Gilliam v. U.S. Dep't of Justice, Civil No. 1:14–cv–00036 (APM)

• Decision Date: 01 September 2015
• Docket Number: Civil No. 1:14–cv–00036 (APM)
• Citation: 128 F.Supp.3d 134
• Parties: Randee A. Gilliam, Plaintiff, v. U.S. Department of Justice, et al., Defendant.
• Court: U.S. District Court — District of Columbia

128 F.Supp.3d 134

Randee A. Gilliam, Plaintiff,

v.U.S. Department of Justice, et al., Defendant.

Civil No. 1:14–cv–00036 (APM)

United States District Court, District of Columbia.

Signed September 1, 2015

Randee A. Gilliam, Youngstown, OH, pro se.

Kenneth A. Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta

, United States District Judge

This case is the third in a line of cases recently brought in this court under the Freedom of Information Act ("FOIA") challenging the government's withholding of all documents relating to court-authorized wiretaps in pending drug conspiracy cases in the Western District of Pennsylvania. The first was brought by Anthony Ellis and resolved by Judge Boasberg in Ellis v. DOJ, 110 F.Supp.3d 99, Civ. No. 13–2056, 2015 WL 3855587 (D.D.C. June 22, 2015). The second was brought by Lamont Wright and resolved by Judge Walton in Wright v. DOJ, 121 F.Supp.3d 171, Civ. No. 14–272, 2015 WL 4910502 (D.D.C. Aug. 17, 2015). And this case, the third, was brought by Plaintiff Randee Gilliam. All three men are incarcerated at the Northeast Ohio Correctional Center in Youngstown, Ohio. In fact, Gilliam and Wright are co-defendants in the same criminal matter. See United States v. Randee Gilliam, 12–cr–00093 (W.D.Pa.). Not coincidentally, all three cases raise almost identical claims and arguments under FOIA.¹ Indeed, Gilliam's and Wright's opposition briefs are, except for their final pages, identical. Compare Gilliam v. DOJ, Pl.'s Opp'n, ECF No. 18, with Wright v. DOJ

, Pl.'s Opp'n, ECF No. 18.

Notwithstanding the substantial overlap among these cases, this court has an independent obligation to consider the merits of the case before it. And, to that end, the court has reviewed all of the briefing and supporting materials submitted by the parties.

Ultimately, the court concludes, for the same reasons as those set forth in Ellis

and Wright, that Defendants' motion for summary judgment must be granted. However, as explained below, the court grants Plaintiff's request to amend his complaint to add new FOIA claims, but denies the request insofar as Plaintiff seeks to add claims arising from the alleged illegal intercept of his telephone communications. Additionally, the court denies Plaintiff's motion for sanctions.

I. BACKGROUND

On March 29, 2013, Plaintiff Randee Gilliam submitted a FOIA request to Defendant United States Department of Justice ("DOJ") for "a copy of the Title III interception approval letters and all other documents that are a part of the electronic surveillance" for four telephone numbers. Def.'s Mot. for Summ. J., Decl. of Peter Sprung [hereinafter "Sprung Decl."], ECF No. 15–2, ¶ 8.² On July 17, 2013, the Criminal Division of DOJ denied the request in its entirety. Id. ¶ 14, Ex. I. It advised Plaintiff that, "to the extent responsive records do exist, they are exempt from disclosure" under FOIA Exemption 3 because Title III exempts them from disclosure. Id. DOJ's Office of Information Policy affirmed the Criminal Division's invocation of Exemption 3. Id. ¶ 19, Ex. N.

On January 7, 2014, Gilliam filed this lawsuit. Compl., ECF No. 1. Even though it had previously refused to search for or produce documents, DOJ conducted a search for records and located 2,300 pages of potentially responsive material. Sprung Decl., Ex. Q, ECF No. 15–4. That material included, among other things, Title III applications, agent affidavits, proposed orders, authorization memoranda, and emails among DOJ attorneys concerning the Title III application. Id. Ex. P, ECF No. 15–3. DOJ moved for summary judgment on September 12, 2014. See Def.'s Mot. Summ. J., ECF No. 15. With its motion, DOJ produced a 150–page Vaughn index, asserting that all potentially responsive documents were exempt under FOIA Exemptions 3, 5, 6, or 7(C). Id. Ex. Q.

II. STANDARD OF REVIEW

Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011)

. Summary judgment is warranted under Federal Rule of Civil Procedure 56"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). A dispute is "genuine" only if a reasonable fact-finder could find for the nonmoving party, while a fact is "material" only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-material factual dispute is insufficient to prevent the court from granting summary judgment. Id. The moving party must support the assertion that no facts are in dispute by "citing to particular parts of materials in the record, including ... affidavits or declarations." Fed.R.Civ.P. 56(c)(1)(A). In making its determination as to summary judgment, the court must review "[a]ll underlying facts and inferences ... in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C.2010) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ).

An agency seeking summary judgment in a FOIA case bears the burden of showing that, even with the facts viewed in the light most favorable to the requester, the agency has conducted a search "reasonably calculated to uncover all relevant documents." Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983)

. To carry this burden, the agency may submit a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). Production of such an affidavit allows a requester to challenge, and a court to assess, the adequacy of the search performed by the agency. Id. These affidavits are afforded "a presumption of good faith, which cannot be rebutted by purely speculative claims." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation marks omitted).

Summary judgment based on affidavits is not warranted, however, if the affidavits are "controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)

(citations omitted); see alsoHall v. CIA, 668 F.Supp.2d 172, 196 (D.D.C.2009) ("Courts may permit discovery in FOIA cases where a plaintiff has made a sufficient showing that the agency acted in bad faith.") (citations omitted) (internal quotation marks omitted). "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." Wright, 121 F.Supp.3d at 177, 2015 WL 4910502, at *3 (citation omitted) (internal quotation marks omitted).

III. DISCUSSION

A. Reasonableness of DOJ's Search

Gilliam challenges the reasonableness of DOJ's search for responsive materials. Pl.'s Opp'n at 52. To prevail on this issue DOJ must show that it conducted a search reasonably calculated to uncover all relevant records. SeeWeisberg, 705 F.2d at 1351

. To meet its burden, DOJ may rely on a detailed affidavit that explains the scope and method of its search. SeeOglesby, 920 F.2d at 68. Here, DOJ has presented a declaration from Peter Sprung, an attorney in DOJ's Freedom of Information Act/Privacy Act Unit, for that purpose [hereinafter "Sprung Declaration"].

The Sprung Declaration explains that DOJ searched two databases for responsive materials: (1) an Office of Enforcement Operations ("OEO") database used to track prosecutors' requests for Title III intercepts, and (2) the Criminal Division's archived email system. Sprung Decl. ¶ 21. The Sprung Declaration details why those two databases were selected and how DOJ went about searching them for responsive materials. Id. ¶¶ 22–30. Based on these representations, the court is satisfied that DOJ's search met its obligations under FOIA. Therefore, for the same reasons stated in Wright

and Ellis, this court concludes that DOJ conducted a search reasonably designed to identify all responsive records. SeeWright, 121 F.Supp.3d at 180–83, 2015 WL 4910502, at *6–8 (finding that search of OEO database and Criminal Division's email archive system was sufficient to uncover all relevant documents); Ellis, 110 F.Supp.3d at 104–06, 2015 WL 3855587, at *3–5 (same).

The court also rejects Gilliam's specific challenges to the adequacy of the search. First, his contention that DOJ did not perform a search under the Privacy Act, 5 U.S.C. § 552a

, Pl.'s Opp'n at 47, fails. As explained in Ellis, a Privacy Act search is co-extensive with a FOIA search. SeeEllis, 110 F.Supp.3d at 106, 2015 WL 3855587, at *5. Thus, "[i]t follows that since the agency conducted an adequate search under FOIA, it also satisfied the Privacy Act's requirements." Id.

Second, Gilliam contends that DOJ should have searched two other databases—the United States Drug Enforcement Agency's Narcotics and Dangerous Drug Information System and the Executive Office of the United States' Attorneys' Legal Information Office Network Systems. Pl.'s Opp'n at 55–56. But as Judge Walton explained in Wright,

an agency is only required to search systems that are likely to have responsive documents. 121 F.Supp.3d at 179, 2015 WL 4910502, at *5. And, here, Gilliam has offered no specific facts creating a genuine issue as to whether DOJ has withheld responsive documents by searching only the OEO and email databases. See id.

Finally, Gilliam challenges DOJ's search because it took place only after he filed suit against the agency. Pl.'s Opp'n at 61. But, as explained in Ellis,

"the only consequence of this delay would be a finding that Plaintiff constructively exhausted his administrative remedies and therefore was entitled to bring...