COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Adarus Mazio Black submitted a Freedom of Information Act ("FOIA") request with the Executive Office for U.S. Attorneys ("EOUSA") seeking all criminal files possessed by the EOUSA referencing Aida Prendushi and all tape recordings and wiretaps which reference Ms. Prendushi or Ms. Prendushi speaking to "John Beason, Waad Murad, Joey Murad, David White, Joe Hermosillo, Case No. 06-CR-20385-MOB-SDP-1, Undercover Agents, and Reginald Coleman." Def.s' Ex. A, ECF No. [22]. Dissatisfied with the agency's refusal to search for responsive documents pursuant to the Privacy Act, 5 U.S.C. § 552a, and FOIA Exemptions 6 and 7(C), Plaintiff filed suit against the Department of Justice and the EOUSA on August 2, 2013. Presently before the Court is Defendants' [22] Motion to Dismiss or, in the alternative, for Summary Judgment and Plaintiff's [29] Cross-Motion for Summary Judgment. Upon consideration of the pleadings,
Plaintiff Adarus Mazio Black was convicted on May 29, 2009, in the Eastern District of Michigan, Detroit Division, of
Def.s' Ex. A, ECF No. [22-4]. By letter dated April 8, 2013, the EOUSA responded to Plaintiff informing him that since his entire request was for records concerning third parties, those records could not be released without "express authorization and consent of the third party, proof that the subject of [the] request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records." Def.s' Ex. B, ECF No. [22-4]. The EOUSA concluded that since Plaintiff had not provided any of the above information, "the release of records concerning a third party would result in an unwarranted invasion of personal privacy and be in violation of the Privacy Act, 5 U.S.C. § 552a." Id. The EOUSA also categorically denied the request pursuant to sections (b)(6) and (b)(7)(C) of the FOIA, 5 U.S.C. § 552.
On August 2, 2013, Plaintiff filed suit in this Court against the U.S. Department of Justice and the EOUSA. Defendants moved the Court to dismiss this case or, alternatively, to enter summary judgment in Defendants' favor on December 17, 2013. On February 26, 2014, Plaintiff filed a Cross-Motion for Summary Judgment.
Defendants move the Court to dismiss this case or, alternatively, to enter summary judgment in Defendants' favor, arguing that Defendants properly refused to conduct a search for responsive documents pursuant to FOIA Exemptions 6 and 7(C). Plaintiff cross-moves the Court to enter summary judgment in his favor, arguing that Defendants improperly invoked Exemption 7(C).
On June 24, 2014, the Court issued a Memorandum Opinion and Order holding in abeyance the parties' motions because the Court found it could not resolve the cross-motions without further briefing.
Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation and internal quotation marks omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc) (citation omitted) (internal quotation marks omitted), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 1261-62, 179 L.Ed.2d 268 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S.Ct. 1592. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 131 S.Ct. at 1262 (citations and internal quotation marks omitted).
When presented with a motion for summary judgment in this context,
Defendants seek summary judgment on the grounds that the agencies properly refused to conduct a search for responsive documents pursuant to FOIA Exemptions 6 and 7(C). FOIA Exemption 6 provides that an agency may withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Similarly, Exemption 7(C), in relevant part, permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). "The courts have construed this provision as permitting exemption if the privacy interest at stake outweighs the public's interest in disclosure." Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71 F.3d 885, 893 (D.C.Cir.1995). As the Plaintiff does not dispute the fact that the records at issue in this case were compiled for law enforcement purposes as required for Exemption 7(C), the Court has "no need to consider Exemption 6 separately because all information that would fall within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C)." Roth v. Dep't of Justice, 642 F.3d 1161, 1173 (D.C.Cir.2011).
Defendants provide a declaration from David Luczynski, Attorney Advisor with the EOUSA, explaining that Defendants properly refused to search for the records requested by Plaintiff because Plaintiff's request exclusively concerns third-party information and Plaintiff did not provide third-party authorization of the release of the requested records, proof that the third party is deceased, or otherwise show that the public interest in disclosure outweighs the personal privacy interest of the third party. Luczynski Decl. ¶¶ 5, 12. Specifically, Defendants contend that they did not need to conduct a search because "all the tape and wire recordings of third party witnesses were compiled for law enforcement
In response, Plaintiff argues that (1) no FOIA exemption can be invoked in this case because the records sought were previously publicly disclosed; (2) Defendants have not conducted a reasonable search because they have not made a determination as to whether the putative beneficiaries of the 7(C) exemption are alive or dead; (3) Exemption 7(C) was not properly invoked because the public interest in disclosure of these documents outweighs any privacy interests; and (4) Defendants' invocation of Exemptions 6 and 7(C) cannot be upheld without Defendant first producing a Vaughn index. Plaintiff also requests limited discovery "in order to properly present certain arguments." Pl.'s Mot. at 4. As Defendants indicate in their supplemental briefing that they were able to determine that Aisha Prendushi is alive, Plaintiff's second argument is now moot.
Plaintiff contends that Defendants cannot properly withhold any documents responsive to Plaintiff's request because the information he seeks is already in the public domain. Specifically, Plaintiff alleges that the records he seeks were previously publicly disclosed "both in open court and as a formal pleading for mitigating purposes via a supplement to the Capitol [sic] Case Committee during the death penalty certification process." Pl.'s Opp'n. at 13-14. Plaintiff focuses on an audio/video tape recording from October 12, 2004, which he claims was entered into the public record and was responsive to his FOIA request. Id.
"Under our public-domain doctrine, materials normally immunized from
Defendants contend that Plaintiff has failed to meet his burden of production in order to invoke the public domain doctrine. Defendants argue that Plaintiff's vague allegations that some of the tapes were previously played in court do not suffice to shift the burden to the government. Instead, Defendants argue, Plaintiff needs to show that there is a permanent public record of the exact portions of the tape that Plaintiff requests.
The Court agrees that Plaintiff has failed to meet his burden of production and thus cannot invoke the public domain doctrine. Plaintiff alleges that the requested tape/video recordings were publicly disclosed in another criminal case "both in open court and as a formal pleading for mitigating purposes via a supplement to the Capitol [sic] Case Committee" and has attached to his Opposition and his Supplemental Reply court transcripts and a letter to support this allegation. However, Plaintiff ultimately fails to point to specific information identical to that being withheld that has been placed in the permanent public record. Afshar, 702 F.2d at 1130. Apparently as evidence that the tape/video recordings were publicly disclosed in open court, Plaintiff attaches transcripts from the plea and sentencing hearings of Christopher Perez. Pl.'s Opp'n. Ex. F (Plea and Sentencing Transcript), ECF No. [31-1]. In the transcript, the attorneys arguing before the court reference the October 12, 2004, recordings and present their respective characterizations of the content of the recordings. However, at no point does the transcript — which documents the entire plea and sentencing hearings — reflect that any portion of the recordings were played in court or that the actual content of the recordings were otherwise entered into the public record. In addition, Plaintiff attaches a letter written by Christopher Perez's attorney to the prosecutors in Perez's case in which Perez's attorney references having received and listened to the recordings himself and then characterizes the contents of
Under Exemption 7(C) of the FOIA, the government may withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The exemption protects several classes of individuals, including third parties mentioned in law enforcement records who have provided information to law enforcement authorities. See Nation Magazine, Wash. Bureau, 71 F.3d at 896 (explaining that "subjects, witnesses, or informants in law enforcement investigations" are protected under 7(C)
Defendants contend that the requested records are exempt from disclosure because disclosure would result in the unwarranted invasion of third parties' privacy, specifically Aida Prendushi's privacy. Defendants claim that because Ms. Prendushi's testimony was used in convicting Plaintiff of narcotics distribution, and because narcotics distribution is a serious crime often involving violence, disclosure of the requested records could result in significant harm to Ms. Prendushi. Def.s' Mot. at 15. Since death can diminish one's privacy interest, the Court requested that Defendants provide proof of Ms. Prendushi's life status. On August 29, 2014, Defendants provided the Court with a declaration confirming that Ms. Prendushi is alive. Supp. Luczynski Decl. at 1-2. Accordingly, the Court finds that Defendants have established a compelling privacy interest.
Even assuming Plaintiff has presented sufficient evidence to "warrant a belief by a reasonable person that the alleged Government impropriety might have occurred,"
Plaintiff appears to attempt to circumvent this well-established case law by arguing that the public has an interest in the alleged Brady violation in his case because it will establish that the Michigan USAO continued to engage in prosecutorial misconduct even after previously being investigated and reprimanded for misconduct. Pl.'s Reply at 3-4. In other words, Plaintiff appears to argue that the requested records will reveal a systemic pattern of misconduct within the Michigan USAO.
Plaintiff also points to two cases that discuss past prosecutorial misconduct in the Michigan USAO, United States v. Koubriti, 336 F.Supp.2d 676 (E.D.Mich. 2004) and Jefferson v. United States, 730 F.3d 537 (6th Cir.2013). In Koubriti, the court discusses in detail how, around 2003, the prosecution repeatedly failed in its obligation to turn over many documents and information which were clearly and materially exculpatory. The court concludes that this conduct rose to the level of a pattern of misconduct in that case. 336 F.Supp.2d at 680-81. In Jefferson, the Court discusses how, in March 2004, Assistant U.S. Attorney Richard Convertino, one of the prosecutors investigated in the Koubriti case, and also the prosecutor in Jefferson and several of Jefferson's co-defendants' cases, was investigated by the Michigan USAO and determined to have failed to disclose pertinent information to the defense, among other violations. 730 F.3d at 542.
While Plaintiff is correct that Jefferson and Koubriti show that there have been past instances of prosecutorial misconduct within the Michigan USAO, Plaintiff fails to show or even allege a link between this prior misconduct and his own case such as would establish a pattern of misconduct. Plaintiff indicates in his Opposition that Daniel Lemisch and Michael J. Buckley were the two prosecutors from the Michigan USAO who tried the case against Plaintiff. Pl.'s Opp'n. at 4. Plaintiff does not allege that Convertino or any of the prosecutors involved in either Koubriti or Jefferson were directly involved in Plaintiff's case such that a reasonable person could infer a pattern of misconduct. Furthermore, the investigations into the Michigan USAO were conducted in 2003 and 2004, while Plaintiff's case was prosecuted from 2007 to 2009. See id. These investigations were also specific as to prosecutorial misconduct in those cases. Thus, Plaintiff's attempt to associate his case with this prior misconduct by relying on temporal proximity also fails. Simply citing Jefferson and Koubriti does not establish a pattern of misconduct within the Michigan USAO that would be revealed by these recordings and in which the public would have a significant interest. The Court finds that Plaintiff has failed to establish that any alleged Brady violation in his criminal case would be more than an isolated incident if such a Brady violation had occurred.
Accordingly, the Court finds that Plaintiff has failed to meet his burden of producing evidence of a significant public interest. Favish, 541 U.S. at 175, 124 S.Ct. 1570 (holding that a nexus is required between the requested documents and the purported public interest served by disclosure). In the absence of any public interest in disclosure, the countervailing interest in privacy defeats Plaintiff's FOIA request. See Martin v. Dep't of Justice, 488 F.3d 446, 457 (D.C.Cir.2007) ("[P]rivacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated." (citing Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468)).
Plaintiff's final argument is that Defendants' invocation of Exemption 7(C) cannot be upheld without Defendants first justifying their application of Exemption 7(C) for each withheld document in a Vaughn index, and releasing all reasonably segregable materials. Pl.'s Opp'n. at 11, 17. Plaintiff further argues that because Defendants have not produced a Vaughn index, he is entitled to discovery and requests the EOUSA "to provide him with the dates of each of the withheld audiotapes as this may help in establishing whether or not the tapes contain exculpatory evidence." Pl.'s Cross-Mot. at 4-5.
Plaintiff is incorrect that Defendants needed to produce a Vaughn index justifying their withholding of specific documents or specific parts of documents because, as the Court has found, Defendants did not even need to conduct a search in response to Plaintiff's FOIA request. All of the records Plaintiff requested only contained information implicating third parties in law enforcement investigations and were thus exempt from disclosure under Exemption 7(C). See Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C.Cir.2011) ("Because a search for records pertaining to specific individuals ... would have added only information that we have concluded is protected by Exemption 7(C), it follows that the FBI was correct in declining to search for such documents."); SafeCard Services, 926 F.2d at 1206 (holding that agency may determine that disclosure of the identity of individuals mentioned in law enforcement files is categorically exempt as an unwarranted invasion of privacy); cf. Burke v. Dep't of Justice, No. 96-1739, 1999 WL 1032814, *5 (D.D.C. Sept. 30, 1999) (explaining that "[a]s to the portion of the request seeking investigative law-enforcement files, the agency may simply assert a categorical Glomar response," i.e. "refuse to confirm or deny whether such files exist as to the third party."). Since Defendants provided a declaration explaining in detail why the records Plaintiff requested are categorically exempt from disclosure pursuant to Exemption 7(C), the Court is satisfied that Defendants met their burden under FOIA. Likewise, the Court also finds that Defendants were not required to release all reasonably segregable material because the records requested contained only conversations between third parties and such records are exempt under Exemption 7(C).
As for Plaintiff's request for discovery, "discovery is not favored in lawsuits under the FOIA." Judicial Watch, Inc. v. Dep't of Justice, 185 F.Supp.2d 54, 65 (D.D.C.2002) (citing Nation Magazine, Wash. Bureau, 71 F.3d at 892); see also Canning v. Dep't of Justice, No. 11-1295, 2013 WL 1333422, *1 (D.D.C. April 2, 2013) ("discovery in general is unavailable in [FOIA] actions." (citing Wheeler v. C.I.A., 271 F.Supp.2d 132, 139 (D.D.C. 2003)); Justice v. I.R.S., 798 F.Supp.2d 43, 47 (D.D.C.2011), aff'd 485 Fed.Appx. 439 (D.C.Cir.2012) (noting that discovery in FOIA cases is "the exception and not the rule."). "Discovery in FOIA is rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains." Schrecker v. Dep't of Justice, 217 F.Supp.2d 29, 35 (D.D.C.2002), aff'd 349 F.3d 657 (D.C.Cir. 2003).
Here, the Court has already established that there was no need for Defendants to submit a more detailed Vaughn index along with their declaration, and Plaintiff has not alleged that the Luczynski Declaration was submitted in bad faith. As to remaining factual disputes, the Court fails to see how any discovery Plaintiff may
For the foregoing reasons, the Court finds that Defendants have properly invoked Exemption 7(C) to justify their refusal to conduct a search in response to Plaintiff's FOIA request. The Court also finds that neither discovery nor a Vaughn index are necessary or appropriate in this case. Accordingly, Defendants' [22] Motion to Dismiss or, in the alternative, for Summary Judgment is GRANTED and Plaintiff's [29] Cross-Motion for Summary Judgment is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
Even if the Court were to generously read Plaintiff's new argument as applying to FOIA 7(C) privacy protections, "courts have determined that foreign nationals are entitled to the privacy protections embodied in FOIA." Graff, 822 F.Supp.2d at 33-34 (applying Exemption 7(C) to protect the privacy interests of a foreign national and citing cases applying FOIA to protect privacy interests of foreign nationals). Accordingly, the Court rejects Plaintiff's additional argument.