Barouch v. U.S. Dep't of Justice, Civil Action No. 14–0552 ABJ

• Decision Date: 31 March 2015
• Docket Number: Civil Action No. 14–0552 ABJ
• Citation: 87 F.Supp.3d 10
• Parties: David Jack Barouch, Plaintiff, v. United States Department of Justice, et al., Defendants.
• Court: U.S. District Court — District of Columbia

87 F.Supp.3d 10

David Jack Barouch, Plaintiff

v.United States Department of Justice, et al., Defendants.

Civil Action No. 14–0552 ABJ

United States District Court, District of Columbia.

Signed March 31, 2015

David Jack Barouch, Seagoville, TX, pro se.

Eric Joseph Young, Shuchi Batra, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff David Jack Barouch brought this pro se lawsuit under the Freedom of Information Act (“FOIA”) and the Privacy Act of 1974 against defendants the United States Department of Justice (“DOJ”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), a component of DOJ. Plaintiff and defendants have cross-moved for summary judgment. For the reasons stated below, the Court finds that defendants conducted an adequate search for responsive records under FOIA and that their reliance on FOIA Exemptions 5, 6, 7(C) and 7(E) to withhold responsive material is justified. Defendants have not, however, justified their reliance on FOIA Exemption 3. In addition, the Court finds that defendants' reliance on Exemption (j)(2) of the Privacy Act is justified with respect to all but one of the records at issue in this case. Therefore, the Court will grant in part and deny in part plaintiff's motion for summary judgment, grant in part and deny in part defendants' motion for summary judgment, and remand this matter to defendants for further action consistent with this opinion.

BACKGROUND

Plaintiff is incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas, Compl. [Dkt. # 1] at 1,¹ serving a 120–month sentence for possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See Barouch v. DOJ, 962 F.Supp.2d 30, 40 (D.D.C.2013). This is plaintiff's second action against DOJ and ATF seeking disclosure of records related to himself and the crime for which he is incarcerated. See id.

I. Plaintiff's First FOIA Request and Lawsuit

In April and May of 2011, plaintiff submitted FOIA requests to the Criminal Division of the DOJ, the United States Marshals Service, the Executive Office for United States Attorneys, the Federal Bureau of Prisons, the Department of Treasury, and ATF. Barouch, 962 F.Supp.2d at 39–40. Plaintiff's requests sought “full disclosure and release of all files, records, data and/or information maintained by” each agency under plaintiff's name. Id. at 41.

On January 23, 2012, plaintiff filed a pro se complaint in this Court under FOIA and the Privacy Act against all of the agencies to which he had sent the FOIA requests, as well as the Department of Justice and the Parker County Sheriff Department.² Id. at 39–40 & n. 1. The complaint alleged that the defendants had failed to respond to plaintiff's FOIA requests, and asked the Court to compel disclosure of the “entire record of investigation” related to plaintiff for the years 2010 and 2011. Id. at 46.

The defendants filed two partial motions for summary judgment or dismissal that, if granted, would dispose of the entire case. Id. at 46–47. The Court granted the defendants' first partial motion for summary judgment, and granted in part and denied in part the defendants' second partial motion for summary judgment. Id. at 70. With respect to ATF, one of the two defendants in the instant case, the Court found that plaintiff's claim for one set of documents was barred for failure to exhaust administrative remedies, id. at 50, and that ATF had properly withheld a second set of documents under the relevant FOIA exemptions. Id. at 62. The Court also found that it did not have jurisdiction to consider plaintiff's claims under the Privacy Act because plaintiff had not exhausted his administrative remedies under the Act. Id. at 66–68.

II. Plaintiff's Second FOIA Request and Lawsuit

On September 3, 2013, plaintiff submitted another FOIA request to ATF seeking “access to all records in agency files, including but not limited to” the following information:

1) A micro cassette tape recording taken at the Fort Worth Jail Unit in September or October of 2010, in which David Barouch was recorded talking with ATF Agent Riddle and Attorney Franklyn “Mic” Mickelsen on the subject of the Government's promise of 5K1 treatment in this case in exchange for a signed written confession by murderer Eddie Sutton and Barouch provided a map of the burial location and location of the murder weapon. Mr. Barouch was informed that he would be recorded and he viewed the operation of this tape recording.

2) A recording taken at the Fort Worth Jail Unit in October or November of 2010 in which Eddie Sutton, ATF Agent Riddle and an unnamed Texas Ranger discussed the Government's prior commitment to provide a 5K1 for Barouch due to Sutton's prior cooperation with Barouch....

3) A third recording [that] was taken at the Fort Worth Jail Unit [in] October or November or December of 2010 attended by ATF Agent Riddle, unnamed Texas Ranger, and Eddie Sutton about his concern of the Governmetn's [sic] prior commitments to extend 5K1 and Rule 35 reductions of sentence....

4) All explosive reports including but not limited to ATF Reports of Investigation numbers 3, 4, 5, 6, and 7.

5) All reports reviewed and written by Explosive Enforcement Officer (EEO) Bennett and recorded by the ATF.

Ex. F to Compl. [Dkt. # 1–1] at F3–F4. Due to an administrative oversight, however, ATF did not notify plaintiff that it had received his FOIA request.³ Decl. of Stephanie M. Boucher [Dkt. # 83] (“Boucher Decl.”) ¶ 9 & n.1.

Plaintiff initiated this action on April 1, 2014. See Compl. Plaintiff seeks an order compelling defendants to release his “entire record of investigation for the years 2010 and 2011,” including several categories of specifically identified records. Id. at 5–8. Plaintiff also seeks litigation costs and fees. Id. at 8.

On June 24, 2014, ATF released a set of responsive records to plaintiff and informed him that “several” audio and video recordings would be sent to him under separate cover. Letter from Stephanie M. Boucher, Chief, ATF Disclosure Div., to David Jack Barouch, plaintiff (June 24, 2014) [Dkt. # 8–11] (“Boucher Letter”) at 1. On July 16, 2014, plaintiff notified the agency that he had not received any recordings and noted that, as an inmate, he would not be permitted to possess recordings in any event. Letter from David Jack Barouch, plaintiff, to Stephanie M. Boucher, Chief, ATF Disclosure Div. (July 16, 2014), Ex. 2 to Pl.'s Mot. for Summ. J. [Dkt. # 151]. Plaintiff requested that the agency send him transcripts of the recordings instead. Id.

Defendants filed a motion for summary judgment on July 1, 2014. Defs.' Mot. for Summ. J. [Dkt. # 8] (“Defs.' Mot.”); Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 8–1] (“Defs.' Mem.”). Plaintiff filed an opposition to defendants' motion for summary judgment combined with a cross-motion for summary judgment on October 21, 2014. Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”) [Dkt. # 15]; Pl.'s Verified Mem. Res. to Defs.' Mot. & Defs.' Mem. [Dkt. # 15–1] (“Pl.'s Mem.”). Plaintiff requested that the Court order defendants to produce:

(a) Respective, unredacted, three (3) tapes, three (3) transcripts, three (3) corresponding investigative reports, and any related reports.

(b) 97 pages withheld in full, page numbers 681–777....

(c) All explosives reports unredacted, including but not limited to ATF reports of investigation numbers 3, 4, 5, 6, 7, and 11 plus.

(d) All reports reviewed and written unredacted by Explosive Enforcement Officer (EEO) Bennett and recorded by [ATF].

(e) Copy and transcript of Parker County Jail and Fort Worth Jail telephone tapes, unredacted, in which Plaintiff was a party to the call.

(f) Unredacted image of DSC07537. (g)Unredacted Chain of Evidence documents, and/or documents which serve a similar purpose.

(h) Relevant records of subordinate agencies and subagencies acting in concert with the Bureau of Alcohol, Tobacco, Firearms and Explosives ( [ATF] ). Specifically, [ATF] will have copies of the Texas Ranger records related to Plaintiff and records connecting the Plaintiff with Mr. Eddie Sutton. Plaintiff is requesting those prospective records, recordings, and transcripts in their possession.

(i) All communications, unredacted, including telephone transcripts, held by the Department of Justice through its agency, [ATF], concerning Plaintiff and/or Mr. Eddie Sutton as related to Plaintiff.

(j) All in-house agency written reports, documents, records, and handwritten notes naming Plaintiff as a “person of interest” in Plaintiff's criminal investigation and/or prosecution and/or sentencing collected and/or retained by the Department of Justice and/or its agency, [ATF].

(k) All responsive records unredacted in the investigative files of the [ATF] and the Criminal Investigation Report System of Records (CIRSR).

Pl.'s Mot. at 2–3.

With respect to the parts of the request related to Mr. Sutton, plaintiff contended that an ATF Agent promised him “a reduction of sentence in exchange for information about the murder Mr. Sutton conducted.” Aff. of David Barouch, Ex. 4 to Pl.'s Mot. [Dkt. # 15–1] (“Barouch Aff.”) ¶ 3. He also stated that Sutton, a private citizen, “negotiated ... for Mr. Barouch to receive Rule 35 relief,” promising him “time served.” Id. ¶¶ 6–7. According to plaintiff, he never received any sentencing relief. Pl.'s Mem. at 38.

Plaintiff also stated in his pleading that he had not received some of the records that defendants claimed to have sent him.⁴

Pl.'s Mem. at 12. So, on December 22, 2014, “in an abundance of caution,” ATF re-sent plaintiff all of the documents it had released to him on June 24, 2014. Defs.' Combined Opp. to Pl.'s Mot. for Summ. J. & Reply [Dkt. # 21] (“Defs.' Reply”) at 8–9. That same day, ATF also sent plaintiff the audio and video recordings Boucher had promised in the June 24, 2014 letter, and attributed the delay to technical difficulties in “applying necessary...