Ortiz v. United States Department of Justice , 67 F. Supp. 3d 109 ( 2014 )

UNITED STATES DISTRIC'I`` COUR'I``
FOR TI~IE I)IS'I``RICT OF COLUMBIA
)
HERARDO ORTIZ, )
)
Plaintiff, )
)
v ) Civil Action No. 12~1674 (TFH)
)
UNITED STATES DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
This matter is before the Court on defendant’s Motion for Suriimary Judgment [ECF No.
22].1 For the reasons discussed below, the 1notion will be granted
I. BACKGROUND
Plaintiff brings this action under the Freedom of information Act ("FOIA"), see 5 U.S.C.
§ 552, against the United States Department of Justice ("DOJ") for the purpose of obtaining
information about his criminal case that puiportedly is maintained by the Drug Enforceinent
Admiiiistration ("DEA"). See Complaint for Declaratory and Injunctive Relief [ECF No. l]
1 The Court will deny plaintiff s Motion for Snminary Judgment Upon Defeiidant’s Failure to
Comply with This Court’s Order and Due Date to File An Aiiswei‘ to Plaintiff’ s Coinplaint [ECF
No. 26], and instead construe the submission, along with plaintiff s Arnended Response to
Defeiidant’s l\/lotion for Surnmary Judginent [ECF No. 27], as plaintiffs opposition to
Defendant’s Motion for Summary Judgnient and Aineiided Motion for Summary judgment [ECF
Nos. 22~23]. In addition, the Court will deny Defendant’s Amended Motion for Suininary
.ludgment {ECF No. 23]. its sole purpose apparently is to include an exhibit, a Vaugliii index, in
support of defendant’s motion. The Court will consider the exhibit (designated by the Couit as
"Pavlik~Keeiian Decl., Ex. C") together with the declaration of Catrina Pavlik~Keenan regarding
documents originating with U.S. immigration and Customs Enforcement.
l
("Compi.") 1§1] l-2, 4; l\/Iotion for Suminary Judgment Upon Defendant’s Failure to Cornply with
This Court’s Order and Due Date to File an Answer to Plairitiff’ s Complaint [ECF No. 26] at l.
A. DEA FOIA Request No. ]2-OOO38~P
In relevant part, plaintiffs request to the DEA read:
This is a non-cominercial request for information pursuant
to [the FOIA] for a copy of all records in the possession of [the
DEA] concerning specifically:
Mag. No. L~04-228 Tl\/I-Ol
DEA FILE NO.: M6-04-0273
DEA S/A RHUE DEA FORM 6
DATED: 03/12/2004
any other investigative reports filed by any other federal agent in
regards to United States v. Herardo Ortiz, Southem District of
Texas (Laredo Division), criminal case number: 5:08~0031-1[.]
Mernorandum in Suppoit of Defendant’s Motion for Surnrnary judgment [ECF No. 22-1]
("Def.’s Mem."), Declaration of Katherine L. Myrick ("Myricl< Decl."), Ex. A (Freedom of
Infonnation Act/Privacy Act Reqnest dated October 14, 201 l) at l. 'I``he DEA’s initial response
to the request was the release of 48 pages of records in part and the withholding of two pages in
full. Id. ‘|l 7; see ia'., Ex. C (Letter to plaintiff from Katherine L. l\/Iyrick, Chief, Freedom of
lnfoi“rnation/Privacy Act Unit, FOI/Records Mariagenient Section, DEA, dated June 21, 2012) at
2. The DEA also referred two pages of records to U.S. Imrnigration and Customs Enforcement
("ICE°’), z'd. ‘|l 9, and three pages to the Executive Offrce for United States Attorneys
("EOUSA"), id. ‘[[ 10, for direct responses to plaintiff
lu addition, the DEA forwarded 12 pages of records to the Bureau of Customs and Border
Protection ("CBP") ‘°as a consultation, for review and retum" to the DEA, and referred six
2
additional pages of records to the CBP for its review and direct response to plaintiff Ia’. ‘}l 8; see
ia'., Ex. D (Letter to Marl< Hanson, Director, FOIA Division, CBP from Katherine L. Myrick
dated .lune 21, 2012). The DEA informed plaintiff that he would be "notified if more material
[became] available for release pending results from the consultation." Id., EX. C at l.
The CBP returned to the DEA the twelve pages of records referred on June 21, 2012,
along with "{a]n additional four pages belonging to the Office of Border Patrol." Id., Ex. G
(Meinorandurn to Katherine L. Myrick from Dale G. Martin, Acting Director, FOIA Division,
Office of international Trade, CBP, dated July 13, 2012). The DEA, in turn, released to plaintiff
these 12 pages of records in redacted form, relying on FOIA Exemptions 6, 7(C), 'F(E) and '?(F).
Id. 1[ l2; see generally id., Ex. H (Letter to plaintiff from Katherine L. Myrick dated August l,
2012). With respect to the reinaining six pages of records, the CBP returned them to the DEA
rather than responding directly to plaintiff See Def’s Mem. at 2 n.3; Myrick Decl. 111 12~13; see
i``a'., Ex. H. These pages were included in the DEA’s .Tune 14, 2013 response to plaintiff See
Def.’s l\/Iem. at 2 n.3; l\/lyrick Decl. 11 13.
DEA staff determined that plaintiff s request "could be interpreted in several ways," for
example, as one for "a particular DEA Form 6 created on March 12, 2004, by DEA Special
Agent Rhue, under DEA file number M6~()4-0273 that was utilized in a court proceeding
assigned docket number Mag. No. L~()¢t~ZZS'IM-Ol."z Myrick Decl., Ex. l (Letter to plaintiff
from Williain C. Little, Senior Attorney, Administrative Law Section, Offlce of Cliief Counsel,
DEA, dated June l3, 2013) at l. However, "[s]ince DEA does not index records based upon a
eriiniiial case name or docket nurnber, Mag. No. L~04~2287M-0l {and] CR 5:08~0031-1 {were]
2 A DEA Form 6 is a Repoit of investigation ("ROI") and is "used by DEA to meinorialize
investigative and intelligence activities related to a law enforcement activity." Myrick Decl. il
29.
of no use in identifying investigative records[] or case flle(s) that would contain investigative
reports and documents that reference plaintiff." Id. 1 15. DEA staff initially treated plaintiffs
request as one for records within DBA lnvestigative Case File No. M6-04-0273 referencing
plaintiff by name. Icl., Ex. l at 2. In light of plaintiffs request for "any other investigative
reports filed by any other federal agent," DEA staff expanded the search to include "all
investigative reports maintained by DEA that referenced [plaintiff] by name." Ia'., Ex. l at 2.
On June 14, 2013, relying on FOIA Exemptions 3, 'J(C), ?'(D), 7(}3), and 'F(F), the DEA
released three pages in full, released 285 pages in part, and withheld 201 pages in full. Id. 1[ 13;
see generally id., Ex. I. A third release by the DEA resulted in disclosure of "portions of
materials numbered Page 34, Page 35, Page 53 and Page 57 . . . in further response to [his
FOIA] request dated October 14, 2011." Icl., Ex. J (Letter to plaintiff from William C. Little
dated February 5, 2014) at l. Certain information had been redacted under FOIA Exemptions
7(E) and 7(F). Id., Ex. .l at l.
B. Referral to the EOUSA (Request No. ]2-2 733-1€)
The EOUSA received the referral of three pages of records from the DEA on June 25,
2012, and on July 31, 2012, it released these pages in t``ull. Def.’s Mem., Declaration of John W.
Kornmeier 1[‘[[ 4-5.
C. Referral to ICE (Case No. 20]21*``01/115550)
Of the two pages of records referred by the DEA, ICE released both pages in part, relying
on FOIA Exemptions 6, 'I(C), and 7(13). Ia’., Declaration of Catrina l’avlik-Keenan ("Pavlik-
Keenan Decl.") 1111 6-7.
II. DISCUSSION
A. Surnmary Judgmeiit in a FOIA Case
FOIA cases typically are resolved on a motion for summary judgment. See, e.g., Citlzens
for Responsibillty and Etlzies in Washington v. US. Dep ’l of.fustice, _ F. Supp. 2d W_H, _w, 2014
WL 2604640, at *2 (D.D.C. .lune ll, 20l4) (citations omitted). The Court grants suinmary
judgment if the movant shows that there is no genuine dispute as to any material fact and that it
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a FOIA case to compel
production of records, the agency "is entitled to summary judgment if no inaterial facts are in
dispute and if it demonstrates ‘that each document that falls within the class requested either has
been produced . . . or is wholly exempt from the [FOIA’s] inspection requirements."’ Sz'uclents
Agairist Genocide v. Dep ’t ofSrate, 257 F.3d 828, 833 (D.C. Cir. 200l) (quoting Golaiicl v. Cent.
Iritellz``gence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). Surnrnary judgment may be based
solely on information provided in an agency’s supporting affidavits or declarations as long as
they are relatively detailed and 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 for] by
evidence of agency bad faith." Military Aucllt Project v. Casey, 656 F.Zd 724, 738 (D.C. Cir.
1981).
B. The DEA ’s Searclz for Responsive Records
"'l``he adequacy of an agency’s search is ineasured by a standard of reasonableness . . .
and is dependent upon the circumstances of the case." Wez'sberg v. U.S. Dep ’: of Justlce, 705
F.2d 1344, 1351 (D.C. Cir. 1983) (intemal quotation marks and citations omitted). An agency
must "dernonstrate beyond material doubt that its search was ‘reasonably calculated to uncover
all relevant documents."’ Valeneia-Luceaa v. U.S. Coast Guai~d, 180 F.3d 321, 325 (D.C. Cir.
1999) (quoting Trui'tr v. Dep’z.‘ ofStai‘e, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency may
submit affidavits or declarations that explain in reasonable detail the scope and method of its
search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). "The issue is not whether any
further documents might conceivably exist but rather whether the governments search for
responsive documents was adequate." Id. at 128.
The DEA’S declarant explains that the "[c]rizninal investigative files maintained by DEA
about individuals . . . of investigative interest are reasonably likely to be found in the DEA
investigative Reporting and Filing System (‘IRFS’)." l\/lyrick Decl. 1 20. lRFS "contains all
adrninistrative, general and investigative files compiled by DEA for law enforcement purposes.”
Icl. 1 2l. investigative case files maintained therein include "{a]ll information compiled during
the course of a DEA investigation" relating to either the case subject or to "other individuals . . .
suspected of engaging in criminal activity in association with the subject of the file." Icl. The
DBA office commencing an investigation establishes the investigative case file, and its title is
"the name of the principal suspect violator or entity known to DEA at the time the file is
opened." Id. 1 22.
"NADDIS is the index to and practical means by which DEA retrieves investigative
reports and information from IRFS." Id. 124. An individual is "indexed and identified iii
NADDIS by [his] name, social security number and/or date of birth." Icl. 1 25. A NADDIS
query generates "a list of investigative file nurnber(s) and particular DEA Report[s] of
investigation . . . or other documents by date regarding a particular individual or entity." Id. 1
24.
59
The DEA initially construed plaintiffs FOIA request as one "not seeking a single report,
but instead "seeking all criminal investigative records that referenced plaintiffs name contained
in DEA Investigative Case File No. M6~04~0273." Myricl< Decl. 1 15. Staff then conducted a
search of that investigative file "for all reports and documents that referenced plaintiffs nairie."
Ial. 1 16. Subsequently, using plaintiff s name, date of birth and social security number as search
terrns, DEA staff queried NADDlS and identified "four . . . investigative case files, including
DEA investigative Case File No. M6-04-0273, that could contain reports and other documents
referencing plaintiff." Icl. 1 l'l. A search of investigative Case File No. l\/l6-04-0273 yielded 73
pages of records. Ia’. 1 18.
As litigation progressed, "it was noted that plaintiff s FOIA request sought ‘any other
investigative reports filed by any other federal agent."’ ld. 1 19. His request then was construed
as one "seeking all investigative reports maintained by DEA that referenced [hirn] by name." Id.
Staff searched the three remaining investigative files and located an additional 489 pages of
potentially responsive records. Icl.
l’laintiff’s opposition to defendant’s motion is silent as to the adequacy of the DEA’s
search for responsive records, see generally Am. Resp. to Def.’s Mot. for Summ. J. {ECF No.
27}, and therefore lie failed to demonstrate the existence of a genuine issue of material fact as to
the search. Upon review of defendant’s subinission, the Court concludes that the DEA
conducted a reasonable search for records responsive to plaintiffs FOIA request.
C. Exeinpti'oiis
l. Exemption3
FOIA Exemption 3 protects records that are "specifically exempted from disclosure by
statute" if the statute either "(A)(i) requires [withholding] from the public in such a manner as to
leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and (B) if enacted after the date of enactment of the
OPEN FOIA Act of 2009, specifically cites to this paragraph." 5 U.S.C. § 552(b)(3).
Among the records deemed responsive to plaintiff s FOIA request is a "Zl~page teletype"
that included "information obtained from systems maintained by the United States Departnieiit of
the Treasury, Financial Crimes Enforcement Network (‘FinCEN’) and information derived from
records filed pursuant to the Bank Secrecy Act, Titles 1 and ll of Public Law 91~508, as
amended, codified at 12 U.S.C. § 1829b, 12 U.S.C. §§ 1951-1959, and 31 U.S.C. §§ 5311-5332
(‘BSA’)." Myrick Decl. 1 48. The declarant explains that FinCEN’s responsibilities include
implementation of the BSA, which among other things authorizes the Secretary of the Treasury
to issue regulations "requiring financial institutions to keep records and file reports . . .
determined to have a high degree of usefulness in criminal, tax, and regulatory iriatters." Ial. 1
49. In addition, Treasury "implernent[s] anti-inouey laundering programs and compliance
procedures." Ia’. FinCEN "uses the information collected under the BSA, as well as information
derived from commercial and law enforcement databases, to support law enforcement
investigations." Icl. Reports collected by FinCEN include Cuireiicy Transaction Reports
("CTRs") and Suspicious Activity Repoits ("SARs"). I¢l. 1 50. The teletype at issue "was
derived from CTRs and SARS." Id.
The declarant explains that C'I``Rs, which are filed by banks, casinos, and other financial
institutions pursuant to regulations promulgated under 31 U.S.C. § 5313, report currency
transactions of more than $10,000. l\/lyrick Decl. 1 51. SARs, which are filed by financial
institutions among others pursuant to regulations promulgated under 31 U.S.C. § 53l8(g)(l),
report "any suspicious transaction relevant to a possible violation of a law or regulation." Id.
Generally, neither a financial institution nor the government may reveal to anyone involved in a
transaction that a SAR has been filed Id. 11 52. However, the declarant states, under 31 U.S.C. §
5319, BSA reports are made “available to governmental entities . . . to support . . . criminal . . .
investigations and proceedings." Id. ‘l[ 53.
Under 31 U.S.C. § 5319, the declarant explains, "a [BSA] report and records of reports
are exempt from disclosure under [5 U.S.C. § 552]." Ia’. 11 55. Pursuant to this authority, a
FinCEN regulation, see 31 C.F.R. 103-54, "specitically exempt[s] BSA records from FOIA
disclosure." Myrick Decl. 11 55. For this reason, the DEA withholds the 2l1-page teletype in hill
under FOIA Exemption 3 in conjunction with 3l U.S.C. § 5319 and 31 C.F.R. § 103.54. Id. 11
56. Plaintiff does not oppose this argument.
The Court concludes that the teletype is properly withheld under Exemption 3 because it
is derived from reports generated pursuant to the Bank Secrecy Act, and the Act deems such
reports exempt from disclosure under the FOIA. See Rosertberg v. US. Dep ’t Qflmmigratiorz &
Cusz‘oms Enforcement, _ F. Supp. 2d _, _, 2014 WL 413569, at *13 (D.D.C. Feb. 3, 2014)
(withholding reports created pursuant to the BSA); Marcusse v. US. Dep ’t of Justice, 959 F.
Supp. 2d 130, 143 (D.D.C. 2013) (Withholding by the FBI of "infonnation obtained through the
BSA during the course of its criminal investigative activities"); Berger v. Internal Revenue Sei'i».,
487 F. Supp. 2d 482, 496 (D.N.J. 2007) (finding that information "derived or extracted directly
9
from {BSA] reports" was properly withheld under FOIA Exernption 3), cr_ff’d, 288 F. App’x 829
(3d Cir. 2008), cert dem``ed, 557 U.S. 903 (2009).
2. Exeinption 7
a. Records Cornpiled for Law Enforcement Puiposes
Exernption 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. See 5 U.S.C. § 552(b)(7); Fea’. Bureau oflnvestigation v. Abramson, 456 U.S.
615, 622 (1982). "To show that the disputed 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." Blackwel! v. Fed. Bureau of Investigation, 646
F.3d 37, 40 (D.C. Cir. 201 i) (internal quotation marks and citations omitted).
The DEA’s declarant explains that the agency’s "investigative jurisdiction derives from
the Cornprehensive Drug Abuse Prevention and Control Act of 1970 . . . which authorizes DEA
to . . .investigat[e] incidences involving the trafficking in controlled substances, dangerous drugs
and precursor chemicals and the violators who operate at interstate and international levels," and
to "exchange . . . information in support of drug traffic prevention and control." Myrick Decl. ‘il
57. Records responsive to plaintiffs FOIA request "arc criminal investigative records . . .
compiled during criminal law enforcement investigations of the plaintiff and several third
parties." Id. ‘[l 58.
lCE’s declarant explains that the entity "is charged with the administration and
enforcement of laws relating to the immigration and iiaturalization of aiiens," and in its
10
investigative capacity, it "is responsible for identifying and eliminating vulnerabilities within the
nation’s borders." Pavlik-Keenan Decl. ‘|l 22. "ICE is tasked with preventing any activities that
threaten national security and public safety by investigating the people, nioney, and materials
that support illegal enterprises." Id.
It is apparent froin the DEA’s and ICE’s declarations and from the nature of the FOIA
request itself that the responsive records were cornpiled for law enforcement purposes. 'l``hus, the
defendant easily meets its initial burden by establishing that the records at issue are law
enforcement records for purposes of FOIA Exemption 7.
b. Exemption 7(C)
FOIA Exemption '/'(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)(’f)(C). ln determining whether this exemption applies to particular material, the
Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Am. Civz'l Liberties Unz``on v. U.S. Dep ’t of Justice, 655 F.3d l,
6 (D.C. Cir. 201 l) ("In deciding whether the release of particular information constitutes an
unwarranted invasion of privacy under Exemption 7(C), we must balance the public interest in
disclosure against the [privacy} interest Congress intended the Exemption to protect.") (internal
quotation marks and citation omitted). "On one side of the scale, the exemption protects the
privacy interests of all persons mentioned in law enforcement records, whether they be
investigators, suspects, witnesses, or infonnants." Sussmarz v. US. Marshals Serv., 494 F.3d
1106, 1115 (D.C. Cir. 2007). On the other side is the public interest in disclosure, see id., and
"{i]t is well established that the only public interest relevant for purposes of Exeinption 'F(C) is
ll
one that focuses on the citizens’ right to be informed about what their government is up to."
Davis v. U.S. Dep’t ofJustz'ce, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (citing U.S. Dep ’t of.fustz'ce
v. Reporters Cornm. for Freedom of the Press, 489 U.S. 749,7'73 (1989) (additional citations
omitted).
r. peril
The DEA withholds the names of and identifying information about third parties "who
were involved or associated with plaintiff and a law enforcement investigation," that is, “law
enforcement personnel, suspects, co-defendants, witnesses, potential witnesses and confidential
sources." Myrick Decl. ‘{160.
With respect to the "DEA Special Agents, DEA laboratory personnel, and other Federal
law enforcement ofiicers," the declarant explains that "undue invasions of privacy, harassment
and humiliation" would result "from disclosure of their identities in the context of a criminal law
enforcement investigation." Id. il 63. She further explains that the Special Agents, laboratory
personnel and other federal law enforcement officers "were assigned to handie tasks relating to
the official investigation into the criminal activities of the plaintiff and other individuals." Id. il
3 The DEA "withhold[s] the names and identities of third-parties or information that would
disclose the identity of a confidential source" under FOIA Exemption 7(F) in conjunction with
FOIA Exemption 7(C) or 7([)). Myrick Decl. il 82. The declarant explains that, according to
DEA reports, plaintiff and his associates "were involved in instances of violence in connection
with their illicit trafficking in drugs." Id. 11 84. in light of this activity, and plaintiff s conviction
of "offenses surrounding the importation of marijuana across the Mexican border with the United
States, the agency deems it to be °‘reasonably anticipated that, if through the FOIA, the identity
of any third-party, DEA agent or a confidential source was disclosed, [that] individual, [his or
her] family members or associates could [suffer] serious injury or death." Id. This explanation
by itself justifies the decision to withhold information under FOIA Exeinption 7(F). I-Iowever,
because the Court concludes that the same information properly is withheld under FOIA
Exemptions ?(C) and 'IF(D), the Court need not discuss FOIA Exemption 7(F) further. See lioth
v. U.S. Dep’t of.faslz``ce, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
12
64. These third parties "were, and possibly still are, in positions of access to information
regarding official law enforcement investigations," and if their identities were disclosed, "they
could become targets of harassing inquires for unauthorized access to information pertaining to
ongoing and closed investigations." Id. The DEA finds no "discernible public interest in
disclosure of the individuals’ identities . . . that would outweigh the privacy interests of any third
party." Id.1l62.
a rent
ICE’S declarant describes the two pages of records referred by the DEA as "records . . .
pertain[ing] to the investigation of [p]laintiff’s removal procedures." Pavlik-Keenal Decl. ‘|] 22.
Withheld from these pages are the name and telephone number of a law enforcement officer. Ia'.
111 18, 24. The declarant explains that, if the officer’s identity were released, he or she "could
become {a] target[] of harassing inquires for . . . access to information regarding ongoing or
closed investigations." Id. 11 24. For cxample, disclosure of the officer’s identity to "individuals
who are of interest to the law enforcement agency or [who] oppose the agency’s law rnission"
could "trigger reprisals [or] harassment" or could "otherwise interfere with the [officer’s]
performance of {his or her] duties." Id. This individual’s privacy interest, the declarant states,
"clearly outweighs any minimal public interest in the disclosure,” id., because "disclosurc of [his
or her identity] would not inform the public about ICE’s performance of its mission . . . or how
ICE actually conducts its internal operations and investigations," z``d. il 25.
4 ICE withholds the name and phone number of a law enforcement officer under FOIA
Exeinption 6 in conjunction with FOIA Exernption ")'(C). See Pavlik-Keenan Decl. 111 18~22.
The Court concludes that the information falls under the scope of Exemption 7(C), and therefore
will not consider the applicability of Exemption 6. See Roth, 642 F.3d at 1l73.
13
"Exemption 7(C) recognizes that the stigma of being associated with any law
enforcement investigation affords broad privacy rights to those who are connected in any way
with such an investigation unless a significant public interest exists for disclosure." Shapiro v.
Dep’t o_f.}ustz``ce, ____ F. Supp. 2d _, _, 2014 WL 1280275, at *3 (D.D.C. Mar. 31, 20l4)
(citations omitted); see Sterrz v. Fea’. Bureau oflnvestigation, 737 F.2d 84, 91-92 (D.C. Cir.
1984) (noting that "individuals have a strong interest in not being associated unwarrantedly with
alleged criminal activity."). Accordingly, "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.°’ Sa_;%Card Servs., Irzc. v. Sec. & Exch. Comra ’n, 926
F.2d 1197, 1206 (D.C. Cir. 1991). Here, plaintiff fails to discuss the exemption, let alone offer
any evidence of agency misconduct. Nor does plaintiff demonstrate a public interest of
sufficient magnitude to outweigh the recognized privacy interests ofthe individuals identified in
the responsive records. The Court therefore concludes that the names of and identifying
information about third parties is properly withheld under FOIA Exemption '/(C).
c. Exemption 7(1))
FOIA Exemption "I(D) protects from disclosure those records or information compiled
for law enforcement purposes that:
could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which 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 or by an agency conducting a lawful
national security intelligence investigation, information furnished
by a confidential source.
l4
5 U.S.C. § 552(b)(7)(l)). 'l``here is no general "presumption that a source is confidential within
the meaning of Exernption 7(1``)) whenever the source provides information [to a law enforcement
agency] in the course cfa criminal investigation." U.S. Dep ’t of justice v. Landano, 508 U.S.
165, 181 (l993). 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]xemptiori 'I"(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. Fed. Bureau of
Investigatz'orz, 69 F.3d ll55, 1159 (D.C. Cir. 1995) (internal quotation marks and citation
omitted)).
DEA invokes FOIA Exemption '!(D) to protect "source-identifying and source-supplied
investigative infonnation," that is, "information and reports that would disclose the identity of
and the information provided by an individual who would be considered a confidential source."
Myrick Decl. 11 66. According to the declarant, information provided by the informant or
informants "could subject them, their family members and associates to serious harm, substantial
repercussions, and possibly even dcath." Ia'. 11 68.
Because "it could not be ascertained that a source . . . expressly [had been] made a
promise of confidentiality," the DEA asserts that the confidential source(s) supplied infonnation
under circumstances from which an assurance of confidentiality is implied, Id. 11 70. The
declarant explains that "[p]laintiff was convicted of offenses surrounding the importation of
inarijuarra across the Mexicarr border with the United States," and in the DBA’s experience,
"violence is inherit in the illicit trafficking in marijuana and other drugs coming into the United
States from Mexico and other countries." Ia’. 11 71. "ln this case, reports show that associates of
plaintiff were involved in instances of violence and [that] the individuals [who] provided
15
information had knowledge [indicating] a close connection with the drug trafficking." Id.
Accordingly, the declarant avers that, "[u}nder these circumstances it was presumed that the
individuai(s) would not have provided the information unless he (or they) believed that the
information and his identity (or their identities) would be held in confidence and not released to
plaintiff or the public." Id. {[ 72. The Court concurs. See, e.g., Stephens v. Dep ’t of Justice, _
F. Supp. 2d m_, m, 2014 WL 1015803, at *8 (D.D.C. Mar. 18, 2014) (withholding information
about third-party sources who provided detailed information to the FBI about requester and other
suspects involved with a "violent street gang").
d. Exemption '!(E)
FOIA Exemption '?’(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). "The first clause of Exemption '7(E) affords
‘categorical’ protection for ‘techniques and procedures’ used in law enforcement investigations
or prosecutions." Pub. Emps. for Envrl. Responsibility v. US. Sectz'on Int’l Boundary & Water
Cornm ’11, No. ll-cv-26l, 2012 WL 933 709, at *l6 (D.D.C. Mar. 20, 2012) (citing Showing
Am'mals Respect and Kindness v. U.S. Dep ’t of Inrerior, 730 F. Supp. 2d 180, 199-200 (D.D.C.
2010)). "Exemption 'F(E)’s second clause separately protects ‘ guidelines for law enforcement
investigations or prosecutions if {their] disclosure could reasonably be expected to risk
circumvention of the law."’ Id. at *l6 (quoting 5 U.S.C. § SSZ(b)('/')(E)). D.C. Circuit
precedent "sets a relatively low bar for the agency to justify withholding" information under
FOIA Exemption 7(E). Biackwell, 646 F.3d at 42. The exemption allows for withholding
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information "not just for circumvention of the law, but for a risk of circumvention; not just for an
actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or
universally expected risk, but for a reasonably expected risk; and not just for certitude of a
reasonably expected risk, but for the chance of a reasonably expected risk." Id. (quoting Mayer
Browrz LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
i. DEA
The DEA withholds Geographical Dru g Enforcement Program ("G-DEP") and Narcotics
and Dangerous Drug ("NADDIS") violator identiiicr codes under FOIA Exeinption 7(E).
l\/lyrick Decl. 1 75. The declarant explains that G-DEP codes are assigned to all DEA cases at
the time the case file is opened and indicate the classification of the violator(s), the types and
amount of suspected drugs involved, the priority of the investigation and suspected location and
scope of criminal activity." Id. il 78. "NADDIS numbers are multi-digit numbers assigned to
drug violators and suspected drug violators known to DEA and entities that are of investigative
interest." Id. ‘|l 79. Each NADDIS number is unique to a particular violator. Ia’. if the DEA
were to release G-DEP codes, the declarant states, "[s]uspects could decode . . . inforination" to
"identify priority given to narcotic investigations, types of criminal activities involved, and
violator ratings," and thus "change their pattern of drug trafficking in an effort to . . . avoid
detection and apprehension." Id. il 80. Disclosure of NADDIS numbers and informant identifler
codes, which "are unique and personal to the individual to whom the number applies, . . . could
allow violators to avoid apprehension[] and could place law enforcement personnel in danger,
since the details of many aspects of a DEA investigation would be disclosed." Id. 11 Sl.
Disclosure of “details of DEA investigations" would make violators "aware of how to respond in
different situations where detection and/or apprehension are eminent [sic}." Id.
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The Court concludes that this type of information properly is withheld under FOIA
Exernption '/'(E). See Adioizsei' v. Dep ’t of Justfce, No. l()~27, 2014 WL 12848()4, at *l (D.D.C.
Mar. 28, 2014) (withholding G-I)EP codes under FOIA Exemption 'F(E))§ Mi``ller‘ v. US. Dep ’t of
Justice, 872 F. Supp. 2d l2, 28~29 (D.D.C. 2012) (witliholding NADDIS numbers and TECS
numbers under FOIA Exemption 7(E)).
The DEA also withholds under Exernption 'I"(E) "inteinal DEA and other agency
telephone numbers.” Myrick Decl. 11 74. These telephone numbers are assigned to DEA
ernployees, and their release to the public "could enable violators to identify law enforcement
personnel, disrupt official DEA business, subject DEA employees to harassing phone calls and
cause interference with the DEA internal communications network." Id. This too, is information
properly withheld under FOlA Exemption 7(E). See Light v. Dep ’r of.fustz'ce, 968 F. Supp. 2d
ll, 29 (D.D.C. 2013) (withholding "internal nonpublic telephone numbers and web site
addresses used frequently by [FBI] personnel to exchange investigative inforniation").
:``i. ICE
Under FOIA Exemption 'F(E), ICE withholds "investigative techniques and procedures
including: external system identification numbers, and other law enforcement agency database
case nuinbers, or identifiers, means of access to iiitra-ageiicy databases to include case file
numbers, event numbers, intemal codes, computer function coniniands, identification numbers,
and other law enforcement codes and 1iumeric references." Pavlik-Keenan Decl. 1[ 27. If this
information were disclosed - specifically information from TECS - one could obtain information
l8
from other law enforcement agencies.$ Ia.'. ‘ll 28; see id., Vaughn index (applying Exemption
'Z'(E) "to protect from disclosure TECS/SECATS Record Identification Number, case number,
TECS/SECATS access codes, and program codes in . . . database recording a law enforcement
investigation). The declarant explains:
'l``ECS interfaces with many databases belonging to other
federal law enforcement agencies. information from other federal
law enforcement databases are communicated to ICE law
enforcement officials through TECS. The codes ICE officers use
contain law enforcement information such as law enforcement
personnel identifying number codes and query codes.
Law enforcement database codes, to include administrative
and computer codes, serve a dual purpose. The codes are not only
used for the purposes of indexing, storing, locating, and retrieving
information, but also serve to provide information about an
investigation. Specifically this information could identify the type
and location of the case, the scope and size of the investigation
regarding agency resources utilized for the investigation, type of
activity under investigation, and location of investigative efforts
These codes and case numbers continue to be used in other
ongoing investigations thus relaying the scope of the investigation.
Additionally, this information could also be used by persons
seeking improper access to law enforcement data to decipher the
meaning of the codes, navigate the law enforcement system and
compromise the integrity of the data either by deleting or altering
inforination. The quality and quantity of information contained in
these records, if disclosed, could impede ongoing investigations . .
These techniques involve cooperative arrangements
between ICE and other agencies and inter-agency communications
prompting specific actions on the part of agency employees The
disclosure of these techniques and methods could adversely affect
future investigations by giving potential subjects of investigations
the ability to anticipate the circumstances under which such
techniques could be employed in investigations where they may be
subjects, and identify such techniques as they are being employed
in order to either obstruct the investigation or evade detection from
5 "TECS, formerly known as the Treasury Enforcement Communication System," is the system
from which information in the relevant two-page document was obtained. Pavlik-Keenan Decl.
9. The declarant describes SEACATS as the Seized Assets and Case Tracking System. Id. ‘[[ 12
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law enforcement officials. The particulars of the techniques at
issue are not well known to the public. Additionally, the
disclosure of this information, if used to obstruct the law
enforcement investigation or operation, could possibly place law
enforcement personnel and innocent bystanders in physical danger.
Id. i|il 28-30. According to the declarant, "[t}he disclosure of this information serves no public
benefit and would not assist the public in understanding how the agency is executing its statutory
responsibilities." Io,'. il 29. These are the types of information contemplated by the exemption,
and the Court concludes that it properly is withheld under Exemption 'F(E). See Strunk v. U.S.
Dep ’t of State, 905 F. Supp. 2d 142, 147~49 (D.D.C. 20l2) (withholding information about
TECS system and operating programs under Exemption ”/(E)); Ski'nner v. US. Dep ’r of.fustice,
893 F. Supp. 2d 109, 113 (D.D.C. 20l2) (withholding TECS computer access codes); Blooiner v.
US. Dep ’t of Homeland Sec., 870 F. Supp. 358, 369 (D. Vt. 2012) (withholding "van'ous codes
and case iiumbers," including TECS information, under Exemption '7(E)).
D. Segregobili``ry
The FOIA requires that "any reasonably segregable portion of a record shall be provided
to [the requester] after deletion of the portions which are exempt." 5 U.S.C. § 552(b). Stated
differently, all "non~exeinpt portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions." Mead Data Cenr., Inc. v. U.S. Dep ’r office Az``r
Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “So important is this requirement that ‘[b]efore
approving the application of a FOIA exeinption, the district court must make specific findings of
segregability regarding the documents to be withheld."’ Elec. Froiztier' Found. v. Dep ’t of
Justz``ce, 826 F. Supp. 2d 157, 173 (D.D.C. 201 l) (quoting Sussman, 494 F.Sd at ll06)).
'l``he DEA’s declarant states that "[a]ll of the responsive information was examined to
determine whether any reasonably segregable information could be released." Myrick Decl. il
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85. She explains that pages were withheld in full only where the release of any information "(l)
would result iii the disclosure of no useful inforination, or incomp{ehensible words and/or
phrases . . . , (2) could result in compromising the identity of and information provided by
sources” who provided information under an implied assurance of confidentiality, or "(3) would
be an unwarranted invasion of personal privacy when balanced against the public interest in the
release of information gathered during the course of a criminal investigation." Io'. And ICE’s
declarant avers that she has "reviewed each record line-by-line," Pavli``k-Keenan Decl. il 32, and
has determined that "all information not exempted f``rom disclosure to the FOIA . . . was correctly
segregated and non-exempt portions were released,” ia'. ii 34.
Based on defendant’s supporting declarations and the Vaughn indices, see generally
Myrick Decl., Ex. K; Pavlik-Keenan Decl., Ex. C, the Court concludes that all reasonably
segregable information has been disclosed to plaintiff See Abde.lfattah v. U.S. Immigrai.‘ion &
Customs Enforcement, 851 F. Supp. 2d l41, 146 (D.D.C. 2012) (supplying an affidavit stating
that documents were reviewed line-by-line, a sufficiently detailed Vaughn index, and
declarations to explain why each document was properly withheld meets agency obligation
regarding segregability)
III. CONCLUS lON
The Court concludes that the DEA conducted a reasonable search for records responsive
to plaintiff s FOIA request, that the DEA and ICE properly withheld information under FOIA
Exemptions 'F(C), 7(D), and '7(E), and that these components have released all segregable
information. Defendant thus demonstrates its compliance with the FOlA, and its motion for
summary judgment will be granted. An Order accompanies this Memoranduin Opinion.
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