Aguiar v. Drug Enforcement Admin.

• Decision Date: 04 August 2017
• Docket Number: No. 16-5029,16-5029
• Citation: 865 F.3d 730
• Parties: Stephen AGUIAR, Appellant v. DRUG ENFORCEMENT ADMINISTRATION, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

865 F.3d 730

Stephen AGUIAR, Appellant

v.DRUG ENFORCEMENT ADMINISTRATION, Appellee

No. 16-5029

United States Court of Appeals, District of Columbia Circuit.

Argued February 8, 2017

Decided August 4, 2017

Masha Godina Hansford, Washington, D.C., appointed by the court, argued the cause as amicus curiae in support of appellant. With her on the briefs was Kannon K. Shanmugam, Washington, D.C.

Johnny H. Walker III, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney. Caitlin O. Trujillo, Assistant U.S. Attorney, entered an appearance.

Before: Garland, Chief Judge, and Rogers and Millett, Circuit Judges.

Garland, Chief Judge:

After he was convicted of narcotics offenses, Stephen Aguiar filed several Freedom of Information Act requests for materials relating to his investigation by the Drug Enforcement Administration (DEA). The DEA denied two of the requests, saying that software Aguiar identified was not an agency record and that copies of administrative subpoenas he wanted could not be located. The district court granted the DEA's motion for summary judgment as to both requests. Because the government's declarations were insufficient to support summary judgment in its favor, we vacate the judgment and remand for further proceedings.

I

In 2009, the Drug Enforcement Administration joined a criminal investigation of a drug-trafficking ring involving Aguiar. During the investigation, the DEA installed a Global Positioning System (GPS) tracker on at least one of his cars. Agents used software to monitor the tracker and to visualize tracking data on satellite maps. Around the same time, agents issued administrative subpoenas seeking Aguiar's telephone and financial records. The investigation ultimately led to Aguiar's conviction on drug-trafficking charges, which the Second Circuit affirmed in December 2013. See United States v. Aguiar , 737 F.3d 251, 265 (2d Cir. 2013).

While his direct appeal in the Second Circuit was pending, Aguiar made Freedom of Information Act (FOIA) requests seeking materials from the investigation. Two requests are at issue here.

First, Aguiar requested "all tracking information collected via GPS devices attached to my vehicles," along with "all ... proprietary software associated with that information." Letter from Stephen Aguiar to DEA (Aug. 19, 2013) (J.A. 102). In response to that request, the DEA gave Aguiar a printed copy of spreadsheets listing latitude and longitude coordinates captured by the GPS tracker that was attached to his Subaru Impreza. Unsatisfied with these spreadsheets, which he found difficult to interpret, Aguiar renewed his request for a copy of the software the DEA used to visualize GPS coordinates on maps. In case the DEA again refused to give him the software, Aguiar asked in the alternative for images of the coordinates plotted onto satellite maps. Letter from Stephen Aguiar to U.S. Dep't of Justice (Apr. 1, 2014) (J.A. 139). The DEA did not provide either the software or the map images.

Second, Aguiar requested four specific administrative subpoenas that the DEA issued during its investigation. The agency responded that it had already searched for them to no avail. A few months before Aguiar's request for the four subpoenas, Aguiar had made several broader FOIA requests, including one for "any administrative subpoena" issued from the DEA's Burlington, Vermont office during the investigation. Letter from Stephen Aguiar to DEA (Aug. 1, 2013) (J.A. 101). In response to those earlier requests, the DEA conducted a search that it said would have located the four subpoenas that Aguiar later specified.

In particular, according to a declaration from the chief of the DEA's FOIA unit, Katherine Myrick, Aguiar's earlier requests "were construed as seeking," among other records, "administrative subpoenas ... pertaining to [Aguiar]." Decl. of Katherine L. Myrick at 16 (Apr. 7, 2015) (J.A. 165) ("First Myrick Declaration"). The declaration described how the agency searched one of its record systems to locate two relevant case files. Id. at 18-19 (J.A. 167-68). In describing the search within those case files, however, all the declaration said was that the "Burlington Resident Office was tasked with conducting a search of the two (2) files for all records related to [Aguiar] to include all investigative reports [and] administrative subpoenas." Id. at 19 (J.A. 168). The DEA did not find the four specific subpoenas Aguiar requested.

In 2014, Aguiar, acting pro se, filed a FOIA complaint in the United States District Court for the District of Columbia, challenging the DEA's failure to release the GPS mapping software, map images of the GPS data, the four administrative subpoenas, and additional materials no longer at issue. The DEA filed a motion for summary judgment, accompanied by Myrick's declaration describing the agency's search.

After briefing from both sides, the district court ordered the DEA to file a supplemental declaration identifying the "software used by the DEA to create images from the GPS tracking data, the nature of the DEA's license to use that software," and any applicable FOIA exemption. Aguiar v. DEA , Civ. No. 14-02401, slip op. at 2 (July 20, 2015). The court instructed that the supplemental declaration should also explain whether the DEA's search encompassed the four specific subpoenas Aguiar requested. Id. In response, Myrick filed a supplemental declaration that did not address the software at all, although the accompanying Notice of Compliance explained that counsel for the DEA believed the software was licensed only for official purposes. See Supp. Decl. of Katherine L. Myrick (Sept. 8, 2015) (J.A. 199) ("Second Myrick Declaration"); Notice of Compliance at 4 n.5 (Sept. 9, 2015). The declaration did say, however, that Aguiar's request for the four subpoenas "was duplicative of his earlier requests," and that the "previous searches would have uncovered all subpoena related information." See Second Myrick Declaration at 4 (J.A. 202).

The district court then granted summary judgment to the DEA on all issues except Aguiar's request for the software. As to Aguiar's alternative request for map images, the district court held that producing those images would require creating a new record, which FOIA does not compel. As to the subpoenas, the court held that the DEA had discharged its FOIA obligations by performing an adequate search.

Regarding the software, however, the court found that the record was still insufficient. Invited to supplement the record again, the agency submitted another declaration, this time stating that it had searched two DEA offices but concluded that it "was not in possession or control of any system or software that was responsive to [Aguiar's] request." Supp. Decl. of Katherine L. Myrick at 3 (Nov. 10, 2015) (J.A. 223) ("Third Myrick Declaration"). The district court accepted this declaration as proving that the software "is not an agency record," and granted summary judgment to the DEA on the software issue. Aguiar v. DEA , Civ. No. 14-0240, slip op. at 2, 2015 WL 7566661 (Nov. 24, 2015).

Still acting pro se, Aguiar appealed the grant of summary judgment. We appointed an amicus curiae to present arguments in support of Aguiar's position. For purposes of this opinion, we will attribute to Aguiar the arguments made by the amicus because Aguiar filed a statement expressly joining in those arguments.

II

We review the district court's grant of summary judgment de novo. See Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013). A court may grant summary judgment only if 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). "In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Judicial Watch , 726 F.3d at 215 (quoting Consumer Fed'n of Am. v. Dep't of Agric. , 455 F.3d 283, 287 (D.C. Cir. 2006) ). We must draw "all justifiable inferences" in favor of the non-movant, Aguiar. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A

We begin with Aguiar's request for a copy of the GPS mapping software that was used to track his movements and about which a DEA agent testified at Aguiar's trial. The DEA contends that the software is not subject to disclosure under FOIA, which empowers district courts to order the production of any "agency records improperly withheld." 5 U.S.C. § 552(a)(4)(B). "The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not ‘agency records' or have not been ‘improperly’ ‘withheld.’ " U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989).

Although FOIA does not define "agency records," the Supreme Court and this court have identified limits on what documents come within the term. It "extends only to those documents that an agency both (1) ‘create[s] or obtain[s],’ and (2) ‘control[s] ... at the time the FOIA request [was] made.’ " Judicial Watch , 726 F.3d at 216 (alterations and emphasis in original) (quoting Tax Analysts , 492 U.S. at 144-45, 109 S.Ct. 2841 ). To determine whether a document satisfies those requirements, "we must ‘focus [ ] on a variety of factors surrounding the creation, possession, control, and use of the document.’ " Id. at 217 (quoting Consumer Fed'n , 455 F.3d at 287 ). In particular, to determine "whether an agency has sufficient ‘control’ over a document to make it an ‘agency record,’ " this court usually examines four factors:

[1] the intent of the document's creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose

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