AMY BERMAN JACKSON, United States District Judge.
Plaintiff Willie E. Boyd brings this pro se action against defendants the Executive Office for United States Attorney ("EOUSA") and the Bureau of Alcohol, Tobacco & Firearms ("ATF") under the Freedom of Information Act ("FOIA"). All parties have moved for summary judgment. See Defs.' Renewed Mot. for Summ. J. [Dkt. # 20] ("Defs.' Mot."); Mem. in Supp. of Defs.' Mot. [Dkt. # 20-3] ("Defs.' Mem."); Pl.'s Opp. to Defs.' Mot. & Cross-Mot. for Summ. J. [Dkt. # 29] ("Pl.'s Mot."). For the reasons that follow, the Court will grant defendants' motion in part and deny it in part, it will grant plaintiff's motion in part and deny it in part, and it will remand the case to defendants for further proceedings consistent with this opinion.
Plaintiff is a federal prisoner confined at the Federal Correctional Institute in Greenville, Illinois. See Compl. [Dkt.
Since 1998, plaintiff has filed numerous pro se FOIA actions in this District against the defendants in this case and other government agencies. See, e.g., Boyd v. Exec. Office for U.S. Atty's, 741 F.Supp.2d 150 (D.D.C.2010); Boyd v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 496 F.Supp.2d 167 (D.D.C.2007); Boyd v. Criminal Div., U.S. Dep't of Justice, No. 04-cv-1100 (ESH), 2005 WL 555412, at *1 (D.D.C. March 9, 2005) (FOIA lawsuit against the Criminal Division of the U.S. Department of Justice, the U.S. Probation Office for the Eastern District of Missouri, the U.S. Parole Commission, the U.S. Marshals Service, and EOUSA); see also Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 384-85, 392 (D.C.Cir.2007) (describing plaintiff's history of FOIA litigation and affirming Boyd, 2005 WL 555412).
Plaintiff has also filed numerous pro se petitions in other courts attacking his criminal conviction. See, e.g., Boyd v. Walton, No. 13-cv-651-CJP, 2014 WL 128341, at *1 (S.D.Ill. Jan. 14, 2014) (noting that the U.S. District Court for the Eastern District of Missouri no longer accepts filings from Boyd related to his closed criminal case and his closed 28 U.S.C. § 2255 case because of his "history of filing a multitude of motions for reconsideration, rehearing, or the like"; that plaintiff had filed "at least six post-conviction petitions in this District"; and that the U.S. Court of Appeals for the Seventh Circuit had issued sanctions against plaintiff "[b]ecause of his repeated raising of the same frivolous claim") (citations and internal quotation marks omitted).
This case involves three more FOIA requests submitted by plaintiff to defendants EOUSA and ATF.
On March 26, 2013, plaintiff submitted a FOIA request to EOUSA that sought "any and all documents, records and information in [his] criminal case United States v. Willie E. Boyd, 4:97CR301, in the Eastern District of Missouri." App. "Count I" to Compl. at ECF 8.
On April 22, 2013, EOUSA acknowledged plaintiff's FOIA request and advised him that it was searching for responsive records. See Decl. of David Luczynski [Dkt. # 20-5] ("1st Luczynski Decl.") ¶ 5; Ex. B to 1st Luczynski Decl. [Dkt. # 20-6] at 1; Pl.'s Statement of Material Facts in Opp. to Defs.' Mot. [Dkt. # 28] ¶ 4.
On February 27, 2014, EOUSA disclosed to plaintiff 201 pages of responsive records in full and 267 pages with redactions. 1st Luczynski Decl. ¶ 8; Pl.'s Mot. at 4. In addition, EOUSA informed plaintiff that it was withholding 139 responsive pages under FOIA Exemptions 3, 5, 6, and 7(C). 1st Luczynski Decl. ¶ 8; Pl.'s Mot. at 4. EOUSA also stated that it had referred an unspecified number of records to other components of the government — ATF, the Internal Revenue Service ("IRS"), the Department of the Treasury ("Treasury"), the Bureau of Prisons ("BOP"), and the U.S. Marshals Service ("USMS") — for further processing. Ex. E to 1st Luczynski Decl. [Dkt. # 20-6] at 2; see also 1st Luczynski Decl. ¶ 8. Finally, EOUSA informed plaintiff of his right to appeal its determination, but he did not do so.
On March 26, 2013, plaintiff submitted a FOIA request to ATF, seeking "any and all documents, records and information associated with" his name or identification number, and specifying that the relevant records "are all associated with the [ATF] Case File # 745519-190012, from the criminal prosecution of the case United States v. Boyd, 4:97CR301, from the Eastern District of Missouri." App. "Count 2" to Compl. at ECF 79. In addition, plaintiff stated: "The requester specifically seek [sic] documents and information in its files of the government's paid informant Bryant Troupe, and his working relation with ATF Agent James Green." Id.
On April 22, 2013, ATF acknowledged plaintiff's FOIA request and advised him that it would begin processing his request for information relating to himself. Decl. of Stephanie M. Boucher, Chief, Disclosure Division, ATF [Dkt. # 20-7] ("Boucher Decl.") ¶ 5; Ex. B to Boucher Decl. [Dkt. # 20-8] at 1 (letter from Boucher to plaintiff). The agency informed plaintiff, though, that it would not process the portions of his request that sought information about third parties because, pursuant to the Privacy Act, "[r]ecords pertaining to a third party generally cannot be released without the express authorization and written consent of the third party, proof of death of the third party, or a clear demonstration that the public interest in the disclosure outweighs the personal privacy interest of the third party." Ex. B to Boucher Decl. at 1. The agency stated that because plaintiff had provided no evidence that he had the right to access third-party records, it could not disclose the information he sought. Id.
On August 30, 2013, ATF informed plaintiff that it would take no further action on his FOIA request because the records he sought had "already been subject to the full process contemplated by the FOIA (i.e. initial processing, agency appeal and judicial review,[)] and all of [his] arguments ha[d] been fully considered therein." Ex. D to Boucher Decl. [Dkt. # 20-8] at 1.
On February 21, 2014, the ATF received a referral of records from the EOUSA. Boucher Decl. ¶ 8. ATF's Disclosure Division determined that all of the referred records had also "been subject to the full process contemplated by the FOIA," and so they were not subject to release. Id. ¶ 9; Ex. F to Boucher Decl. [Dkt. # 20-8] at 1. On March 14, 2014, ATF informed plaintiff that, for this reason, it would take no further action on his FOIA request and that it considered the matter closed. Ex. F to Boucher Decl. at 1.
On December 3, 2013, plaintiff submitted another FOIA request to EOUSA. App. to Am. Compl. [Dkt. # 16] at ECF 4-5. This request sought "any and all document [sic] and information in the files of EOUSA on Bobby Garrett," whom plaintiff described as a "former rogue St. Louis Police Officer ... who was indicted and convicted in United States v. Bobby Lee Garrett." Id. Plaintiff specified in great detail the information he was looking for with respect to Garrett, which included:
Id. Plaintiff also sought information about defendants who had been exonerated "doing [sic] to Bobby Garrett being exposed as a corrupt cop," public records on Garrett, a list of properties Garrett had illegally entered, and information about the relationship between Garrett and Bryant Troupe. Id. at ECF 4-5.
"Due to an error or an omission," EOUSA did not timely respond to plaintiff's December 3, 2013 request. Supp. Decl. of David Luczynski [Dkt. # 20-4] ("2d Luczynski Decl.") ¶ 7. Plaintiff submitted an administrative appeal on January 24, 2015, Ex. C to 2d Luczynski Decl. [Dkt. # 20-4], which was denied on March 6, 2014, on the grounds that plaintiff had already initiated a lawsuit related to this request. Ex. E to 2d Luczynski Decl. [Dkt. # 20-4]. In addition, "[t]o make up for" its earlier failure to respond, EOUSA sent plaintiff a response to his December 3, 2013 request on April 21, 2014.2d Luczynski Decl. ¶ 7; see also Ex. F to 2d Luczynski Decl. [Dkt. # 20-4]. The response letter stated that
Plaintiff filed this action on August 28, 2013. Compl. The Court granted plaintiff leave to amend the complaint on March 5, 2014. Minute Order (Mar. 5, 2014); see also Am. Compl.
On March 18, 2014, defendants moved for summary judgment, Defs.' Mot. for Summ. J. [Dkt. # 17], but because the motion did not address Count 3 of plaintiff's amended complaint, the Court afforded defendants an opportunity to file a renewed motion. Minute Order (Apr. 22, 2014). Defendants filed the renewed motion on June 23, 2014. Defs.' Mot.
On October 27, 2014, plaintiff filed a combined memorandum in opposition to defendants' renewed motion for summary judgment and cross-motion for summary judgment. Pl.'s Mot. On November 17, 2014, defendants filed a combined reply and cross-opposition. Reply Mem. & Mem. in Opp. to Pl.'s Mot. [Dkt. # 31] ("Defs.' Reply"). Plaintiff filed a cross-reply on December 10, 2014. Pl.'s Sur-Reply to Defs.' Opp. [Dkt. # 33] ("Pl.'s Reply").
On February 27, 2015, plaintiff filed a motion to expedite the proceedings in this case, arguing that the government misconduct his pleadings and evidence had established constituted "good cause shown." Pl.'s Mot. to Expedite [Dkt. # 34] at 5. The Court notified the parties that it would hold plaintiff's motion to expedite in abeyance until it had resolved the pending motions for summary judgment. Order (Mar. 26, 2015).
In a FOIA case, the district court reviews the agency's action de novo and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C.2009). On a motion for summary judgment, a court "must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706 (D.C.Cir.2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But where a plaintiff has not provided evidence that an agency acted in bad faith, "a court may award summary judgment solely on the basis of information provided by the agency in declarations." Moore, 601 F.Supp.2d at 12.
While the same legal framework applies in every case, where a plaintiff proceeds pro se, "the Court must take particular care to construe the plaintiff's filings liberally, for such complaints are held `to less stringent standards than formal pleadings drafted by lawyers.'" Cheeks v. Fort Myer Constr. Co., 722 F.Supp.2d 93, 107 (D.D.C.2010), quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
FOIA requires the release of government records upon request and its
To prevail in a FOIA action, an agency must, first, demonstrate that it has made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). "[A]t the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995), citing Oglesby, 920 F.2d at 68. Second, the agency must show that "materials that are withheld ... fall within a FOIA statutory exemption." Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252 (D.D.C.2005). "`[W]hen an agency seeks to withhold information, it must provide a relatively detailed justification,'" for the withholding, Morley v. CIA, 508 F.3d 1108, 1122 (D.C.Cir.2007), quoting King v. Dep't of Justice, 830 F.2d 210, 219 (D.C.Cir.1987), through a Vaughn Index, an affidavit, or by other means. Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C.Cir.1994).
After asserting and explaining its exemptions, an agency must release "[a]ny reasonably segregable portion of a record," 5 U.S.C. § 552(b), unless the non-exempt portions are "inextricably intertwined with exempt portions" of the record. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C.Cir. 1977); see also Johnson v. Exec. Office of U.S. Att'ys, 310 F.3d 771, 776 (D.C.Cir. 2002). "In order to demonstrate that all reasonably segregable material has been released, the agency must provide a `detailed justification' for its non-segregability," although "the agency is not required to provide so much detail that the exempt material would be effectively disclosed." Johnson, 310 F.3d at 776, quoting Mead Data, 566 F.2d at 261. "A district court has the obligation to consider the segregability issue sua sponte, regardless of whether it has been raised by the parties." Id. citing Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999).
In response to plaintiff's March 26, 2013 FOIA request, EOUSA released 201 pages of records to plaintiff in full and 267 pages in part, and it withheld 139 pages in full. Luczynski Decl. ¶ 8. EOUSA invoked FOIA Exemptions 3, 5, 6, and 7(C) to justify its withholdings, as well as Privacy Act Exemption (j)(2). Id. The agency also categorically withheld "all records pertaining to third party individuals" under Exemptions 6 and 7(C), stating that plaintiff had provided no evidence of authorization
EOUSA also categorically withheld all records responsive to plaintiff's December 3, 2013 FOIA request under FOIA Exemptions 6 and 7(C) and Privacy Act Exemption (j)(2).2d Luczynski Decl. ¶¶ 8, 11. The agency again stated that it was withholding "all records pertaining to third party individuals" and that plaintiff had shown no authorization to receive this information. Id. ¶ 11. In support of this withholding, the agency submitted a second declaration by David Luczynski.
"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.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999), quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990); see also Oglesby, 920 F.2d at 68; Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). To demonstrate that it has performed an adequate search, an agency must submit a reasonably detailed affidavit describing the search. Oglesby, 920 F.2d at 68 (finding summary judgment improper where agency's affidavit lacked sufficient detail); see also Defenders of Wildlife v. U.S. Border Patrol (Defenders II), 623 F.Supp.2d 83, 91 (D.D.C.2009) (same). A declaration is "reasonably detailed" if it "set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68; see also White v. Dep't of Justice, 840 F.Supp.2d 83, 89 (D.D.C.2012) (finding declarations sufficient where they "explain[ed] what system was searched, the terms used, why it was likely to contain responsive documents, and that no other search method would reveal responsive documents"); Defenders II, 623 F.Supp.2d at 92 (finding declaration deficient where it failed to detail the types of files searched, the filing methods, and the search terms used).
"`The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.'" Defenders of Wildlife v. U.S. Dep't of Interior (Defenders I), 314 F.Supp.2d 1, 8 (D.D.C.2004), quoting Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982); see also SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C.Cir.1991) (finding that an adequate search need not "uncover[] every document extant"). "[A]n agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, 71 F.3d at 890, citing Oglesby, 920 F.2d at 68. Agency affidavits attesting to a reasonable search "are afforded a presumption of good faith," Defenders I, 314 F.Supp.2d at 8, and "can be rebutted only `with evidence that the agency's search was not made in good faith.'" Id. quoting Trans Union LLC v. Fed. Trade
Plaintiff's March 26, 2013 FOIA request to EOUSA sought "any and all documents, records and information in your criminal case United States v. Willie E. Boyd, 4:97CR301, in the Eastern District of Missouri." App. "Count I" to Compl. at ECF 8. In addition, plaintiff's May 3, 2013 letter to EOUSA emphasized that plaintiff's March request encompassed records related Bryant Troupe, as well. Ex. D to 1st Luczynski Decl. at 1. Plaintiff's December 3, 2013 FOIA request to EOUSA sought "any and all document [sic] and information in the files of EOUSA on Bobby Garrett." App. to Am. Compl. at ECF 4-5.
As a preliminary matter, the Court notes that EOUSA categorically denied the parts of plaintiff's FOIA requests that sought records related to third-party individuals. See Luczynski Decl. ¶ 24; 2d Luczynski Decl. ¶ 11. Thus, EOUSA did not search for records responsive to those portions of the requests. As explained below, the Court finds that EOUSA's categorical denials were appropriate in this case, and so its failure to search for records related to third parties does not undermine the overall adequacy of its search.
With respect to the portion of the March 26, 2013 request that sought records related to plaintiff, the Court finds that EOUSA conducted an adequate search for responsive records. The agency began its search by forwarding the FOIA request to the FOIA contact for the U.S. Attorney's Office for the Eastern District of Missouri. 1st Luczynski Decl. ¶ 10. The FOIA contact then searched the "LIONS" system, which is "the computer system used by United States Attorneys offices to track cases and to retrieve files pertaining to cases and investigations." Id. This system permits a user to retrieve information using a person's name, an internal U.S. Attorney's Office administrative number, or a case number. Id. In this case, the FOIA contact searched the LIONS system using plaintiff's name. Id. In addition to searching this system, the FOIA contact reached out to "the appropriate Assistant United States Attorneys in the Criminal Division" by email "to ascertain whether they had any responsive records." Id. The agency asserts that "[t]here are no other records systems or locations within the Eastern District of Missouri in which other files pertaining to plaintiff's criminal case, were maintained." Id. ¶ 12.
Plaintiff contends that the agency has not described an adequate search for records because: (1) it has not provided the name of the FOIA contact in the Eastern District of Missouri; (2) it has not provided a sworn declaration and Vaughn Index by that FOIA contact; and (3) "David Luczynski has no personal knowledge of the search for responsive records."
EOUSA "categorically applied" FOIA Exemptions 6 and 7(C) to withhold all records responsive to the March 26, 2013 request pertaining to third-party individuals in order to protect their personal privacy interests. 1st Luczynski Decl. ¶ 24. EOUSA also categorically withheld the records responsive to plaintiff's December 3, 2013 FOIA request, which specifically sought information about Bobby Garrett, under Exemptions 6 and 7(C). Finally, EOUSA withheld portions of many records responsive to the part of plaintiff's March 26, 2013 request that the agency did process under FOIA Exemptions 6 and 7(C). 1st Luczynski Decl. ¶¶ 22-23, 26-27.
Exemption 6 shields from mandatory disclosure "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). Exemption 7(C) protects information that was (1) compiled for law enforcement purposes, if (2) the disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). Because Exemption 7(C) involves a lower threshold than the one set forth in Exemption 6, which requires a "clearly unwarranted invasion" of privacy, see id. § 552(b)(6) (emphasis added), the Court will address Exemption 7(C) first. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 756, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (comparing Exemptions 7(C) and 6); People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, Dep't of Health & Human Servs., 745 F.3d 535, 541 (D.C.Cir. 2014) (same).
To invoke Exemption 7(C), the agency must first make the threshold showing that the records were compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7)(C); see also Rural Hous. Alliance v. U.S. Dep't of Agric., 498 F.2d 73, 80 (D.C.Cir.1974). Here, there is no dispute that the records withheld by EOUSA relating to the prosecution and conviction of plaintiff were compiled for law enforcement purposes.
Next, the agency must articulate a privacy interest that would be invaded by disclosure. See Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468. Here, EOUSA has identified legitimate privacy interests that would be invaded by the release of third-party information, including the interest in avoiding the "harassment, harm, or exposure to unwanted and/or derogatory publicity and inferences" that might result from disclosure. 1st Luczynski Decl. ¶ 26; see also Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 666 (D.C.Cir.2003) (noting the strong privacy interest of "persons involved in law enforcement investigations — witnesses, informants, and the investigating agents — ... `in seeing that their participation remains secret'"), quoting Senate of P.R. ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 588 (D.C.Cir.1987).
Once a legitimate privacy interest has been established, a FOIA requestor bears the burden of asserting a
"As a general rule, third-party identifying information contained in [law enforcement] records is `categorically exempt' from disclosure," Lazaridis v. U.S. Dep't of State, 934 F.Supp.2d 21, 38 (D.D.C.2013), unless there is "an overriding public interest in disclosure." Lewis, 609 F.Supp.2d at 84, citing Nation Magazine, 71 F.3d at 896. The only relevant public interest that weighs into the calculus for purposes of Exemption 7(C) is "the citizens' right to be informed about `what their government is up to,'" Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468, and "[t]hat purpose ... is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." Id.
Applying those general principles, EOUSA determined that there was "no countervailing public interest" in the release of the third-party records, 1st Luczynski Decl. ¶ 27; 2d Luczynski Decl. ¶ 14, and so it did not proceed to balance the private and public interests with respect to those records. See Judicial Watch, 598 F.Supp.2d at 96. Thus, the question before the Court is whether plaintiff has identified a public interest in disclosure that should have been weighed against the privacy interests EOUSA identified. See Boyd, 475 F.3d at 387.
Plaintiff contends throughout his pleadings that there is a public interest in the disclosure of the information he seeks because that information would expose government misconduct. See, e.g., Pl.'s Mot. at 11 ("[T]here very well could be a public interest, if the government has erroneously applied [Exemptions 6 and 7(C)] to hide government misconduct."); id. at 15 ("The `interviews' in the Vaughn index of Luczynski Decl., may be the very Jencks materials that should have been turned over to Trial Counsel Epstein."); id. at 47 ("[B]ecause these document [sic] may be the documents the government had promised to turn over under its Jencks agreement before trial, ... there could be a strong `public interest' for disclosure of the records."); see also Pl.'s Mot. to Expedite at 5 (contending that the Court should expedite the proceedings in this case on the basis of plaintiff's evidence of government misconduct).
Where a plaintiff asserts a public interest in uncovering government wrongdoing, "the requester must `produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Boyd, 475 F.3d at 387, quoting Favish, 541 U.S. at 174, 124 S.Ct. 1570. As explained further below, the Court finds that plaintiff has not made this showing. Therefore, plaintiff has not identified a public interest
Plaintiff stated in the March 26, 2013 FOIA request to EOUSA that he sought information that he believed would "expose the bad-faith nondisclosure of Brady/Giglio/Jencks and Rule 16 materials and information of governmental misconduct with the discovery materials" in his criminal case. App. "Count I" to Compl. at ECF 8. Plaintiff emphasized in the May 3, 2013 letter that he was especially interested in records related to Bryant Troupe, whom plaintiff contends was used as a government informant "in a covert operation in the investigation of Willie Boyd." Ex. D to 1st Luczynski Decl. at 1. EOUSA categorically withheld "all records pertaining to third party individuals," including records related to Troupe under Exemption 7(C). 1st Luczynski Decl. ¶ 24. For the reasons that follow, the Court finds that this categorical withholding was justified.
Plaintiff's interest in Troupe is not new, and the D.C. Circuit summarized the facts underlying plaintiff's request for information about Troupe in a 2007 opinion:
Boyd, 475 F.3d at 384; see also id. at 385 (noting that plaintiff submitted FOIA requests seeking information about Troupe in 1998, 2003, and 2004). In the case before the D.C. Circuit, as here, plaintiff contended that the information he sought should not be withheld under Exemption 7(C) because there is a public interest "in knowing whether Brady-related misconduct occurred during Boyd's criminal trial and whether the government generally complies with its Brady obligations." Id. at 387; see also Pl.'s Mot. at 11 ("[T]here very well could be a public interest, if the government has erroneously applied [Exemptions 6 and 7(C)] to hide government misconduct.").
With respect to the records withheld under Exemption 7(C), the D.C. Circuit found that Boyd and the Amicus appointed on his behalf had failed to identify a public interest in disclosure to be weighed against the privacy interests articulated by
In the case now pending before the Court, plaintiff's allegations of government wrongdoing are substantially similar to the claims he and the Amicus advanced before the D.C. Circuit. Plaintiff contends that the government failed to provide potentially exculpatory information to his counsel at trial, including discovery disclosure letters, witness interviews, materials found in an ATF agent's work file, and "any discovery material on Bryant Troupe's role as a government paid informant." Pl.'s Mot. at 13.
Plaintiff maintains that there are "new facts and changed circumstances" that were not available in 2007 that should lead the Court to a different conclusion than the one reached by the D.C. Circuit. See id. at 27. He points to the following evidence: (1) unredacted versions of two April 15, 1998 discovery letters in plaintiff's criminal case that EOUSA apparently released in full for the first time in response to plaintiff's March 26, 2013 FOIA request; (2) a sworn affidavit by Carl Epstein, plaintiff's criminal trial counsel; and (3) an affidavit by another attorney, Paul Sims. Id. at 24-25.
First, plaintiff argues that the unredacted versions of two discovery letters that discuss Troupe are proof that the government wrongfully withheld information from him at the time of his trial. Pl.'s Mot. at 27-29; see also id. at 30-31 (contending that "[t]he deception carried out by the government with its deliberate suppression and concealment of the April 15, 1998 discovery letters, undermined the prior FOIA-Litigation, and Deceived the Court and the Plaintiff"). Both letters are dated April 15, 1998, and both indicate that they were hand-delivered to plaintiff's trial counsel, Carl Epstein. See App. B(S) to Pl.'s Mot. [Dkt. # 28-3] at ECF 128
The second letter, also from AUSA Gaertner, states that the government provided Troupe $2,953.90 to assist him in relocating "due to a threat that he received involving" plaintiff's case, and "for his safety in the United States v. Byron James Miller [sic]." Second April Letter at ECF 129. The letter further states that AUSA Gaertner had enclosed a copy of Troupe's testimony in the Miller case because Epstein had "indicated to [Gaertner] in Court the other day that [Epstein] previously reviewed a copy, but [Epstein] left it in Indianapolis." Id. Gaertner also states that he is enclosing "a copy of Mr. Bryant Troupe's Grand Jury testimony on May 28, 1997," "a copy of a written affidavit by Bryant Troupe which is dated September 27, 1997," "a copy of Agent Jim Green's report dated 10-9-97," and "a copy of a tape of a conversation between Sharon Troupe and Bryant Troupe referenced in the report of 10-9-97." Id. at ECF 129-30.
Plaintiff claims that his trial counsel never received either letter or the materials referenced within the second letter. Pl.'s Mot. at 32. He further contends that the fact that one of the government's letters refers to concerns about Troupe's safety because of Boyd's case, and the other refers to concerns about Troupe's safety because of the Miller case, is a "contradiction" that constitutes evidence that "[t]he government had been deceptive with the information in its files on Troupe, because it paid Bryant Troupe for his covert activity in the plaintiff's criminal case, not for his relocation." Id. at 37-38. But there is nothing about the slight difference between the letters that would cause a reasonable person to infer that government misconduct had occurred; indeed, the two statements are not necessarily contradictory, since it is conceivable that Troupe's relationship to both the Boyd and Miller cases could lead the government to help him relocate.
But Epstein's affidavit does nothing more than restate the same contentions that the D.C. Circuit already concluded did not constitute evidence of government misconduct. See Boyd, 475 F.3d at 387-88. As noted above, the court held that there was no basis to infer that the government had withheld purportedly exculpatory information from Epstein, given that it had undisputedly released exculpatory grand jury testimony to Boyd that implicated Troupe, and that "letters the prosecutor wrote in 1998 suggest that the documents at issue were turned over." Id. The court also observed that it was "doubtful that a reasonable person would infer government misconduct from unsworn letters from defense counsel years after Boyd's 1998 conviction." Id. The fact that Epstein's contentions are now contained within a sworn affidavit instead of an unsworn letter does not constitute a change that is material, and so the D.C. Circuit's conclusion on this issue remains binding on the Court.
Finally, the affidavit of Paul Sims does not constitute a new fact or changed circumstance that is sufficient to alter the outcome here. Sims is an attorney who was apparently retained to represent plaintiff in a recent attempt to challenge his criminal conviction. See Letter from Paul E. Sims, Sims & Bailey, LLC, to Richard G. Callahan, United States Attorney for the Eastern District of Missouri (Mar. 9, 2011), App. B(V) to Pl.'s Mot. [Dkt. # 28-3] at ECF 148-49. Sims states in an affidavit dated September 23, 2013, that he requested unredacted copies of the April 1998 letters and ATF Agent Green's personal case file related to Boyd from U.S. Attorney Richard G. Callahan, and that he received no response from the government until he filed a motion to compel disclosure of the information on December 5, 2011. Aff. of Paul Sims (Sept. 23, 2013), App. B(V) [Dkt. # 28-3] at ECF 145-46, ¶¶ 2-4. According to Sims, the government responded to his motion on February 8, 2012, stating that it would provide "the letter," and it did not respond to the request for the case file. Id. at ECF 146, ¶ 4. Sims avers that he has not yet received any April 1998 letters from the government. Id. But the fact that Sims did not receive information in 2012 or 2013 sheds no light on the question of what information plaintiff's trial counsel may have received from the government in 1997 or 1998, and so it does not indicate that the government wrongfully withheld potentially exculpatory material at the time of plaintiff's trial.
In sum, the Court finds that none of the "new" evidence plaintiff cites is material,
EOUSA also categorically withheld all records responsive to plaintiff's December 3, 2013 FOIA request because that request exclusively sought information about former St. Louis police officer Bobby Garrett.
According to a newspaper article provided by plaintiff, Garrett was convicted in 2009 of various crimes he committed in 2007 and 2008, including "theft of government property, conspiracy to commit wire fraud, making false statements and misapplication of government funds." App. B(M) to Pl.'s Mot. at ECF 67 (undated newspaper article). Apparently, Garrett's conviction led to the revising of criminal sentences in some cases. See App. B(N) to Pl.'s Mot. at ECF 71-73 (opinion in Cox v. United States, No. 4:10CV01572CEJ, 2010 WL 5146665, 2010 U.S. Dist. LEXIS 131437 (E.D.Mo. Dec. 13, 2010) partially overturning Cox's sentence because of Garrett's false testimony at his trial); App. B(O) to Pl.'s Mot. at ECF 75-80 (opinion in Holmes v. United States, No. 4:08-CV-1142 (CEJ), 2011 WL 4445702, 2011 U.S. Dist. LEXIS 109425 (E.D.Mo. Sept. 26, 2011) granting new trial to Holmes based on Garrett's false testimony).
Plaintiff argues that "Garrett should have no personal privacy" interest in the information plaintiff seeks "because of his criminal acts against citizens he swore to protect." Pl.'s Mot. at 16. He also contends that the release of the requested information would not "cause [Garrett] any undue harassment, harm, or exposure to unwarranted and/or derogatory publicity and inferences." Id. at 17. In addition, plaintiff claims that there is a strong public interest in the disclosure of the information he seeks about Garrett because the government was "complicit in Garrett's wrongdoing," id. at 16, and it has "deliberately suppressed and altered discoverable materials ... to keep Bobby Garrett's
Even if Garrett's conviction might diminish his privacy interest in this case, it does not eliminate it entirely. See Roth, 642 F.3d at 1174 (holding that convicted criminals who were the subjects of the plaintiff's FOIA requests retained a privacy interest in law enforcement information related to them); see also Taplin ex rel. Lacaze v. U.S. Dep't of Justice, 967 F.Supp.2d 348, 355 (D.D.C.2013) (holding that a third party's privacy interest for purposes of Exemption 7(C) was diminished, but not demolished, when it was already publicly known that he had been wanted by the FBI). Therefore, plaintiff must still establish the existence of a countervailing public interest in disclosure by pointing to evidence that would cause a reasonable person to infer that his allegation that the government was "complicit in Garrett's wrongdoing," Pl.'s Mot. at 16, might be true. See Boyd, 475 F.3d at 388.
As evidence of this purported government misconduct, Boyd points to three documents that he claims were withheld from his counsel during his criminal trial: (1) a "prisoner processing" document dated November 7, 1995, which plaintiff alleges contradicts Garrett's testimony at trial that plaintiff possessed a set of keys when he was arrested, Pl.'s Mot. at 19; see also Boyd, 180 F.3d at 973 (noting Garrett's testimony about the keys); (2) a "real" copy of the St. Louis police report related to plaintiff's arrest, Pl.'s Mot. at 19-20; and (3) trial counsel Epstein's statements in an affidavit that he was not given a copy of the "prisoner processing" document or the "real" police report. Id.
According to plaintiff, EOUSA's most recent release of records included a "prisoner processing" document that had never before been provided to plaintiff by that agency. Pl.'s Mot. at 19; see also App. A(H) to Pl.'s Mot. at ECF 97-98 (version of "prisoner processing" record released to plaintiff by EOUSA in February 2014 that contains some redactions); App. B(R) to Pl.'s Mot. at ECF 111-12 (version of "prisoner processing" record apparently released to plaintiff in 2002 by ATF that contains different redactions). The "prisoner processing" document lists the property taken from plaintiff at the time of his arrest, and it does not mention any keys. See App. A(H) to Pl.'s Mot. at ECF 98; App. B(R) to Pl.'s Mot. at ECF 112.
Plaintiff contends that this record was wrongfully withheld during the trial, and he suggests that it could have been used to impeach Garrett's testimony about plaintiff possessing keys. Pl.'s Mot. at 19; see also Statement of Carl L. Epstein (Dec. 27, 2011), App. A(B) to Pl.'s Mot. at ECF 39, ¶ 9(d) (stating that Epstein never received the record). Plaintiff further argues that the release of this record by EOUSA indicates that "[t]he Government knew that plaintiff had no keys in his possession when arrested by Bobby Garrett," and
The Court has already determined that Epstein's statements, sworn or otherwise, are not enough to generate a reasonable inference of possible government malfeasance, especially in light of the D.C. Circuit's ruling on almost exactly the same issue. See Boyd, 475 F.3d at 387-88. And plaintiff has not offered new evidence to show that he never received the materials he contends were wrongfully withheld from him at trial. Moreover, even if plaintiff is correct that his counsel never received this "prisoner processing" record, that would still not be enough to substantiate the weighty claim that the government "deliberately suppress[ed]" the information.
Plaintiff's only other evidence of government malfeasance with respect to Garrett is the police incident report of plaintiff's arrest that was disclosed by ATF in 2002 in response to a FOIA request. See Pl.'s Mot. at 19-20; see also App. B(R) to Pl.'s Mot. at ECF 115-24. Plaintiff contends that a comparison between the copy of the report he received from ATF and the copy that was provided to him by the government in 1997, see App. B(P) to Pl.'s Mot. at ECF 91-96, reveals that the earlier copy was "fabricated" or "fake." Pl.'s Mot. at 19-20. As evidence of this fabrication, plaintiff alleges that the version given to his trial counsel was "a manually [sic] reproduction of the original police report" that also "omitted two-pages." Id. at 19. Plaintiff maintains that, by giving him this "fake" report, the government denied him due process of law and sought to "alter evidence that would prove Bobby Garrett was not a credible witness."
The Court finds that nothing about the two copies of the police report indicates that government misconduct might have occurred. First, it is true that plaintiff received a copy of the report in 1997 that
Plaintiff's allegations about the missing pages of the police report are also not sufficient to carry his burden here. Plaintiff claims that the government omitted a "property receipt" from the police report it provided to plaintiff's trial counsel, and that this receipt showed that "$775.00 dollars was seized by rogue cop Bobby Garrett, and could not be accounted for." Pl.'s Mot. at 21; see also App. B(R) to Pl.'s Mot. at ECF 123 (the property receipt). To support his claim that he never received this information, plaintiff points to what appears to be the version of the police report that was sent to his counsel in 1997, see App. B(P) at 90-96, and a statement by Epstein that he never received parts of the police report. See Statement of Carl L. Epstein (Dec. 27, 2011), App. A(B) to Pl.'s Mot. at ECF 39, ¶ 9(c).
Whether one credits Epstein's recollection or not, it is true that the version of the police report produced by ATF does include two pages that original version lacks, compare App. B(R) to Pl.'s Mot. at ECF 115-23, with App. B(P) to Pl.'s Mot. at ECF 91-96, and that one of these pages is a "property receipt" indicating the seizure of $775.00 from plaintiff. See App. B(R) at ECF 123. But even if these two pages were not given to plaintiff's counsel in 1997, that omission is not material for the purpose of this case, because the parts of the police report that plaintiff concedes his counsel did receive also reflect that $775 was taken from plaintiff by Garrett. See App. B(P) to Pl.'s Mot. at ECF 92. Under these circumstances, the Court cannot see how a reasonable person could infer that the omission of these two pages, if it occurred, rises to the level of potential evidence of government misconduct. In the end, plaintiff has pointed to nothing that took place in connection with his case that would warrant opening the records of the investigation into Garrett's crimes, which occurred nearly ten years later, to him.
EOUSA identified a total of 607 pages of records that were responsive to the portion of plaintiff's March 26, 2013 FOIA request that related to plaintiff, and it withheld the names and other identifying information of third parties, witness, and law enforcement personnel from nearly every one of the 13 responsive records under FOIA Exemptions 7(C) and 6. See 1st Luczynski Decl. ¶ 8; see also Vaughn Index. The Court has already determined that the records in question here were compiled for a law enforcement purpose and that they implicate the privacy interests of third parties, including the witnesses named in plaintiff's March 26, 2013 FOIA request. See App. "Count I" to Compl. at ECF 9.
Plaintiff contends that EOUSA is using its Exemption 7(C) withholdings to mask government malfeasance, and so there is a public interest in disclosure, but he offers nothing more than his own speculation to support that claim. See, e.g., Pl.'s Mot. at 11 ("[T]here very well could be a public interest, if the government has erroneously applied [Exemptions 6 and 7(C)] to hide government misconduct."); id. at 15 ("The `interviews' in the Vaughn Index of Luczynski Decl., may be the very Jencks materials that should have been
Exemption 3 permits an agency to withhold information that is "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). EOUSA invokes Exemption 3 in conjunction with a provision of the Ethics in Government Act, 5 U.S.C. app. 4 § 107(a)(2), and Rule 6(e) of the Federal Rules of Criminal Procedure. See Vaughn Index at 2-3, 5.
EOUSA cites the provision of the Ethics in Government Act as justification to withhold document 3 in full. Id. at 2. Document 3 is described as consisting of "[d]ocuments titled `Conflict of Interest Certification,'" and no other detail or description is provided. Id. In the Vaughn Index, EOUSA contends that, "[p]ursuant to United States Code 5 U.S.C. app. [4] § 107(a)(2) conflict of interest forms are not subject to FOIA."
EOUSA withheld documents 4, 7, and 8 in full, citing FOIA Exemption 3 in conjunction with Rule 6(e). See Vaughn Index at 3, 5. Rule 6(e) prohibits, with exceptions, the disclosure of "matter[s] occurring before [a] grand jury." Fed. R.Crim.P. 6(e)(2). Rule 6(e) qualifies as a "statute" for purposes of Exemption 3 because it was affirmatively enacted by Congress. Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C.Cir.1981). But Rule 6(e) should not be read so literally as to draw "`a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury.'" Senate of P.R., 823 F.2d at 582, quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.1980) (en banc). "There is no per se rule against disclosure of any and all
Documents 4 and 7 are described as transcripts from grand jury proceedings and testimony. See Vaughn Index at 3, 5. Although Exemption 3 and Rule 6(e) do not protect "any and all information which has reached the grand jury chambers" from disclosure, see Senate of P.R., 823 F.2d at 582, grand jury testimony is precisely the type of information that the provision is designed to protect. See id. (stating that information such as "the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, [and] the deliberations or questions of jurors" is protected by Rule 6(e)); see also Fund for Constitutional Gov't, 656 F.2d at 869 (stating that "the scope of the secrecy" under Rule 6(e) "is necessarily broad" and that "[i]t encompasses... the direct revelation of grand jury transcripts"). Thus, the Court finds that EOUSA properly withheld documents 4 and 7 from plaintiff in full, and that no portion of those records was reasonably segregable.
Document 8, however, is described as a "[s]eries of communication letters between attorneys handling the case" that includes discussion of "items relating to the Grand Jury, and case strategy." Vaughn Index at 5. This description is simply not detailed enough for the Court to determine whether disclosure of document 8 "would tend to reveal some secret aspect of the grand jury's investigation," see Senate of P.R., 823 F.2d at 582 (citations and internal quotation marks omitted), and so the Court cannot find that EOUSA's reliance on Exemption 3 and Rule 6(e) to withhold this record in full was justified.
EOUSA withheld the documents numbered 1, 2, 6, and 8 in part or in full under FOIA Exemption 5. See Vaughn Index at 1-5. Exemption 5 permits agencies to withhold "inter-agency or intra-agency memorandums 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); see also U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (holding that a record may be withheld under Exemption 5 only if "its source [is] ... a Government agency, and it ... fall[s] within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it"). Exemption 5 "encompass[es] the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context," including the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" privilege. Taxation with Representation Fund v. IRS, 646 F.2d 666, 676 (D.C.Cir.1981). Here, EOUSA invokes the work-product and deliberative process privileges.
"The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery," and its purpose "is to enhance `the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government." Klamath, 532 U.S. at 8-9, 121 S.Ct. 1060 (citations omitted), quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Thus, the privilege only "protects agency documents that are both predecisional and deliberative." Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006); accord McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C.Cir.2011). "[A] document [is] predecisional if `it was generated before the adoption of an agency policy' and deliberative if `it reflects the give-and-take of the consultative process.'" Judicial Watch, 449 F.3d at 151, quoting Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980).
Plaintiff contends that EOUSA's reliance on Exemption 5 is not justified. Pl.'s Mot. at 9-10. He complains that EOUSA has not shown that any of the relevant records are "inter-agency or intra-agency memorandums or letters," see 5 U.S.C. § 552(b)(5), and that it failed to provide the dates of creation of the documents.
The Court has considered plaintiff's objections, as well as the justifications and explanations provided by EOUSA in its Vaughn Index, affidavit, and pleadings, and the Court makes the following rulings on the propriety of defendants' Exemption 5 withholdings:
The Privacy Act provides that "[e]ach agency that maintains a system of records shall ... upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him ... to review the record and have a copy made of all or any portion thereof in a form comprehensible to him...." 5 U.S.C. § 552a(d)(1). Exemption (j)(2) applies, in relevant part, to records that are: (1) stored in a system of records that has been designated by an agency to be exempt from the Privacy Act's disclosure requirements; and (2) stored in a system that is "maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws," and that consists of "information compiled for the purpose of a criminal investigation."
When a plaintiff challenges an agency's withholding of documents under the Privacy Act, the court determines de novo whether the withholding was proper, and the burden is on the agency to sustain its action. 5 U.S.C. § 552a(g)(3)(A); Doe v. United States, 821 F.2d 694, 697-98 (D.C.Cir.1987) (en banc). And when a request for documents is made under both FOIA and the Privacy Act, the responding agency "must demonstrate that the documents fall within some exemption under
EOUSA contends that all of the records responsive to plaintiff's FOIA requests were exempt from disclosure under Privacy Act Exemption (j)(2). 1st Luczynski Decl. ¶ 13; 2d Luczynski Decl. ¶ 8. The agency explains that all "[c]riminal case files maintained by U.S. Attorney's Offices are part of the DOJ Privacy Act System of Records," and that "[t]he Attorney General has promulgated regulations at 28 C.F.R. § 16.81(a)(1) which exempts U.S. Attorney's Office criminal case files... from the [Privacy Act's] access provisions as authorized by 5 U.S.C. § 552a(j)(2)." 1st Luczynski Decl. ¶ 13; 2d Luczynski Decl. ¶ 8. Moreover, it is plain that EOUSA's "principal function" involves the enforcement of criminal laws, and that the records sought by plaintiff consist of "information compiled for the purpose of a criminal investigation." See 5 U.S.C. § 552a(j)(2)(B). Thus, EOUSA properly determined that Privacy Act Exemption (j)(2) applies to the records sought by plaintiff in this case.
Plaintiff submitted one FOIA request to ATF in this case on March 26, 2013, seeking "any and all documents, records and information associated with" his name or identification number, and "specifically seek[ing] documents and information in [ATF's] files on the government's paid informant Bryant Troupe, and his working relation with ATF Agent James Green." App. "Count 2" to Compl. at ECF 79. ATF responded that it would not process the portion of plaintiff's request that sought information about third parties pursuant to the Privacy Act, Ex. B to Boucher Decl. at 1, and that it would take no further action on plaintiff's request because the records he sought had "already been subject to the full process contemplated by the FOIA (i.e. initial processing, agency appeal and judicial review[)]." Ex. D to Boucher Decl. at 1. In addition, ATF determined that the records referred to it by EOUSA had also already been subject to processing in the past. Boucher Decl. ¶ 9. In a declaration submitted by Stephanie M. Boucher, Chief of the Disclosure Division at ATF, the agency notes that "Boyd has been the requester in twelve FOIA requests to ATF" since 1999, id. ¶ 10, and that the agency was involved in FOIA litigation with Boyd from October 15, 1999 until September 24, 2004. Id. ¶ 12. Boucher avers that "ATF addressed every document responsive to Mr. Boyd's FOIA request" during the litigation of that case. Id.
Plaintiff challenges ATF's refusal to process his request on the grounds that "post-judgment events has [sic] given rise to new claims, because new facts have unfolded that where [sic] not in existence during the original action and could not have been litigated in the prior actions."
In addition, plaintiff asserts all of the arguments with respect to the affidavit of Paul Sims that the Court has already addressed in the discussion of EOUSA's withholding of information about Troupe. See Pl.'s Mot. at 29-30.
Plaintiff's arguments are unavailing. First, the Court has already determined that the claims with respect to Paul Sims, Carl Epstein, and the April 15, 1998 discovery letters do not constitute new evidence that would support an inference of possible government misconduct, and so they also do not require ATF to process records that it has already processed with respect to plaintiff's previous requests. Furthermore, plaintiff's contention that dates revealed in the April 1998 letters correlate with the dates of records previously withheld by ATF, even if true, does not raise an inference of government wrongdoing.
In addition, the redacted November 13, 2000 memorandum with the subject line "Request to locate Cooperating Individual" simply indicates that there was "a cooperating individual relative to the investigation of Willie E. Boyd," and that, on October 31, 2000, a U.S. District Court judge instructed ATF "to initiate efforts to locate the subject and arrange for the judge to speak with the individual on the telephone." App. B(C) to Pl.'s Mot. at ECF 35. Plaintiff believes that the "cooperating individual" was Bryant Troupe, but even if that is true — which the letter does not confirm — nothing about this letter "show[s] that the government ha[s] been deceptive about how it utilized Bryant Troupe in a covert operation." See Pl.'s Mot. at 25.
Finally, plaintiff has not offered, and the Court cannot discern, any explanation as to why a November 17, 2000 letter informing Bryant Troupe that he was eligible for a sweepstakes prize would constitute new
Therefore, in light of ATF's unrebutted assertion that it had already processed all of the records responsive to plaintiff's FOIA request in connection with plaintiff's previous dozen requests and a five-year-long lawsuit, see Boucher Decl. ¶¶ 10, 12, the Court finds that ATF's response to plaintiff's latest FOIA request was justified.
In the course of its search for records responsive to plaintiff's request, EOUSA unearthed documents that originated from other components of the government, and it referred the documents to those components for further processing. 1st Luczynski Decl. ¶ 8. Specifically, EOUSA referred 55 pages of records to Treasury, Decl. of Ryan Law [Dkt. # 20-9] ("Law Decl.") ¶ 5; 29 pages to the USMS, Decl. of William E. Bordley [Dkt. # 20-11] ("Bordley Decl.") ¶ 2; and five pages to the BOP, Letter from Johnna M. Todd, for Wanda M. Hunt, Chief, FOIA/PA Section, Federal Bureau of Prisons, to Willie E. Boyd, plaintiff (Feb. 27, 2014) [Dkt. # 20-12] ("BOP Letter") at 1. Treasury, in turn, referred two of the 55 pages to the IRS. Law Decl. ¶ 8; see also Decl. of Denise Higley [Dkt. # 20-10] ("Higley Decl.") ¶ 2.
Treasury, the IRS, and the USMS released portions of the referred pages to plaintiff, and the BOP released all of the pages referred to it in full.
EOUSA referred 55 pages to Treasury, and Treasury referred two of those pages to the IRS. Law Decl. ¶¶ 5, 8. In a declaration submitted by Ryan Law, Director of FOIA and Transparency within the Office of Privacy, Transparency, and Records, id. ¶ 1, Treasury explains that 52 of the remaining pages originated from the Financial Crimes Enforcement Network office ("FinCEN"), and that one came from the Bureau of the Fiscal Service ("FS"). Id. ¶ 10. Law states that FinCEN and FS records fall under the Privacy Act and are exempt from its disclosure provisions. Id. ¶¶ 10-14. Thus, Treasury processed the 53 pages of records under FOIA. Id. ¶ 14; see Martin, 819 F.2d at 1184. Treasury released to plaintiff 15 pages in full and 38 pages in part, citing FOIA Exemptions 3, 6, 7(C), and 7(E), and Privacy Act Exemptions (j)(2) and (k)(2). Law Decl. ¶¶ 9, 13, 15.
As the Court will explain more fully below, the Court cannot determine whether any of Treasury's withholdings were justified because Treasury has not provided a "`relatively detailed justification'" for the applicability of the FOIA exemptions it claims. See Morley, 508 F.3d at 1122, quoting King, 830 F.2d at
First, Treasury invoked FOIA Exemption 3, which permits the withholding of information that is "specifically exempted from disclosure by statute," 5 U.S.C. § 552(b)(3), in conjunction with the Bank Secrecy Act, 31 U.S.C. § 5311, et seq. Law Decl. ¶¶ 16-17. Section 5319 of the Bank Secrecy Act exempts records collected under that act from disclosure under FOIA. 31 U.S.C. § 5319; see also Ortiz v. U.S. Dep't of Justice, No. 12-1674(TFH), 67 F.Supp.3d 109, 117-19, 2014 WL 4449686, at *4 (D.D.C. Sept. 9, 2014) (collecting cases). Treasury states that it applied Exemption 3 in conjunction with the Bank Secrecy Act to withhold "references to information collected pursuant to the Bank Secrecy Act." Law Decl. ¶ 17. Treasury's description of this withholding is not sufficient: the agency has failed to provide even a general description of the relevant records or the type of information withheld, let alone the "`relatively detailed justification'" required by law. See Morley, 508 F.3d at 1122, quoting King, 830 F.2d at 219.
Treasury also withheld the personally identifiable information of third parties under FOIA Exemption 6, which shields from mandatory disclosure "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); see also Law Decl. ¶ 18. Treasury asserts that the information withheld was located in "files similar to personnel and medical files," Law Decl. ¶ 18, but it has provided no description of the records that would permit the Court to assess this legal conclusion. Treasury further states that the withheld information consists of personally identifiable information about third parties, including their names, id. ¶ 19, and that "[e]very effort has been made to release all reasonably segregable information contained in these records." Id. ¶ 21. But even though it may turn out that the third-party information was properly withheld, the Court cannot determine whether the agency has satisfied FOIA's segregability requirement without a more detailed description of these records. See Johnson, 310 F.3d at 776.
Furthermore, Treasury invoked FOIA Exemption 7(C), Law Decl. ¶ 22, which protects information that was (1) compiled for law enforcement purposes, if (2) the disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Treasury states that the information it redacted under this exemption "identifies agency employees and third parties in law enforcement records," Law Decl. ¶ 23, and that "[t]he types of information that were withheld pursuant to this exemption consist of third party personally identifiable information including names, birthdays, and Social Security numbers." Id. ¶ 24. But Treasury has, again, entirely failed to describe this set of records, beyond the conclusory statement that they were "law enforcement records." Thus, the Court cannot determine whether these withholdings were justified or whether the agency released all reasonably segregable non-exempt portions of the records to plaintiff.
Finally, Treasury relied on FOIA Exemption 7(E), which protects law enforcement records from disclosure "to the extent that the production of such ... information ... would disclose techniques and procedures for law enforcement investigations
Treasury states that it has invoked Exemption 7(E) "to protect from disclosure databases used in enforcement investigations." Law Decl. ¶ 29. It is not apparent, however, how "databases" constitute responsive records under FOIA, as opposed to the systems through which a search for responsive records might be conducted. Thus, Treasury has again failed to meet its obligation to provide "`a relatively detailed justification'" for its withholding. See Morley, 508 F.3d at 1122, quoting King, 830 F.2d at 219.
The IRS received a referral of two pages from Treasury. Law Decl. ¶ 8; see also Higley Decl. ¶ 2. In a declaration by Denise Higley, a Tax Law Specialist in the HQ Disclosure Office, Higley Decl. ¶ 1, the IRS explains that "[t]hese two documents consist of: (1) a January 14, 1998, letter from the Chief of the IRS Criminal Investigation Division for the Kansas-Missouri District to the United States Attorney in St. Louis ...; and, (2) a February 9, 1999, letter from the same CI office to the Secretary of the Treasury, Bureau of the Public Debt." Id. ¶ 3. The IRS released the first record in full, and all but two lines of the second record, citing FOIA Exemptions 6 and 7(C) to justify the redactions. Id. ¶¶ 3-4. Higley states that these redactions "protect the names, addresses, and social security numbers of two other individuals that the IRS Criminal Investigation was investigating at the same time as plaintiff/requester," in recognition of "the interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity." Id. ¶ 4. Higley contends that the release of this information would likely constitute an unwarranted invasion of personal privacy. Id.
The Court finds that the IRS's reliance on Exemption 7(C) is justified, and so it need not consider whether Exemption 6 also applies. See Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468. First, the redacted record — a letter from the Criminal Investigation office — appears to be a record compiled for a law enforcement purpose. See 5 U.S.C. § 552(b)(7)(C). And, second, the IRS has identified a strong privacy interest in not being associated with alleged criminal activity. The Court also notes that, "[a]s a general rule, third-party identifying information contained in [law enforcement] records is `categorically exempt' from disclosure." Lazaridis, 934 F.Supp.2d at 38. Thus, in the absence of any objection by plaintiff, the Court finds that the IRS's withholdings are justified.
The USMS received a referral of 29 pages of records from EOUSA. Bordley Decl. ¶ 2. According to the declaration of William E. Bordley, Associate General
Id. ¶ 5. According to USMS records, all of these pages were previously released to plaintiff and were the subject of prior litigation before other courts in this District. Id. ¶ 6, citing Boyd v. U.S. Marshals Serv., No. 99-2712(JR), 2004 WL 5643669 (D.D.C. Sept. 22, 2005), and Boyd, 2005 WL 555412.
The USMS FOIA specialist processed the four pages and released them to plaintiff with redactions under FOIA Exemption 7(C). Bordley Decl. ¶ 3. Bordley explains that the four pages are "records routinely compiled in the course of a criminal investigation and in the custody of USMS prisoners," id. ¶ 7, namely: "a St. Louis Metropolitan Department Evidence Receipt, a two page fingerprint card, and a [BOP] memorandum." Id. ¶ 9. USMS redacted the names and initials of a Deputy U.S. Marshal and a "state/local law enforcement officer" from page one, the names and initials of law enforcement personnel from pages two and three, and the names and a telephone number of BOP personnel and a law enforcement agent from page four. Id. Bordley contends that there is no public interest in the disclosure of information about law enforcement personnel with whom plaintiff may have had contact while in USMS custody, and that the release of this information "could subject these individuals to unwarranted public attention, harassment, and annoyance ... and could possibly pose a danger to their life or physical safety." Id. ¶ 7. Finally, Bordley states that because the agency made only "minimal deletions" to the four pages, all reasonably segregable non-exempt portions of the records have been released. Id. ¶ 10.
In light of the thoroughly detailed affidavit provided by the USMS, the significant privacy interests at stake, and plaintiff's failure to object, the Court finds that the USMS's reliance on Exemption 7(C) is justified.
For the reasons stated above, the Court will grant in part and deny in part defendants' motion for summary judgment, and it will grant in part and deny in part plaintiff's motion for summary judgment.
App. to Am. Compl. at ECF 4. Plaintiff also sought information about defendants who had been exonerated "doing [sic] to Bobby Garrett being exposed as a corrupt cop," public records on Garrett, a list of properties Garrett had illegally entered, and information about the relationship between Garrett and Bryant Troupe. Id. at ECF 4-5.
5 U.S.C. § 552a(j), (j)(2).
