Gamboa v. Executive Office for United States Attorneys , 65 F. Supp. 3d 157 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED
l Aue z a zant
EDGAR MOSQUERA GAMBOA, )
) Clerk, U.S. Dlstr|ct & Bankrup!cy
Courts for the D\strict ct Co\umbla
Plaintifi``, )
)
v ) Civil Acti0n No. 12-1220 (RJL)
)
EXECUTIVE OFFICE FOR UNITED)
STATES ATTORNEYS, el al., )
)
Defendants. )
)
MEMORANDUM OPINION
(Augusrzzoi¢t) [Dkt. #26]
This matter is before the Court on defendants’ Motion for Summary Judgment
[Dkt. #26]. Upon consideration of the parties’ pleadings, relevant law, and the entire
record in this case, the defendants’ Motion for Summary Judgment is GRANTED in part
and DENIED in part.
BACKGROUND
According to the Federal Bureau of lnvestigation ("FBI"), "[p]laintiff Edgar
Mosquera Gamboa and his associates were the subject[s] of a joint task force law
enforcement investigation for criminal activities including money laundering and cocaine
drug trafficking." Memorandum of Points and Authorities in Support of Defendants’
Motion for Summary Judgment ("Defs.’ Mem."), Declaration of David M. Hardy
("Hardy Decl.") il 4. Plaintiff has brought this action under the Freedom of lnformation
Act ("FOIA"), see 5 U.S.C. § 552, in an attempt to obtain records about himself and his
criminal case that are allegedly maintained by three components of the United States
Department of justice ("DOJ"): the Executive Office for United States Attorneys
("EOUSA"), the Federal Bureau of Investigation, and the Drug Enforcement
Administration ("DEA"). See Complaint ("Compl.") at 3-3B (page numbers designated
by plaintiff). Plaintiff sought documents "that he believes would help . . . him in
obtaining his [‘seized’] (not forfeited) funds in a collateral challenge" to his criminal
conviction. Plaintiff``s Statement of Material Facts As To Which There Exists a Genuine
Issue Necessary to be Litigated ("Pl.’s SOl\/IF") at 2 (page numbers designated by the
Court) (brackets in original).l
I. Executive Off``lce for United States Attorneys
In his initial FOIA request to the EOUSA, plaintiff, who identified his criminal
case by district court case number, sought the following information:
(l) FBI 302 documentation
(2) All lab reports.
(3) Vaughn Index Material.
(4) Search and/or Arrest Warrants.
(5) Indictment (both original and Superseding).
(6) Forfeiture Notices.
(7) Affidavits and or Statements.
(8) Documentation of Evidence Seized/Confiscated.
(9) Any and All lnvestigative Memorandums/Materials.
l The Court refers to Plaintiff’s Statement of Material Facts As To Which There Exists a
Genuine Issue Necessary to be Litigated [Dkt. #33] which has been docketed as a "Supplemental
Memorandum." This submission appears to be a corrected or revised copy of the Plaintiff’s
Statement of Material Facts As To Which There Exists a Genuine Issue Necessary to be
Litigated, which plaintiff filed with his opposition [Dkt. #32] to defendants’ motion.
2
Defs.’ Mern., Declaration of David Luczynski ("Luczynski Decl."``), Ex. A (Freedom of
lnformation Act Request dated February 28, 201 l) at 1-2. In separate correspondence, in
addition to the items listed above, plaintiff requested DEA Lab Report Nos. F3806,
F3 807 and F3808 and fingerprint reports from 1993 until the present. See Luczynski
Decl., Ex. B (Freedom of lnformation Act Request dated April l9, 201 l). A search for
records in the United States Attorney’s Office for the Southern District of Texas yielded
no responsive records. See z'd. il 7; see also id., Ex. C (Letter to plaintiff from Susan B.
Gerson, Acting Assistant Director, Freedom of lnformation & Privacy Staff, EOUSA,
dated June 20, 201 l). Plaintiff appealed this determination to the DOJ’s Office of
lnformation Policy ("OIP"). See z``d., EX. E (Letter to Office of lnformation Policy from
plaintiff dated July l9, 201 l). OIP remanded the matter "for further review and
processing of records . . . located subsequent to [the] appeal." Id., Ex. G (Letter to
plaintiff from Janice Galli McLeod, Associate Director, OIP, dated February 9, 20l2,
regarding Appeal No. AP-20l l-02702).
On remand, plaintiff narrowed his request to the following information:
l. Lab Reports F-3806 [and] F~3808. 2. Surveillance Log for
Feb. 26, 1993 for Special Agents Efrain Gutierrez, Clark
Webb, John R. Seeger, Herb Hoover, Jr., Luis A[.] Vazquez,
and D. Hansen. 3. Forfeiture Notices and final dispositions
for the seizure of $2,495[,]733.00 on March l2, 1993, from a
Dodge Caravan and the seizure of $255,710.00 from the
master bedroom at 16615 Dounreays, both in Houston, Texas.
Additional, the seizure of $522.00 from Edgar Mosquera
Gambo[]a on the day of his arrest in Houston, Texas, on
March 12, 1993.
Id., EX. J (Letter from plaintiff dated February 28, 2013). A second search of records
maintained by the United States Attorney’s Office for the Southern District of Texas
yielded no responsive records. See z'd., Ex. K (Letter from Susan B. Gerson dated March
ll, 2013).
II. Federal Bureau of Investigation
A. FOIPA Request No. 402645-001
Plaintiff”s original FOIA request to the FBI sought:
The (2) Lab Reports from case no. CR-9382-3, Lab Report F -
3806 and F-3 808 that had been referred to (F.B.I.) by the
(D.E.A.) on Aug[.] 29, 201 l[and] any and all records
relat[ing] to [plaintiff_l, and that [the FBI has] obtaincd, and
stored by listing outside parties.
Hardy Decl., EX. A (Freedom of lnformation Act Request dated October 5, 201 l). A
search of records maintained by FBI’s Headquarters ("FBIHQ") located approximately
l,233 pages of potentially responsive records. See ia’. il 9. After receipt of plaintiffs
agreement to pay fees for photocopies, see z``d. ilil 9-l l, of 182 pages of records reviewed
by FBIHQ staff, 89 pages were released either in full on in redacted form, relying on
FOIA Exemptions 6, 7(C), 7(D), and 7(E), l``a’. il 15.2 In the course ofprocessing its
records, FBIHQ staff located records which had originated at two other DOJ components
(the Bureau of Alcohol, Tobacco and Firearms, and the Drug Enforcement
Administration) and at U.S. Customs and Border Protection (formerly the United States
Customs Service), a component of the U.S. Department of Homeland Security. See z``cz’.
2 The FBIHQ notified plaintiff that it located "190" series files that were potentially responsive
to his FOIA request, but the agency did not process these records because it did not receive
plaintiffs written request to do so. See Hardy Decl. il l4 n. l.
4
il l5. These records were referred to those entities for direct response to plaintiff. See ia’.
After this litigation commenced, in Plaintiff’s Response [Dkt. #l l] to Defendant’s
Status Report [Dkt. #10], plaintiff further revised his FOIA request:
l. Lab Reports F-3806 and F-3808; 2. Surveillance Log for
February 26, 1993, for Special Agents Efrain Gutierrez, Clark
Webb, John R. Seeger, Herb Hoover Jr., Luis A. Vazquez,
and D. Hanson; S.Forfeiture Notices and final dispositions for
the seizure of $2,495,733.00 on March 12, 1993, from a
Dodge Caravan and the seizure of $255,710.00 on March l2,
1993, from the master bedroom at l56l5 or l66l5
Dounreays, both in Houston, Texas. Additionally, the seizure
of $522.00 from Edgar Mosquera Gambo[]a on the day of his
arrest in Houston, Tx., on March l2, 1993.
Hardy Decl. il l6. The FBIHQ reopened plaintiffs F()IA request and its staff conducted
additional searches for these particular items. See ia’. il l7. The search yielded an
additional 46 pages of records and the FBIHQ released 24 pages in redacted form, relying
on FOIA Exemptions 6, 7(C), 7(D) and 7(E). See z'a'. il 18. The search also "located
documents originat[ing] with another government agency," U.S. Customs and Border
Protection, and the FBI referred the documents to that agency for consultation. la’.
B. F()IPA Request No. 1172633
As is explained below, the DEA referred 2 pages of records to the FBl. See ia’.
il 20. Both pages were released to plaintiffin part, after redacting information under
FOIA Exemptions 6 and 7(C). See ia’. il 2l.
III. Drug Enforcement Administration
A. DEA FOIA Request No. l0-00824-F
1n July 2010, plaintiff submitted a FOIA request to the DEA seeking two lab
reports identified by number_F 3806 and F 3808_in a particular criminal case also
identified by number_CR-H-93 82-3. See Defs.’ Mem., Declaration of William C.
Little, Jr. ("Little Decl."), Ex. A (Freedom of Information/Privacy Act Request for
Records dated July 29, 2010). DEA staff located two pages of records and referred both
pages to the FBI, the DOJ component where they originated, for its direct response to
plaintiff. See Little Decl. ilil 15-16; see also id., Ex. D (Letter to plaintiff from Katherine
L. l\/Iyrick, Chief, Freedom of Information/Privacy Act Unit, FOI/Records Management
Section, DEA, dated August 29, 201 1). The DEA’s declaration neither indicated whether
a search for responsive records was conducted, nor described the results of a search.
B. DEA FOIA Request No. 13-00005-PR
The records referred by the FBI to the DEA consisted of four documents, totaling
26 pages. See z``cl. il l7. Of those 26 pages, three pages were referred to the Organized
Crime Drug Enforcement Task Force ("OCDETF") for its review and direct response to
plaintiff. See z``cl. il 18; see also z``a'., Ex. F (Letter to Jill Aronica, FOIA Officer, OCDETF
Executive Office, from Katherine L. Myrick, Chief, Freedom of Information/Privacy Act
Unit, FO1/Records Management Section, DEA, dated March 14, 2013). Of the remaining
pages, the DEA withheld certain information under FOIA Exemptions 7(C), 7(E), and
7(F); it released 15 pages in part and withheld eight pages in full. See ial. ilil 19, 2l.
IV. U.S. Customs and Border Protection
The FBI referred to U.S. Customs and Border Protection ("CBP") a one-page
record "indicating that certain biographical information and investigative information
was entered into a CBP law enforcement system of records." Hardy Decl., Ex. S
("Suzuki Decl.") il 6. The record was released to plaintiff in redacted forrn, as CBP relied
on FOIA Exemptions 6, 7(C), and 7(E). See z``a’. ilil 10, 20.
V. Executive Office for Organized Crime Drug Enforcement Task Forces
The DEA referred to the Executive Office for Organized Crime Drug Enforcement
Task Forces a three-page document. See Defs.’ Mem., Declaration of Jill Aronica
("Aronica Decl.") il 2. Relying on FOIA Exemptions 7(C), 7(E), and 7(F), OCDETF
withheld the document in full. See ial. ilil 4, 2l.
STANDARD OF REVIEW
FOIA cases are typically resolved on motions for summary judgment. See Petz``t-
Frere v. U.S. Altorney ’s Oyj’z``cefor the Southern Dz``st. ofFloria'a, 800 F. Supp. 2d 276,
279 (D.D.C. 201 1) (citations omitted), ajj"clper curiam, No. 11-5285, 2012 WL
4774807, at *l (D.C. Cir. Sept. 19, 2012). The court will grant summary judgment if
"the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled tojudgment as a matter oflaw." Fed. R. Civ. P. 56(a). An agency may meet
its burden solely on the basis of affidavits or declarations, see Valencz``a-Lucena v. US.
Coast Guarcl, 180 F.3d 321, 326 (D.C. Cir. 1999), as long as they "describe the
documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption,
7
and are not controverted by either contrary evidence in the record [or] by evidence of
agency bad faith." Mz``lz``taryAua’z``t Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)
(footnote omitted). In cases where an agency locates no records responsive to a FOIA
request, summary judgment is warranted when the agency demonstrates its compliance
with FOIA by means of "[a] reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files likely to contain responsive
materials (if such records exist) were searched." Oglesby v. U.S. Dep ’t of Justice, 920
F.2d 57, 68 (D.C. Cir. 1990).
ANALYSIS
l. Defendants’ Searches for Responsive Records
"It is elementary that an agency responding to a FOIA request must conduct a
search reasonably calculated to uncover all relevant documents, and, if challenged, must
demonstrate beyond material doubt that the search was reasonable." Truitt v. U.S. Dep 'l
of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (footnotes, brackets and internal quotation
marks omitted). To this end, an agency may submit, and the court may rely upon,
"reasonably detailed, nonconclusory affidavits describing its [search] efforts." Baker &
Hosteller LLP v. U.S. Dep ’t ofCo/n)nerce, 473 F.3d 312, 318 (D.C. Cir. 2006).
Ordinarily, the agency’s supporting affidavit or declaration "should ‘denote which files
were searched,’ by whom those files were searched, and reflect a ‘systematic approach to
document location."’ Toensz``ng v. U.S. Dep’t ofJuslice, 890 F. Supp. 2d 121, 142
(D.D.C. 20l2) (citing Wez``sberg v. U.S. Dep ’t ofJustz``ce, 627 F.2d 365, 371 (D.C. Cir.
1980)). A search can be adequate even if an agency does not locate the requested
8
records. See Boya’ v. Crz``minal Dz``visz``on ofthe U.S. Dep ’t ofJustz``ce, 475 F.3d 38l, 391
(D.C. Cir. 2007). "[T]he focus of the adequacy inquiry is not on the results,” Hornl)ostel
v. U.S. Dep’t oflnterior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003), a]j"clper curiam, No. 03-
5257, 2004 WL 1900562, at *1 (D.C. Cir. Aug. 25, 2004), but on whether the search
itself was "reasonably calculated to uncover all relevant documents," Wez'sberg v. U,S.
Dep’tofJuszz``ce, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
A. EOUSA
The task of conducting the EOUSA’s searches for records responsive to plaintiff’ s
FOIA request fell to the Supervisory Records Management Specialist at the United States
Attorney’s Office for the Southern District of Texas, whose duties include the
coordination of FOIA requests forwarded by the EOUSA to the USAO/SDTX. See
Defs.’ l\/lem., Declaration of Cristina Stennett ("Stennett Decl.") il 1. The search began
with a query of LIONS, "a computerized docketing/case management system" which
"tracks cases or matters for the entire USAO/SDTX." la’. il 2. The declarant further
described LIONS as follows:
Whenever a file on a new matter/case is opened, the
docketing clerk . . . enter[s] applicable information into the
LIONS database system and assign[s] the case or matter a
"USAO" number which [is] used as an internal tracking
number . . . . The information entered in LIONS is based on a
series of individual records which are linked together, or
related, in a logical order. These records may include, but are
not limited to, the names of the parties, the names of any
related cases, charging document, violation code, assigned
prosecutor, the Court assigned to the case, and what stage the
case is in.
LIONS allows the user to search all USAO-SDTX
matters/cases for a specific name. If the name for which the
search is done was not included in the information entered
into the LIONS system for a particular matter/case, the search
would not identify that matter as containing potentially
responsive information. The LIONS system is capable of
cross-referencing other related cases if such related case
information is entered into the system.
The LIONS system is the current database record
tracking system that is available and used by the USAO-
SDTX. Due to the large number of files maintained by the
Of``fice (in excess of 99,000 files), any search for case related
documents must be performed by the use of LIONS . . . .
Moreover, files are closed on a timely basis and such records
are shipped periodically to the F ederal Records Center in Fort
Worth where they are maintained for a specified number of
years (typically 10 years).
Ial. ilil 2-4. According to declarant David Luczynski, “[a]ll responsive documents to
[p]laintiff``s FOIA request would have been located in the USAO/[SDTX]," and "[t]here
are no other records systems or locations within the EOUSA or DOJ [where] other files
pertaining to [p]laintiff’ s criminal case were maintained." Luczynski Decl. il 15. "All
documents potentially response to [p]laintiff`` s FOIA request have been located in the
United States Attorney’s Office for the District of Texas," and were "maintained in the
Criminal Case File System." ld. il 16.
The USAO-SDTX"S initial search yielded six boxes of documents, four of which
contained information related to plaintiff. See Stennett Decl. ilil 6-10. Upon receipt of
the matter on remand from the OIP, the declarant "checked the F ederal District Court’s
Public Access to Computerized Records (PACER) in the party/case index," and found
"‘one criminal case on [plaintiff] which was (Criminal No. H-93-82)." la’. il 12. The
10
declarant’s LIONS search located "closed criminal and appeal cases" related to plaintiff.
[a’. il 13. "[A] physical search" of the four boxes of records included a review of all
criminal case files, the appellate file, and all envelopes, file folders and loose documents,
yet no records responsive to the request were located. See z``a’. il 16. Next, the declarant
contacted the Legal Support Manger of the Narcotics/OCDETF Section, the section of
the USAO-SDTX where the case originated; it maintained no files or records pertaining
to plaintiff. See z``al. il l7.
Upon receipt of plaintiffs narrowed request, another manual search of records
occurred, and this search included a review of the government’s exhibit list for plaintiffs
criminal trial. See z``a'. il 18. "As it relate[d] to the ‘lab reports’ or ‘surveillance log’, the
exhibit list [did] not reflect these items as [having] been admitted at trial." Ia’. il 19. With
respect to plaintiffs request for records pertaining to forfeiture, neither the four boxes of
records nor the Asset Forfeiture Division had any information. See id. il 19.3
B. FBI
The FBl’s Centra1 Records System ("CRS") includes "administrative, applicant,
criminal, personnel, and other files compiled for law enforcement purposes," and
"consists of a numerical sequence of files broken down according to subject matter."
Hardy Decl. il 24. The subject matter of a CRS file "may relate to an individual,
organization, company, publication, activity, or foreign intelligence matter." Ia’. FBIHQ
maintains certain CRS records, while each FBI field office maintains CRS records
3 According to the declarant, the FBI handled the administrative forfeiture. See Stennett Decl.
119
11
"pertinent to [that] specific field office[]." Ia'. In order to search the CRS, "the FBI uses .
. . the Automated Case Support System (‘ACS’)." Icl. il 26.
FBIHQ and Field Offices access the CRS using alphabetically ordered General
Indices. See z``a’. ilil 25-27. "The General Indices consist of index cards on various subject
matters that are searched either manually or though the automated indices." Ial. il 25.
There are two categories of General Indices:
(a) A "main" entry - A "main" entry carries the name
corresponding with a subject of a file contained in the CRS.
(b) A "reference" entry » A "reference" entry, sometimes
called a "cross reference[,]" is generally only a mere mention
or reference to an individual, organization, etc., contained in a
document located in another "lnain" file on a different subject
matter.
Icl. "Searches made in the General Indices to locate records concerning a particular
subject are made by searching the index for the subject requested."’ Ia’.
Since 1995, FBIHQ, Field Offices and Legal Attaches have used the ACS system,
which consists of records that had been maintained in automated systems previously
employed by the FBI. See z``a’. il 26. "ACS consists of three integrated, yet separately
functional, automated applications that support case management functions for all FBI
investigative and administrative cases." Ia’. The lnvestigative Case Management
application "provides the ability to open, assign, and close investigative and
administrative cases [and to] set, assign, and track leads." Id. il 26(a). Each new case is
assigned a Universal Case File Number, "which is utilized by all FBI field offices . . . and
12
FBIHQ . . . conducting or assisting in the investigation." Ia’. The Electronic Case File
application "serves as the . . . electronic repository for the FB1’s official text-based
documents." Ia’. il 26(b). The Universal lndex application provides "a complete
subject/case index to all investigative and administrative cases." Icl. il 26(0). The FBI
does not index every name in its files; rather, an FBI Special Agent assigned to an
investigation decides which information is "pertinent, re1evant, or essential for future
retrieval," and indexes the information accordingly. Ia’. il 27. Without an index "to this
mass of data, information essential to ongoing investigations could not be readily
retrieved," and the FBI’s files "would thus be merely archival in nature." Ia’. "[T]he
General Indices to the CRS are the means by which the FBI can determine what
retrievable information, if any, [it] may have in its CRS files on a particular subject
matter or individual." Icl.
The FBl’s Electronic Surveillance ("ELSUR") Indices contain information "on
subjects whose electronic and/or voice communications have been intercepted as the
result of warrantless and/or consensual electronic surveillance, or court-ordered
electronic surveillance conducted by the FBI." [al. il 28. These indices are separate from
the CRS and include information about "individuals who were the targets of surveillance,
other participants in monitored conversations, and the owners, lessees, or licensors of the
premises where the FBI conducted electronic surveillance." Ia’. il 29. ELSUR indices
also contain "the dates an individual was monitored; a confidential identification symbol
number to identify the individual being monitored; and the location of the FBI field office
that conducted the surveillance." ]d.
13
Using variations of plaintiffs name and date of birth as search terms, FBI staff
"conducted a search of the CRS . . . limited to years 1992 to the date ofthe ACS search
of 10/27/11, as [plaintiff] requested." Ia’. il 32. The search yielded "several main
investigatory files, several administrative (‘190’) series files, as well as several cross-
reference files indexed to plaintiffs name." Ial. A second search not only confirmed
these results, but also "yield[ed] numerous additional potentially responsive main
investigatory and cross references listed under different variations of plaintiff s first and
last name[s]." Ia’. il 33 (footnote omitted).
FBIHQ staff searched the ELSUR indices "in an attempt to locate the surveillance
log dated February 26, 1993 requested by plaintiff." Ial. il 34. The search located "a
surveillance log dated 2/26/1993 in the investigative case file 245B-HO-29416, Sub-A,
Serial 139." Ia' (footnote omitted). No formal forfeiture notices "or final disposition
notices for the seizure date and/or monetary amounts referenced in plaintiffs request"
were located; however, the FBI did "locate[] material referencing those seizures." [a’.
il 35.
In total, the FBI identified 230 pages of responsive records; it released 9 pages in
full, released 107 pages in part, withheld 1 14 pages in full, and referred 28 pages to other
agencies. See z``cl. il 4. The first release-on October 18, 2011-re1ated to records
referred to the FBI by the DEA. See z'al. il 20. The remaining two releases were records
located through FBI searches. On September 25, 2012, the FBI notified plaintiff that it
had processed 182 pages of records, and of these it released 89 pages in part or in full.
See z``a’. il 15. ()n April 12, 2013, the FBI advised plaintiff that it had reviewed 46 pages
14
of records and of these it withheld 24 pages in part; the remainder of the records were
referred to the CBP. See ial. il 18.
C. DEA
The DEA’s declarant states that the agency’s response to plaintiffs request for
copies of two specific lab reports was a referral of two pages of records to the FBI. See
Little Decl. ilil 13-16. The declarant does not describe a search, and thus neither plaintiff
nor the Court can assess whether its search was reasonab1e.
II. Plaintiffs Objections to the Searches
With respect to both the EOUSA and the FBI, plaintiff challenges the searches
because they did not yield the records he requested, specifically those pertaining to the
assets seized at the time of his arrest. See generally Memorandum of Points and
Authorities in Support of Plaintiffs Opposition to Defendants’ Summary Judgment
Motion ("Pl.’s Opp’n") at 8-14 (page numbers designated by plaintiff). Because, he
posits, the government has an affirmative obligation to maintain records regarding seized
property, defendants’ inability to locate such records is evidence of wrongdoing. See,
e.g., z'a’. at 10-1 l. "[W]hatever Database . . . Defendants used and reviewed[] obviously is
not the correct one, and the ensuing search was either therefore, unreasonable,
inadequate, records withheld, or the Defendants are in fact, and in law, bordering [on]
Obstruction of Justice by misleading this Court." Ia’. at 1 l. After all, plaintiff states, he
has received "pertinent records . . . located elsewhere." Ial. at 12.
The only purported genuine issue of material fact asserted by plaintiff goes to the
validity of the underlying seizure or forfeiture of assets, see, e.g. Pl.’s SOMF at 6-7, not
15
the adequacy of the searches for records. "[T]he issue to be resolved is not whether any
further documents might conceivably exist but rather whether the government’s search
for responsive documents was adequate." Wez``sl)erg, 705 F.2d at 1351 (citing Perry v.
Block, 684 F.2d 121, 128 (D.C. Cir. 1982)) (emphasis in original). Plaintiffs
unsupported speculation as to the existence of records that defendants have not produced
is not sufficient to withstand defendants’ showing on summary judgment, at least with
respect to the EOUSA and the FBI. See Baker & Hostetler LLP, 473 F.3d at 318 (finding
the requester’s "assertion that an adequate search would have yielded more documents is
mere speculation" and affirming district court’s decision that agency’s search procedure
was "reasonably calculated to generate responsive documents"); Concepcio'n v. Fea’.
Bureau of]nvestl``gation, 606 F. Supp. 2d 14, 30 (D.D.C. 2009) ("[S]peculation as to the
existence of additional records . . . does not render the searches inadequate.").
The Court concludes, based on the declarations provided by the EOUSA and the
FBI-describing the scope and methods of the searches-that each entity conducted a
search reasonably calculated to uncover records responsive to plaintiff s F O1A requests.
T he same cannot be said for the DEA. Its declarant does not describe a search at all, and
thus, neither plaintiff nor the Court can assess whether its search was reasonable under
the circumstances.
III. FOIA Exemption 7
The Court has reviewed plaintiffs Opposition to defendants’ Motion for Summary
Judgment, and concludes that his sole opposition relates to defendants’ inability to locate
specific documents pertaining to the seizure and forfeiture of assets. Plaintiff raises no
16
objection whatsoever to defendants’ decisions to withhold information under FOIA
Exemption 7. Absent any opposition from plaintiff, and because the Court concludes that
defendants have justified their decisions to withhold information under FOIA Exemptions
7(C), 7(D) (express assurance of confidentiality) and 7(E), the Court treats their
arguments as conceded/l See, e.g., Am, Immz'gration Councz``l v. U.S. Dep ’t ofHomeland
Sec., 950 F. Supp. 2d 221, 237 (D.D.C. 2013) (where requester no longer contests
withholdings under Exemptions 6 and 7(C), "[t]he Court . . . need not decide whether
Defendants have improperly withheld portions of documents described . . . as containing
‘personally identifiable information"’); Augustus v. McHugh, 870 F. Supp. 2d 167, 172
(D.D.C. 2012) (where plaintiffs "opposition did not challenge the Secretary’s proffered
justifications under FOIA for having redacted [inforrnation,]" the arguments were
"deemed conceded, and summary judgment [was] entered in favor of the Secretary"). As
is discussed below, however, where defendants have not met their burden on summary
judgment, specifically the FBl’s reliance on Exemption 7(D) (i1nplied assurance of
confidentiality) and 7(F), summary judgment must be denied in part.
4 The FBl’s declarant explains that it is the practice of the FBI to assert Exemption 6 in
conjunction with FOIA Exemption 7(C) where disclosure of information would or could
reasonably be expected to constitute an unwarranted invasion of personal privacy. See Hardy
Decl. ilil 43-45 & n.6. The CBP’s declarant explains that the agency applied FOIA Exemption 6
"to withhold the names, dates of birth, and race of third party individuals mentioned in the record
as release of the names, dates of birth, and race of these individuals would constitute a clearly
unwarranted invasion of personal privacy." Ial., Suzuki Decl. il 12. Because the Court finds that
the same information is properly withheld under FOIA Exemption 7(C), a discussion of the
applicability of FOIA Exemption 6 is unnecessary. 1 ee Roth v. U.S. Dep ’t ofJustice, 642 F.3d
1161, 1173 (D.C. Cir. 2011);$1')110)0 v. U.S. Dep’t ofJustz``ce, 980 F.2d 782, 785 (D.C. Cir. 1992).
17
FOIA 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 also Feal. Bureau of lnvestz'galz``on 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. Fea'. Bureau oflnvestz``gatz``on, 646 F.3d 37, 40 (D.C. Cir. 201 1) (internal
quotation marks and citations omitted).
The FBl’s declarant states that "[t]he records at issue were compiled for criminal
law enforcement purposes during the course of the FBI’s performance of its law
enforcement mission, including the investigation of criminal activities of plaintiff and
other subjects involved in a money laundering and cocaine drug trafficking enterprise."
Hardy Decl. il 41.
CBP, its declarant states, "is a law enforcement agency," the mission of which is
"to protect the borders of the United States against terrorists and the instruments of terror,
enforce the customs and immigration laws of the United States, and [to] foster our
Nation’s economy by facilitating lawful international trade and travel." Suzuki Decl. il 3.
The CBP record at issue is a one-page document "indicating that certain biographical
information and investigative information was entered into a CBP law enforcement
system of records." Ia’. il 6. The declarant further states that the record not only was
"created as a result of law enforcement proceedings," ial. il 14, but also was "compiled in
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direct relation to CBP’s law enforcement mandate to enforce both the customs and
immigration laws," z'a’. il 16, specifically, the "inspection and screening of international
travelers," z'a’. il 14.
The OCDETF is described as "a multi-agency program in the [DOJ] that provides
policy direction and funding to drug enforcement agencies for the investigation and
prosecution of high level drug trafficking organizations." Aronica Decl. il 8. The record
at issue is a three-page document referred to the OCDETF by the DEA, ia’. il 2, and
identified as "an administrative case initiation form . . . required for OCDETF
designation and funding of an investigation targeting the Plaintiff," z``d. il 14. "All of the
information on this form," the declarant avers, "was compiled for law enforcement
purposes, namely to facilitate the investigation and criminal prosecution of the
requester." Ia’.
The Court concludes that the declarants of the FBl, CBP and ()CDETF readily
demonstrate that the relevant records have been compiled for law enforcement purposes
and thus fall within the scope of FOIA Exemption 7.
A. FOIA Exemption 7(D)
FOIA 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 criminal law enforcement
authority in the course of a criminal investigation or by an
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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 [FOIA] Exemption 7(D) whenever [a] source provides information
[to a law enforcement agency] in the course of a criminal investigation." U.S. Dep ’z‘ of
Justice v. Landano, 508 U.S. 165, 181 (1993); see also Campbell v. U.S. Dep ’t ofJustz``ce,
164 F.3d 20, 34 (D.C. Cir. 1998). Rather, "[a] source is confidential within the meaning
of exemption 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. Fea’. Bureau oflnvestigatz``on, 69 F.3d 1155, 1159 (D.C. Cir.
1995) (per curiam) (quoting Lana’ano, 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." Rozh, 642 F.3d at 1184 (internal quotation
marks and citation omitted). For example, the Court considers "the nature of the crime . .
. investigated and the source’s relation to it" to determine whether implied confidentiality
exists. Lanalano, 508 U.S. at 180.
Here, the FBI withholds "the names, identifying information, and information
provided by third parties, including individuals who provided information to the FBI
under an implied assurance of confidentiality." Hardy Decl. il 62. These sources, the
declarant states, "provided specific detailed information that is singular in nature
concerning a specific investigation." Ia’. Disclosure of their identities, the declarant
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asserts, "could have a disastrous impact" on these individuals, as well as on the FBl’s
ability to obtain the cooperation of sources in future investigations. See icl. il 63.
Missing from the declaration is any explanation as to the connection between the
source(s) and plaintiff or his criminal activities. Nor is there any description of the
circumstances which purportedly gave rise to the implication that the source(s) provided
information to the FBI only with the understanding that their identities and the
information they provided would not be released to the public. The FBI fails to
demonstrate that it properly withheld information under FOIA Exemption 7(D) with
respect to source(s) who provided information to the FBI under an implied assurance of
confidentiality.
B. FolA Exemption 7(F)5
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). "While courts generally have applied
[FOIA] Exemption 7(F) to protect law enforcement personnel or other specified third
parties, by its terms, the exemption is not so limited; it may be invoked to protect ‘any
individual’ reasonably at risk of harm." Long v. U.S. Dep ’t of.]usz‘z``ce, 450 F. Supp. 2d
42, 79 (D.D.C. 2006) (quoting 5 U.S.C. § 552(b)(7)(F)). "ln reviewing claims under
[FOIA exemption 7(F), courts have inquired whether there is some nexus between
5 The DEA has withheld the names of DEA Special Agents, state and local law enforcement
personnel, and support personnel under FOIA Exemption 7(F) in conjunction with FOIA
Exemption 7(C). See Little Decl. il 44. Because the withheld information is found to be
protected under FOIA Exemption 7(C), the Court need not separately consider the applicability
of FOIA Exemption 7('F) to these particular documents. See Roth, 642 F.3d at 1 173.
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disclosure and possible harm and whether the deletions were narrowly made to avert the
possibility of such harm." Arztonellz`` v. Fea’. Bureau ofPrz``sons, 623 F. Supp. 2d 55, 58
(D.D.C. 2009) (citing Albuquerque Publ’g Co. v. U.S. Dep’l ofJusZz``ce, 726 F. Supp. 851,
858 (D.D.C. 1989)); see also Lirm v. U.S. Dep ’t ofJuslz``ce, No. 92-1406, 1995 WL
631847, at *8 (D.D.C. Aug. 22, 1995) (noting court’s inquiry as to "whether there is
some nexus between disclosure and possible harm"). "Within limits, the Court defers to
the agency’s assessment of danger." Amuso v. U.S. Dep ’t ofJustz'ce, 600 F. Supp. 2d 78,
101 (D.D.C. 2009).
l. FBI
The FBI withholds under FOIA Exemption 7(F) the identity of and information
provided by an individual. "In light of the detailed nature of the information the source
has provided to the FB1, it is reasonable to expect that release of his/her identifying
information would place him/her and [his/her] family at great risk." Hardy Decl. il 76.
This conclusory statement alone cannot support the FB1’s decision to withhold
information under FOIA Exemption 7(F). See, e.g., Long, 450 F. Supp. 2d at 80 (finding
that agency offering "little more than conclusory assertions that disclosure will increase
the chances that third parties will be harmed in some way" does not justify withholding
information under FOIA Exemption 7(F)). T he declarant does not "describe[] with
sufficient particularity," Fz``scher v. U.S. Dep’l of.]ustz'ce, 723 F. Supp. 2d 104, 111
(D.D.C. 2010), the FBl’s concern that release ofthis information will bring about the
types of harm the exemption is designed to avoid.
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2. OCDETF
The responsive record at issue is a case initiation form containing the names and
contact numbers of individuals involved in the investigation of plaintiff s criminal
activities, as well as information about the targets and goals of the investigation. See
Aronica Decl. ilil 9-12. The declarant explains that the OCDETF’S concern that
disclosure of information potentially subjects the protected individuals to "harassment,
harm, or exposure to unwanted or derogatory publicity and inferences," ia'. il 16, is even
greater "with respect to individuals who participate in criminal investigations of high
level drug trafficking organizations," ia'. il l7. "Release of this privacy-protected
information could also reasonably be expected to endanger their lives or safety, given the
resources typically available to these criminal organizations and the consequences to the
members of the organization if they are caught and successfully prosecuted." Ia’.
Although this explanation is slightly more substantial than that offered by the FBI, it too
fails to adequately demonstrate a connection between the protected individuals and the
purported reasonable expectation that their lives or physical safety will be endangered as
a result of disclosure.(’
CONCLUSION
Thus, for all the foregoing reasons, the Court concludes that: (l) the EOUSA and
the FBI have conducted adequate searches for records responsive to plaintiffs FOIA
6 For purposes of a renewed motion for summary judgment, if the necessary detail would
disclose the very information defendants mean to withhold, defendants may submit an in camera
declaration or may submit copies of the documents themselves for in camera review. See
Foundirzg Church ofScierztology v. Nal’l Sec. Agency, 610 F.2d 824, 831-32 & n.67 (D.C. Cir.
1979) (citation omitted).
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request; (2) the EOUSA fulfilled its obligations under FOIA, notwithstanding its "no
records" response; (3) the FBI, CBP and OCDETF properly withheld information under
FOIA Exemptions 7(C) and 7(E); and (4) the FBI properly withheld information under
Exemption 7(D) based on an express assurance of confidentiality. For these reasons,
defendants’ Motion for Summary Judgment is GRANTED in part. Summary judgment is
DENIED, in part, because: (l) the DEA did not demonstrate that its search for records
responsive to plaintiffs FOIA request was adequate; (2) the FBI did not demonstrate that
informant(s) provided information under an implied assurance of confidentiality for
purposes of FOIA Exemption 7(D); and (3) neither the FBI nor the OCDETF
demonstrated that the withholding of information under FOIA Exemption 7(F) was
appropriate. The Court defers its consideration of segregability. An Order consistent
with this decision accompanies this Memorandum Opinion.
/
RICHARD . L N
United Sta istrict Judge
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