Fedrick v. U.S. Dept. of Justice

• Decision Date: 19 September 1997
• Docket Number: No. 95-CV-558H.,95-CV-558H.
• Citation: 984 F.Supp. 659
• Parties: Ronnie G. FEDRICK, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE and Drug Enforcement Administration, Defendants.
• Court: U.S. District Court — Western District of New York

Page 659

984 F.Supp. 659

Ronnie G. FEDRICK, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE and Drug Enforcement Administration, Defendants.

No. 95-CV-558H.

United States District Court, W.D. New York.

September 19, 1997.

Ronnie G. Fedrick, Dannemora, NY, pro se.

Donald P. Simet, Jane B. Wolfe, U.S. Atty., Buffalo, NY, for U.S. Dept. of Justice, Drug Enforcement Admin.

DECISION AND ORDER

LARIMER, Chief Judge.

This case was previously assigned to United States Magistrate Judge Carol E. Heckman to hear and report on dispositive motions filed by the parties. On September 19, 1997, Magistrate Judge Heckman issued a Report and Recommendation that defendants' motion for summary judgment (Dkt.# 21) should be granted. Plaintiff filed objections to the Magistrate Judge's Report and Recommendation on October 9, 1997. Although these objections may be untimely, nevertheless, I will accept them and have fully considered each and every objection raised by plaintiff.

I have carefully reviewed the Report and Recommendation as well as plaintiff's objections, and I see no basis to modify the Magistrate Judge's Report and Recommendation. Therefore, I accept and adopt, in its entirety, the thorough and well-analyzed Report and Recommendation of Magistrate Judge Heckman. Her analysis of the Freedom of Information Act and its exemptions is entirely sound and there is no basis whatsoever to modify her recommendation.

CONCLUSION

I adopt in its entirety the Report and Recommendation of Magistrate Judge Heckman filed September 19, 1997.

Defendants' motion for summary judgment (Dkt.# 21) is granted and the complaint is dismissed.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

HECKMAN, United States Magistrate Judge.

This case has been referred to the undersigned by Hon. David G. Larimer for pretrial matters and to hear and report on dispositive motions, in accordance with 28 U.S.C. § 636(b)(1). Defendants have moved for summary judgment. For the following reasons, defendants' motion should be granted.

BACKGROUND

The following facts are not in dispute. On January 20, 1991, plaintiff sent a letter to the United States Department of Justice ("DOJ") Drug Enforcement Administration ("DEA") in Washington, D.C., requesting the following information:

1. Evidence/Custodian Log entries pertaining to File No. C2-87-X032, Exhibits 1, 2, 3 & 4, all of which were mailed from the DEA's Buffalo Resident Office between June 18, 1987 and July 16, 1987, to the Northeast Laboratory of the DEA.

2. Return Receipts for Exhibits 1, 2, 3 & 4 of File No. C2-87-X032 which were sent by Registered Mail to the Northeast Laboratory of the DEA by the Buffalo Resident Office.

3. All tape recorded conversations obtained during the investigation of File No. C2-87-X032.

(Ex. A).¹ The request was made "[p]ursuant to the Freedom of Information Law ..." (id.). As noted in his letter, plaintiff was an inmate at the Attica Correctional Facility at the time (id.).

On February 20, 1991, John H. Langer, then Chief of the DEA's Freedom of Information Section, sent plaintiff a letter acknowledging that the DEA had received plaintiffs request, and had assigned it Request No. 91-190-P (Ex. B). On May 11, 1991, plaintiff sent another letter to the DEA in Washington requesting additional information about Exhibits 1, 2, 3 and 4 of File No. C2-87-X032 (Ex. C). The DEA considered this request as part of Request No. 91-190-P (id.).

On June 4, 1991, the DEA released to plaintiff 34 pages of material deemed responsive to Request No. 91-190-P. Portions of these documents were redacted, and several other documents were withheld, pursuant to exemptions (b)(2), (b)(7)(C), (b)(7)(D), (b)(7)(E) and (b)(7)(F) of the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552(b)(2), (b)(7)(C), (b)(7)(D), (b)(7)(E) and (b)(7)(F), and exemption (j)(2) of the Privacy Act, 5 U.S.C. § 552a(j)(2)² (Ex. D).

Meanwhile, on April 29, 1991, plaintiff sent another letter to the DEA in Washington requesting "[a]ll investigations and reports conducted by the [DEA] between March 1986 through July 1989, of which I was the target" (Ex. E). The DEA designated this request as No. 91-722-P (Ex. F). On June 3, 1991, Mr. Langer sent plaintiff a letter advising him that no information was available "other than that previously sent" in connection with the processing of No. 91-190-P (id.).

On July 27, 1991, plaintiff sent another letter to the DEA in Washington requesting further information about Exhibits 1 through 4 of File No. C2-87-X032 (Ex. G). The DEA designated this request as No. 91-1815-P (Ex. I). On September 4, 1991, having received no response to his July 27, 1991 request, plaintiff sent a letter of appeal to the DOJ Office of Information and Privacy (Ex. H).

On July 22, 1992, Richard L. Huff, Co-Director of the DOJ Office of Information and Privacy, sent plaintiff a letter explaining the action that had been taken on his appeal, as follows:

As a result of discussions between DEA personnel and members of my staff, a supplemental release of Exhibits 3 and 4 either has been or will soon be made available to you directly by the DEA. In light of this fact and after careful consideration of your appeal, I have otherwise decided to affirm the action in this case. The documents responsive to your request, including the totality of Exhibits 1 and 2, are exempt from the access provision of the Privacy Act of 1974, pursuant to 5 U.S.C. § 552a(j)(2). See 28 C.F.R. § 16.98. Accordingly, your access rights are limited to those provided by the Freedom of Information Act. Certain information on Exhibits 3 and 4 and all of the information on Exhibits 1 and 2 was properly withheld from you pursuant to 5 U.S.C. § 552(b)(2), (7)(C), (7)(D) and (7)(F). These provisions pertain to purely internal agency practices and to records or information compiled for law enforcement purposes, the release of which could reasonably be expected to constitute an unwarranted invasion of the personal privacy of third parties (in this instance those of investigative interest to the DEA), to disclose the identities of confidential sources and information furnished by such sources, and to endanger the life or personal safety of an individual. Only the names of law enforcement personnel were excised on the basis of 5 U.S.C. § 552(b)(7)(F). This information is not appropriate for discretionary release.

(Ex. I). Mr. Huff also advised plaintiff of the right to judicial review of this determination (id.). By letter dated July 27, 1992, Mr. Huff transmitted the "excised" copies of Exhibits 3 and 4 to plaintiff (Ex. J).

On September 5, 1993, plaintiff sent another request to the DEA in Washington for information "believed to have been generated between June 18, 1987 and August 14, 1987, under File No. C2-87-X032" (Ex. K). The DEA designated this request as No. 93-1506-P (Ex. L). On December 16, 1993, Freedom of Information Chief Robert A. Rogers sent plaintiff a letter advising him that this request had been processed, and that certain materials would be released and portions would be withheld pursuant to exemptions (b)(2), (b)(7)(C) and (b)(7)(F) of the FOIA, and exemption (j)(2) of the Privacy Act (id.).

On May 16, 1994, plaintiff sent a letter to the "Buffalo Resident Office" of the DEA requesting the same information sought in request No. 93-1506-P (Ex. M). This request was designated No. 94-855-P (Ex. N). On June 23, 1994, Mr. Rogers sent plaintiff a letter advising him that "[a]ll of the documents that are releasable from C2-87-X032 have been released in 911-90-P and 91-1815-P.... It has been determined that there are no additional documents available" (id.). By letter dated July 29, 1994, plaintiff appealed this determination (Ex. O). On January 25, 1995, the appeal was denied (Ex. P).

Meanwhile, on October 17, 1994, plaintiff sent another letter to the DEA in Washington requesting information "believed to have been generated during DEA investigations in Buffalo, New York" (Ex. Q). This request was designated No. 94-1757-P (Ex. R). On November 18, 1994, Mr. Rogers sent plaintiff a letter advising him that no further information was available beyond what was sent to him under his previous five requests (id.). By letter dated December 6, 1994, plaintiff appealed this determination (Ex. S). On May 31, 1995, this appeal was denied (Ex. T).

On July 12, 1995, plaintiff filed this action under the FOIA, seeking injunctive relief and damages against Mr. Huff and Mr. Rogers. He claims that he "has been denied due process of discovery in a criminal prosecution" as a result of the DEA's failure to release the requested information (item 1, ¶ 44). On September 26, 1995, defendants filed a motion to dismiss the case for failure to name the proper party (Item 6), and plaintiff subsequently filed a motion to amend the complaint to name the DOJ and DEA as defendants. Upon withdrawal by defendants of the motion to dismiss, this court granted plaintiff's motion for leave to amend (Item 12), and the amended complaint was filed on July 8, 1996 (Item 13). On August 22, 1996, defendants answered the amended complaint (Item 14).

On August 28, 1996, plaintiff filed a motion for an order directing defendants to submit detailed index of the withheld documents, pursuant to Vaughn v. Rosen.³ On December 2, 1996, following a pretrial telephone conference with plaintiff and counsel for defendants, this court issued an order (Item 20) scheduling the briefing of defendants' summary judgment motion, and directing defendants to submit a Vaughn affidavit in conjunction with that motion.

Meanwhile, on October 31, 1996, DEA Attorney Advisor Kevin J. Janet sent plaintiff a letter advising him as follows:

Pursuant to a litigation review of your Freedom of Information Act/Privacy Act requests, a supplemental release of 50 pages is being made to you at this time. This release includes 32 pages previously withheld in their entirety and 18 pages released in...