Dugan v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEVIN DUGAN, )
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Plaintiff, )
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v. ) Civil Action No. 13-2003 (RC)
)
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DEPARTMENT OF JUSTICE et al., )
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Defendants. )
MEMORANDUM OPINION
On March 12, 2015, the Court granted summary judgment to defendants on all claims
brought under the Freedom of Information Act (FOIA), except the application of FOIA
exemption 7(A) to records maintained by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATFE). See Dugan v. Dep’t of Justice, 82 F. Supp. 3d 485 (D.D.C. 2015). ATFE
processed the responsive records, made a release to plaintiff on July 10, 2015, and has renewed
its motion for summary judgment. Defs.’ Mot. for Summ. J., ECF No. 24.
On July 29, 2015, the Court advised plaintiff to respond to ATFE’s motion by September
11, 2015, or risk entry of judgment for the defendants. See Order, ECF No. 25. Plaintiff has not
filed a response or moved for additional time to do so. Consequently, the Court has reviewed
ATFE’s summary judgment motion through the lens of Federal Rule of Civil Procedure 56 and,
for the reasons explained below, finds that summary judgment is warranted. See Grimes v. D.C.,
794 F.3d 83, 95 (D.C. Cir. 2015) (“ ‘a district court must always determine for itself whether the
record and any undisputed material facts justify granting summary judgment.’ ”) (quoting
Griffith, J. concurring); Dugan, 82 F. Supp. 3d at 493-95 (discussing legal standard).
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The following facts are not in dispute. ATFE located 757 “potentially” responsive
records. Stmt. of Material Facts ¶ 6, ECF No. 24-2. On July 15, 2015, it released to plaintiff a
total of 565 pages, 396 of which contained redactions. Id. ATFE withheld 145 pages
completely; it determined that 34 pages “were outside the scope” of the request and 13 pages
were duplicative. Id. ATFE withheld information under FOIA exemptions 3, 5, 6, 7(C), 7(E),
and 7(F). Id. ¶¶ 6, 39.
Based on defendants’ statement of undisputed material facts, the Declaration of Stephanie
M. Boucher, and the accompanying Vaughn Index, the Court finds that defendants have properly
justified withholding information under the claimed exemptions. See Boucher Decl. ¶¶ 8-15
(Firearms Trace Summaries and tax return information withheld under exemption 3); id. ¶¶ 36-
42 (attorney work product withheld under exemption 5); id. ¶¶ 17-28 (third-party identifying
information withheld under personal privacy exemptions 6 and 7(C)); id. ¶¶ 29-32 (specific law
enforcement techniques, TECS codes and TECS file numbers withheld under exemption 7(E));
id. ¶¶ 33-35 (third-party information withheld under exemption 7(F) for personal safety reasons).
Boucher’s explanations are consistent with case law, 1 and “[u]ltimately, an agency’s justification
for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” Dugan, 82 F.
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See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (“On the privacy side of the ledger,
our decisions [on exemption 7(C)] have consistently supported nondisclosure of names or other
information identifying individuals appearing in law enforcement records, including investigators,
suspects, witnesses, and informants.”); Fowlkes v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, --- F. Supp. 3d ---, ---, 2015 WL 5598011, at *3, 5 (D.D.C. Sept. 21, 2015) (approving
ATFE’s withholding of firearms trace reports under exemption 3 and TECS codes and other file
information under exemption 7(E)); Cause of Action v. Internal Revenue Serv., --- F.3d ---, ---,
2015 WL 5120863, at *10 (D.D.C. Aug. 28, 2015) (approving withholding of tax return
information under exemption 3, pursuant to 26 U.S.C. § 6103); Skinner v. U.S. Dep’t of Justice,
744 F. Supp. 2d 185, 204 (D.D.C. 2010) (approving ATFE’s withholding of firearm trace evidence
under exemption 3 and attorney work product under exemption 5). See also Judicial Watch, Inc.
v. Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (“If a document is fully protected [under
exemption 5] as work product, then segregability is not required.”)
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Supp. 3d at 494 (quoting Judicial Watch, Inc. v. U.S. Dep't of Defense, 715 F.3d 937, 941 (D.C.
Cir. 2013)) (other citation omitted). In addition, Boucher avers that “each page” of responsive
material was reviewed “line-by-line” to ensure that all reasonably segregable non-exempt
information was disclosed to plaintiff. Boucher Decl. ¶ 43.
In the absence of any challenge to ATFE’s evidence showing full compliance with
FOIA’s disclosure requirements, the Court will grant summary judgment to defendants on the
remaining claim and will enter judgment accordingly. 2
________/s/____________
RUDOLPH CONTRERAS
Date: October 7, 2015 United States District Judge
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A separate Order accompanies this Memorandum Opinion.
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