Dale v. United States Drug Enforcement Agency ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CURTIS LEE DALE, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-1248 (EGS)
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U.S. DRUG ENFORCEMENT AGENCY, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Curtis Lee Dale brought this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, demanding release of records maintained by the Drug
Enforcement Administration (“DEA”).1 This matter has come before the Court on the
Defendant’s Motion for Summary Judgment (ECF No. 19), and for the reasons discussed below,
the Court GRANTS the motion.
I. BACKGROUND
Plaintiff, who was the subject of a DEA investigation leading to his conviction of various
drug offenses, see United States v. Dale, No. 3:16-cr-00033 (S.D. Iowa Feb. 27, 2017), aff’d, No.
17-1505 (8th Cir. Mar. 19, 2018) (per curiam), submitted three FOIA requests to DEA for the
following information:
▪ 302 reports from a specified DEA Agent on dates May 25 and 27, 2016, and
June 1 and 2, 2016, from Rock Island, Illinois
▪ the evidence log from Rock Island, Illinois from June 1-8, 2016 for case #3:16-
MJ-42 and 3:16-CR-33
1 Although plaintiff also invokes the Administrative Procedures Act, see Compl. ¶ 1, this
action proceeds only under FOIA. See Walsh v. Dep’t of Veterans Affairs, 400 F.3d 535, 537–38
(7th Cir. 2005)).
1
▪ all 302 reports from May 5, 2016 through June 6, 2016 for case #3:16-cr-33
▪ Federal Express records from Rock Island to the North Central Laboratory
located in Chicago, IL, from June 5, 2016 through August 10, 2016, for case
#3:16-CR-00033 and 3:16-MJ-42
▪ any 302 reports by a specified Task Force Officer (“TFO”) for case #3:16-cr-
00033 and 3:16-MJ-42
▪ any and all 302’s written by a specified DEA Special Agent & TFO from May
10, 2016 through August 9, 2016, from Rock Island case 3:16-CR-33 and 3:16-
MJ-42
▪ any drug storage locker log sheets from May 31, 2016 through June 10, 2016
▪ any log in and log out sheets
▪ any signed reports by the Acting Resident Agent in Charge.
See Corrected and Amended Statement of Material Facts Not in Genuine Dispute (ECF No. 25-1,
“SMF”) ¶¶ 2-4; see also Decl. of Angela D. Hertel (ECF No. 19-3, “First Hertel Decl.”), Exhs.
A-C (ECF Nos. 19-4, 19-5 and 19-6). DEA assigned the matter a single tracking number, 19-
00413-P. See SMF ¶ 5.
A search of DEA’s electronic databases, described in greater detail below, located 157
pages of records at DEA’s Omaha Division and its North Central Laboratory. See id. ¶¶ 14-16.
On October 14, 2020, DEA released 103 pages in part, after having redacted information under
Exemptions 6, 7(C), 7(D), 7(E) and 7(F). Id. ¶ 20. On January 5, 2021, DEA notified plaintiff
that it erred by having “inadvertently missed” 54 pages of responsive records. Id. ¶ 22. Of these
54 pages, DEA released 32 pages in part, having redacted information under Exemptions 6, 7(C),
7(E), and 7(F). Id. In addition, DEA referred 19 pages to the Federal Bureau of Investigation
(“FBI”) and three pages to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).
See id. ¶ 23. FBI released 19 pages in part, having redacted information under Exemption 7(E),
id. ¶ 24, and ATF withheld its three pages in full under Exemption 3, id. ¶ 25.2
2 Plaintiff sent DEA a fourth letter narrowing the scope of his request. See First Hertel
Decl., Ex. E (ECF No. 19-8). The letter was multiple pages, see First Hertel Decl. ¶ 23, but in
error, DEA staff neglected to scan all of its pages, id.; see id. ¶ 24. “Because DEA could not
confirm all aspects of the narrowed request and because [plaintiff] was the subject of the
identified investigative case, DEA determined it would process as responsive all 157 pages
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II. DISCUSSION
A. Summary Judgment in a FOIA Case
The “vast majority” of FOIA cases can be decided on motions for summary
judgment. Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
The Court grants summary judgment if “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “Under FOIA, all underlying facts and inferences are analyzed in the light most favorable
to the FOIA requester; as such, only after an agency proves that it has fully discharged
its FOIA obligations is summary judgment appropriate.” Judicial Watch, Inc. v. Consumer Fin.
Prot. Bureau, 60 F. Supp. 3d 1, 6 (D.D.C. 2014) (citations omitted).
B. DEA’s Search for Responsive Records
1. Agency Obligation to Conduct a Reasonable Search
“An agency is required to perform more than a perfunctory search in response to a FOIA
request.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir.
2011). It “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) (internal quotation marks and citations
omitted). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis
in original) (citations omitted). To meet its burden, an agency may rely on affidavits or
identified as part of the investigative case number, rather than narrow the scope based on
incomplete information.” Id. ¶ 24; see SMF ¶ 19.
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declarations explaining the method and scope of its search, see Perry v. Block, 684 F.2d 121, 126
(D.C. Cir. 1982), and such affidavits or declarations are “accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation
and internal quotation marks omitted). At a minimum, the agency must “specify ‘what records
were searched, by whom, and through what process.’” Rodriguez v. Dep’t of Defense, 236 F.
Supp. 3d 26, 38 (D.D.C. 2017) (quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C.
Cir. 1994)). If the record before the Court “leaves substantial doubt as to the sufficiency of the
search, summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540,
542 (D.C. Cir. 1990).
2. NADDIS Search
DEA’s declarant explains that the agency maintains investigative records in the Narcotics
and Dangerous Drugs Information System (“NADDIS”), “a centralized . . . data index system
that captures discrete information collected during the course of an investigation, including a
brief historical summary of case activities from investigative reports, such as dates of arrest and
any subsequent criminal sentences.” First Hertel Decl. ¶ 18; see SMF ¶ 9. While NADDIS itself
is not a repository of DEA records, see First Hertel Decl. ¶ 20, it “provides an abstract of
information . . . includ[ing] investigative case numbers linked to an individual who is the subject
of [an] investigation,” id. ¶ 18; see id. ¶ 20.
When an individual becomes the subject of a DEA investigation, information about him
“is indexed into NADDIS,” and “NADDIS automatically assigns [him] a unique system-
generated number, [called] the NADDIS number.” Id. ¶ 19. As information from the
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investigation is added, NADDIS “automatically links that information to the individual’s
NADDIS number.” Id.; see id. ¶ 20.
A NADDIS search “is the practical means by which DEA identifies and locates
investigative records across all of [its] offices worldwide.” Id. ¶ 18. To determine whether DEA
maintains investigative records about a particular individual and where those records might be
located, one “enters into NADDIS a unique search term,” such as an individual’s Social Security
number or combination of his name and date of birth. Id. ¶ 20. If DEA has responsive records,
NADDIS generates “an abstract of information, such as an investigative case number,
investigative report number, or other record identifier, linked to the unique search term.” Id. A
record identifier, in turn, is “used to locate the records linked to the investigative case number.”
Id. The investigative case number is “a means to determine whether potentially responsive
records exist and where, across all DEA offices worldwide, those records may be located.”
Second Decl. of Angela D. Hertel (ECF No. 25-2, “Second Hertel Decl.”) ¶ 5.
DEA’s declarant explained that a NADDIS query using plaintiff’s name as a search term
yielded one investigative case number and confirmed that plaintiff was the subject of that
investigation. First Hertel Decl. ¶ 21; see Second Hertel Decl. ¶¶ 6, 10. Given plaintiff’s
reference to Rock Island, Illinois, in his FOIA request, DEA staff concluded that records linked
to that “investigative case number would be under the custody and control of [DEA’s] Omaha
Division,” the geographical jurisdiction of which “covers investigations in Nebraska, Minnesota,
North Dakota, South Dakota, and Iowa, including the Quad Cities at the Iowa-Illinois border”
encompassing Rock Island, Illinois. First Hertel Decl. ¶ 22. “No other investigative case
numbers were identified that matched the details of [plaintiff’s] requests or where [plaintiff] was
the subject.” Second Hertel Decl. ¶ 10.
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3. IMPACT Search
Omaha Division staff used the investigative case number as a search term to query the
Investigative Management Program and Case Tracking system (“IMPACT”), where DEA
maintains its official files for all investigative records, which typically include “all investigative
reports, forms, affidavits, search warrants, and evidence inventories.” First Hertel Decl. ¶ 23.
The declarant explained that “all records associated with an investigation,” including handwritten
notes, must “be submitted into IMPACT.” Second Hertel Decl. ¶ 7. The IMPACT search, the
declarant stated, was not limited to any specific record plaintiff identified in his FOIA request;
rather, the search was “for all records associated with the identified investigative case number . .
. in its custody and control.” Id. ¶ 8. North Central Laboratory staff, too, “used the . . .
investigative case number to conduct a search of [laboratory] records linked to [it].” First Hertel
Decl. ¶ 23; see Second Hertel Decl. ¶ 8.
The Omaha Division and North Central Laboratory searches yielded 157 pages of records
linked to the investigative number, among which were “reports of investigation; reports of drug
and non-drug property seized during the execution of search warrants; inventory receipts; seizure
forms including probable case justification; affidavit in support of criminal complaint,
applications for and search and seizure warrants; chemical analysis lab reports; and evidence
custodian log sheets.” First Hertel Decl. ¶ 23. According to the declarant, the Omaha Division
does not keep copies of affidavits supporting applications for search warrants, and the laboratory
does not maintain shipping labels once the evidence it receives is logged into custody. See id.
4. Plaintiff’s Challenge to DEA’s Searches
The Court makes three observations upon review of plaintiff’s opposition to DEA’s
summary judgment motion. First, plaintiff appears to equate DEA’s obligation to respond to a
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FOIA request with the government’s obligation to produce discovery materials to a defendant in
a criminal case. See, e.g., Pl.’s Response to Def.’s Mot. for Summ. J. (ECF No. 21, “Pl.’s
Opp’n”) at 1, 21. He is mistaken. “[D]isclosure obligations under FOIA and disclosure
obligations in criminal proceedings are separate matters, governed by different standards.”
Marshall v. FBI, 802 F. Supp. 2d 125, 136 (D.D.C. 2011); see Davis v. U.S. Dep’t of Justice, 970
F. Supp. 2d 10, 17 (D.D.C. 2013) (“The plaintiff’s belief that certain information should have
been disclosed during his criminal case does not translate into an obligation on the part of the
[government] to release information that otherwise is protected under a FOIA exemption.”); see
also United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977) (holding “that the discovery
provisions of the Federal Rules of Criminal Procedure and the FOIA provide two independent
schemes for obtaining information through the judicial process”).
Second, plaintiff focuses entirely on the results of DEA’s searches, complaining that
certain documents were not located and released. See, e.g., Pl.’s Opp’n at 3-8. For example,
although evidence obtained by tracking plaintiff’s cell phones and vehicles was introduced at
trial, plaintiff notes that DEA did not release copies of the warrants, warrant applications, and
supporting affidavits used to obtain that evidence. See id. at 6-7. The adequacy of a search is
determined by its methods, not its results. See Iturralde v. Comptroller of the Currency, 315
F.3d 311, 315 (D.C. Cir. 2003). Where, as here, the agency demonstrates that its searches were
reasonably calculated to locate responsive records, its purported failure to produce particular
documents of interest to the requester does not invalidate its search efforts. See Wilbur v. CIA,
355 F.3d 675, 678 (D.C. Cir. 2004) (per curiam) (finding that “agency’s failure to turn up a
particular document, or mere speculation that as yet uncovered documents might exist, does not
undermine the determination that the agency conducted an adequate search for the requested
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records”); Iturralde, 315 F.3d at 315 (“[I]t is long settled that the failure of an agency to turn up
one specific document in its search does not alone render a search inadequate.”).
Third, plaintiff demands that DEA explain why it failed to produce certain documents.
For example, plaintiff complains that DEA did not release a copy of the warrant for tracking his
cell phone in response to his FOIA request, and the government did not list the warrant on its
exhibit list for trial. See Pl.’s Opp’n at 6. He asks the Court to direct DEA “to produce this
warrant, affidavit, and application,” and if it cannot do so, to “give a written statement as to why
this warrant is not part of [its] IMPACT database.” Id. Similarly, given DEA’s alleged failure to
produce copies of warrants for tracking plaintiff’s vehicles, plaintiff demands an explanation
why the warrants were not found in IMPACT. See id. at 7-8. Plaintiff imposes an obligation
FOIA does not place on DEA. No agency is required to create materials or to answer questions
in responding to a FOIA request. See Nance v. FBI, 845 F. Supp. 2d 197, 203 (D.D.C. 2012)
(“FOIA does not require agencies to create documents, answer questions, or explain what may
have happened to documents that may have existed at one point but are no longer in the agency's
possession”); Jimenez v. Executive Office for U.S. Attorneys, 764 F. Supp. 2d 174, 182 (D.D.C.
2011) (concluding that agency “is not obligated to respond to questions, requests for research or,
as in this case, a request to authenticate or verify the contents of a particular document”), aff’d
sub nom. Jimenez v. Executive Office ex rel. U.S. Attorneys, No. 11-5206, 2012 WL 556176(D.C. Cir. Feb. 13, 2012).
Based on information plaintiff provided in his FOIA request, including his criminal case
number and place where events relevant to the criminal case occurred, it is reasonable that DEA
conducted searches of Omaha Division and North Central Laboratory records using plaintiff’s
name as a search term. Notwithstanding plaintiff’s dissatisfaction with the search results, the
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Court concludes that DEA’s searches for records responsive to plaintiff’s FOIA request were
adequate.
C. Exemptions 3, 6 and 7
Plaintiff does not challenge any agency’s decision to withhold information under any
claimed exemption. Nevertheless, “[a] defendant moving for summary judgment must still
discharge the burden the rules place upon him: It is not enough to move for summary judgment
without supporting the motion in any way[.]” Grimes v. District of Columbia, 794 F.3d 83, 93
(D.C. Cir. 2015) (citations and internal quotation marks omitted). “The burden that the movant
‘always bears’ is that of ‘informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.’” Id. at 93-94 (citation omitted).
1. Exemption 3
Under Exemption 3, an agency may withhold information that is “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). The statute must:
(A)(i) require[] that the matters be withheld from the public in such
a manner as to leave no discretion on the issue; or (ii) establish[]
particular criteria for withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of
2009, specifically cite[] to this paragraph.
Id.The records referred by DEA to ATF “are two firearms trace summaries relating to
efforts by the ATF’s National Tracing Center to track the history of a firearm recovered by DEA
agents during the course of a federal criminal investigation.” Decl. of Adam C. Siple (ECF No.
19-16, “Siple Decl.”) at 1. ATF’s declarant explains that “[t]hese firearms trace summaries are
generated entirely from information maintained in the ATF’s Firearms Tracing System
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database,” and that “Congress barred federal agencies from using appropriated funds” to disclose
any information maintained therein. Siple Decl. at 1-2. Accordingly, ATF applies Exemption 3
in conjunction with the Consolidated Appropriations Act of 2012, Pub. L. No. 112–55, 125 Stat.
552 (2011), to withhold the responsive material. Siple Decl. at 1-2. Given “the statutory
prohibition on the disclosure of firearms trace information,” ATF “decline[s] to produce the trace
summaries to Plaintiff.” Siple Decl. at 2. The Court concludes that this firearms trace
information properly is withheld under Exemption 3. See Cooper v. U.S. Dep’t of Justice, No.
1:99-CV-2513, 2022 WL 602532, at *27 (D.D.C. Mar. 1, 2022); Michael v. U.S. Dep’t of
Justice, No. 1:17-CV-0197, 2018 WL 4637358, at *9 (D.D.C. Sept. 27, 2018).
2. Exemptions 6 and 7
a. Law Enforcement Records
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show
that the . . . documents were compiled for law enforcement purposes, the [agency] need only
establish a rational nexus between [an] investigation and one of the agency’s law enforcement
duties and a connection between an individual or incident and a possible security risk or
violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (citations and
internal quotation marks omitted). DEA easily meets its burden.
DEA’s declarant explains that the agency’s principal mission is “enforce[ment] of the
controlled substance laws and regulations of the United States” pursuant to the Controlled
Substances Act, see 21 U.S.C. § 801 et seq. First Hertel Decl. ¶ 5. Among other functions, DEA
conducts criminal investigations of individuals and organizations “involved in the growing,
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manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in
the United States.” Id. Plaintiff is the subject of such an investigation. See id. ¶ 21. The
declarant states that all of the responsive records “were compiled as part of a law enforcement
criminal investigation” of which plaintiff was the subject and are “maintained as part of a
criminal investigative case.” Id. ¶ 29.
DEA relies on Exemption 6 in conjunction with Exemptions 7(C), 7(D) and/or 7(F) to
protect identifying information about third parties. See generally First Hertel Decl. ¶¶ 30-43.
Because all the responsive records were compiled for law enforcement purposes, the Court’s
analysis is limited to Exemption 7. See Roth v. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir.
2011).
b. Exemption 7(C)
Exemption 7(C) protects from disclosure information found 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). In determining whether this exemption applies to particular material, the
Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1,
6 (D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not the government
agency. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
763-65 (1989).
DEA withholds “personally identifying information about non-law enforcement
individuals,” First Hertel Decl. ¶ 30, such as their “names, addresses, phone numbers, Social
Security numbers, dates of birth, and medical information,” id. ¶ 31. It also withholds “serial
numbers of firearms seized during the investigation because disclosure of the information could
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be traced back to a specific individual.” Id. The declarant explains that DEA identified no
public interest in disclosure of this information to outweigh the individuals’ significant privacy
interests. See id. ¶¶ 32-34.
In addition, relying on Exemption 7(C) in conjunction with Exemption 7(F), DEA
withholds “personally identifying information [about] DEA employees and state law
enforcement employees working in conjunction with DEA investigations, such as Task Force
Officers.” Id. ¶ 35. Specifically, it withholds identifying information about “DEA Special
Agents, laboratory personnel, employees involved in the custody and disposition of drug and
non-drug evidence, and state law enforcement employees,” to include their “names; unpublished
individual phone numbers; specific locations of offices that are not generally made public by
DEA, including the street address of a DEA evidence storage facility; and Group Numbers
(solely internal code that identifies an office location).” Id.
In this Circuit, there exists “a categorical rule permitting an agency to withhold
information identifying private citizens mentioned in law enforcement records, unless disclosure
is ‘necessary in order to confirm or refute compelling evidence that the agency is engaged in
illegal activity.’” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)
(quoting SafeCard Servs., 926 F.2d at 1206) (additional citation omitted). Plaintiff makes no
such showing, and the Court concludes that the personal identifying information about third
parties, among whom are DEA and state law enforcement personnel, properly is protected under
Exemption 7(C).3 It is well settled that names and telephone numbers fall within the scope of
3 Similarly, had the firearms trace summaries not been withheld in full under Exemption 3,
ATF’s declarant adequately justifies reliance on Exemption 7(C) to withhold “names and contact
information for third persons, including individual law enforcement officers” on the ground that
release of such personal identifying information “would constitute a clearly unwarranted
invasion of [their] privacy.” Siple Decl. at 2.
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Exemption 7(C), as does other information identifying third parties, to include phone numbers,
Social Security numbers, dates of birth, and medical information. See, e.g., Burnett v. U.S. Drug
Enf’t Admin., No. 1:19-CV-00870, 2021 WL 1209142, at *4 & n.1 (D.D.C. Mar. 31, 2021)
(concluding that “information that could be used to identify law enforcement personnel and third
parties, including confidential informants,” such as “telephone numbers and addresses, fugitive
declarations, vehicle registrations that could be used to identify third -parties,” was properly
withheld under Exemptions 6 and 7(C)), aff’d sub nom. Burnett v. Dep’t of Justice, No. 21-5092,
2021 WL 6102268 (D.C. Cir. Dec. 3, 2021); Lasko v. Dep’t of Justice, 684 F. Supp. 2d 120, 133
(D.D.C. 2010) (protecting the identities of DEA Special Agents and state and local law
enforcement officers), aff’d, No. 10-5068, 2010 WL 3521595, at *1 (D.C. Cir. Sept. 3, 2010)
(per curiam). However, DEA fails to demonstrate that office or storage facility locations fall
within the scope of Exemption 7(C).
c. Exemption 7(D)
Exemption 7(D) permits an agency to withhold information in law enforcement records if
its release “could reasonably be expected to disclose the identity of a confidential source . . .
and, in the case of a record or information compiled by a criminal law enforcement authority in
the course of a criminal investigation . . . , information furnished by a confidential source.” 5
U.S.C. § 552(b)(7)(D). Under Exemption 7(D), and in conjunction with Exemptions 7(C) and
7(F), DEA withholds the identity of a confidential source and the information the source
provided. See First Hertel Decl. ¶ 40. DEA’s declarant explains:
DEA policy requires that all [confidential sources] be vetted and
established through a formal DEA process. The formal process
includes a written agreement between DEA and the [source] where
DEA explicitly states that the United States Government and DEA
will protect the [source’s] identity to the extent that it can under the
law. In the records released to [plaintiff], the information withheld
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pursuant to Exemption 7(D), in conjunction with Exemptions 6,
7(C), and 7(F), was information provided to DEA by an established
DEA [confidential source], which means that DEA had explicitly
informed the [source] that it would protect the [source’s] identity if
it provided information to DEA. The [confidential source] provided
information to DEA on [plaintiff’s] criminal activities, which lead
to his eventual prosecution.
Id. ¶ 41. Disclosure of this information “could potentially reveal the [source’s] identity,” and
“would hamper future cooperation” with other informants. Id. ¶ 42. Further, the declarant
explains, “[b]ecause of the nature of DEA’s criminal investigations, any information that could
identify a [confidential source] could subject the [source or the source’s] family members to
serious bodily harm, substantial repercussions, and possibly even death.” Id.DEA adequately demonstrates that it expressly granted confidentiality to a source who
provided information in the course of a criminal investigation, and the confidential source’s
identity and the information the source provided properly are withheld. See, e.g., Property of the
People, Inc. v. Dep’t of Justice, 539 F. Supp. 3d 16, 27 (D.D.C. 2021) (approving reliance on
Exemption 7(D) where foreign government provided information during cooperative
investigation under an express assurance of confidentiality); Washington Post Co. v. Special
Inspector Gen. for Afghanistan Reconstruction, 486 F. Supp. 3d 141, 161 (D.D.C. 2020) (where
“informants not only agreed to be interviewed with the understanding that their identities would
be kept private, but that many could face serious consequences if their identities were revealed ,”
reliance on Exemption 7(D) was proper).
d. Exemption 7(E)
Exemption 7(E) protects “records or information compiled for law enforcement purposes
. . . to the extent that production of such law enforcement records or information . . . would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
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disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The first
clause “provides categorical protection, requiring no demonstration of harm or balancing of
interests.” Peter S. Herrick’s Customs & Int’l Trade Newsletter v. U.S. Customs & Border Prot.,
No. 04-cv-00377, 2006 WL 1826185, at *7 (D.D.C. June 30, 2006) (citation and internal
quotation marks omitted). The exemption’s second clause “encompasses a broader range of
information, but requires an assessment of whether disclosure poses a reasonable risk that the
law could be circumvented.” Id. (citation omitted). This requires that the agency surpass “a
relatively low bar,” such that it need “only . . . demonstrate logically how the release of the
requested information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at
42 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
DEA withholds six categories of information under Exemption 7(E): investigative case
numbers, G-DEP identifiers, NADDIS numbers, controlled substance codes, and qualitative
characterization codes. See First Hertel Decl. ¶¶ 28-29, 44-51. Three categories require no
discussion. G-DEP identifiers and NADDIS numbers routinely are withheld, see, e.g., Kowal v.
U.S. Dep’t of Justice, No. 1:18-CV-0938, 2021 WL 3363445, at *6 (D.D.C. Aug. 3, 2021);
Chavis v. U.S. Dep’t of Justice, No. 1:20-CV-00638, 2021 WL 1668069, at *8 (D.D.C. Apr. 28,
2021), appeal dismissed sub nom. Chavis v. U.S. Dep’t of Justice & Drug Enforcement Admin.,
No. 21-5150, 2021 WL 6102272 (D.C. Cir. Dec. 6, 2021), and insofar as controlled substances
codes are “part of the G-DEP identifier,” First Hertel Decl. ¶ 48, they, too, are protected. And
the Court is persuaded that the remaining categories of information properly are withheld under
Exemption 7(E).
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Regarding investigative case numbers, which are “solely internal,” the declarant explains
that their disclosure would identify “the specific DEA office that initiated the investigation, the
year the investigation was established, and the total number of cases initiated by the DEA office
in a particular fiscal year.” First Hertel Decl. ¶ 45. In addition, she states, disclosure would
reveal “the investigative interest or priority given to the investigation” as well as the existence of
“investigations of associates and criminal business enterprises . . . linked to the same
investigative case number” and “sensitive, non-public references to the DEA Agents Manual.”
In short, DEA asserts, disclosure of investigative case numbers “could reasonably be expected to
create a risk of circumvention of the law” in three ways. Id. Disclosure could “reveal[] how
DEA’s law enforcement databases work and render them vulnerable to manipulation[;]” suggest
“the scope of a target’s criminal operation[;]” and “reveal law enforcement techniques” in the
DEA Agents Manual. Id.Qualitative characterization codes, the declarant explains, are internal codes with
“information about the primary role or criminal activity conducted within a drug trafficking
organization by the subject or target of an investigation.” Id. ¶ 49. DEA asserts that disclosure
of these codes “could reasonably be expected to create a risk of circumvention of the law” by
“reveal[ing] the scope of DEA’s investigation and its understanding of the roles of the
individuals involved.” Id. Disclosure also “reveal[s] sensitive, non-public references to the
DEA Agents Manual,” specifically, DEA law enforcement techniques. Id.Lastly, DEA withholds ORI and NCIC numbers, described as “unique identifiers
assigned by the FBI to criminal justice agencies,” under Exemption 7(E). First Hertel Decl. ¶ 50.
These numbers authorize an entity, such as a court or state law enforcement agency, “to access
data maintained by the FBI’s Criminal Justice Information Services (‘CJIS’)” system. Id. The
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declarant explains that disclosure of the numbers could allow a “unauthorized access to CJIS
databases or NCIC criminal record information.” Id. Further, she states, disclosure “would
reveal techniques and practices used in DEA investigations and could provide information to
individuals seeking to violate or circumvent the law to take proactive steps to counter operations
and investigative actions taken by DEA during drug enforcement operations.” Id. ¶ 51.
According to the declarant, the means by which DEA and FBI “internally label and code
information is a law enforcement technique and procedure . . . not generally known to the
public,” and if discrete pieces of information were disclosed, “applying a mosaic analysis,
individuals . . . looking to violate or circumvent the law could use the information to change their
pattern of activity to avoid detection, apprehension, or create alibis for criminal activities.” Id.Thus, DEA adequately demonstrates that disclosure of investigative case numbers, qualitative
characterization codes, and ORI and NCIC numbers either would reveal law enforcement
techniques and procedures, or would create a risk of circumvention of the law.
e. Exemption 7(F)
Exemption 7(F) protects records or information compiled for law enforcement purposes
if its disclosure “could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). This exemption’s “language is very broad,” and that it
“does not require that a particular kind of individual be at risk of harm; ‘any individual’ will do.”
Public Employees for Environmental Responsibility v. U.S. Section, Int’l Boundary & Water
Comm’n, U.S.-Mexico, 740 F.3d 195, 205 (D.C. Cir. 2014); see Elec. Priv. Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 777 F.3d 518, 525 (D.C. Cir. 2015) (noting that “the phrase ‘any
individual’” makes clear that Exemption 7(F) now shields the life or physical safety of any
person, not only the law enforcement personnel protected under the pre–1986 version of the
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statute”). “In reviewing claims under Exemption 7(F), courts have inquired whether or not there
is a nexus between disclosure and possible harm and whether the deletions were narrowly made
to avert the possibility of such harm.” Berard v. Fed. Bureau of Prisons, 209 F. Supp. 3d 167,
174 (D.D.C. 2016) (citing Albuquerque Pub. Co. v. U.S. Dep’t. of Justice, 726 F. Supp. 851, 858
(D.D.C. 1989)).
DEA relies on Exemption 7(F) in conjunction with Exemption 7(C), see SMF ¶ 32; First
Hertel Decl. ¶¶ 28-29, 35-38, to protect “personally identifying information of DEA Special
Agents, laboratory personnel, employees involved in the custody and disposition of drug and
non-drug evidence, and state law enforcement employees,” First Hertel Decl. ¶ 35. The Court
need not revisit the withholding personal identifying information about third parties, to include
names and individual telephone numbers, as this information already is protected under
Exemption 7(C).
Relevant here is DEA’s decision to withhold “specific locations of offices that are not
generally made public by DEA, including the street address of a DEA evidence storage facility;
and Group Numbers (solely internal code that identifies an office location).” First Hertel Decl. ¶
35. The declarant states that “the disclosure of the identities and specific locations of DEA
employees actively working on investigations, or who have worked on investigations resulting in
a conviction, could endanger their [lives] and physical safety if members of the public, including
drug trafficking organizations, have access to the information and wish to harm DEA employees
because of their work.” Id. ¶ 36. The Court concludes that this information falls within the
scope of and properly is withheld under Exemption 7(F).
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D. Segregability
“FOIA provides that ‘[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.’” Machado
Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (alteration in original)
(quoting 5 U.S.C. § 552(b)); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177
F.3d 1022 (D.C. Cir. 1999). Thus, “a district court clearly errs when it approves the
government’s withholding of information under the FOIA without making an express finding
on segregability.” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007) (quoting PHE, Inc. v.
Dep’t of Justice, 983 F.2d 248, 252 (D.C. Cir. 1993)).
The Court accepts the declarant’s representations that DEA staff reviewed the responsive
records to ensure that all non-exempt segregable information has been released to plaintiff. See
Hertel Decl. ¶¶ 39, 43, 52.
III. CONCLUSION
The Court concludes that: (1) DEA conducted reasonable and adequate searches for
information responsive to plaintiff’s consolidated FOIA request; (2) ATF properly withheld
firearms trace system information in full under Exemption 3; (3) DEA properly withheld
personally identifying information about third parties under Exemption 7(C) ; (4) DEA properly
withheld identifying information about and information provided by a confidential source under
Exemption 7(D); and (5) DEA and FBI properly withheld investigative case numbers, G-DEP
identifiers, NADDIS numbers, controlled substance codes, and qualitative characterization codes
under Exemption 7(E); DEA properly withheld information about office and storage facility
locations under Exemption 7(F); and DEA has released all reasonably segregable information.
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Accordingly, defendant’s summary judgment motion will be granted. An Order is issued
separately.
DATE: August 31, 2022 /s/
EMMET G. SULLIVAN
United States District Judge
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