Amit P. Mehta, United States District Judge.
Before the court is the second round of Plaintiff Randee A. Gilliam's litigation under the Freedom of Information Act ("FOIA") against Defendants the United States Department of Justice ("DOJ"), the United States Drug Enforcement Agency ("DEA"), and other federal agencies and individuals (collectively, "Defendants"). Plaintiff, proceeding pro se, seeks various documents concerning the investigation that led to his conviction for drug trafficking in the United States District Court for the Western District of Pennsylvania. In the first round of this litigation, the court granted summary judgment in favor of Defendants as to Plaintiff's request for documents relating to court-authorized Title III wiretaps. In this second round, the court considers Defendants' renewed Motion for Summary Judgment, which relates to three additional FOIA requests for other investigatory materials. For the reasons explained below, the court grants Defendants' Motion.
Although the court ruled in favor of Defendants as to the sole FOIA claim at issue in the first round of summary judgment briefing, the court permitted Plaintiff to amend his Complaint to advance three additional FOIA claims. See Gilliam v. U.S. Dep't of Justice, 128 F.Supp.3d 134, 143 (D.D.C. 2015). These new claims are set forth in Counts II through IV of his Amended Complaint. Mot. for Leave to File Am. Compl., ECF No. 19, Am. Compl., ECF No. 19-1 [hereinafter Am. Compl.]. In Counts II and III, Plaintiff broadly seeks the disclosure of documents related to search warrants involving Plaintiff and the execution of those warrants. Id. ¶¶ 6-50. In both Counts, Plaintiff identifies two search warrants executed on packages purportedly addressed to Plaintiff — one sent via Federal Express ("FedEx") on or about October 5, 2011, and a second sent via United Parcel Service on or about October 18, 2011. Id. ¶¶ 6-25; ¶¶ 26-50.
Following the Complaint's amendment, the course of this case became somewhat drawn-out. After conducting a search for responsive records, the DEA located 25 responsive pages but invoked a variety of FOIA exceptions to withhold them in their entirety. See Defs.' Mot. to Dismiss & Renewed Mot. for Summ. J., ECF No. 32 [hereinafter Defs.' Mot.], at 8-9.
In the course of responding to the court's Order, Defendants discovered 36 pages of responsive material in addition to the 25 pages previously identified. See Resp. to the Court's Minute Order, ECF No. 41 [hereinafter Minute Order Resp.]. Defendants informed the court that they had disclosed to Plaintiff six pages in full and 53 pages in part, but withheld two pages in full. Defs.' Supp. Mem., ECF No. 45 [hereinafter Defs.' Supp. Mem.], at 2-3. Defendants then filed a Supplemental Memorandum in support of their Motion for Summary Judgment. Id. at 1. In that Memorandum, Defendants reiterated their request for entry of summary judgment in their favor based on (1) the adequacy of their search, and (2) their reliance on various FOIA exemptions and the Privacy Act, 5 U.S.C. § 552a, to withhold portions of the released pages and two pages in full. See Defs.' Supp. Mem. at 2-5. Plaintiff renewed his opposition to Defendants' Motion and asked the court to grant him limited discovery. Pl.'s Mot. to Oppose Defs.' Supp. Mem., ECF No. 47, at 1-6 [Pl.'s Supp. Opp'n]; Pl.'s Mot. to Oppose
At last, the parties' motions are ripe for the court's consideration.
The court begins with the adequacy of Defendants' search for responsive records. To warrant entry of summary judgment in its favor on that issue, an agency must show that it conducted a search reasonably calculated to uncover all relevant records. See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). An agency may demonstrate the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits that explain the scope and method of the search conducted. See Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (per curiam). Agency affidavits are presumed to be submitted in good faith, and that presumption cannot be rebutted by speculative claims about the existence and discoverability of other documents. See SafeCard Servs., Inc. v. SEC, 926 F.2d ¶ 97, 1200 (D.C. Cir. 1991).
The court is satisfied that Defendants have shown that their search was adequate. DOJ advised Plaintiff that the records he seeks are maintained by the DEA, because it is the agency that led the investigation against him. Defs.' Mot., Second Decl. of Peter C. Sprung, ECF No. 32-2 [hereinafter Second Sprung Decl.], ¶ 17. According to the DEA's affiant, Katherine Myrick, who is the agency's Chief of the Freedom of Information/Privacy Act Unit, the DEA searched its Investigative Reporting and Filing System ("IRFS"), which contains "all administrative, general, and investigative files compiled by DEA for law enforcement purposes.... No other DEA records system was reasonably likely to contain information responsive to Plaintiff's requests." Defs.' Mot., Decl. of Katherine L. Myrick, ECF No. 32-2, at 25-45 [hereinafter Myrick Decl.], ¶ 26. The DEA twice searched IRFS using Plaintiff's name, alias, and other identifying information, once for each request. Id. ¶¶ 30, 32. Both searches returned one subject with the name "Randee Allen Gilliam," which prompted the agency's FOIA specialist to contact, after each search, investigative agents in the field. Id. In response to Plaintiff's request for records relating to the searches of the FedEx and UPS packages, the DEA identified 13 pages of responsive material. Id. ¶ 31. As to his request for documents relating to the seized FedEx package, the DEA identified 12 pages of responsive material. Id. ¶ 33.
Later, the DEA would locate 36 more pages of responsive material. See Minute Order Resp. at 2.
Plaintiff makes two primary arguments about the adequacy of the DEA's search. First, he contends that the search was inadequate because the DEA did not search the DEA's field office in Pittsburgh, Pennsylvania, where, according to Plaintiff, responsive records likely would be found because that is where the warrants were executed. Pl.'s Opp'n at 23-25. The court disagrees. "[A]n agency need only search the records of a particular field office in those rare situations where red flags point[] to the probable existence of responsive agency records that arise during its efforts to respond to a FOIA request." Dillon v. U.S. Dep't of Justice, 102 F.Supp.3d 272, 285 (D.D.C. 2015) (internal quotation marks omitted); see also Marrera v. U.S. Dep't of Justice, 622 F.Supp. 51, 54 (D.D.C. 1985) (stating that there is "no requirement that an agency search every division or field office in response to a FOIA request"). Here, the record contains no "red flags" that would overcome the presumption of good faith afforded Myrick's sworn statement that "the IRFS is the only DEA records system that would contain criminal investigative records responsive to Plaintiff's requests." Myrick Decl. ¶ 26; see Dillon, 102 F.Supp.3d at 285. Plaintiff's speculation that records might exist in a field office does not render the DEA's search inadequate. See SafeCard Servs., 926 F.2d at 1200.
Second, Plaintiff asserts that the DEA's search could not have been adequate because certain records relating to the search warrant executed on October 5, 2011 — namely, a signed search warrant, a signed inventory return, and original computer-generated documents from FedEx — were not among the documents disclosed to him. Pl.'s Supp. Opp'n at 3-5. Plaintiff is incorrect. "[I]t is long settled that the failure of an agency to turn up one specific document in its search does not render a search inadequate." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Indeed, "[t]he fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it." Miller v. U.S. Dep't of Justice, 779 F.2d 1378, 1385 (8th Cir. 1985). "After all, particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them." Iturralde, 315 F.3d at 315. For that reason, "the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Id. Here, the DEA searched the computer database that most likely would identify responsive records. See Myrick Decl. ¶ 26. Nothing more is required. Accordingly, the DEA's non-production of specific records that Plaintiff expected to receive does not render its search inadequate.
Although Defendants have withdrawn their invocation of Exemption 7(A) as a ground for withholding all records, they continue to assert other Exemption 7 grounds for redacting portions of the released
To begin, Defendants rely on Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), to withhold "the identities of DEA Special Agents ... and other law enforcement officers." Defs.' Mot. at 22.
Next, Defendants assert Exemption 7(D), 5 U.S.C. § 552(b)(7)(D), to protect the identity of confidential sources or information furnished by confidential sources. Defs.' Mot. at 23-24. "Unlike Exemptions 6 and 7(C), Exemption 7(D) requires no balancing of public and private interests." Roth v. United States Dept. of Justice, 642 F.3d 1161, 1184 (D.C. Cir. 2011). "If the [agency's] production of criminal investigative records `could reasonably be expected to disclose the identity of a confidential source' or `information furnished by' such a source, that ends the matter, and the [agency] is entitled to withhold the records under Exemption 7(D)." Id. at 1184-85 (quoting 5 U.S.C. § 552(b)(7)(D)). In this case, Myrick explains that some of the responsive information concerns "coded" informants who continue to cooperate with the DEA "by written signed agreement; they are expressly assured confidentiality in their identities and the information they provide to DEA." Myrick Decl. ¶ 55. Based on that representation, Defendants easily meet Exemption 7(D)'s "reasonable expectation" standard. See Adionser v. U.S. Dep't of Justice, 33 F.Supp.3d 23, 27 (D.D.C. 2014) (holding that information relating to the DEA's "coded" informants is protected by Exemption 7(D)); Skinner v. U.S. Dep't of Justice, 744 F.Supp.2d 185, 212 (D.D.C. 2010) (same). Plaintiff contends that Exemption 7(D) is inapplicable because the authentic FedEx shipping label he requested would not disclose any confidential source's identity. Pl.'s Opp'n at 37. While that may be true, Plaintiff broadly sought
Finally, Defendants invoke Exemption 7(E) to withhold what are known as G-DEP and NADDIS numbers from investigative reports. Myrick Decl. ¶¶ 56-57.
The court also is satisfied that Defendants met their obligation to disclose any reasonably segregable information. Having reviewed the documents released to Plaintiff, see Minute Order Resp., Ex. A, ECF No. 41-1; Minute Order Resp., Ex. B, ECF No. 41-2, it is apparent that Defendants conducted a line-by-line inquiry to determine whether any non-exempt portions of the records could be released. That observation, coupled with Myrick's statements in both declarations that all responsive material "was examined to determine whether any reasonably segregable information could be released," see Myrick Decl. ¶ 67; see also Second Myrick Decl. ¶ 20, satisfies the agencies' duty of segregability.
Lastly, Plaintiff asks the court to allow him to take discovery to obtain original records from FedEx and "to submit an interrogatory request" to a Pennsylvania state court in order "to determine the authenticity of the material submitted by the DEA." See Pl.'s Mot. for Continuance to Take Discovery, ECF No. 35, at 1-5 [hereinafter Pl.'s Mot. for Discovery], ¶¶ 4, 6-7; Pl.'s Supp. Opp'n at 4; Pl.'s Second Mot. for Continuance to Take Discovery, ECF No. 47, at 9-11.
For the foregoing reasons, Defendants' Motion is granted, and Plaintiff's two motions for continuances to take discovery are denied.
A separate order accompanies this Memorandum Opinion.