Kowal v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARBARA KOWAL
Plaintiff,
v. Civil Action No. 18-938 (TJK)
UNITED STATES DEPARTMENT OF JUS-
TICE et al.,
Defendants.
MEMORANDUM OPINION
This Freedom of Information Act case is back for its third round of summary judgment
motions. The only remaining issue is the propriety of certain Exemption 7(E) withholdings. Given
Defendants’ clarification about the information at issue, the Court will grant their renewed motion
for summary judgment and deny requestor Barbara Kowal’s cross-motion.
I. Background
The Court assumes familiarity with the background of this case. See ECF Nos. 34, 52.
Briefly, Kowal, a paralegal for the Federal Defender of the Middle District of Florida, requested
all documents the Drug Enforcement Agency (“DEA”) had about the prosecution of a particular
capital defendant. After the DEA produced some documents and withheld others in whole or in
part, Kowal sued the DEA and the Department of Justice (“DOJ”) under the FOIA.
During the last round of summary judgment motions, the Court granted Defendants sum-
mary judgment as to everything except certain Exemption 7(E) withholdings. The Court found
that the DEA properly invoked Exemption 7(E) to withhold “‘Geo-Drug Enforcement Program
(G-DEP) identifiers,’ ‘Narcotics and Dangerous Drugs Information System (NADDIS) numbers,’
and DEA file numbers.” ECF No. 52 at 13. But the Court held that Defendants did not provide
enough information for it to decide the propriety of withholding “‘material that would reveal sen-
sitive, non-public references to the DEA’s Agents’ Manual’ and ‘certain information that would
reveal sensitive, non-public references to the DEA’s Agents’ Manual.’” Id. at 13–14. This de-
scription, the Court found, left “unclear what law enforcement procedures are at stake and how
references to the DEA Agents’ Manual might disclose those procedures.” Id. at 14. Thus, the
Court denied without prejudice the motions for summary judgment as to those withholdings.
Defendants now renew their motion, clarifying that when they referenced material “that
would reveal sensitive, non-public references to the DEA’s Agents’ Manual,” they did not “in-
tend[] to signify that any additional material was withheld under 7(E) that could reveal sensitive,
non-public references to the DEA Agents’ Manual.” ECF No. 55-2 ¶ 10. They “meant to encom-
pass the same material already described as being exempt under Exemption 7(E),” id.—“infor-
mation such as DEA file numbers, as well as related files, cross-files, NADDIS numbers, and other
specific numbers and codes that could lead to discovery and circumvention of the law by drug
violators,” id. ¶ 7. And that information, they argue, is what the Court already said the DEA
properly withheld. Id.
Kowal cross-moves, arguing that the Court granted summary judgment as to only three
specific categories of Exemption 7(E) withholdings: “G-DEP, NADDIS, and DEA file numbers.”
ECF No. 57-2 at 5. But Defendants invoked the exemption to withhold other information, such as
“quantitative and qualitative drug classification criteria for violators, derived from the DEA
Agents’ Manual,” and “assessments of numerical class of drug violator and internal drug violator
codes, also derived from the DEA Agents’ Manual.” Id. (cleaned up). And according to Kowal,
withholding that other information was improper.
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II. Legal Standard
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The “majority of FOIA cases can be
resolved on summary judgment.” Brayton v. Office of U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011). “FOIA ‘mandates that an agency disclose records on request, unless they
fall within one of nine exemptions.’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec. (“EPIC”),
777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011));
see also 5 U.S.C. § 552(b)(1)–(9). A court reviewing a FOIA action may grant summary judgment
based on the agency’s declarations “[i]f an agency’s affidavit describes the justifications for with-
holding the information with specific detail, demonstrates that the information withheld logically
falls within the claimed exemption, and is not contradicted by contrary evidence in the record or
by evidence of the agency’s bad faith.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011).
III. Analysis
The Court agrees with Defendants: its prior Exemption 7(E) decision dictates the outcome
here. Exemption 7(E) allows the withholding of documents compiled for law enforcement pur-
poses if disclosing such records “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). An agency’s burden for this exemption is “relatively low.” Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). So long as the requested information “relates to law en-
forcement techniques, policies, and procedures,” Showing Animals Respect & Kindness v. U.S.
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Dep’t of Interior, 730 F. Supp. 2d 180, 199 (D.D.C. 2010), the agency need only “demonstrate
logically how the release of [it] might create risk of circumvention of the law,” Blackwell, 646
F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
When the Court previously considered the DEA’s Exemption 7(E) withholdings, it distin-
guished between information described as part of the DEA’s “internal system of developing crim-
inal activity information and intelligence,” ECF No. 36-1 ¶ 32, and a more nebulous category of
“material” and “information” that “would reveal sensitive, non-public references to the DEA’s
Agents’ Manual.” ECF No. 52 at 13 (cleaned up); see also ECF No. 57-1 at 1–2. The Court
granted Defendants summary judgment as to all but the latter. ECF No. 52 at 13–14. So now that
Defendants have clarified that there is no separate latter category, it is self-evident that no category
of withholdings remain. ECF No. 55-2 ¶ 10. In other words, the Court has already found all the
DEA’s Exemption 7(E) withholdings proper.
Even if the Court had not yet ruled on the specific withholdings Kowal identifies—“quan-
titative and qualitative drug classification criteria for violators, derived from the DEA Agents’
Manual,” as well as “assessments of numerical class of drug violator and internal drug violator
codes, also derived from the DEA Agents’ Manual”—Defendants have shown that they are pro-
tected by Exemption 7(E). ECF No. 57-2 at 5. Such information plainly “relates to law enforce-
ment techniques, policies, and procedures.” Showing Animals Respect & Kindness, 730 F. Supp.
2d at 199; Long v. ICE, 149 F. Supp. 3d 39, 49 (D.D.C. 2015) (“internal database codes, fields,
and other types of identifiers used by law enforcement agencies to conduct, organize, and manage
investigations and prosecutions qualify, at least, as law enforcement guidelines, if not also law
enforcement methods and techniques”). And Defendants have sufficiently shown how release of
the information “might risk circumvention of the law.” Blackwell, 646 F.3d at 42; see ECF No.
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55-2 ¶ 9; Blackwell, 646 F.3d at 42 (finding that similar statements “suffice[] . . . to justify invo-
cation of Exemption 7(E)”).
Kowal’s primary response is that the withheld information is not “generally unknown” to
the public. ECF No. 57-2 at 6. She claims that “information about the DEA’s file organization
and classification codes can be found in many numerous publicly available sources.” Id. But the
Court found similar arguments unpersuasive the last time around. ECF No. 52 at 13 n.5. And it
reaches the same conclusion here. See Pub. Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir.
1993) (“[A] plaintiff asserting that information has been previously disclosed bears the initial bur-
den of pointing to specific information in the public domain that duplicates that being withheld,”
and “show[ing] that similar information has been released” is insufficient.); Afshar v. U.S. Dep’t
of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (“In many cases, the very fact that a known datum
appears in a certain context or with a certain frequency may itself be information that the govern-
ment is entitled to withhold.”); see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990).
All in all, the Court agrees with Defendants that the DEA’s Exemption 7(E) withholdings
have been sufficiently justified. And now that Defendants have shown that all the DEA’s Exemp-
tion 7(E) withholdings are proper, the Court will also find that the DEA released all “reasonably
segregable portions” of the documents at issue, for same the reasons already explained as to all the
other withholdings. ECF No. 52 at 15-16; see id. at 16 n.7. Kowal, for her part, raises no challenge
to segregability at this point.
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IV. Conclusion
For the above reasons, the Court will grant Defendants’ Motion for Summary Judgment
and deny Kowal’s Cross-Motion. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 2, 2022
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