McRae v. United States Department of Justice , 869 F. Supp. 2d 151 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED
Junzrzorz
C|erk, U.S. District and
Bankruptcy Courts
ANDRE L. McRAE,
Plaintiff,
v. Civil Action No. 09-2052 (RJL)
UNITED STATES DEPARTMENT
OF JUSTICE, et al.,
Defendants.
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ME@RANDUM oP1N1oN
June&§ , 2012 [Dkt. ##12, 21, 271
This matter is before the Court on Defendants’ Motion for Summary Judgment
[Dkt. #12] and Defendants’ Supplementa1Motion for Summary Judgment [Dkt. #27].1
For the reasons discussed below, the former is GRANTED in part and DENIED in part,
and the latter is GRANTED.
I. BACKGROUND
Pursuant to the Freedom of Inforrnation Act ("FOIA"), see 5 U.S.C. § 552,
plaintiff submitted requests for information to two components of the United States
Department of Justice ("DOJ"): the Executive Offlce for the United States Attorneys
l Plaintiff’s Motion for Summary Judgment [Dkt. #21] does not comply in
substance or form with Rule 56 of the F ederal Rules of Civil Procedure or Local Civil
Rule 7(h). The motion is therefore DENIED.
("EOUSA") and the Bureau of A1cohol, Tobacco, Firearms and Explosives ("ATF").
Compl. 1] 1 [Dkt. #l]. In relevant part, the plaintiff requested:
l. Any and all investigative reports on file with ATF in refere[n]ce to
docket number 3:04 CR 157 .
2. Any and all agent field note[s] on file in reference to docket number
3204 CR 157.
3. Any and all wire-tap recordings and transcripts in reference to docket
number 3:04 CR 157.
4. The April 16, 2004, government 302, drug transaction report and agent
field notes generated by Detective Ortiz of the Charlotte-Mecklenburg
Police Dipartment [sic], in reference to docket number 3:04 CR 157.
Ex. l to Compl. at 2. Plaintiff also requested a waiver of fees associated with the search
for and copying of any responsive records. Ia'. at l.
A. Request to the EOUSA (No. 08-3671)
The EOUSA acknowledged receipt of plaintiffs request (No. 08~3671), notified
plaintiff that "[s]ome of the infonnation you requested originate[d] with another federal
agency," the ATF, and instructed plaintiff to contact ATF directly. See Ex. 2 to Compl.
at l. The EOUSA also informed plaintiff that it would "continu[e] to process those
portions of your request which pertain[ed] to records in the possession of the EOUSA."
Ia’.
At the time plaintiff filed his complaint, he had received no records from the
EOUSA. Compl. 11 20. Subsequently, the EOUSA released seventeen pages in full,
released one page in part, and withheld no records in full, having redacted certain
information under Exemption 7(C). Ex. (Letter to plaintiff from W.G. Stewart ll dated
Apr. 27, 20lO) to Pl.’s Mot. for Summ. J. at 1. Plaintiff clearly was dissatisfied with this
response, and asserted that "[t]he govemment has failed to provide justification for
2
nondisclosure." Pl.’s Mot. for Summ. J. at 3. Plaintiff described the requested records as
"trial props" which had been introduced as evidence in his criminal case, and he asserted
that they could be "found in the government’s case file, in the care and custody of the
United States Attorne’s [sic] Office . . . [for] the Westem District of North Carolina,
Charlotte Division." Ia’.
B. Requests to the ATF
l. Request No. 09-0196
The ATF acknowledged receipt of plaintiffs FOIA request (Request No. 09-0196)
by letter dated November 20, 2008. Decl. of Marilyn R. LaBrie ("LaBrie Decl.") [Dkt.
#12-1], Attach. to Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ J. ("Defs.’ Mem."),
11 4. In addition, the ATF denied plaintiffs request for a fee waiver and advised him of
his right to appeal this determination to the DOJ’s Office of Infor1nation Policy ("OlP").z
Ia'.; see Ex. B to LaBrie Decl.
2. Request No. 09-0246
Apparently acting on the EOUSA’s suggestion, plaintiff submitted a FOIA request
directly to the ATF. LaBrie Decl. 11 6; see Exs. D & E to LaBrie Decl. The ATF
assigned this request a new tracking number, No. 09-0246. Ex. F to LaBrie Decl. Before
processing the request, the ATF asked plaintiff to "clarif``y his secondary identifiers, i.e.,
other social security numbers that he used," and to confirm his "agreement to pay for any
costs associated with the processing of his request." LaBrie Decl. 1l 8; see Ex. F to
2 The OIP is also referred to as the Office of Information and Privacy, see, e.g.,
LaBrie Decl. ‘[l 15, and the Office of Privacy and Inforrnation, Ex. B to LaBrie Decl.
3
LaBrie Decl. Plaintiff responded and expressed his understanding that he was entitled to
two hours of search time and 100 pages of records at no cost. LaBrie Decl. 11 9; Ex. G to
LaBrie Decl.
3. Request Nos. 09-0304, 09-523, and 09-0756
Plaintiff sent a second letter which asked the ATF to devote its time to a search for
ATF "Special Agent Terrell Tadeo (ATF, Charlotte, N.C.) final investigatory notes
regarding Count l, Conspiracy to possess 50 grams or more and 5 kilos of cocaine[,] and
the actual police report, and wire recording/transcript of the April 16th 2004, drug
transaction involving Detective Rolando Ortiz, of the Charlotte-Mecklenburg Police
Dept., and any other notes regarding this transaction which is Count 2 on the indictment."
Ex. H to LaBrie Decl. at l (emphasis removed). The ATF initially denied plaintiffs
FOIA request (No. 09-0304) in full pursuant to Exemption 7(A). LaBrie Decl. 1 13.
"[T]he field office . . . advised that the case ha[d] not been closed," and that "release of
this information could reasonably be expected to interfere with enforcement
proceedings." Ex. K to LaBrie Decl.
Plaintiff sent a written response to the ATF. LaBrie Decl. 11 14. He explained that
his criminal "case ha[d] been closed since December ll, 2007, the day of [his]
sentencing," and argued that, "when a case goes into the appellate stages, . . . the release
of information pertaining to that case can not alter or change the results of the jurors[’]
verdicts." Ex. L to LaBrie Decl. at l. Apparently the ATF assigned this matter yet
another tracking number, No. 09-523, upon receipt of plaintiffs correspondence. See Ex.
N to LaBrie Decl.
Plaintiff challenged the decision to withhold records under Exemption 7(A) by
pursuing an appeal (No. 09-0989) to the OIP. LaBrie Decl. 11 15; see Ex. M to LaBrie
Decl. While the appeal was pending, the ATF granted in part plaintiffs request No. 09-
0304, presumably on reconsideration of the applicability of Exemption 7(A). LaBrie
Decl. ‘ll 18. On March l8, 2009, the ATF released 155 pages of records after having
redacted certain information under Exemptions 2, 3, and 7(C), and withheld four
documents (eight pages) of records in full under Exemption 7(C). Defs.’ Mem. at 4-5;
LaBrie Decl. ‘ll 18; see Ex. P to LaBrie Decl. at 2. In light of these releases, the OIP
informed plaintiff that he could appeal any future determination made by the ATF. Ex. Q
to LaBrie Decl.
Plaintiff’ s next correspondence to the ATF explained that the records he received
did not contain the information he sought.3 See generally Ex. R to LaBrie Decl. He
asked to "resubmit [his] F.O.I.A. request" in order to "obtain specific
inforrnation/documents from Agent Terrell Tadeo." Ex. R to LaBrie Decl. at 4. The
ATF assigned this re-submitted request a separate tracking number (No. 09-0756). See
Ex. U to LaBrie Decl. Further "review of all of the documents for litigation" led the ATF
3 Plaintiff also appealed this determination to the OIP. LaBrie Decl. 11 2l; Ex. S to
LaBrie Decl. Apparently on the mistaken assumption that plaintiffs appeal pertained to
the records released by the ATF on March 18, 2009, LaBrie Decl. 11 24 n.2, the OIP
informed plaintiff that it had remanded his request to the ATF "for further search for and
processing of responsive records," Ex. V to LaBrie Decl.
5
to identify and release eight pages of records "which were withheld in full, but which
contained further segregable information." LaBrie Decl. 1 25; Ex. W to LaBrie Decl.4
C. Plaintz``yj"’s Criminal History
In order to place certain of plaintiffs arguments in context, it is useful to review
his criminal history:
Following his Spring 2004 guilty plea to federal charges unrelated to
this case, McRae’s best friend, Damon Chamberlain (Chamberlain), began
cooperating with ATF Special Agent Terrell Tadeo (Agent Tadeo), who
was investigating drug and firearm activity in the Charlotte, North Carolina
area. Through information provided by Chamberlain, Agent Tadeo leamed
that McRae regularly carried a .40 caliber firearm and sold both cocaine
and cocaine base (crack).
On April 15, 2004, Chamberlain placed a recorded call to McRae to
set up a drug deal with an undercover police officer, Detective Rolando
Ortiz (Ortiz), from the Charlotte-Mecklenburg Police Department
(CMPD). In the call, McRae discussed selling marijuana and cocaine and a
debt McRae owed to a drug source from the Dominican Republic.
On April l6, 2004, Ortiz contacted McRae and arranged to purchase
an ounce of crack later that day at a Bi-Lo grocery store (Bi-Lo) parking
lot. Prior to the sale, Agent Tadeo and CMPD officers set up a surveillance
of the parking lot. Ortiz and Chamberlain arrived at the Bi-Lo parking lot
in Ortiz’s unmarked vehicle. McRae entered Ortiz’s vehicle and sold an
ounce of crack to Ortiz.
Instead of arresting McRae at that time, Agent Tadeo decided to try
to arrange a drug deal involving a larger amount of drugs. His attempt to
arrange a larger drug deal failed, so Agent Tadeo decided to see if
Chamberlain could arrange a deal involving the sale of a firearrn.
On May 17, 2004, Chamberlain placed a recorded call to McRae. In
the call, Chamberlain asked McRae to get him a "three pound" or .357
4 "[I]t was determined that records which did not seem to pertain to [plaintiff] and
which had been redacted under a concern of confidential source information, had small
portions of segregable information, which was deemed relevant to [plaintiffs] request."
LaBrie Decl. 1 25 n.3.
magnum firearm. McRae agreed to do so and proposed meeting nearby at
"Shauna’s house" within an hour.
At this point, Agent Tadeo gathered some CMPD street unit officers
with the intention of directing these officers to stop McRae en route to
Shauna’s house. Agent Tadeo decided not to stop McRae himself because
he did not want McRae to know that a federal investigation of his drug
activities was underway. Agent Tadeo told the CMPD officers that: (l)
McRae was a convicted felon; (2) he had monitored that day a conversation
between McRae and Chamberlain wherein McRae agreed to f11mish
Chamberlain a .357 magnum firearm; (3) McRae regularly carried a .40
caliber firearm; and (4) there may be drugs in McRae’s vehicle, as McRae
sold crack to an undercover officer on April 16.
Two CMPD officers present at the meeting stopped McRae on his
way to Shauna's house. During a search of McRae’s vehicle, the officers
recovered a .357 magnum firearm, a .40 caliber firearm, and a quantity of
crack in excess of five grams. Marijuana was found on McRae’s
person . . . .
United States v. McRae, 336 F. App’x 30l, 302-03 (4th Cir. 2009) (per curiam), cert.
a’enz``ed, 130 S. Ct. 1110 (2010). A jury convicted plaintiff on all counts,$ and "[o]n
December ll, 2007, he was sentenced to a total of 687 months’ imprisonment." Id at
304. The convictions were affirmed on appeal. Id. at 309.
5 A federal grand jury indicted plaintiff on the following counts:
Count One charged McRae with conspiracy to possess with the intent to
distribute five kilograms or more of cocaine and fifty grams or more of
crack, 21 U.S.C. §§ 841 and 846 . . . . Counts Two, Three, and Six charged
McRae with possession with the intent to distribute five grams or more of
crack, id. § 841, relating to the crack recovered on April 16, May 17, and
May 26, 2004. Counts Four and Seven charged McRae with possession of
a firearm during and in relation to a drug trafficking crime, 18 U.S.C. §
924(0), relating to the firearm seizures on May 17 and May 26, 2004.
Counts Five and Eight charged McRae with possession of a firearm by a
convicted felon, id. § 922(g), again relating to the firearm seizures on May
17 and May 26, 2004.
McRae, 336 F. App’x at 304.
II. DISCUSSION
A. Summary Jua'gment in a FOIA Case
"FOIA cases typically and appropriately are decided on motions for summary
judgment." Defena’ers of Wila’lz'fe v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009). The Court will grant summary judgment "if the movant shows that there is no
genuine dispute as to any material fact" and 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 [the
agency] demonstrates ‘that each document that falls within the class requested either has
been produced . . . or is wholly exempt from [F()lA’s] inspection requirements."’
Students Against Genocz'a’e v. Dep’t ofState, 257 F.3d 828, 833 (D.C. Cir. 200l)
(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 "describe the
documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed
exemption[s], and are not controverted by either contrary evidence in the record [or] by
evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.
Cir. 1981); see Beltranena v. Clz``nton, 770 F. Supp. 2d l75, 181-82 (D.D.C. 201 l). "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.
8
U.S. Dep ’t ofJustz``ce, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting Dep 't ofJustice
v. Tax Analysts, 492 U.S. 136, 142 (1989)).
B. T he EOUSA ’s Response to Plaintiyj"s FOIA Request
Although plaintiffs complaint does not name the EOUSA as a party in this action,
see Compl. at 2, the Court construes the pleading as a challenge to the EOUSA’s
response, or lack thereof, to plaintiffs F()IA request. As the defendants’ Motion for
Summary Judgment [Dkt. #12] offers neither a description of the EOUSA’s search for
records responsive to plaintiffs FOIA request nor a justification for withholding
information under Exemption 7(C), the Court DENIES, without prejudice, defendants’
motion on this issue.
C. T he A TF ’s Search for Responsz``ve Recora’s
Compliance with FOIA ordinarily requires an agency to search its records, either
manually or by automated means, for information responsive to a request. See 5 U.S.C.
§ 552(a)(3)(C)-(D). "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."’ Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. l999)
(quoting Truitt v. Dep ’t of State, 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 the agency’s search to demonstrate FOIA compliance. Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982). However, if "the record leaves substantial doubt as to the
sufficiency of the search, summary judgment for the agency is not proper." Truz``tt, 897
F.2d at 542.
1. Searches of TECS and the Charlotte Field Office
The ATF began its search with a query of Treasury, Enforcement,
Communications System ("TECS"). LaBrie Decl. 1 55. "TECS is a computerized
information system designed to identify individuals and businesses suspected of or
involved in violation of federal law." Id. In addition to this function, TECS provides a
means for "message transmittal between Federal law enforcement offices and other
intemational, state, and local law enforcement agencies." ld. F or example, TECS
provides access to NCIC, the FBI’s National Crime Information Center, and NLETS, the
National Law Enforcement Telecommunication Systems. Id.
Although TECS is "owned by the Bureau of Customs and Border Protection,
Department of Homeland Security," z``a'., through TECS, the ATF is able to locate records
within its Criminal Investigation Report System, id. 1 55 n.6. "ATF records within TECS
include: wanted persons and fugitives; known and suspected violators of laws falling
within the [ATF’s jurisdiction]; felons and dishonorably discharged veterans who have
[asked] to own firearms and/or explosives . . . ; violent felons; and gangs and terrorists."
Id. 1 56. The system maintains records in seven subsections: People, Businesses,
Aircraft, Firearms, Vehicles, Vessels and Things. Id. TECS searches "reveal ATF
Investigation numbers that correspond to a specific field division where any files would
be located.” la'.
N-Force, the ATF’S case management system, operates as the ATF’s "official case
file of record for documenting investigative activity and information, creating reports,
tracking investigative leads and linking data." Ia’. 1 57. "Each criminal investigation . . .
10
is assigned a unique case number." Ia’. "N-Force contains the following broad fields:
Overview, General, Techniques/Services, Firearms, Arson/Explosives, investigative
Profile, and Case Users," and each broad field has "specific sub-data fields" containing,
among other things, "information about the type of investigation being conducted . . . ,
the persons involved, property seized, reports of investigation, . . . [and] the types of
techniques and services employed during the investigation." Id. A query of N-Force is
made using an individual’s name, date of birth or social security number, property or
vehicles with which an individual is associated, or specific words found in Reports of
Investigation. Id.
The ATF used plaintiffs f``ull name as a search term, and the TECS query
indicated that responsive records would be located at the Charlotte Field Division and
retrievable under Criminal Investigation Number 763015-04-0041.6 Ia’. 1 5 8. Staff at the
Charlotte Field Division then "undertook a search that located all criminal case files
within [that] office that were retrievable both by plaintiff s full name and Criminal
Investigation Number 763015-04-0041." Id. This search yielded 340 pages of
potentially responsive records which were forwarded to the ATF’s Disclosure Division
for processing.7 Id. None of the searches located transcripts of electronic surveillance,
CDs of surveillance, agent investigatory notes, police reports, or police property
inventory reports. See id. 11 59-60. After this litigation commenced, "ATF’s Office of
6 Plaintiff was not the primary subject of this particular criminal investigation.
LaBrie Decl. 1 58.
7 Other materials in this case file "related to individuals other than [plaintiff],
contained no mention of [plaintiff] and were therefore considered not within the scope of
his request." LaBrie Decl. 1 58.
ll
Chief Counsel asked for an additional search to be completed specifically regarding these
documents and materials," and the case agent at the Charlotte Field Division "confirmed
that ATF does not possess a copy of the recorded conversation on April 16, 2004, which
[plaintiff] requested and which was presented at trial." Ia'. 1 60. According to the case
agent, had there been "handwritten, investigative notes, they would have been formalized
in the Report of investigation . . . which was processed for release to [plaintiff] and then
would have been destroyed after the case had closed pursuant to ATF policy." Id. 1 61.
2. Plaintiffs Challenges to the ATF’s Searches
Plaintiff first argues that the ATF has released "154 pages of redacted, non-
requested, unusable documents, 109 pages of which pertained to plaintiffs prior criminal
history from over 16 years ago" and which were "[n]ot at all relevant to plaintiffs
request or criminal case." Pl.’s Resp. to Def.’s Summ. J. ("Pl.’s Opp’n") [Dkt. #15] at 2-
3. Next, plaintiff challenges the adequacy of the search of Charlotte Field Division
records for "transcripts of electronic surveillance used to aid jury, CD Rom of actual wire
surveillance of April 16th 2004, Drug Transaction, agents[’] investigative notes, and
Detective Rolando Ortiz Police report in regards to the April 16th 2004 drug sale, and his
destruction of evidence report on said purchased drugs." Pl.’s Opp’n at 5. Plaintiff was
convicted of conspiracy, and he requests the investigative notes in order to identify the
co-conspirators. See z'd. He asserts that this information "should have been included on
‘Report of investigation."’ Ia’. According to plaintiff, the ATF’s inability to locate
information "that led to, and assisted the conviction of a defendant that possibly was not
12
guilty of said charge . . . is absurd, and indeed Bad Faith on the Case Agent Terrell
Tadeo, and the ATF as a whole." Id. at 8. None of these arguments are persuasive.
The ATF’s supporting declarations are "accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents." SafeCara’ Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks and citation omitted). Furthermore, a
requester’s challenge requires that he present evidence rebutting the agency’s initial
showing of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1stCir. 1993);
Wez'sberg v. U.S. Dep’t ofJustice, 705 F.2d 1344, 1351-52 (D.C. Cir. 1983). Plaintiff
fails to meet this evidentiary burden.
Plaintiff s level of satisfaction with the materials released, however, does not
determine the adequacy of the ATF’s search. "[T]he issue is not whether any further
documents might conceivably exist, but rather whether the govemment’s search for
responsive documents was adequate." Wez'sberg, 705 F.2d at 1351 (citing Perry, 684
F.2d at 128) (per curiam) (emphasis in original); see Steinberg v. U.S. Dep ’t of Justice, 23
F.3d 548, 551 (D.C. Cir. 1994). The Court’s authority is limited to the release of non-
exempt agency records in existence at the time the agency receives a FOIA request. The
ATF is not obligated "to create or retain documents; [FOIA] only obligates [the agency]
to provide access to those which it in fact has created and retained." Kz``ssz'nger v.
Reporters Co)n)n. for Freea’om of the Press, 445 U.S. 136, 152 (1980). And, "the fact
that responsive documents once existed does not mean that they remain in the [ATF’s]
13
custody today or that the [ATF] had a duty under FOIA to retain the records." Wilbur v.
CIA, 355 F.3d 675, 678 (D.C. Cir. 2004).
Lastly, plaintiff presumes that "[a]ny reports that were orchestrated by the ATF
Case Agent Terre1l Tadeo should be in the custody of the Charlotte Field Office," Pl.’s
Opp’n at 15, rather than the Charlotte-Mecklenburg Police Department, ia'. at 14.
Marilyn R. LaBrie, the Acting Chief of ATF’s Disclosure Division, (the "declarant")
avers, on behalf of the defendants, that the "ATF is not the primary custodian" of records
originating at the Charlotte-Mecklenburg Police Department, LaBrie Decl. 1 62, even
though some of these records may have found their way into ATF files. She avers that
the "ATF reviewed and released all records [in its] custody . . . received from the police
department," and any "further inquiries regarding the police reports or property inventory
reports . . . should [be addressed to] the appropriate police department." Id. The ATF is
not required to maintain the Charlotte-Mecklenburg Police Department’s records, even if
they pertained to a matter under investigation by the ATF. See Dz'pietro v. Exec. Gjj”zce
for U.S. Attorneys, 357 F, Supp. 2d 177, 182 (D.D.C. 2004) ("No agency is obligated to
produce records that it does not maintain.").
Based on review of the ATF’s supporting declarations, the Court concludes that
the ATF conducted adequate searches, which were designed to locate records responsive
to plaintiffs FOIA requests.
14
D. Exemptions Claz``med by the ATF
1. Exemption 3
Exemption 3 protects records that are "specifically exempted from disclosure by
statute" provided that such statute requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue," or "establishes particular criteria
for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552
(b)(3). The Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, 118 Stat.
2809 (2004), is a statute on which an agency may rely for purposes of Exemption 3. it
provides in relevant part:
[N]o funds appropriated under this or any other Act with respect to any
fiscal year may be used to disclose part or all of the contents of the
Firearms Trace System database maintained by the National Trace Center
of the Bureau of Alcohol, Tobacco, Firear1ns, and Explosives or any
information required to be kept by licensees pursuant to section 923(g) of
title 18, United States Code, or required to be reported pursuant to
paragraphs (3) and (7) of such section 923(g), to anyone other than a
Federal, State, or local law enforcement agency or a prosecutor solely in
connection with and for use in a bona fide criminal investigation or
prosecution . . . and all such data shall be immune from legal process and
shall not be subject to subpoena or other discovery in any civil action . . . or
in any administrative proceeding other than a proceeding commenced by
[ATF] . . . or a review of such action or proceeding.
118 Stat. 2859-60. Under Exemption 3, the ATF redacted one page which "contains
information related to the importation and manufacture of specific firearms, which is
wholly derived from the contents of the Firearms Trace System Database referenced in
Public Law 108-447." LaBrie Dec. 1 35. The declarant explains that the Trace Reports
are "based [on] and derived from information required to be kept by a Federal Firearms
Licensee (FFL) or importer pursuant to 18 U.S.C. § 923(g)," and "through the language
15
of P[ublic] L[aw] 108-447, Congress has expressly prohibited ATF from releasing such
documents to the public." Id. The ATF therefore properly withheld all information
derived from the Firearms Trace System Database. See Sz``ngh v. FBI, 574 F. Supp. 2d 32,
45-46 (D.D.C. 2008) (agency properly withheld firearms transaction records); Mz'ller v.
U.S. Dep ’t of.]ustiee, 562 F. Supp. 2d 82, 111-12 (D.D.C. 2008) (agency properly
withheld firearms trace reports); Watkins v. Bureau of Alcohol, Tobacco & Explosz'ves,
No. 04-800, 2005 WL 2334277, *1 (D.D.C. Sept. 1, 2005) (concluding that the 2005
appropriations legislation "prevent[s] the public release of sensitive firearms trace data
not so much for budgetary reasons than out of concem that such disclosures could
jeopardize criminal investigations").
2. Exemption 7
a. Law Enforcement Records
Exemption 7 protects from disclosure "records or information compiled for law
enforcement purposes," but only to the extent that disclosure of such records would cause
an enumerated harm. 5 U.S.C. § 552(b)(7); FB1v. 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." Blackwell v. FBI, 646 F.3d 37, 40
(D.C. Cir. 201 l) (internal quotation marks and citations omitted).
The "ATF is a criminal and regulatory enforcement agency within the [DOJ] and
is responsible for, among other things, enforcing Federal firearms laws including the Gun
16
Control Act of 1968, 18 US.C. §§ 921-930." LaBrie Decl. 1 36. The declarant avers that
"ATF records maintained in accordance with [its] criminal law enforcement duties[] meet
the threshold of Exemption 7." Id.
Although a law enforcement agency’s "decision to invoke [E]xemption 7 is
entitled to deference," Carnpbell v. U.S. Dep ’t of Justice, 164 F.3d 20, 32 (D.C. Cir.
1998) (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982)), deference does not
amount to blind acceptance of the agency’s assertions. "The D.C. Circuit has made clear
. . . that an agency’s broad claim that its files are law enforcement files ~ without
addressing the particular documents at issue - is insufficient to establish that the specific
documents in dispute within those files are law enforcement records under FOIA."
Lara’ner v. Dep ’t of Justt``ce, 638 F. Supp. 2d 14, 32 (D.D.C. 2009) (citing Campbell, 164
F.3d at 32)), ayj”’d, 398 F. App’x 609 (D.C. Cir. 2010) (per curiam).
Missing from the ATF’s declaration is a statement affirmatively linking the
relevant records and an investigation of plaintiffs activities pursuant to the ATF’s law
enforcement authority. However, the omission is not fatal in this case, particularly absent
any objection by plaintiff. it is apparent from the plain language of plaintiff s FOIA
requests and his criminal history that the information he seeks was compiled for law
enforcement purposes.
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
17
particular material, the Court must balance the interest in privacy of individuals
mentioned in the records against the public interest in disclosure. See ACLU v. U.S.
Dep ’t of Justz``ce, 655 F.3d l, 6 (D.C. Cir. 2011); Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1115 (D.C. Cir. 2007). The privacy interest at stake belongs to the individual,
not the govemment agency, see U.S. Dep ’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 763-65 (1989), and "individuals have a strong interest in not
being associated unwarrantedly with alleged criminal activity," Stern v. FBI, 737 F.2d 84,
91-92 (D.C. Cir. 1984). The D.C. Circuit has held "categorica1ly that, unless access to
the names and addresses of private individuals appearing in files within the ambit of
Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the
agency is engaged in illegal activity, such information is exempt from disclosure."
SafeCard Servs., 926 F.2d at 1206.
The ATF withheld the "identities of ATF special agents and other [federal and
state] law enforcement personnel that appear in law enforcement records" on the ground
that "disclosure might seriously prejudice their effectiveness in conducting investigations
to which they are assigned and subject them to unwarranted harassment." LaBrie Decl.
11 39, 41. Balancing "the interest in disclosure against the individuals’ privacy interest,"
the ATF asserts that the privacy interest prevails. Ia’. 1 42. Release of information about
these law enforcement officers "is unlikely to add to the public’s understanding of how
[the ATF] works or how well it performs its duties," while bringing about an unwarranted
invasion into these individuals’ personal privacy. Ia’.
18
in addition, the ATF withheld "the names and identifying information of third
parties who were investigated by the ATF." Id. 1 43. These individuals "are described in
sufficient detail" such that "third parties . . . familiar with the circumstances and facts of
ATF’s investigation" could identify them. Id. The declarant states that these individuals
"could reasonably be expected to be embarrassed and humiliated by being associated
with this investigation." Id. Apparently witnesses are among the individuals whose
identities are being protected, see ia’., and the declarant states that "references to
witnesses in the responsive files have the very real potential to endanger [them] or cause
harassment and harm to [their] lives and reputations." Ia’. "After balancing the interests
at stake, ATF determined that [information about these individuals] must be withheld,
because disclosure . . . could reasonably be expected to cause [them] embarrassment,
harassment, and harm," while doing "little, if anything at all, to aid the public’s
understanding of ATF." Id.
initially, it appeared that plaintiff did not object to the redaction of individuals’
names from the relevant records. He "has never had a concern for who is who, and who
said what," primarily because "the cat was let out of the bag during the pretrial and trial
phase[s]." Pl.’s Opp’n at 3. However, a liberal reading of this statement leads the Court
to conclude that plaintiff indeed challenges the redactions made under Exemption 7(C) by
arguing that this information already has been released publicly. See ia’.
Plaintiff claims that "all statements and law enforcement witnesses were disclosed
into the public forum by way of testimony." Id. Now that this information "has been
officially acknowledged or is in the public domain," ia’. at 4, plaintiff contends that it
19
cannot be withheld under Exemption 7(C). For example, plaintiff purports to know that
the ATF’s "confidential source was his Best Friend acting in a[n] informant capacity and
double dipping for his own financial and sentence reduction benefit." Ia’. at 3. He also
knows that Agent Tadeo testified before a grand jury, at a suppression hearing, and at
trial. See id. at 3, 4, 8, 17. in support of his argument, he submits excerpts of transcripts
from grand jury proceedings, see Exs. 1 & 6 to Pl.’s Opp’n (excerpts of grand jury
transcripts dated June 29, 2004 and Dec. 13, 2005, respectively), a suppression hearing,
see Ex. 10 to Pl.’s Opp’n (excerpt of suppression hearing transcript dated Mar. 9, 2006),
and trial, see Ex. 11 to Pl.’s Gpp’n (excerpt of trial transcript dated Nov. 29, 2006).
While it is true that public disclosure of information may lead to the waiver of a
FOIA exemption, plaintiff nonetheless bears the initial burden of showing that the
requested inforrnation: (l) is "as specific as the information previously released"; (2)
"match[es] the information previously disclosed"; and (3) was "made public through an
official and documented disclosure." Fz``tzgz'bbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990); see also Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. l999). "Prior disclosure of
similar information does not suffice; instead, the specific information sought by the
plaintiff must already be in the public domain." Wolfv. CIA, 473 F.3d 370, 378 (D.C.
Cir. 2007) (citation omitted). Speculation as to the content of the withheld information in
the context of open court proceedings does not establish that it has entered
the public domain. See Whalen v. U.S. Marine Corps, 407 F. Supp. 2d 54, 59 (D.D.C.
2005) (noting that a requester’s "educated guess" as to the contents of a withheld report
does not constitute a waiver of a FOIA exemption). Furthermore, a third party may
20
testify in open court and maintain an interest in his personal privacy, see, e.g., Jones v.
FBI, 41 F.3d 23 8, 247 (6th Cir. 1994), and he maintains an interest in his personal
privacy even if the requester already knows, or is able to guess, his identity, see Wez``sberg
v. U.S. Dep’t ofJustz``ce, 745 F.2d 1476, 1491 (D.C. Cir. 1984).
By asserting that Agent Tadeo "orchestrated" the criminal case against him, Pl.’s
Opp’n at 7, and otherwise acted "with other law enforcement officials affiliated with [his]
case . . . to scheme up a justification" for charging plaintiff with conspiracy, ia'. at 28, the
Court presumes that plaintiff is asserting a public interest in disclosure of the information
withheld under Exemption 7(C), see ia’. at 29. His argument appears to be that the public
has an interest in leaming of wrongdoing by federal law enforcement officers. According
to plaintiff, Agent Tadeo intentionally withheld records responsive to his FOIA request,
even though such information should have been released to plaintiff during the criminal
proceedings. Ia’. He claims that his "chances for Exoneration lies [sic] within ATF Case
Agent ["l``adeo’s] possession." Ia’. at 30.
For purposes of Exemption 7(C), "the only public interest relevant . . . ‘is one that
focuses on ‘the citizens’ right to be informed about what their govemment is up to."’
Davz``s v. U.S. Dep ’t ofJustice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters
Comm., 489 U.S. at 77 3). it is the requester’s obligation to articulate a public interest
sufficient to outweigh the individual’s privacy interest, and the public interest must be
significant. See Nat’l Archz``ves & Records Admin. v. Favz'sh, 541 U.S. l57, 172 (2004).
Here, plaintiff produces no such evidence, and, therefore, the third parties’ privacy
interests prevail. To the extent that plaintiff believes his allegedly wrongful conviction is
21
a matter of public interest, he is mistaken. Any desire plaintiff may have in using the
requested records for the purpose of proving his innocence or attacking his criminal
conviction is not a public interest. See Oguaju v. United States, 288 F.3d 448, 450 (D.C.
Cir. 2002) (finding that a requester’s "personal stake in using the requested records to
attack his convictions does not count in the calculation of the public interest").
The ATF’s decision to withhold the names of and identifying information about
federal and state law enforcement agents and third parties whose names appear in the
responsive records is entirely consistent with the prevailing law. See, e.g., Negley v. FBI,
825 F. Supp. 2d 63, 72-3 (D.D.C. 2011) (Exemption 7(C) properly invoked to withhold
names and/or identifying information of "FBi personnel," confidential sources, "State
39 66
government employees or non-federal law enforcement officers, third parties merely
mentioned" in the records, "individuals interviewed by the FBI," and "third parties of
investigative interest"); Marshall v. FBI, 802 F. Supp. 2d 125, 134-35 (D.D.C. 2011)
(FBi properly redacted "names and identifying information of FBi Special Agents, FBi
personnel, and third parties of investigative interest" pursuant to Exemption 7(C) due to
privacy interests); McGehee v. U.S. Dep ’t of Justz``ce, 800 F. Supp. 2d 220, 233-34
(D.D.C. 2011) (FBi properly withheld names and information related to state and federal
officials and other third parties). The ATF’s reliance on Exemption 7(C), then, is proper.
c. Exemption 7(D)
Exemption 7(D) protects from disclosure "records or information compiled for law
enforcement purposes" that:
22
[C]ould reasonably be expected to disclose the identity of a confidential
source . . . [who] fumished infonnation on a confidential basis, and, in the
case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation . . ., information
fumished by a confidential source.
5 U.S.C. § 5 52(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. Lana’ano, 508 U.S. l65, 181 (1993). Rather, a source’s confidentiality must be
determined on a case-by-case basis. Ia’. at 179-80. "A source is confidential within the
meaning of [E]xemption 7(D) if the source provided information under an express
assurance of confidentiality or in circumstances from which such an assurance could be
reasonably inferred." Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (intemal
quotation marks and citation omitted).
The D.C. Circuit has held that the violence and risk of retaliation attendant to drug
trafficking warrant an implied grant of confidentiality to a source. See Mays v. DEA, 234
F.3d 1324, 1329-30 (D.C. Cir. 2000). The nature of the crime investigated and the
informant’s relation to it are important factors in determining whether implied
confidentiality exists, as well. Landano, 508 U.S. at 179-80; Coleman v. FBI, 13 F.
Supp. 2d 75, 82 (D.D.C. 1998) (finding that plaintiffs conviction "of numerous violent
crimes" including murder, rape and kidnaping, and "the relation of the witnesses thereto
is precisely the type that the implied confidentiality exemption expressed in Landano is
designed to encompass").
23
The declarant explains that "[t]he ATF reports accounts of interviews and
undercover operations involving named sources who provided information regarding
specifics about plaintiffs criminal activity." LaBrie Decl. 1 46. in this case, the
declarant asserts implied confidentiality, stating, "at the time the individual’s cooperation
was secured, [he] expected that [his] identity and the information [he] provided was on a
confidential basis and that it would remain so." Ia’. 1 49. in the ATF’s experience, the
declarant states, "violations of the F ederal firearms and narcotics laws often consist of, or
are accompanied by[,] acts of violence, and that individuals who provide information
conceming these crimes face a very real possibility of violent reprisal." Id. 1 48.
Plaintiff objects to the declarant’s statements, see LaBrie Decl. 1 43, regarding his
criminal history, see Pl.’s Opp’n at 24-25, to support the ATF’s assertion of both
Exemption 7(C) and Exemption 7(D), particularly insofar as the declarant attributes
"notoriously violent" offenses to plaintiff, LaBrie Decl. 1 43. Plaintiff deems the
declaration "misleading," coming from "an individual who[] has no knowledge of
Plaintiffs past history other than the documents retrieved from [law enforcement]
databases which only discloses ‘past charge and conviction"’ without providing "details
on charged offense, or actual police report[s]." Pl.’s Opp’n at 24. Plaintiff asserts that he
has no past affiliation with a gang, z``a'. at 25, and had the declarant "delv[ed] further into
plaintiffs past criminal history, . . . [s]he would have leamed that plaintiff was a young
misguided youth, living a drug addicted, petty lifestyle that has never caused any harm to
any one other than himself, or been charged with any violent offense in his life," ia'. at
24-25.
24
The declaration is silent, however, as to the confidential source’s relationship to or
knowledge of plaintiff s criminal activities. in sum, it fails to link plaintiff to
"notoriously violent" activities, such as gang-related murder, see Landano, 508 U.S. at
179, or violent acts of retaliation for witnesses’ cooperation with law enforcement, see
Shores v. FBI, 185 F. Supp. 2d 77, 84 (D.D.C. 2002), or any other circumstances under
which an assurance of confidentiality can be implied. Without more, the ATF cannot
show that its decision to withhold information pertaining to this confidential source or the
information he provided is justified under Exemption 7(D). See, e.g., Lazarz``dis v. US.
Dep’t ofJustice, 766 F. Supp. 2d 134, 148-49 (D.D.C. 201 l). Therefore, as to this issue,
defendants’ Motion for Summary Judgment is DENIED.
d. Exemption 7(E)8
Exemption 7(E) protects from disclosure law enforcement records "to the extent
that the production of such . . . information . . . would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). "The first clause of
Exemption 7 (E) affords ‘categorical’ protection for ‘techniques and procedures’ used in
law enforcement investigations or prosecutions." Pub. Emps. for Envtl. Responsz'bz``lity v.
U.S. Section Int’l Boundary & Water Comrn ’n, No. 11-261, 2012 WL 933709, at *16
8 initially, the ATF withheld "file numbers and other internal administrative codes"
under FOIA Exemption 2. Second Decl. of Marilyn R. LaBrie [Dkt. #27-1], Attach. to
Defs.’ Supp. Mot. for Summ. J., 1 3. The "ATF is now invoking Exemption [7(E)] to
protect from disclosure all the information previously redacted from records provided to
[plaintiff] pursuant to Exemption [2] in this matter." Ia’. 1 9.
25
(D.D.C. Mar. 20, 2012) (quoting Showing Ant``mals Respect & Kindness v. U.S. Dep ’t of
Interz'or, 730 F. Supp. 2d 180, 199-200 (D.D.C. 2010)). "Exemption 7(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."’ Ia’.
(quoting 5 U.S.C. § 552(b)(7)(E)).
The ATF "redacted information from 79 pages contained in [TECS], a law
enforcement database used by ATF to conduct criminal history checks." Second Decl. of
Marilyn R. LaBrie ("2d LaBrie Decl."), Attach. to Defs.’ Supp. Mot. for Summ. J., 11 4,
10. This information is described as "data displayed on screen prints of TECS," which
"identifies the terminal from which a query was accomplished by a terminal iD and a
logical unit iD to show its mainframe connection," and other data "relates to the software
applications that identify how the displayed record was retrieved," that is, the mapping
and routing codes, and codes "that allow movement to other programs from the displayed
screen." Id. at1 10. The declarant explains disclosure of this information to "computer
literate individuals with mainframe knowledge[] could provide information on the
structure of the mainframe system and expose the system to circumvention." Ia’.
Disclosure of these computer codes also "could facilitate unauthorized access to TECS
and other ATF databases and interfere with investigations and law enforcement activities
at all levels." Ia’.
For similar reasons, the ATF redacted "computer codes and case numbers from
other . . . law enforcement computer databases," including NCIC and databases
maintained by the Charlotte-Mecklenburg Police Department and the North Carolina
26
Department of Correction. Ia’. 1 11. From "5 pages of Charlotte-Mecklenburg/Property
Reports[,] 2 pages of North Carolina Department of Correction Cover Sheet and Offender
screen printout[,] and 6 pages of North Carolina Department of Correction finger print
sheets," the ATF redacted information "that referred to other law enforcement
databases." Ia’. 1 5. The ATF seeks categorical protection of information in these law
enforcement databases by arguing that disclosure "could harm their enforcement
capabilities and the entire, cooperative system of law enforcement throughout all levels
of govemment." Ia’. 1 11.
The D.C. Circuit has found that Exemption 7(E) "looks 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." Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190,
1193 (D.C. Cir. 2009)). On the theory that the redacted codes, case numbers, and other
computer information pertaining to the TECS, NCIC, and databases maintained by the
North Carolina authorities are techniques and procedures for law enforcement
investigation, the ATF adequately explained that disclosure of the information could
reasonably be expected to risk circumvention of the law. its reliance on Exemption 7(E),
therefore, is proper.
27
iii. CONCLUSION
The Court concludes that the ATF conducted searches that were adequate and
reasonable under the circumstances, and that it properly withheld information under
FOIA Exemptions 3, 7(C), and 7(E). 'l``hus, defendants’ Supplementa1 Motion for
Summary Judgment is GRANTED and defendants’ Motion for Summary Judgment is
GRANTED in part, Because defendants neither demonstrated the EOUSA’s compliance
with FOIA nor justified the ATF’s decision to withhold information under Exemption
7(D), the Motion for Summary Judgment is DENIED in part without prejudice as to these
issues. An Order consistent with this decision accompanies this Memorandum Opinion.
!
l
RICHARD J¥EBON
United States District Judge