Smith v. Executive Office for United States Attorney , 69 F. Supp. 3d 228 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BRlAN EUGENE SMITH, )
)
Piainriff, )
)
v. ) Civil Action No. 13-1088 (RJL)
)
EXECUTIVE OFFICE FOR UNITED )
STATES ATTORNEYS, et al., )
, F1LEn
Defendants. § SEP 2 5 2014
C|erk, U.S. District & Bankruptcy
Courts for the District of Columbia
MEMORANDUM OPINION
(September 1_9&014 [Dkt. #24])
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5
U.S.C. § 552, against two components of the United States Department of Justice
("DOJ"): the Executive Office for United States Attorneys ("EOUSA") and the Drug
Enforcement Administration ("DEA"). This matter is before the Court on defendants’
Motion for Partial Summary Judgment [Dkt. #24] regarding the EOUSA’s response to
plaintiffs FOIA request (FOIA Reference Number 1 1-3 89), the EOUSA’s referral of
four pages of records to the DEA, and the DEA’s response to plaintiff as to these four
pages (DEA FOIA Request Numbers l l-()()186-PR, 1 l-OOISZ-P and l0-00636-P).1 F0r
the reasons discussed below, the motion will be GRANTED.
l DEA FOIA Request Number lO-00636-P is relevant only because it explains the disposition of
the same four pages of records at issue in DEA FOIA Request Numbers ll-00l86-PR and 11-
00l 82-P. Plaintiff does not challenge the DEA’s response to a fourth request (DEA FOIA
BACKGROUND
I. Plaintiff’s Criminal Hist0ry
To better understand plaintiffs FOIA requests, it is useful to read the Third
Circuit’s summary of the facts of his underlying criminal case:
. . . ln the aggregate, the trial testimony revealed that
[Juan Carlos] Hinojosa was stopped while transporting
cocaine to Pittsburgh from lndiana. After waiving
his Mirana’a warnings, Hinojosa admitted to law enforcement
that he was transporting cocaine to [plaintiff] in Pittsburgh.
The lndiana authorities asked Hinojosa if he would be willing
to participate in a controlled delivery of the drugs. Hinojosa
agreed
Upon arriving in Pittsburgh, lndiana law enforcement
met up with agents of the [DEA], who set the scene for the
drug transfer at a local gas station. Hinojosa was instructed to
sit in the driver’s side of his automobile and to telephone
[plaintiff_|. Law enforcement agents watched from discrete
locations. Following instructions, Hinojosa called [plaintiff],
informing [plaintiff that] he was ready to deliver the drugs
and that they should meet at the gas station, near Station
Square. [Plaintiff] told Hinojosa that he would be delayed,
and that he had "some issues" in collecting the $17,000.00
[plaintiff] owed Hinojosa from a previous delivery.
[Plaintiff] ultimately arrived at the location and spoke
briefly to Hinojosa, who told him that his "things are in a bag
in the trunk." [Plaintiff] went to the trunk of Hinojosa’s car
and removed the cocaine. He concealed it in a jacket and
Request Number 13-001 1 l-P), and this Memorandum Opinion does not address the matter.
Even ifplaintiff had challenged the DEA’s response to DEA FOIA Request Number 13-001 1 l-
P, the claim likely would be subject to dismissal for failure to exhaust administrative remedies.
See, e.g., M€Laughlz'n v. Dep ’t ofJu.s'tice, 598 F. Supp. 2d 62, 66 (D.D.C. 2009) (concluding that
plaintiff failed to exhaust administrative remedies by not paying duplication fee); Trueblood v.
U.S. Dep ’t ofthe Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) ("Regardless ofwhether the
plaintiff ‘filed’ suit before or after receiving a request for payment, the plaintiff has an obligation
to pay for the reasonable copying and search fees assessed by the defendant."). The DEA
informed plaintiff that the estimated fee for searching three files thought to contain responsive
records was $270.()0, see Mem. of P. & A. in Support of Defs.’ Mot. for Partial Summ. J., Decl.
of Katherine L. l\/Iyrick. il 21, and it does not appear that plaintiff paid the fee or submitted a
reformulated request, see id. W 22-24.
returned to his own car, where he was arrested while
attempting to hide the drugs in the back seat of his vehicle.
United States v. Smz'th, 483 F. App’x 672, 674 (_3d Cir.), cert. derzz`ed, 133 S. Ct. 562(2012); see Compl. [Dkt. #1] 1111 6, 17. Plaintiff and Hinojosa "were charged with intent
to distribute and the attempted delivery of five kilograms of cocaine, in violation of 21
U.S.C. §§ 841 and 846." Smz`th, 483 F. App’x at 674; see Pl.’s Reply [Dkt. #29] ("Pl.’s
Opp’n") at 4. Hinojosa pled guilty; plaintiff "waived his right to a jury trial and was
found guilty after a one-day bench trial." Smz`th, 483 F. App’x at 674. He has been
"sentenced to 120 months’ imprisonment, followed by five years of supervised release.”
Id.
B. FOIA Request to the EOUSA: FOIA Reference Number 11-389
In relevant part, plaintiffs initial FOIA request to the EOUSA read:
My Request is to receive Full di[s]covery, which is in the
United States Attorney possession for the Western District of
Pennsylvania. United States v. Brian E. Smith Cr No: 08-04.
Pursuant to . . . the Freedom of information Act, in
conjunction with[] the Privacy Act. Discovery: CD dated 12-
7-07, DVD dated 12-9-07, lab report, all officers[’] reports,
all photographs, chain of custody of drugs, Phone records for
Sprint phone, Cricket phone and T-l\/Iobile Phone. Co-
defendant arrest report, FBI (302) DEA (6) all Brady and
Jenks material[.]
Mem. of P. & A. in Support of Defs.’ Mot. for Partial Sum1n. J. [Dkt. #24] ("Defs.’
Mem."), Decl. ofDavid Luczynski [Dkt. #24-1] ("Luczynski Decl."), Ex. A (FOlA/PA
Request dated February l, 201 1). In subsequent correspondence, plaintiff narrowed his
request and sought two particular items: (1) a lab report in DEA Case No. CMO80023,
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. 11
9. The EOUSA withheld one page in full and referred four pages to the DEA, the DOJ
component from which they originated. Luczynski Decl. 1111 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. 11 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.") 11 38.
C. Referral by the E()USA to the DEA: DEA FOIA Request Number 11-00186-PR
The EOUSA referred four pages of records to the DEA, Luczynski Decl. 11 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 ofthe same DEA Form LS-05-010, Laboratory Report,"
Myrick Decl. 11 37, which is described as "a memorandum type form used by DEA
laboratories to report the results of forensic testing," id. 11 38. Because these pages
previously had been processed in response to a prior direct request to the DEA, that is,
FOIA Request Number l0-00636-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).
D. FOIA Request to the USMS: DEA FOIA Request Number 1l-00l82-P
ln December 2010, plaintiff submitted a FOIA request to the United States
Marshals Service ("USl\/IS"), Compl. 11 9, which in relevant part stated:
My request is to receive the chain of custody of the drugs that
were seized in the state of Indiana, on I-70, the first week of
December, 2007.
The drugs were seized by Detective lack Martin, with
the Wayne County Sheriff["]s Department, indianapolis Drug
Enforcement Agent Cody Dooley and Richmond Police
Officer Scott Owens. The drugs were seized and brought to
Pittsburgh[,] Pennsylvania for a controlled delivery to Brian
E. Smith (Case# Cl\/l080023).
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 Decl_, Ex. 1 (Letter to Katherine L.
Myrick, Chief, Freedom of information Operations Unit, DEA, from William Bordley,
Associate General Counsel/FOIPA Officer, Office ofthe General Counsel, USl\/IS, 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. 11 16; see z`d., Ex. K (Letter to plaintiff from Katherine L. Myrick dated
February 22, 201 1). Accordingly, the DEA took no further action and administratively
closed the case Myrick Decl. 11 169
E. FOIA Request to the DEA: DEA FOIA Request Number 10-00636-P
As stated above, both plaintiff s direct request to the USMS (DEA FOIA Request
Number 1 l-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:
My request is to receive information in my drug case in which
1 was convicted. 1 was sentence[d] in the West[ern] District
of Pennsylvania Case Number 08-04 (D. Ambrose). What 1
want is any investigative and intelligence files of criminal
activities related to illicit drug traffic and drug abuse, and
laboratory results, of my criminal case number . . . .
l\/lyrick Decl., Ex. A (Freedom of information Act Request dated January 2, 2010). 1n
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, 201 1) 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 1nvestigation ("'FBI"’). Myrick Decl. 1111 9-1 l.
2 When "[c]oncerns [arose] as to whether DEA conducted an adequate search for chain-of-
custody documents other than the DEA Form 7," counsel represents that "a new search of the file
related to plaintiffs criminal case" was needed. Mot. for Partial Summ. J. at 2. The DEA’s
response to plaintiffs request for "chain of custody" records is the subject of The Drug
Enforcement Administration’s Supplemental l\/Iotion for Summary Judgment [Dkt. #35].
Among the records processed were a DEA Form 7, Myrick Decl. 11 39, from which
information had been redacted under Exemptions 7(C), 7(E), and 7(F), Myrick Decl. 11
40; see z`a’., 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. 1141; see z`d., 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.11 37.
DISCUSSION
I. Legal Standard
Defendants move for summary judgment with respect to the response of the
EOUSA to plaintiffs 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). 1n 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
Agaz'nst Genocz'de v. Dep ’t ofState, 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." Milz`larj>/tua’z`l Projecl v. Casey, 656 F.2d 724, 738 (D.C. Cir. l981).
"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."
Sparz v. U.S. Dep ’l of.]ustl`ce, 696 F. Supp. 2d 113, 119 (D.D.C. 20l0) (quoting Dep’t of
Justz`ce v. Tax Analysls, 492 U.S. 136, 142 (1989)).
II. The EOUSA’s Search for Records Responsive to Plaintiff’s FOIA Request
"The adequacy of an agency’s search is measured by a standard of reasonableness
and is dependent upon the circumstances of the case." Wez`sberg v. U.S. Dep ’t of Justz`ce,
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."
A)zcl`enl Coin Colleclo/'s Guz'ld v. U.S. Dep ’t ofSlale, 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’l ofState, 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, see Ilurralcz'e v. Complroller ofthe Currency, 315 F.3d 31 l, 315 (D.C. Cir. 2003)
(stating that "the failure of an agency to turn up one specific document in its search does
not alone render a search inadequate").
To meet its burden, the agency may submit affidavits or declarations that explain
in reasonable detail the scope and method ofits search. Perry v. Block, 684 F.2d 121,
126 (D.C. Cir. 1982). 1n 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." Truz'zt v. Dep 't of Slate, 897 F.2d 540,
542 (D.C. Cir. 1990); see also Valencz`a-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 Attomey’s Office for the Western District of Pennsylvania
(‘“USAP/PAW"). Luczynski Decl. 11 1 1. The EOUSA’S declarant described the search
process as follows:
The F O1A Contact began a systematic search for records on
Brian Eugene Smith, to determine the location of any and all
files relating to him in order to comply with the request. The
FOIA Contact searched for records from the case files in that
case. The F O1A Contact also sent e-mails to the appropriate
Assistant United States Attorney in the Criminal Division to
ascertain whether she had any responsive records. 1n
connection with the search for responsive records to
Plaintiff s FOIA request, the FOIA Contact used a computer
tracking system for the United States Attorney Offices, the
"‘LIONS" system. The "LIONS” system is a computer system
used by United States Attorneys offices to track cases and to
retrieve files pertaining to cases and investigations. By use of
the "LIONS" system, the user can access databases which can
be used to retrieve the information based on a defendant’s
name, the USAO number (United States’ Attorney’s Office
internal administrative number), and the district court case
number. ln this case, the FOIA Contact used the L1ONS
system to attempt to locate records based upon the plaintiffs
name, Documents responsive to plaintiffs FOIA request
have been located in the USAO/PAW.
Luczynski Decl. 11 1 1. 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 ofthe DEA Form 7," which the EOUSA referred to the
DEA for processing. Luczynski Decl. 11 12. The search also yielded "a single page with
handwritten text and numbers." Luczynski Decl. 1 17. No other records systems or
locations within the USAO/PAW maintained records or files pertaining to plaintiffs
criminal case. Luczynski Decl. 11 13.
Plaintiff s opposition to the EOUSA’s search mentions only to its failure to locate
records about "the CHA1N OF THE CUSTODY of drugs seized from Juan Carlos
Hinojosa in Richmond, lndiana that were transported to Pittsburgh, Pennsylvania." Pl.’s
Opp’n at 1 ; see z'a'. 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 ofJustz`ce, 23 F.3d 548,
552 (D.C. Cir. 1994). Plaintiff raises no objection to the scope or method of the
EOUSA’s search, and based on the declarant’s description of the search, the Court
concludes that the search was reasonably calculated to locate records responsive to FOIA
Reference Number 1 1-389.
10
III. Referral of Records to the DEA
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)(l3)(iii)(111). lt 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
U]Yz`ce, 136 F.3d 169, 175-76 (D.C. Cir. 1998). A referral runs afoul ofthe 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, 201 1, the EOUSA referred four pages of records to the DEA,
Luczynski Decl. 11 9, and the DEA responded to plaintiff on September 12, 2011, Myrick
Decl. 11 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. l\/I. The Court concludes that the E()USA"s decision to refer records to
the DEA was appropriate, and that the referral neither significantly impaired plaintiffs
ability to retain records nor significantly increased the length of time plaintiff awaited a
response to his request. See Inst.for Polz`cy Studz`es v. CIA, 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).
ll
IV. Exemption 5
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.
11 18. Although it was "unclear what the writing represents," the declarant concluded that
the page could have been "categorized as non-responsive" to plaintiffs FOIA request
because it neither contained lab report information nor pertained to a chain of custody of
drugs. Luczynski Decl. 1 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.
11 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 ’I ofHealt/z & Humcm 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(1947), and records may be withheld as attorney work product if they contain the "mental
impressions, conclusions, opinions or legal theories of an attorney" and were "prepared in
anticipation oflitigation."’ Fed. R. Civ. P. 26(b)(3); see Miller v. U.S. Dep ’t of.]ustice,
12
562 F. Supp. 2d 82, 115 (D.D.C. 2008) (concluding that documents which "reflect such
matters as trial preparation, trial strategy, interpretation, personal evaluations and
opinions pertinent to [plaintiff s] criminal case" qualify as attorney work product under
Exemption 5 (internal quotation marks omitted)); Heggeslaa’ v. U.S. Dep ’t of Justz`ce, 182
F. Supp. 2d l, 7-8 (D.D.C. 2000) (stating that the attorney work product privilege "covers
factual materials prepared in anticipation of litigation, as well as mental impressions,
conclusions, opinions, and legal theories").
Neither defendant’s motion for partial summary judgment nor plaintiffs
opposition mentions FOIA Exemption 5 in connection with the one page located in
response to plaintiffs F O1A request to the EOUSA. Arguably the page is not responsive
to plaintiffs 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.
lnsofar 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.
V. Exemptions 7(C) and 7(E)
A. Law Enforcement Records
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 (l982). "To show
that . . . documents were compiled for law enforcement purposes, the [agency] need only
13
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.
201 1) (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. 11 42. The relevant records, she states, "are criminal investigative records
. . . contained in investigative case files maintained in IRFS," Myrick Decl. 11 43, or the
DEA investigative Reporting and Filing System, Myrick Decl. 11 27. The declarant
explains that the records responsive to plaintiffs FOIA requests "were compiled during
criminal law enforcement investigations of the plaintiff and several third-parties."
Myrick Decl. 11 43. The declarant easily makes the requisite showing that the responsive
DEA records are law enforcement records for purposes of Exemption 7.
B. Exemption 7(C)
Exemption 7(C) protects from disclosure information in law enforcement records
that "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 552 (b)(7)(C). "ln deciding whether the release of particular
information constitutes an unwarranted invasion of privacy under Exemption 7(C), [the
14
Court] must balance the public interest in disclosure against the [privacy] interest
Congress intended the Exemption to protect." ACLUv. U.S. Dep ’t ofJustice, 655 F.3d 1,
6 (D.C. Cir. 201 1) (intemal quotation marks omitted) (alteration in original); Beck v. U.S.
Dep’l ofJustz'ce, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The privacy interest at stake
belongs to the individual, not the government agency, see U.S. Dep ’l of Justice v.
Reporters Comm.for Freedom ofthe Press, 489 U.S. 749, 763-65 (1989), and
"`individuals have a strong interest in not being associated unwarrantedly with alleged
criminal activity," Sterrz v. FB[, 737 F.2d 84, 91-92 (D.C. Cir. 1984). When balancing
the private interest against the public interest in disclosure, "the only public interest
relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be
informed about what their government is up to."’ Davz`s v. U.S. Dep ’t of./ustice, 968
F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773); see also
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007). lt is a FOIA
requester’s obligation to articulate a public interest sufficient to outweigh an individual’s
privacy interest, and the public interest must be significant See Nat ’l Archz`ves and
Records Admlrz. v. Favz`sh, 541 U.S. 157, 172 (2004).
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. 11 44. For this reason, the DEA withholds this information
under Exemption 7(C). See generally Myrick Decl. 1111 40-48. Specifically, on DEA
Form 7, "the name of and information related to a third-party, and the name of a task
15
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. 1 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. 1 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. 1 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. 1 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 oftheir identities in the context ofa criminal law enforcement investigatory
investigation.” Myrick Decl. 1 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 and scorn." Myrick Decl.
1 46. Plaintiff does not demonstrate, and the DEA does not identify, "any . . . cognizable
public interest" in disclosure of this third-party information, Myrick Decl. 1 45, such that
16
the privacy interests ofthese individuals prevail, see Myrick Decl. 11 45, 49. The Court
concurs.
"[N]ondisclosure of names or other information identifying individuals appearing
in law enforcement records" is routinely upheld. Schrecker v. U.S. Dep ’t of Justz`ce, 349
F.3d 657, 661 (D.C. Cir. 2003); see, e.g., SafeCard Servs., Inc. v. SEC, 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.3
C. Exemption 7(E) 4
The DEA withholds from the DEA Form 7 a G-DEP identifier under Exemption
7(E). Myrick Decl. 1 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. 1 52. A G-DEP code is assigned to a case when a case file is
opened, and it "indicate[s] the classification ofthe violator(s), the types and amount of
3 The DEA withholds the "names ofDEA Special Agents and state/local law enforcement
officers and support personnel," Myrick Decl. 1 56, under Exemption 7(C) in conjunction with
Exemption 7(F), which "protects from disclosure information contained in law enforcement
records that "could reasonably be expected to endanger the life or physical safety of any
individual," 5 U.S.C. § 552(b)(7)(F). Because the same information is found to be protected
under Exemption 7(C), the Court need not consider Exemption 7(F) separately. See Roth v. U.S.
Dep ’t r)_/"Justz`ce, 642 F.3d 1161, 1173 (D.C. Cir. 201 1).
4 The DEA initially asserted Exemption 2 to withhold a G-DEP code, see Myrick Decl., Ex. T,
and now relies on Exemption 7(E) instead. Myrick Decl. 1 50.
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suspected drugs involved, the priority of the investigation and the suspected location and
scope of criminal activity." Myrick Decl. 1 53. lfa 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. 1 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. 1 55. ln short, disclosure ofa G-DEP code "would . . . thwart theDEA’s
investigative and law enforcement efforts." Myrick Decl. 1 55.
The Court concludes that the DEA properly withheld the G-DEP code under
Exemption 7(E). See Hz`ggins v. U.S. Dep ’t of.]ustz'ce, 919 F. Supp. 2d 131, 150-51
(D.D.C. 2013).
VI. Segregability
1f 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). A court errs ifit "simply approve[s] the withholding of an
entire document without entering a finding on segregability, or the lack thereof." P0well
v. U.S. Bureau ofPrz'sons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of
Scientology ofCal. v. U.S. Dep ’l ofthe Army, 611 F.2d 738, 744 (9th Cir. 1979)).
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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. 1 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
CONCLUSION
Defendants demonstrate that the EOUSA conducted an adequate search for
records responsive to plaintiffs 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. 1n 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 l\/lotion 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.
RICHARD J. LEON
United States District Judge
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