RICHARD J. LEON, United States District Judge.
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see
To better understand plaintiff's FOIA requests, it is useful to read the Third Circuit's summary of the facts of his underlying criminal case:
United States v. Smith, 483 Fed.Appx. 672, 674 (3d Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 562, 184 L.Ed.2d 366
In relevant part, plaintiff's initial FOIA request to the EOUSA read:
Mem. of P. & A. in Support of Defs.' Mot. for Partial Summ. J. [Dkt. # 24] ("Defs.' Mem."), Decl. of David Luczynski [Dkt. # 24-1] ("Luczynski Decl."), Ex. A (FOIA/PA Request dated February 1, 2011). In subsequent correspondence, plaintiff narrowed his request and sought two particular items: (1) a lab report in DEA Case No. CM080023, and (2) records pertaining to the chain of custody of drugs allegedly seized from Juan Carlos Hinojosa on December 6, 2007, transported to Pittsburgh, Pennsylvania, and delivered to plaintiff on December 7, 2007. Luczynski Decl., Exs. C-E (Letters from plaintiff to the EOUSA dated February 24, 2011, March 24, 2011, and May 6, 2011, respectively). A search of EOUSA files yielded five pages of records. Luczynski Decl. ¶ 9. The EOUSA withheld one page in full and referred four pages to the DEA, the DOJ component from which they originated. Luczynski Decl. ¶¶ 9, 12, 18. The pages referred to the DEA pertained to a lab report, and at least some of these pages comprised a DEA Form 7, Luczynski Decl. ¶ 12, which is described as "a standardize[d] multi-block form ... to document the collection of drug evidence seized by DEA agents, drugs evidence in the possession of DEA or suspected drugs forwarded to a DEA laboratory for testing," Defs.' Mem., Decl. of Katherine L. Myrick [Dkt. # 24-2] ("Myrick Decl.") ¶ 38.
The EOUSA referred four pages of records to the DEA, Luczynski Decl. ¶ 12, and upon review by DEA staff, it was determined that "the material consisted of two (2) copies of the same DEA Form 7, Report of Drug Property Collected, Purchased or Seized[,] and two (2) copies of the same DEA Form LS-05-010, Laboratory Report," Myrick Decl. ¶ 37, which is described as "a memorandum type form used by DEA laboratories to report the results of forensic testing," id. ¶ 38. Because these pages previously had been processed in response to a prior direct request to the DEA, that is, FOIA Request Number 10-00636-P, the DEA took "no further action ... with regard to these documents." Myrick Decl., Ex. M (Letter to plaintiff from Katherine L. Myrick, Chief, Freedom of Information/Privacy Act Unit, FOI/Records Management Section, DEA, dated September 12, 2011).
In December 2010, plaintiff submitted a FOIA request to the United States Marshals Service ("USMS"), Compl. ¶ 9, which in relevant part stated:
Myrick Decl., Ex. H (Freedom of Information Act Request dated December 22, 2010). Because the information plaintiff requested was "under the jurisdiction of the [DEA]," the USMS forwarded the request to the DEA. Myrick Deck, Ex. I (Letter to Katherine L. Myrick, Chief, Freedom of Information Operations Unit, DEA, from William E. Bordley, Associate General Counsel/FOIPA Officer, Office of the General Counsel, USMS, dated January 6, 2011).
DEA staff determined that "the information [plaintiff] was seeking was identical and/or substantially the same investigative information" sought in a previous FOIA request submitted directly to the DEA, that is, FOIA Request Number 10-00636-P. Myrick Decl. ¶ 16; see id., Ex. K (Letter to plaintiff from Katherine L. Myrick dated February 22, 2011). Accordingly, the DEA took no further action and administratively closed the case. Myrick Decl. ¶ 16.
As stated above, both plaintiff's direct request to the USMS (DEA FOIA Request Number 11-00182-P) and the records referred by the EOUSA to the DEA (DEA FOIA Request Number 11-00186-PR) were deemed the same or substantially similar to a prior direct request to the DEA (DEA FOIA Request Number 10-00636-P). Myrick Decl., Exs. K, M. That request read:
Myrick Decl., Ex. A (Freedom of Information Act Request dated January 2, 2010). In subsequent correspondence, plaintiff provided "additional information that should help [the DEA] retrieve the lab report and the officers arrest reports and the chain of custody." Myrick Decl., Ex. C (Letter to DEA from plaintiff dated February 2, 2011) at 1. The DEA released 50 pages of records to plaintiff, withheld 22 pages in full, referred 1 page to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), and referred 6 pages to the Federal Bureau of
Among the records processed were a DEA Form 7, Myrick Decl. ¶ 39, from which information had been redacted under Exemptions 7(C), 7(E), and 7(F), Myrick Decl. ¶ 40; see id., Ex. T (Report of Drug Property Collected, Purchased or Seized dated December 10, 2007), and a lab report from which information had been redacted under Exemption 7(C), Myrick Decl. ¶ 41; see id., Ex. U (Laboratory Report, Case Number: CM-08-0023). The records referred by the EOUSA to the DEA are "copies of the same DEA Form 7 ... and ... the same DEA Form LS-05-010." Myrick Decl. ¶ 37.
Defendants move for summary judgment with respect to the response of the EOUSA to plaintiff's FOIA request, and the DEA's response to the referral of documents from the EOUSA to the DEA. See Mot. for Partial Summ. J. [Dkt. # 24] at 1-2.
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 requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)) (alteration in original).
Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "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, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).
"The adequacy of an agency's search is measured by a standard of reasonableness and is dependent upon the circumstances of the case." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (internal quotation marks and citations omitted). An agency "fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C.Cir.2011) (internal quotation marks and citations omitted). A search need not be exhaustive, see Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir.1985), and as long as the agency conducts a reasonable search, it matters not that no responsive documents are located,
To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. On the other hand, if the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990); see also Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999).
Because each United States Attorney's Office maintains case files for matters prosecuted in that district, EOUSA staff forwarded plaintiff's request to the FOIA Contact at the United States Attorney's Office for the Western District of Pennsylvania ("USAP/PAW"). Luczynski Decl. ¶ 11. The EOUSA's declarant described the search process as follows:
Luczynski Decl. ¶ 11. The search of records maintained in the EOUSA's Criminal Case File System yielded "no records ... relating to the chain of custody of the seized drugs [with] the possible exception of the DEA Form 7," which the EOUSA referred to the DEA for processing. Luczynski Decl. ¶ 12. The search also yielded "a single page with handwritten text and numbers." Luczynski Decl. ¶ 17. No other records systems or locations within the USAO/PAW maintained records or files pertaining to plaintiff's criminal case. Luczynski Decl. ¶ 13.
Plaintiff's opposition to the EOUSA's search mentions only to its failure to locate records about "the CHAIN OF THE CUSTODY of drugs seized from Juan Carlos Hinojosa in Richmond, Indiana that were transported to Pittsburgh, Pennsylvania." Pl's Opp'n at 1; see id. at 2. At most, plaintiff speculates that the EOUSA possesses such records, but mere speculation as to the existence of responsive records does not undermine the EOUSA's showing. See Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C.Cir. 1994). Plaintiff raises no objection to the scope or method of the EOUSA's search,
An agency "cannot simply refuse to act on the ground that the documents originated elsewhere." McGehee v. CIA, 697 F.2d 1095, 1110 (D.C.Cir.1983). The FOIA contemplates "consultation ... with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein." 5 U.S.C. § 552(a)(6)(B)(iii)(III). It also permits "outright referral" of records to another agency or component. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1118 (D.C.Cir.2007); see Peralta v. U.S. Attorney's Office, 136 F.3d 169, 175-76 (D.C.Cir. 1998). A referral runs afoul of the FOIA only if it amounts to an improper withholding of agency records, that is, "if its net effect is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them." McGehee, 697 F.3d at 1110.
Here, on August 31, 2011, the EOUSA referred four pages of records to the DEA, Luczynski Decl. ¶ 9, and the DEA responded to plaintiff on September 12, 2011, Myrick Decl. ¶ 18. The DEA did not release any records, however, because it had "determined that the ... pages have been previously processed" in response to an earlier request. Myrick Decl., Ex. M. The Court concludes that the EOUSA's decision to refer records to the DEA was appropriate, and that the referral neither significantly impaired plaintiff's ability to retain records nor significantly increased the length of time plaintiff awaited a response to his request. See Inst. for Policy Studies v. C.I.A., 885 F.Supp.2d 120, 142 (D.D.C.2012) (approving referral of records to agencies where they originated for their direct response to requester).
The single page processed by the EOUSA contained "handwritten case citations and what appear[ed] to be a column of numbers in arithmetic format." Luczynski Decl. ¶ 18. Although it was "unclear what the writing represents," the declarant concluded that the page could have been "categorized as non-responsive" to plaintiff's FOIA request because it neither contained lab report information nor pertained to a chain of custody of drugs. Luczynski Decl. ¶ 19. However, because the page contained "nothing more than handwritten material" that appeared to have been "created by an attorney," the EOUSA withheld the page in full under Exemption 5 as attorney work product. Luczynski Decl. ¶ 18.
Exemption 5 protects from disclosure "inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). "[T]he parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not available in discovery, it may be withheld from FOIA requesters." Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 516 (D.C.Cir.1996) (internal quotation marks omitted).
The attorney work product privilege protects material gathered and memoranda prepared by an attorney in anticipation of litigation, see Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and records may be withheld as
Neither defendant's motion for partial summary judgment nor plaintiff's opposition mentions FOIA Exemption 5 in connection with the one page located in response to plaintiff's FOIA request to the EOUSA. Arguably the page is not responsive to plaintiff's FOIA request. Nevertheless, the EOUSA's declarant demonstrates that the all the handwritten case citations and numbers on the page were made by an attorney. Insofar as the record was located in a criminal case file associated with plaintiff, it is reasonable to conclude that the notes were made in anticipation of or in connection with the prosecution of plaintiff's criminal case. The Court concludes that the EOUSA properly withheld the document in full under Exemption 5 as attorney work product.
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 FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 72 L.Ed.2d 376 (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. FBI, 646 F.3d 37, 40 (D.C.Cir.2011) (internal quotation marks and citations omitted).
The DEA's declarant explains that the agency's "investigative jurisdiction derives from the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801[] et seq.," which authorizes "the investigation of incidences involving the trafficking in controlled substances, dangerous drugs and precursor chemicals and the violators who operate at interstate and international levels," and the seizure and forfeiture of assets "derived from, traceable to, or intended to be used for illicit drug trafficking." Myrick Decl. ¶ 42. The relevant records, she states, "are criminal investigative records ... contained in investigative case files maintained in IRFS," Myrick Decl. ¶ 43, or the DEA Investigative Reporting and Filing System, Myrick Decl. ¶ 27. The declarant explains that the records responsive to plaintiff's FOIA requests "were compiled during criminal law enforcement investigations of the plaintiff and several third-parties." Myrick Decl. ¶ 43. The declarant easily makes the requisite showing that the responsive DEA records are law enforcement records for purposes of Exemption 7.
Exemption 7(C) protects from disclosure information in law enforcement records that "could reasonably be expected
The DEA Form 7 and lab report "contain names and other identifying information which would reveal the identity of and disclose personal information about... individuals who were involved or associated with plaintiff or with a law enforcement investigation." Myrick Decl. ¶ 44. For this reason, the DEA withholds this information under Exemption 7(C). See generally Myrick Decl. ¶¶ 40-48. Specifically, on DEA Form 7, "the name of and information related to a third-party, and the name of a task force office and a DEA special agent" in Block 23, Remarks and "the names and signatures of a task force office[r], a DEA special agent and a DEA staff member" in Blocks 24, 24a, 25, 25a, 34 and 34a are redacted and withheld pursuant to Exemptions 7(C) and 7(F). Myrick Decl. ¶ 40. Similarly, from the "Remarks" section of the lab report, the DEA withholds the names the names and signatures of DEA Special Agents and laboratory staff personnel, the names of a task force office, and the names of other law enforcement personnel and DEA employees. Myrick Decl. ¶ 41.
With respect to DEA Special Agents and other law enforcement officers, the declarant explains that they "were assigned to handle tasks relating to the official investigation [of] the criminal activities of the plaintiff and other individuals," and that "[t]hey were, and possibly still are, in positions of access to information regarding official law enforcement investigations." Myrick Decl. ¶ 49. Disclosure of their identities could render them "targets of harassing inquiries for unauthorized access to information pertaining to ongoing and closed investigations." Myrick Decl. ¶ 49. Disclosure of the identities of the other third parties, too, "would place [them] in a position that they may suffer undue invasions of privacy [and] harassment from disclosure of their identities in the context of a criminal law enforcement investigatory investigation." Myrick Decl. ¶ 48. The declarant states that release of information about these third parties "can have a potentially stigmatizing or embarrassing effect on [them] and cause them to be subjected to unnecessary public scrutiny
"[N]ondisclosure of names or other information identifying individuals appearing in law enforcement records" is routinely upheld. Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 661 (D.C.Cir.2003); see, e.g., SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1206 (D.C.Cir.1991) (holding "categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure"). The DEA's decision to withhold this third-party information from the responsive records is proper.
The DEA withholds from the DEA Form 7 a G-DEP identifier under Exemption 7(E). Myrick Decl. ¶ 40. "The G-DEP is part of [the] DEA's internal system of identifying information and individuals in furtherance of [its] enforcement responsibilities" and the codes "reflect procedures prescribed by the DEA Agents Manual." Myrick Decl. ¶ 52. A G-DEP code is assigned to a case when a case file is opened, and it "indicate[s] the classification of the violator(s), the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity." Myrick Decl. ¶ 53. If a G-DEP code were released, the declarant explains, violators could "identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings." Myrick Decl. ¶ 55. With this knowledge, "[s]uspects could decode this information and change their pattern of drug trafficking in an effort to respond to what they determined [the] DEA knows about them or avoid detection and apprehension and create excuses for suspected activities." Myrick Decl. ¶ 55. In short, disclosure of a G-DEP code "would ... thwart the DEA's investigative and law enforcement efforts." Myrick Decl. ¶ 55.
The Court concludes that the DEA properly withheld the G-DEP code under Exemption 7(E). See Higgins v. U.S. Dep't of Justice, 919 F.Supp.2d 131, 150-51 (D.D.C.2013).
If a record contains some information that is exempt from disclosure, any reasonably segregable information must be released after deleting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C.Cir.1999).
The DEA's declarant avers that "[o]nly the names of DEA special agents, other law enforcement personnel and a G-DEP identifier were withheld." Myrick Decl. ¶ 62. Based on the declaration and the Court's review of the two redacted pages of records, the Court concludes that all reasonably segregable information has been released to plaintiff.
Defendants demonstrate that the EOUSA conducted an adequate search for records responsive to plaintiff's FOIA request, that it properly referred records to the DEA, and that it properly withheld a one-page document in full under FOIA Exemption 5. In addition, defendants demonstrate that the DEA properly withheld information from the DEA Form 7 and lab report under Exemptions 7(C) and 7(E) and that it released all reasonably segregable information. Accordingly, the Court will GRANT the Motion for Partial Summary Judgment in part as to the EOUSA and the DEA with respect to the records referred to it by the EOUSA. An Order is issued separately.
