Callaway v. United States Department of Treasury

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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HENRY CALLAWAY, )
)
Plaintiff, )
)
v. ) Civil Action No. 04-1506 (RWR)
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UNITED STATES DEPARTMENT )
OF TREASURY, et al, )
)
Defendants. )
)
MEMORANDUM OPINION
This matter is before the Court on plaintiff’s Motion Requesting That This Court Alter
and/or Amend Its Judgment, or Alternatively Reconsider Its Judgment (“Pl.’s Mot. to Recons.”)
[Dkt. #100] and Defendants’ Fourth Renewed Motion for Summary Judgment with its
supporting memorandum (“Defs.’ Mem.”) [Dkt. #104]. The Court will deny the former and
grant the latter.
1. BACKGROUND
Plaintiff brought this action under the Freedom of Information Act (“FOIA”), see
5 U.S.C. § 552, to challenge responses to requests for information he submitted to the Executive
Office for United States Attorneys (“EOUSA”) and the United States Customs Service
(“Customs”).1 Compl. at 1 (page numbers designated by plaintiff). He “basically request[ed]
1
The United States Customs Service was a component of the United States Department of
the Treasury, and since has become a part of the Department of Homeland Security. Its
functions have been divided between U.S. Customs and Border Protection and Immigration and
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any and all criminal investigation and prosecution records pertaining to himself,” id, at 2, and to
“criminal case No. 95-209-CR-T-21(E) [in the United States District Court for the Middle
District of Florida] including all Audio Recordings made involving [p]laintiff.”id at 3. Plaintiff
identified the audio recordings by their trial exhibit numbers: N-113, N-114, N-115, and N-116.
See id., Ex. Z (Contact Log) at 50-51 (page number designated by plaintiff); Defs.’ Mot. for
Summ. J. [Dkt. #22], First Kornmeier Decl., Ex. J (Letter to Richard L. Huff, Office of
Information and Privacy, U.S. Department of Justice, dated August 21, 2003) at 2 (emphasis in
original) & First Fields Decl., Ex. A (Freedom of Information Request dated May 20, 1998) at 2.
Based on subsequent submissions, however, plaintiff was interested only in two tapes, N-113
and N-116, because these “were in their redacted form when turned over to the Plaintiff during
discovery” in the criminal matter. Pl.’s Mot. to Recons. at 2; see id. at 25-30.
With three exceptions, all issues in this case have been resolved. The Court discusses
below; (1) plaintiff’s motion for reconsideration of the Court’s November 16, 2011
Memorandum Opinion and Order with respect to an alleged factual dispute as to the contents of
audio tapes released by the EOUSA to plaintiff; (2) the adequacy of Customs’ search for
information pertaining to the services of Ron Rose Productions; and (3) whether all segregable
information has been released to plaintiff.
Customs Enforcement. As in previous memoranda, the Court refers to the recipient of plaintiff’s
FOIA request as “Customs.”
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II. DISCUSSION
A. Plaintiff’s Motion for Reconsideration
Plaintiff appealed the Court’s September 10, 2008 Memorandum Opinion and Order
[Dkt. #71-72], and the United States Court of Appeals for the District of Columbia Circuit
remanded the case in part for resolution of an apparent factual dispute:
First, Callaway asked the [EOUSA] to provide unredacted copies of
two audio tape recordings. Although the EOUSA released the tape
recordings, there appears to be a factual dispute with regard to the
content of the audio tape recordings, which . . . could not be resolved
for summary judgment. The district court relied on an assertion by
the EOUSA that it made no redactions to a CD-ROM released to
Callaway containing the recordings. Callaway presented evidence in
the form of his verified complaint, attached exhibits, and an expert
witness report, which suggest the recordings were redacted . . . .
Based on the existence of this factual dispute, summary judgment
was inappropriate.
Memorandum, Callaway v. U.S. Dep't of the Treasury, No. 08-5480 (D.C. Cir. June 2, 2009)
(per curiam) at 1. The EOUSA's declarant later explained the discrepancy as follows:
An investigative agency prepares physical evidence such as tapes for
use at trial. Whatever modifications an investigative agency may
make to prepare the evidence for trial have already been made prior
to giving it to an Assistant United States Attorney to present at trial.
The tapes that the USAO for the Middle District of Florida
("USAO/MDFL") had in its possession were the ones that the
investigative agency, [Customs], had prepared for the criminal trial
of Mr. Callaway. Any modifications . . . such as shortening of the
tapes had already been made prior to the criminal trial. In response
to Mr. Callaway's FOIA request long after the criminal trial,
EOUSA requested the tapes from the USAO/MDFL which it
received on February 1, 2005, then simply released the tapes on
April 4, 2005, in the exact form it had them making no redactions.
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Mem. of P. &. A. in Supp. of Defs.' Third Renewed Mot. for Summ. J. [Dkt. #88], Fourth
Kornmeier Decl. ¶ 5. It appeared, then, that audio tapes released by the EOUSA to plaintiff had
the same content as the audio tapes received by the EOUSA from Customs prior to the trial. The
Court found that the EOUSA fulfilled its obligations under the FOIA by "releasing to [plaintiff]
exactly what he requested," Reply to Pl.'s Opp'n to Defs.' Third Renewed Mot. for Summ. J.
[Dkt. #95]. Fifth Kornmeier Decl. ¶ 8, namely copies of the recordings in the EOUSA's
possession - - without further redaction. Callaway v. U.S. Dep't of the Treasury, 824 F. Supp. 2d
153, 158 (D.D.C. 2011).
Plaintiff takes the position that the Circuit's "ruling . . . was fashioned in an opaque and
equivocal manner that left the scope of the remanded proceedings at the whim of one's
perspective of the matters." Pl.'s Mot. for Recons. at 5-6. He argues that this Court
misunderstood the scope of the remand, se generally id. at 5-9, and that the resolution of the
factual dispute with regard to the content of the audio tape recordings requires this Court "to
determine if in fact the released audio tapes were redacted audio tapes; [NOT WHO
REDACTED THE AUDIO TAPES], as the defendants EOUSA would have it." Id. at 6(brackets and emphasis in original). The Court must first tape one step back, in his view, and
determine "whether or not [Customs] turned over original audio tapes or redacted audio tapes."
Id. at 20. Plaintiff opines that Customs "turned over to the [USAO/MDFLA] . . . full and
complete recordings of the two audio tapes in question N-113 and N-116," id. at 17, and that "at
some point after [Customs] turn[ed] over the audio tapes, the USAO altered the two original
versions of N-113 and N-116 to create trial composite recordings," id. at 35-36. The
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USAO/MDFLA need not have "discarded the originals," he suggests, but instead may have
"copied portions of the original versions onto another cassette, and left the original versions
intact within the files." Id. at 36.
The Court's authority is limited to directing the release of non-exempt agency records in
existence at the time the EOUSA received plaintiff's FOIA request. The FOIA "only obligates
[the EOUSA] to provide access to those which it in fact has created and retained.” Kissinger v.
Reporters Comm. For Freedom of the Press, 445 U.S. 136, 153 (1980). Based on the EOUSA’s
declarations, the agency has shown that it has searched for and released audio tapes N-113 and
N-116 in the same form as the tapes were received from Customs. There is no dispute that these
tapes have been redacted, yet nothing in the record of this case demonstrates that the original
tapes still exist, or that the original tapes remain in the EOUSA’s possession, or that the tapes are
improperly withheld. Accordingly, plaintiff’s motion for reconsideration will be denied.
B. Defendants’ Fourth Renewed Motion for Summary Judgment
1. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife 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 is entitled to judgment as a matter of law. See 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
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requirements.’” Students Against Genocide v. Dep’t of State, 257 F.2d 828, 833 (D.C. Cir. 2001)
(quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). “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).
2. Adequacy of Customs’ Search for Expenditure-Related Information
An agency’s search must be reasonable. “[T]he issue to be resolved is not whether there
might exist any other documents possibly responsive to the request, but rather whether the search
for those documents was adequate.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983) (citing Perry, 684 F.2d at 128). The agency’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.” SafeCard Servs., Inc. v. Sex. & Exch.
Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).
And a requester’s challenge requires that he present evidence rebutting the agency’s initial
showing of a good faith search. See Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 560
(1st Cir. 1993); Weisberg, 705 F.2d at 1351-52.
It appeared that Ron Rose Productions was retained by Customs “to service the 116 audio
tapes” generated during the criminal investigation and used as trial exhibits.2 Pl’s Aff. [Dkt.
2 An analyst with the Office of Acquisition Management “conducted a standard contractor
6
#93-1] at 7; see Pl.’s Mot. to Recons. at 35. Plaintiff has described Ron Rose Productions as “an
audio production company that by design doctors . . . audio and video tapes.” Id. Plaintiff’s
FOIA request seeks “[a]ll audio tapes service invoices from Ron Rose [P]roductions for the
editing, redacting, and copying of the audio tapes,” Defs.’ Mot. for Summ. J., First Fields Decl.,
Ex. G at 4. Customs’ prior searches were deemed inadequate, see Callaway, 824 F. Supp. 2d at
161-62 (finding that plaintiff’s FOIA request reasonably can be interpreted as one encompassing
more than investigatory or criminal investigatory records); see also Callaway v. U.S. Dep’t of the
Treasury, No. 04-1506, 2006 WL 6905083, at *7 (D.D.C. Aug. 26, 2006) (noting Customs’
failure to explain “the [Tampa and Miami] field offices’ systems of records, their contents and
organization, or the method of the field offices’ searches”), because plaintiff’s request
reasonably should have been interpreted as one encompassing records other than investigatory or
criminal records. “His request for invoices for services rendered by Ron Rose Productions, for
example, [did] not so clearly or exclusively pertain to law enforcement that the [Treasury
Enforcement Communication System] and [Investigatory Records System] could be the only
systems of records likely to contain responsive records.” Callaway, 824 F. Supp. 2d at 162.
According to Customs, information pertaining to investigation-driven expenditures is not
maintained in TECS, Reply to Pl.’s Opp’n to Defs.’ Third Renewed Mot. for Summ. J. [Dkt.
#95], First Supp. Pavlik-Keenan Decl. ¶ 8, and the agency did not “as a matter of practice,
search of all procurement database systems . . . for any contract awarded to Ron Rose
Productions by [Customs] for Fiscal Years 1985 to 2012,” but the search “did not produce any
records showing that Ron Rose Productions was awarded a government contract for services.”
Reply to Pl.’s Opp’n to Defs.’ Fourth Renewed Mot. For Summ. J. [Dkt. #108], Third Supp.
Decl. of Catrina M. Pavlik-Keenan ¶ 7.
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interpret FOIA requests for investigatory files as requests for records of underlying expenditures
related to those investigations.” Id., First Supp. Pavlik-Keenan Decl. ¶7. Customs’ declarant
since has “determined that, to the extent that [Customs] procured the services of Ron Rose
Productions in 1995 in preparation for plaintiff’s criminal proceedings, SAC Tampa
Administrative Branch is the only additional location that had not been previously searched
which might maintain responsive invoices.” Defs.’ Mem. Second Supp. Pavlik-Keenan Decl.
¶ 7. These records “for the time frame at issue, [were] maintained in a manual system of logs
and worksheets documenting . . . payment of vendor invoices.” Id.
On November 16, 2011, Customs “conducted a supplemental search for the production
invoices,” with the following results:
The Budget Specialist at the time destroyed the procurement files
every three (3) years due to limited onsite storage capacity and
pursuant to the National Archive and Records Administration (NARA)
General Records Schedules (GRS), N1-GRS-95-1 item 3a1b. These
procurement files would have included any vendor invoices related to
the services provided by the Ron Rose Production company in 1995, if
acquired by [Customs] would have been destroyed either in 1998 or
early 1999 by SAC Tampa. SAC Tampa did not create record
destruction notices during this time period.
Id., Second Supp. Pavlik-Keenan Decl. ¶ 8. Plaintiff responds with two arguments.
According to plaintiff, if SAC Miami had destroyed the relevant records in 1998 or early
1999, it did so in violation of the FOIA. See Mem. of P. & A. in Opp’n of Defs.’ Fourth
Renewed Mot. for Summ. J. [Dkt. #106] (Pl.’s Opp’n) at 9.
Plaintiff’s initial FOIA request was submitted on May 20, 1998, and “if the in question
audio tapes were created on October 19, 1995,” the three-year period after which the Ron Rose
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invoices would have been destroyed ended on October 19, 1998, “five months after the initial of
the plaintiff’s FOIA request to [Customs].” Mem. of P. & A. in Opp’n of Defs.’ Fourth
Renewed Mot. for Summ. J. [Dkt. #106] (Pl.’s Opp’n) at 10.
Review of the record shows that plaintiff’s original May 20, 1998 FOIA request to
Customs does not mention Ron Rose Productions. See Defs.’ Mot. for Summ. J., First Fields
Decl., Ex. A at 2. Not until April 1, 2004, did plaintiff request “audio tapes services invoices
from Ron Rose [P]roductions for the editing, redacting, and copy of the audio tapes.” Id., First
Fields Decl., Ex. G at 4. It is not unreasonable to interpret plaintiff’s original request as one for
two particular trial exhibits, N-113 and N-116. Nothing in the original requests suggests that
plaintiff sought expenditure-related information which may have existed outside of investigatory
records. Customs would not have been on notice in 1998 that it should have been seeking
invoices.
Plaintiff next argues that Customs’ latest search was inadequate. “It is the Plaintiff’s
position that if [Customs] destroyed or even lost its procurement records for the specified time
period, then logic would dictate that [C]ustoms would have to seek such records elsewhere to
obtain them.” Id. He contends that Customs’ search is not limited within the veils of the
agency,” such that Customs was obligated to obtain the invoices from Ron Rose Productions
directly. Id. At 11.
The FOIA “only obligates [Customs] to provide access to those which it in fact has
created and retained.” Kissinger, 455 U.S. at 153. It need not produce records maintained by
another federal government agency or obtain records from any other sources. See DiPietro v.
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Exec. Office for U.S. Attorneys, 357 F. Supp. 2d 177, 182 (D.D.C. 2004). And “the fact that
responsive documents once existed does not mean that they remain in the [Customs’] custody
today or that [Customs’] had a duty under [the] FOIA to retain [them]. Wilbur v. Cent.
Intelligence Agency, 353 F.2d 675, 678 (D.C. Cir. 2004). The fact that SAC Miami may have
destroyed invoices pertaining to Ron Rose Production’s services does not render Customs’
response to his FOIA request deficient. See James v. U.S. Secret Serv., 811 F. Supp. 2d 351, 358
(D.D.C. 2011) (“An agency does not control a record which has been destroyed, . . . and it is
under no obligation to obtain a duplicate of or to re-create a record in order to fulfill a FOIA
request.” (citations omitted)), aff’d, No. 11-5299, 2012 WL 1935828 (D.C. Cir. May 11, 2012)
(per curiam); Flowers v. Internal Revenue Serv., 307 F. Supp. 2d 60, 71 (D.D.C. 2004) (crediting
IRS affidavits which explained that responsive records were destroyed pursuant to published
document-retention schedule); see also Strunk v. U.S. Dep’t of State, 770 F. Supp. 2d 10, 16
(D.D.C. 2011) (rejecting plaintiff’s “opinion and speculation as to the existence or wrongful
destruction of responsive records”).
C. Segregability
The Court previously concluded that the EOUSA properly withheld information under
Exemption 3, and that Customs properly withheld information under Exemptions 2, 7(C), 7(D)
regarding one informant under an implied assurance of confidentiality, 7(E), and 7(F), and that
all reasonably segregable information has been released. See Callaway, 2007 WL 7698581, at
*7-17; see also Callaway, 824 F. Supp. 2d at 163-65 (concluding that grand jury transcripts
retained Exemption 3 protection notwithstanding plaintiff’s assertion that information had
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entered the public domain). In addition, the Court found that Customs properly withheld
information under Exemption 7(D) with respect to a confidential informant to whom it granted
an express assurance of confidentiality. See Callaway v. U.S. Dep’t of the Treasury, 577 F.
Supp. 2d 1, 3 (D.D.C. 2008). Although Customs has conducted additional searches since the
Court first deemed its and the EOUSA’s responses to plaintiff’s FOIA requests appropriate, see
Def.’s Third Renewed Mot. for Summ. J., Pavlik-Keenan Decl. ¶¶ 7-10; Defs.’ Mem., Second
Supp. Pavlik-Keenan Decl.¶¶ 7-8, no additional records have been located. Accordingly, the
Court’s prior segregability ruling, see Callaway, 2007 WL 7698581, at *17, stands. On review
of the defendants’ supporting declarations, the Court concludes that all reasonably segregable
information has been released to plaintiff.
CONCLUSION
Defendants have demonstrated their compliance with their obligations under the FOIA,
and, accordingly, their motion for summary judgment will be granted. A final Order
accompanies this memorandum opinion.
Signed this 30th day of September, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
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