Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 67 F. Supp. 3d 290 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
SEAN DARNELL FOWLKES, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0122 (RC)
)
BUREAU OF ALCOHOL, TOBACCO, )
FIREARMS AND EXPLOSIVES, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the parties’ cross-motions for summary judgment.
For the reasons discussed below, defendants’ motion will be granted in part and denied in part,
and plaintiff’s motion will be denied. 1
I. BACKGROUND
Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5
U.S.C. § 552, in an effort to obtain records maintained by the Executive Office for United States
Attorneys (“EOUSA”), the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), and
the Drug Enforcement Administration (“DEA”), all components of the United States Department
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Plaintiff’s motion for summary judgment will be denied, and instead it is construed as his
opposition to defendants’ motion for summary judgment. His motion for discovery is meritless
and it will be denied.
1
of Justice (“DOJ”). See generally Amended Complaint for Declaratory and Injunctive Relief
[ECF No. 40] (“Am. Compl.”) at 2-8.
A. Requests to the Executive Office for United States Attorneys
1. FOIA No. 12-1689
In relevant part, plaintiff’s first FOIA request to the EOUSA stated:
I’m requesting a copy of the indictment and or complaint and
arrest warrant with attached affidavits filed on May 5, 2009 as to
case 1:09-CR-00244-CCB in the United States District Court for
the District of Maryland Northern Division [including] but not
limited to those items. Please confirm or deny the existence of
those items named. Also please comply with the provision of
Federal Rule[] of Criminal Procedure 49.1 of those materials that
are exempt from redaction.
Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary
Judgment [ECF No. 9-2] (“Defs.’ First Mem.”), Declaration of David Luczynski (“First
Luczynski Decl.”), Ex. A (Freedom of Information and Privacy Act Request dated March 30,
2012). The EOUSA processed his request and released 20 pages of records in full. First
Luczynski Decl. ¶ 9. In addition, the EOUSA referred “a number of pages” to the DEA, the
component where they originated, id. ¶ 9, for the DEA’s direct response to plaintiff, see id., Ex.
F (Letter to plaintiff from Susan B. Gerson, Assistant Director, Freedom of Information &
Privacy Staff, EOUSA, dated August 16, 2012).
2. FOIA No. 12-5244
Plaintiff’s next FOIA request to the EOUSA sought grand jury information:
[D]isclosure of the dates that grand jury #2010R00536 convened
pertaining to criminal no. 1:09-CR-00244-CCB in the United
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States District Court for the District of Maryland Northern
Division including the starting and ending dates of its term.
Memorandum of Points and Authorities in Support of Defendants’ Renewed Motion for
Summary Judgment [ECF No. 42-2] (“Defs.’ Second Mem.”), Third Declaration of David
Luczynski (“3d Luczynski Decl.”), Ex. A (Freedom of Information and Privacy Act Request
dated August 23, 2012). The EOUSA released one page in part, after having redacted
information pursuant to Exemptions 3 and 7(C). 3d Luczynski Decl. ¶ 7; see id., Ex. D (Letter to
plaintiff from Susan B. Gerson dated March 29, 2013) at 1.
3. FOIA No. 13-755
In his third FOIA request to the EOUSA, plaintiff sought the following information:
[D]isclosure of the dates that grand jury #2010R00518 convened
pertaining to criminal no. 1:10-CR-00332-CCB in the United
States District Court for the District of Maryland Northern
Division including the starting and ending dates of its term, the
date the indictment was returned, [the] date the grand jury was
discharged, the name of the judge who summoned the grand jury
and a certified copy of the minute entries.
Defs.’ Second Mem., Second Declaration of David Luczynski (“2d Luczynski Decl.”) ¶ 4; see 2d
Luczynski Decl., Ex. A (Freedom of Information and Privacy Act Request dated February 4,
2013). The EOUSA released “the dates relevant to the grand jury,” id. ¶ 9, and otherwise denied
the request pursuant to Exemption 3:
With respect to your request for Grand Jury information No.
2010R00518 pertaining to Criminal Case No. 1:10-CR-00332-
CCB in the United States District Court for the District of
Maryland, Northern Division, we are providing the following: 1)
that Grand Jury began on January 6, 2009 and ended on June 29,
2010, 2) the Grand Jury in question was the Tuesday Grand Jury,
January 2009 term, 3) the remaining portion of your request has
been denied in full pursuant to FOIA Exemption [3].
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Id., Ex. F (Letter to plaintiff from Susan B. Gerson dated September 25, 2013).
4. FOIA No. 13-1128
Plaintiff’s fourth FOIA request to the EOUSA sought the following information:
[D]isclosure of the dates that grand jury #2010R00536 issued the
indictments and superseding indictments pertaining to criminal no.
1:10-CR-00244-CCB Filed in the United States district court for
the district of Maryland Northern Division including the name of
the judge who summoned the grand jury, whether it was
summoned pursuant to F. R. Crim. P. 6(a) or 18 USC 3331[,] and
the certified letter requesting the special grand jury, the date the
grand jury was discharged, the caption of the indictment and
superseding indictments, and a certified copy of the minute entries.
2d Luczynski Decl., Ex. G (Freedom of Information and Privacy Act Request dated March 12,
2013). The EOUSA “provided [plaintiff with] the dates relevant to the grand jury,” and
otherwise denied the request pursuant to Exemption 3. Id. ¶ 15; see id., Ex. L (Letter to plaintiff
from Susan B. Gerson dated September 25, 2013).
B. Request to the Bureau of Alcohol, Tobacco, Firearms and Explosives
Plaintiff allegedly sent FOIA requests to the ATF on March 29, 2012 and August 28,
2012. Am. Compl. at 2. The ATF did not receive these requests, however, and instead it treated
plaintiff’s Amended Complaint as if it were a FOIA request. See Defs.’ First Mem, Declaration
of Stephanie M. Boucher (“Boucher Decl.”) ¶¶ 5-7 & n.1. Plaintiff sought:
The criminal investigative File and or complaint in reference to
criminal no. 1:10-CR-00332-CCB-1 in the United States District
Court for the District of Maryland Northern Division oc[c]urring
on 5/6/2009 and any subsequent date after in connection with
Firearm 357 Magnum revolver, model GP-100, serial no. 170-
50376, all tangible and nontangible records, Typed notes,
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handwritten notes, reports, pictures, video recordings, affidavits
but not limited to these materials.
Am. Compl., Ex. A-1 (Freedom of Information and Privacy Act Request dated March 29, 2012).
Responsive records were found in Criminal Investigatory File No. 761015-09-0110. Boucher
Decl. ¶ 25. Plaintiff’s request was granted in part, and the ATF released records which had been
redacted under Exemptions 3, 7(C), and 7(E). Id. ¶ 8. In addition, the ATF referred 10 pages of
documents to the DEA, the component where they originated, for the DEA’s direct response to
plaintiff. Id. ¶ 9.
C. Referrals to the Drug Enforcement Administration
1. DEA FOIA Request No. 12-00185-PR
From the EOUSA, the DEA received 48 pages of records. Defs.’ Second Mem.,
Declaration of Katherine L. Myrick (“Myrick Decl.”) ¶ 3. 2 Of these pages, the DEA released 12
pages in part and withheld 36 pages in full. Myrick Decl. ¶ 4. It relied on Exemptions 3, 7(C),
7(D), 7(E) and 7(F). Id.; see id., Ex. B (Letter to plaintiff from Katherine L. Myrick, Chief,
Freedom of Information/Privacy Act Unit, FOI/Records Management Section, DEA, dated
December 26, 2012) at 2.
2
According to plaintiff, because the DEA is not a party to this action, the declaration of
Katherine L. Myrick should be stricken. See Motion to Strike [ECF No. 48] at 1. Even though
plaintiff did not submit a FOIA request directly to the DEA, the EOUSA and the ATF are
obligated to account for the responsive materials located in their records, even if the decision to
release or withhold information is left to the component where those records originated. See
Williams v. FBI, No. 92-5176, 1993 WL 157679, at *1 (D.C. Cir. May 7, 1993) (per curiam)
(remanding case in order that FBI justify withholding a document referred to DEA for its direct
response to requester); Plunkett v. Dep’t of Justice, 924 F. Supp. 2d 289, 305 (D.D.C. 2013)
(noting that agency “is ultimately responsible for processing responsive records in its custody
and control at the time of the FOIA request”). Plaintiff’s Motion to Strike will be denied.
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2. DEA FOIA Request No. 13-00099-PR
The ATF referred 10 pages of records to the DEA. Id. ¶ 5. The DEA withheld six
pages in full pursuant to Exemptions 7(C), 7(E), and 7(F). Id. ¶ 6; see id., Ex. D (Letter to
plaintiff from Katherine L. Myrick dated July 1, 2013) at 2. Four additional pages were withheld
in full because the DEA already had processed them in response to a prior request, DEA FOIA
Request No. 10-00928-P. Id. ¶ 6. Subsequently, the DEA released additional portions of page
46, which it previously had released in part, and released portions of page 9, which it previously
had withheld in full. Id. ¶ 7; see id., Ex. E (Letter to plaintiff from Katherine L. Myrick dated
November 14, 2013).
II. DISCUSSION
A. Summary Judgment in a FOIA Case
The Court grants summary 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 action to compel production of agency records, the agency “is entitled to
summary judgment if no material facts are in dispute and if it demonstrates ‘that each document
that falls within the class requested either has been produced . . . or is wholly exempt from the
[FOIA’s] inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828,
833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
Summary judgment may be based solely on information provided in an agency’s
supporting affidavits or declarations if they are relatively detailed and when they describe “the
documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
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controverted by either contrary evidence in the record [or] by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge
an agency’s showing that it complied with the FOIA, the plaintiff must come forward with
‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113,
119 (D.D.C. 2010) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
B. Searches for Responsive Records
“The adequacy of an agency’s search is measured by a standard of reasonableness and
is dependent upon the circumstances of the case.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted). An agency
“fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search
was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks and citations
omitted). A search need not be exhaustive. See Miller v. U.S. Dep’t of State, 779 F.2d 1378,
1383 (8th Cir. 1995). As long as the agency conducts a reasonable search, it fulfills its
obligations under the FOIA even if the search yields no responsive records. See Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (stating that “the failure of an
agency to turn up one specific document in its search does not alone render a search
inadequate”).
To meet its burden, 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). In the absence of contrary evidence, such affidavits or declarations are sufficient to
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demonstrate an agency’s compliance with the FOIA. Id. at 127. If, on the other hand, the record
“leaves substantial doubt as to the sufficiency of the search, [then] summary judgment for the
agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).
1. Executive Office for United States Attorneys
Plaintiff’s requests indicated that the underlying criminal proceedings took place in the
United States District Court for the District of Maryland, Northern Division. It was determined
that “responsive documents . . . would have been located in the [United States Attorney’s Office
for the District of Maryland (USAO/DMD)].” 2d Luczynski Decl. ¶ 16. Accordingly, the matter
was sent to the FOIA Contact for the USAO/DMD. See id.
With regard to Request No. 12-1689 for a copy of the indictment and other materials
pertaining to criminal case number 1:09-cr-00244, the EOUSA located responsive records,
released 20 pages of records in full and referred pages to the DEA. First Luczynski Decl. ¶ 9.
Plaintiff argues that the supporting declaration “was insufficient . . . in regards to the adequacy
and scope of its search.” Memorandum of Points and Authorities in Support of Plaintiff’s
Concise Statement of Material Facts Not In Dispute [ECF No. 49] (“Pl.’s SOMF”) ¶ 23. The
Court concurs. Without a description of the scope and method of the search, the Court cannot
determine whether the EOUSA’s search was adequate under the circumstances.
Request Nos. 13-1128 and 12-5244 pertained to the dates on which grand jury #
2008R00536 convened and indictments it issued in criminal case number 1:09-CR-00244. See
2d Luczynski Decl. ¶ 10; 3d Luczynski Decl. ¶ 4. The EOUSA processed both requests under
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Request No. 12-5244, and closed Request No. 13-1128 as duplicative. See Am. Compl., Ex. F-4
(Letter to plaintiff from Susan B. Gerson dated July 16, 2013).
The FOIA Contact was instructed “to conduct a search at USAO/DMD for grand jury
dates including the first and last dates of the term for Criminal No. CCB-09-0244 in connection
with Request No. 2012-5244.” 3d Luczynski Decl., Ex. E (“2d Hart Decl.”) ¶ 4. The FOIA
Contact described the process as follows:
The system utilized in searching for records pertaining to cases in
the United States Attorney’s Office is the Legal Information
Network System (“LIONS”). The LIONS system is a computer
system used by United States Attorney’s Offices to track cases and
retrieve files pertaining to cases and investigations. By use of the
LIONS system, the user can access databases which can be used to
retrieve the information based on a defendant’s name, the USAO
number (United States Attorney’s Office internal administrative
number), the Assistant United States Attorney assigned to the case,
and the district court case number. The FOIA Request is then
forwarded to the assigned Assistant United States Attorney
(“AUSA”) or Criminal or Civil Chief for all responsive documents.
Once complete, the FOIA file and all responsive documents are
forwarded to EOUSA. EOUSA makes all determinations
regarding the release or withholding of records.
2d Hart Decl. ¶ 6.
The FOIA Contact first “looked for records in the computer tracking system for the
USAO/DMD that were listed under Sean Fowlkes . . . to identify the Assistant United States
Attorney assigned to Criminal No. CCB-09-0244.” Id. ¶ 5. Once the AUSA had been identified,
the FOIA Contact “forwarded the FOIA Request . . . via electronic mail,” and the AUSA
“checked his files for the USAO numbers for the two cases associated with Fowlkes.” Id. ¶ 7.
She further stated:
[The] AUSA . . . had two such cases, USAO 2008R00536 (which
is a case in which Fowlkes was indicted in a drug conspiracy
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matter with several codefendants) and USAO 2010R00518 (which
was a case in which Fowlkes was indicted by himself with a gun
charge). [The] AUSA . . . then checked PACER (an online system
for checking federal court dockets) for the indictment dates
corresponding to Fowlkes’s two indictments. The indictment dates
were the dates on which [the] AUSA . . . presented evidence
relating to Fowlkes and his codefendants to the grand jury. When
[the] AUSA . . . inquired with this Office’s grand jury coordinator
and was advised that the grand jury which sat on those dates was
the Tuesday Grand Jury for the January 2009 term; the grand jury
coordinator also provided the starting and ending dates for that
grand jury’s term.
Id. The AUSA prepared a memorandum with the grand jury #2008R00536 dates, and the FOIA
Coordinator forwarded it to the EOUSA. Id. ¶ 8. Based on this submission, the EOUSA
released one page in part – the AUSA’s memorandum – after having redacted information under
Exemptions 3 and 7(C). 3d Luczynski Decl., Ex. D (Letter to plaintiff from Susan B. Gerson
dated March 29, 2013) at 1; Am. Compl., Ex. C-5 (Memorandum from Michael Hanlon, AUSA,
dated February 12, 2013).
In Request No. 13-755, plaintiff sought the dates on which grand jury # 2010R00518
convened with respect to another criminal case no. 1:10-CR-00332. 2d Luczynski Decl. ¶ 4.
The FOIA Contact identified the AUSA assigned to the criminal case and received from him the
requested information, and in turn the EOUSA released to plaintiff the relevant dates. Id. ¶ 9;
see id., Ex. F.
Plaintiff raises no objection to the scope or method of the searches for records
responsive to Request Nos. 12-5244 and 13-755, and based on the EOUSA’s supporting
declarations, the Court concludes that the EOUSA’s searches were reasonable.
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2. Bureau of Alcohol, Tobacco, Firearms and Explosives
The ATF’s declarant has described the Treasury Enforcement Communications
System (“TECS”) as follows:
TECS is a text-based database, owned and maintained by the
Bureau of Customs and Border Protection, Department of
Homeland Security, and contains information that may be of
interest to law enforcement agencies. TECS is a computerized
information system designed to identify individuals and businesses
suspected of or involved in violation of Federal law. TECS is also
a communications system permitting message transmittal between
Federal law enforcement offices and other international, state, and
local law enforcement agencies. TECS provides access to the
FBI’s National Crime Information Center (NCIC) and the National
Law Enforcement Telecommunications System (NLETS) with the
capability of communicating directly with state and local law
enforcement agencies. TECS is also a comprehensive ATF law
enforcement database that contains ATF investigative records.
ATF records located in TECS include: wanted persons and
fugitives; known and suspected violators of laws falling within the
jurisdiction of ATF; felons and dishonorably discharged veterans
who have requested relief to own firearms and/or explosives under
the Gun Control Act of 1968; violent felons; and gangs and
terrorists. The TECS system contains seven record subsections:
People[,] Business, Aircraft, Firearms, Vehicles, Vessels, and
Things. Bureau wide, ATF performs an average of 130,000
queries per month against records in the following subsections:
People[,] Business, Firearms, and Vehicles. These queries reveal
ATF investigation numbers that correspond to a specific field
division where any files would be located.
Boucher Decl. ¶ 24. “[B]ecause the TECS database contains the names of the individuals ATF
has investigated, it was the place most likely to locate responsive records.” Id. ATF staff used
plaintiff’s “personal information including his name and date of birth” to conduct a TECS query,
and that query identified Criminal Investigatory file 761015-09-0110 associated with ATF’s
Baltimore Field Division. Id. ¶ 25.
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Plaintiff raises no objection to the scope or method of the search, and based on the
supporting declaration, the Court concludes that the ATF’s search for responsive records was
reasonable.
C. FOIA Exemptions
1. Exemption 3
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).
a. ATF: Firearms Trace Reports
The ATF withholds in full “a firearms Trace Report wholly derived from the contents of
the Firearms Trace System Database,” Boucher Decl. ¶ 13, “pursuant to Exemption 3[ and the]
Consolidated Appropriations Act of 2012, Pub. L. No. [] 112-55, 125 Stat. 552,” id. ¶ 11. The
declarant quotes the following provision of Public Law 112-55:
[N]o funds appropriated under this or any other Act may be used to
disclose part or all of the contents of the Firearms Trace System
database maintained by the National Trace Center of the [ATF] or
any information required to be kept by licensees pursuant to [18
U.S.C. § 923(g)], or required to be reported pursuant to paragraphs
(3) and (7) of such [§] 923(g), except to: (1) a Federal, State, local,
or tribal law enforcement agency or a prosecutor solely in
connection with and for use in a criminal investigation or
prosecution . . . . [A]ll such data shall be immune from legal
process, shall not be subject to subpoena or other discovery, shall
be inadmissible in evidence, and shall not be used, relied on, or
disclosed in any manner, nor shall testimony or other evidence be
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permitted based on the data, in a civil action in a State (including
the District of Columbia) or Federal court or in an administrative
proceeding other than a proceeding commenced by the [ATF] . . . .
Boucher Decl. ¶ 12. She avers that “Trace Reports are based [on] and derived from information
required to be kept by a Federal Firearms Licensee (FFL) pursuant to 18 U.S.C. § 923(g),” and
for this reason, “and through the language of P.L. 112-55, Congress has expressly prohibited
ATF from releasing such documents to the public and made them ultimately immune from legal
process.” Id. ¶ 13.
The statute on which the ATF relies, the Consolidated Appropriations Act of 2012, Pub.
L. No. 112-55, 125 Stat. 552 (2011), was enacted after the OPEN FOIA Act of 2009, Pub. L. No.
111-83, 123 Stat. 2142 (2009). To satisfy Exemption 3, then, the Consolidated Appropriations
Act of 2012 expressly must reference Exemption 3. See Smith v. Fed. Bureau of Alcohol,
Tobacco, Firearms & Explosives, No. 13-13079, 2014 WL 3565634, at *5 n.2 (E.D. Mich. July
18, 2014) (noting that the ATF initially relied on the Consolidated Appropriations Act of 2010,
Pub. L. No. 111-117, 123 Stat. 3034, and subsequently relied on the Consolidated
Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844, instead, “[l]ikely . . . because
the Consolidated Appropriations Act of 2010 does not appear to satisfy subsection 5 U.S.C. §
552(b)(3)(B) of Exemption 3, which requires statutes enacted after the enactment date of OPEN
FOIA Act of 2009 to specifically cite to the Exemption 3 paragraph to be applicable”). Here,
the ATF’s declarant does not state that the Consolidated Appropriations Act of 2012 specifically
refers to 5 U.S.C. § 552(b)(3) and, therefore, the ATF does not demonstrate that Exemption 3
applies.
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b. EOUSA: Grand Jury Information
Insofar as “[r]ecords requested by [p]laintiff contained grand jury information,” 2d
Luczynski Decl. ¶ 21, the EOUSA applies Exemption 3 “in conjunction with Rule 6(e) of the
Federal Rules of Criminal Procedure to withhold [the records in] part,” id. ¶ 23; see 3d
Luczynski Decl. ¶¶ 13, 15.
Rule 6 of the Federal Rules of Criminal Procedure is considered a statute for purposes of
Exemption 3 because Congress affirmatively enacted it. See Fund for Constitutional Gov’t v.
Nat’l Archives & Records Serv., 656 F.2d 856, 867-68 (D.C. Cir. 1981). It expressly prohibits
disclosure of “matters occurring before [a] grand jury.” Fed. R. Crim. P. 6(e)(2); see In re
Motions of Dow Jones & Co., Inc., 142 F.3d 496, 498-501 (D.C. Cir.), cert. denied sub nom.
Dow Jones & Co., Inc. v. Clinton, 525 U.S. 820 (1998). While acknowledging the existence of a
“grand jury exception” to the general disclosure requirements of the FOIA, the Court of Appeals
for the District of Columbia Circuit limits the exception to material which, if disclosed, would
“tend to reveal some secret aspect of the grand jury’s investigation, such matters as the identities
of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation,
the deliberations or questions of jurors, and the like.” Senate of the Commonwealth of Puerto
Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987).
The EOUSA’s declarant explains that “[s]pecific items requested by plaintiff such as
minute entries, names of judges, and certified letters . . . contain information which will either . .
. reveal the scope and direction of the grand jury proceedings, or . . . the identities of witnesses
and other third parties which could possibly subject them to reprisal and possible harm to them
or their families.” 2d Luczynski Decl. ¶ 22. The actual information withheld “is directly related
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to specific events occurring during the grand jury proceedings,” and, if disclosed, it “could be
used to . . . identify witnesses and in some instances the information provided by the witnesses.”
Id. ¶ 23; 3d Luczynski Decl. ¶ 15. Its release, the declarant avers, “would impermissibly reveal
the scope of the grand jury and the direction of the investigation by providing the identities of the
source of the evidence.” 2d Luczynski Decl. ¶ 23. The declarant further explains:
While it is impossible to predict the exact way that seemingly
innocuous information may be utilized, specific dates included, it
is easy to speculate on the harmful outcome. In a prison
environment, where everyone’s location is known, determined, and
verified daily, if a particular inmate, who happens to be a co-
defendant, is not present, suspicion will arise. If it is later
determined that a particular individual was somewhere else on the
exact date of a grand jury proceeding, it is possible to see how
other co-defendants may think he was making a deal by testifying
against them. This usually ends in a violent attack on the inmate
by others. Withholding any particular information will help
protect such individuals and ensure cooperation of others.
3d Luczynski Decl. ¶ 14. Further, release of the information “would provide [plaintiff] with the
scope of the grand jury’s investigation by setting forth how the Government developed its case,
and [on] whom the Government relied . . . to develop the elements of the alleged crimes.” Id. ¶
15.
Plaintiff argues that “[t]he third declaration of David Luczynski does not detail how the
withheld dates the grand jury convened would tend to reveal a ‘secret aspect’ of the grand jury
investigation to properly cite Exemption (b)(3) in conjunction with F.R. crim. P. 6(e).” Pl.’s
SOMF ¶ 44. Plaintiff misunderstands the defendants’ declarations. The EOUSA’s responses to
his FOIA requests include the dates on which the two grand juries identified by plaintiff
convened. See 2d Luczynski Decl. ¶¶ 9, 15; 3d Luczynski Decl. ¶ 7; Am. Compl., Ex. C-5. The
dates have not been withheld; the EOUSA’s reliance on Exemption 3 is limited to all other grand
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jury information in the responsive records falling within the scope of Exemption 3’s grand jury
exception. The declarations adequately explain that release of information other than the grand
jury dates would reveal the scope and direction of the grand jury investigation and the sources of
information on which the government based its case. With one exception, the EOUSA’s
decision to withhold such information under Exemption 3 in conjunction with Rule 6(e) is
appropriate. See, e.g., Davis v. U.S. Dep’t of Justice, 970 F. Supp. 2d 10, 17 (D.D.C. 2013)
(withholding grand jury materials notwithstanding requester’s belief that certain information
should have been disclosed to him during his criminal trial). The EOUSA has not adequately
explained how disclosure of the name of the judge either would reveal the scope and direction of
the grand jury or subject him or her to reprisal or possible harm. If the EOUSA wishes to
withhold the judge(s)’ name(s), it must provide further justification (under either Exemption 3 or
Exemption 7).
c. DEA: Information Concerning Wiretaps
“In this case, the DEA withheld information concerning wiretaps pursuant to 18 U.S.C. §
2517 of individuals involved in a drug trafficking organization.” Myrick Decl. ¶ 10. The
declarant explains that, although “Section 2517 permits disclosure of intercepted
communications in only three circumstances, none of [those circumstances is] implicated in a
FOIA request.” Id. Plaintiff does not oppose this determination, and based on the supporting
declaration, the Court concludes that the DEA properly withheld this wiretap information under
Exemption 3. See Lam Lek Chong v. U.S. Drug Enforcement Admin., 929 F.2d 729, 733-35
(D.C. Cir. 1991).
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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 would cause an enumerated harm.
5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that . . .
documents were compiled for law enforcement purposes, the [agency] need only establish a
rational nexus between [an] investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations
omitted).
Although none of the supporting declarations address the EOUSA’s law enforcement
role, it is apparent that the prosecution of criminal cases is a primary responsibility of the agency.
The plain language of plaintiff’s FOIA requests -- all of which pertain to criminal matters
handled by the USAO/DMD -- and the location of the responsive records in the Criminal Case
File System (JUSTICE/USA-007), see First Luczynski Decl. ¶¶ 14-15; 2d Luczynski Decl. ¶¶
17-19; 3d Luczynski Decl. ¶ 10, evidence a law enforcement purpose, that is, pursuing criminal
cases against plaintiff.
The ATF’s declarant describes the ATF as “a criminal and regulatory enforcement
agency within the [DOJ] responsible for, among other things, enforcing Federal firearms laws
including the Gun Control Act of 1968, 18 U.S.C. §§ 921-930, the Federal explosives laws, 18
U.S.C. Chapter 40, and the National Firearms Act, 26 U.S.C. Chapter 53.” Boucher Decl. ¶ 14.
“ATF records maintained in accordance with ATF’s criminal law enforcement duties,” id.,
17
include trace reports based on “information . . . kept . . . pursuant to 18 U.S.C. § 923(g),” id. ¶
13.
The DEA’s declarant explains that the agency’s “investigative jurisdiction derives from
the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801, et seq.”
Myrick Decl. ¶ 11. DEA thus is authorized to investigate “incidences involving the trafficking in
controlled substances, dangerous drugs and precursor chemicals and the violators who operate at
interstate and international levels; [to] seize and forfeit assets derived from, traceable to, or
intended to be used for illicit drug trafficking[; to] cooperate with counterpart agencies abroad[;]
and to exchange information in support of drug traffic prevention and control.” Id. The
responsive records originating with the DEA “were compiled during criminal law enforcement
investigations of the plaintiff and several third parties.” Id. ¶ 12.
The declarants adequately establish, and plaintiff does not dispute, that the responsive
records at issue in this case were compiled for law enforcement purposes within the scope of
Exemption 7.
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). In determining whether this exemption applies to particular information,
the Court must balance the privacy interests of individuals mentioned in the records against the
public interest in disclosure. See ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011).
The privacy interest at stake belongs to the individual, not the government agency, see Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989), and
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“individuals have a strong interest in not being associated unwarrantedly with alleged criminal
activity,” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an individual’s
privacy interest against the public interest, “the only public interest relevant for purposes of
Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what their
government is up to.’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992)
(quoting Reporters Comm., 489 U.S. at 773). It is a FOIA requester’s obligation to articulate a
public interest sufficient to outweigh an individual’s privacy interest, and the public interest must
be significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
i. EOUSA
The EOUSA redacts the name of an employee of the USAO/DMD from one page. 3d
Luczynski Decl. ¶ 16. The declarant explains that release of this information “could subject [this
employee] to an unwarranted invasion of [his or her] personal privacy,” through, for example,
“unwanted efforts to gain access to [him or her] or to personal information about [him or her] –
or subject [him or her] to harassment, harm, or exposure to unwanted and/or derogatory publicity
and inferences – all to [his or her] detriment.” Id. ¶ 17. The EOUSA finds that its
“dissemination would not help explain government activities or operations,” and for this reason,
the declarant asserts that “no countervailing public interest in the release of this privacy-
protected information . . . outweighs [the third party’s] privacy [interest].” Id. ¶ 18.
ii. ATF
The ATF withholds under Exemption 7(C) the names of federal law enforcement agents,
other federal law enforcement agency employees, and third parties, as well as information by
which these individuals could be identified. Boucher Decl. ¶ 17. With regard to ATF Special
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Agents and other law enforcement personnel, the declarant explains that their “identities . . . are
protected because disclosure might seriously prejudice their effectiveness in conducting
investigations to which they are assigned.” Id. ¶ 19. Disclosure may also “subject them to
unwarranted harassment.” Id. With regard to the other third parties, the declarant explains that
“disclosure of [their identities] could reasonably be expected to cause [them] embarrassment,
harassment, and harm.” Id. ¶ 21. The declarant asserts that “revealing this information is
unlikely to add to the public’s understanding of how [the] agency works or how well it performs
its duties.” Id. ¶ 20. Having “balanced the interest in disclosure against the individuals’ privacy
interest[s],” id., the ATF concludes that the individuals’ privacy interests prevail, see id. ¶¶ 20-
21.
iii. DEA
The DEA withholds “names and identifying information which would reveal the identity
of and disclose personal information about individuals who were involved or associated with the
plaintiff or with a law enforcement investigation,” on the ground that disclosure of this
information “could subject them to possible harassment and could focus derogatory inferences
and suspicion on them.” Myrick Decl. ¶ 13. These third parties include suspects, co-defendants
and confidential sources. Id. The declarant states that there is no discernible public interest in
disclosure of their identities, id. ¶ 14, as disclosure would not “inform the . . . general public
about DEA’s performance of its mission [or] how DEA conducts its internal operations and
investigations,” id. ¶ 15. Absent any “legitimate public interest in the information withheld
under [Exemption 7(C)],” the declarant states that its “release . . . would constitute an
unwarranted invasion of [the third parties’] personal privacy.” Id.
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Plaintiff raises no objection to the redaction of names of and identifying information
about any of the third parties appearing in the responsive records. On review of the declarations,
the Court concludes that the EOUSA, the ATF and the DEA properly have withheld this
information under Exemption 7(C).
c. Exemption 7(D)
Exemption 7(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 a 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.
5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within
the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement
agency] in the course of a criminal investigation.” U.S. Dep’t of Justice v. Landano, 508 U.S.
165, 181 (1993). Rather, “[a] source is confidential within the meaning of [E]xemption 7(D) if
the source ‘provided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.’” Williams v. FBI, 69
F.3d 1155, 1159 (D.C. Cir. 1995) (per curiam) (quoting Landano, 508 U.S. at 170-74). “When
no express assurance of confidentiality exists, courts consider a number of factors to determine
whether the source nonetheless spoke with an understanding that the communication would
remain confidential,” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1184 (D.C. Cir. 2011)
21
(internal quotation marks and citation omitted), such as “[t]he nature of the crime . . .
investigated and the source’s relation to it,” Landano, 508 U.S. at 180.
i. Express Assurance of Confidentiality
The DEA invokes Exemption 7(D) to protect the identity of and information furnished by
confidential sources. See Myrick Decl. ¶¶ 38-45. In this case, certain information pertains to
coded informants to whom the DEA extended an express grant of confidentiality. Id. ¶ 40. A
coded informant “ha[s] a continuing cooperative association, by written signed agreement, with
DEA.” Id. ¶ 41. He or she is assured that his or her name will not appear in DEA investigative
files. Id. Instead, the DEA either substitutes an identification code in place of his or her name,
or refers to the informant as CI, SOI or CS. Id.
ii. Implied Assurance of Confidentiality
“When it cannot be ascertained that a source . . . ha[d] been expressly . . . promise[d]
confidentiality,” the declarant explains that “certain circumstances characteristically may support
an inference of confidentiality.” Myrick Decl. ¶ 42. For example, the DEA takes into account
“the character of the crime being investigated[] and the source’s relation to the nature of the
crime.” Id. In this case, the protected sources include sources “utilized by other law
enforcement agencies and concerned citizens,” id., “who provided information about the
plaintiff,” id. ¶ 43. Because “plaintiff was arrested for conspiracy to distribute cocaine and crack
cocain[e] and possession of a firearm,” and because in the DEA’s experience “violence is
inherent in the illicit trafficking of cocain[e] and crack cocain[e],” the DEA deems it “reasonable
to infer” that these sources “would fear for their safety.” Id. In addition, release of information
about these sources “could jeopardize DEA operations, since [the sources’] cooperation, and that
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of any other similarly situated individuals, could be needed in future criminal investigations.”
Id. ¶ 44.
The Court finds that the DEA adequately justifies its decision to withhold information
under Exemption 7(D) with respect to both coded informants and sources who provided
information about plaintiff’s drug trafficking activities. See, e.g., Adionser v. Dep’t of Justice,
__ F. Supp. 2d __, __, 2014 WL 1284804, at *2 (D.D.C. Mar. 28, 2014).
d. Exemption 7(E)
Exemption 7(E) protects law enforcement information that “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).
i. ATF
The ATF “protect[s] from disclosure information related to a particular type of law
enforcement operation, the specifics of which are not widely known to the public.” Boucher
Decl. ¶ 7. Its declarant states that, “[i]f disclosed, this information could reveal the agency’s
techniques and procedures,” which in turn “could lead to a decreased effectiveness in future
investigations and circumvention [of] the law.” Id. Here, the declarant’s explanation merely
mirrors the language of the exemption. Missing is any description of the operation or any
statement from which the Court could conclude that disclosure of the information might reveal a
law enforcement technique or procedure. The ATF thus fails to justify its decision to withhold
information under Exemption 7(E). See, e.g., Bartko v. U.S. Dep’t of Justice, __ F. Supp. 2d __,
__, 2014 WL 3834343, at *9 (D.D.C. Aug. 5, 2014).
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ii. DEA
The DEA withholds under Exemption 7(E) G-DEP codes and NADDIS numbers.
Myrick Decl. ¶ 47. These “are part of DEA’s internal system of identifying information and
individuals,” and they “are used within the DEA investigative records system as directed by the
DEA Agents Manual” while “conduct[ing] and documenting activities during the course of
criminal investigations.” Id. A G-DEP code is assigned to each DEA case “at the time the case
file is opened and [it] indicate[s] the classification of the violator(s), the types and amount of
suspected drugs involved, the priority of the investigation and the suspected location and scope
of criminal activity.” Id. ¶ 49. “[R]elease of the G-DEP code[] would help identify priority
given to narcotic investigations, types of criminal activities involved, and violator ratings.” Id. ¶
51. The declarant states that a “[s]uspect could decode this information and change [his] pattern
of drug trafficking in an effort to respond to what [he] determined DEA knows about [him,] or
avoid detection and apprehension and create excuses for suspected activities.” Id.
A NADDIS number is a “multi-digit number[] assigned to [a] drug violator[] and
suspected drug violator[] known to DEA,” as well as to an entity of investigative interest to the
DEA. Id. ¶ 50. Each NADDIS number is unique and “is assigned to only one violator within the
DEA NADDIS indices.” Id. “Because of the manner in which [it is] assigned and . . . used,
release of [a NADDIS number] could allow [a] violator[] to avoid apprehension, and could place
law enforcement personnel in danger, since the details of many aspects of a DEA investigation
would be disclosed” along with the NADDIS number Id. ¶ 52. If details of a DEA investigation
were made public, a violator would know “how to respond in different situations where detection
and/or apprehension are eminent [sic],” and thus he could “respond in a manner that would help
[him] avoid detection and arrest.” Id. The DEA’s position is entirely supported by relevant case
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law. See Higgins v. U.S. Dep’t of Justice, 919 F. Supp. 2d 131, 151 (D.D.C. 2013) (withholding
G-DEP codes and NADDIS numbers under Exemption 7(E)); Miller v. U.S. Dep’t of Justice, 872
F. Supp. 2d 12, 28-29 (D.D.C. 2012) (withholding NADDIS numbers).
e. Exemption 7(F)
FOIA 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 DEA relies on Exemption 7(F) in conjunction with
Exemption 7(C) to protect the names of DEA Special Agents, other law enforcement personnel,
and third parties such as suspects, co-defendants, witnesses and potential witnesses. Myrick
Decl. ¶¶ 30-32, 35. It also relies on Exemption 7(F) in conjunction with Exemption 7(D) to
protect confidential sources. See id. ¶¶ 34-35. Because the Court finds that the same
information properly is withheld under either Exemption 7(C) or 7(D), the Court need not
address the applicability of Exemption 7(F). See Roth, 642 F.3d at 1173; Simon v. Dep’t of
Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).
III. CONCLUSION
The Court concludes that: (1) the EOUSA conducted reasonable searches for records
responsive to Request Nos. 12-5244, 13-755, and 13-1128; (2) the ATF conducted a reasonable
search; (3) the EOUSA properly withheld grand jury information under Exemption 3; (4) the
DEA properly withheld wiretap information under Exemption 3; (5) the EOUSA, the ATF and
the DEA properly withheld third party information under Exemption 7(C); (6) the DEA properly
withheld information under Exemption 7(D); and (7) the DEA properly withheld information
under Exemption 7(E). In these respects, defendants’ motion for summary judgment will be
25
granted. However, because defendants have not demonstrated that (1) the EOUSA conducted a
reasonable search for records responsive to Request No. 12-1689; (2) the ATF properly withheld
firearms trace information under Exemption 3; (3) the EOUSA properly withhold judge(s)’
name(s) under Exemption 3; and (4) the ATF properly withheld information under Exemption
7(E), their motion will be denied in part. The Court defers consideration of segregability.
It is hereby
ORDERED that Defendants’ Renewed Motion for Summary Judgment [42] is
GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE; it is
FURTHER ORDERED that plaintiff’s Motion to Strike [48] is DENIED; it is
FURTHER ORDERED that Plaintiff’s Cross-Motion for Summary Judgment and
Motion for Discovery [49] is DENIED; and it is
FURTHER ORDERED that, within 45 days of this Order, defendants shall file a
renewed motion for summary judgment.
SO ORDERED.
DATE: September 15, 2014 /s/
RUDOLPH CONTRERAS
United States District Judge
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