Vaughn Index. Such notations provide probative evidence that the
source received an express grant of confidentiality. See Mays v. DEA, 234 F .3d l324,
l328-29 (D.C. Cir. 2000) (internal quotation marks omitted).
With respect to information withheld based on an implied grant of confidentiality,
the Steams Declaration explains that the third parties "supplied information to law
enforcement officers in connection with drug distribution which is characterized as
violent." Steams Decl. `` 52-53. Similarly, the FBI's and DEA's informants provided
information regarding plaintiffs illicit drug activities and were provided implied
assurances of confidentiality for doing so. Hardy Decl. ~ 48; Myrick Decl. `` 95-96.
This Court has noted that that "[t]he nature of the crime investigated and informant's
relation to it are the most important factors in determining whether implied
confidentiality exists." Amuso v. Us. Dep 't ofJustice, 600 F. Supp. 2d 78, 100 (D.D.C.
2009). The "violence and risk of retaliation attendant to drug trafficking warrant an
implied grant of confidentiality to a source who provides information to investigators."
20
Lasko v. Us. Dep't 0/ Justice, 684 F. Supp. 2d 120, 134 (D.D.C. 2010); see Mays, 234
F.3d at 1331. It is reasonable to conclude that these sources disclosed information in
confidence due to the fear of reprisal. See Mays, 234 F.3d at 1329. Therefore, EOUSA,
FBI, and DEA properly withheld documents pursuant to Exemption 7(D).
G. FOIA Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records to the extent
that their production "would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure would reasonably be expected to risk
circumvention of the law." 5 U.S.C. § 552(b)(7)(E); see Us. Dep't a/Commerce, 337 F.
Supp. 2d at 181 ("[E]ven commonly known procedures may be protected from disclosure
if the disclosure could reduce or nullify their effectiveness.") (internal citation omitted).
FBI properly applied this exemption to protect law enforcement techniques and
procedures that relate to the identification and contents of the FBI databases. Hardy
Decl. `` 51-52. Hardy provides a reasonable explanation for why disclosure of such
infonnation could impede investigations. See id. ~ 52. Further, "longstanding
precedent" of this Court and our Court of Appeals supports FBI's withholding. Sussman
v. us. Marshals Serv., 494 F.3d 1106, 1112 (D.C. Cir. 2007) (citing Blanton v. Dep't 0/
Justice, 64 F. App'x 787,788-89 (D.C. Cir. 2003); see Us. Dep't a/Commerce, 337 F.
Supp. 2d at 181 ("Exemption 7(E) affords categorical protection for techniques and
procedures used in law enforcement investigations or prosecutions.") (citations and
internal quotation marks omitted). Therefore, the FBI properly withheld two pages of
21
documents pursuant to Exemption 7(E).
H FOIA Exemption 7(F)
Finally, the DEA withheld information under Exemption 7(F), which protects
from disclosure information that "could reasonably be expected to endanger the life or
physical safety of any individual." 5 U.S.C. § 552(b )(7)(F). The DEA has asserted this
exemption (in combination with Exemptions 7(C) and 7(D)) to protect the identities of
special agents, law enforcement officers, government employees, and confidential
sources of information because these individuals may be subject to physical attacks or
other threats to their lives if their identities are revealed. 18 See Myrick Decl. ,-r 98-102.
Therefore, the DEA properly applied Exemption 7(F) to protect the physical safety of
these individuals. 19 See Linn v. Us. Dep 't ofJustice., No. 92-1406, 1995 WL 417810, at
*12 (D.D.C. June 6, 1995) (holding that identities oflaw enforcement were properly
withheld to protect from physical harm) (citing Albuquerque Pub I 'g Co. v. Dep't of
Justice, 726 F. Supp. 851, 858 (D.D.C. 1989)); Jimenez v. F.B.I., 938 F. Supp. 21(D.D.C. 1996) (holding that identities of confidential informants, special agents, and
government officials were properly withheld because their release could result in physical
attacks. ").
1. Privacy Act Exemptionj(2)
Exemption j(2) allows an agency "to exempt any system of records within the
18 Plaintiff contends that certain documents should be released because he is aware of the
identities of some of the parties involved. Pl.'s Opp'n,-r 170. See supra n.16.
19 Even if Exemption 7(F) had been improperly applied, DEA had properly withheld
these documents pursuant to Exemptions 7(C) and 7(D). See supra pp. 31, 34.
22
agency ... if the system of records is ... maintained by an agency ... which performs as
its principal function any activity pertaining to the enforcement of criminal laws." 5
U.S.C. § 552aU)(2). With respect to the FBI, the records at issue here are found in the
FBI's Central Records System and relate to the FBI's criminal drug investigation of
plaintiff. Hardy Dec!. ~ 24. Accordingly, the FBI's application of Exemption U)(2) to
these records is appropriate. Similarly, with respect to DEA, the records at issue are
found in DEA's IRFS and relate to DEA's criminal drug investigation of plaintiff.
Myrick Dec!. `` 75, 78-79. Accordingly, the DEA's application of Exemption U)(2) to
these records is appropriate. Further, with respect to EOUSA, the criminal case files at
issue here are contained in a Privacy Act System of Records and relate to EOUSA's
enforcement of criminal law and criminal drug investigation of Plaintiff. Steams Dec!. ``
28-29; see also 28 C.F.R. § 16.81 (exempting U.S. Attorney's criminal files from
disclosure). Accordingly, the EOUSA's application of Exemption (j)(2) to these files is
. 20
appropnate.
20Under FOIA, a plaintiff that has "substantially prevailed" is entitled to an award of fees
and costs incurred in litigating the case. See 5 U.S.C. § 552(a)(4)(E)(i). Plaintiff has not
"substantially prevailed," and, therefore, is not entitled to attorney's fees. Further, FOIA
does not award attorney's fees to a pro se non-attorney plaintiff. Benavides v. Bureau of
Prisons, 993 F.2d 257,260 (D.C. Cir. 1993); Strunkv. Us. Dep't of Interior, 752 F.
Supp. 2d 39, 45 (D.D.C. 2010). As to Plaintiffs other claims for damages and a finding
of arbitrary and capricious, they are unavailing.
23
CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendants' Motion for
Summary Judgment [#16] and DENIES plaintiffs Cross-Motion for Partial Summary
Judgment [#26]. An Order consistent with this decision accompanies this Memorandum
Opinion.
:z``
RICHA~ON
United States District Judge
24