Hansten v. Drug Enf't Admin.
| Decision Date | 22 July 2022 |
| Docket Number | Civil Action 21-2043 (RC) |
| Parties | PHILIP HANSTEN, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, Defendant. |
| Court | U.S. District Court — District of Columbia |
This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff Philip Hansten and Defendant Drug Enforcement Administration (“DEA”). Mr. Hansten asked the DEA to produce certain information concerning drug purchase order forms (“Form 222s”) that it issued on a single day in 2011. The DEA refused, claiming that any responsive records would be categorically exempt under FOIA Exemption 7(E). But the DEA's position lacks merit. For the reasons described below, the Court finds that release of the requested Form 222 information would not reveal any law enforcement technique or procedure. The Court will therefore order the DEA to conduct a search and produce all responsive non-exempt information and, to the extent that the DEA withholds any responsive information pursuant to FOIA, renew its motion for summary judgment thereafter.
The DEA is a federal agency whose mission is to enforce the controlled substance laws and regulations of the United States. Hertel Decl. ¶ 5, ECF No. 12-5. The DEA administers the Controlled Substances Act, which established a closed system of distribution that allows the DEA to trace drugs from initial manufacture to final dispensing. Id. ¶ 10; 21 U.S.C. § 828. These drugs are classified into five schedules, which are published annually. Hertel Decl. ¶ 10. The closed system of distribution allows the DEA to prevent, investigate, and prosecute “diversion,” or drug transactions that occur outside the system. Def. Mot. Summ. J. (“Def. MSJ”) at 3, ECF No. 12-1. Under the system, anyone who handles Schedule I or II drugs must register with the DEA. See 28 U.S.C. § 823 (registration requirements). In addition, to order and transfer such drugs, a registrant must complete a standard purchase order form called Form 222. Hertel Decl. ¶ 10. This process begins when a registrant requests a Form 222 from the DEA. Def.'s Opp'n Pl.'s Mot. Summ. J. (“Def. Opp'n”) at 3, ECF No. 14 (citing 21 C.F.R. § 1305.11(b) (2019)). The DEA then sends a Form 222 to the registrant that contains pre-printed information, as required by regulation, including [1] an order form number bearing the [2] name, [3] address, and [4] registration number of the registrant, [5] the authorized activity, and [6] drug schedules of the registrant. 21 C.F.R. § 1305.11(d) (2019); Hertel Decl. ¶ 10; see Ex. 5 to Def. MSJ (“Sample Form 222”), ECF No. 12-8 . Once the parties involved in a drug transaction fill out the remaining entries in the Form 222 (such as drug name, code, and package number/size), the DEA stores the completed form in a non-public database for regulatory and investigative use. Def. MSJ at 4; Hertel Decl. ¶ 16; Sample Form 222 (green copy denoting “DEA Copy 2”).
Mr. Hansten is a professor with an academic and professional interest in drug interactions. Hansten Decl. ¶¶ 1-2, ECF No. 11-3. On March 10, 2021, he submitted a FOIA request to the DEA seeking “[r]ecords sufficient to show the names, addresses, and business activities of all parties that were issued DEA Form 222s in which the ‘Date Issued' on the form is 05/11/2011 (May 11, 2011).” Ex. A to Hansten Decl. (“Request Letter”). Mr. Hansten received an automatic courtesy reply from the DEA on the same day. Ex. B to Hansten Decl. A few weeks later, he contacted the DEA to request a FOIA number and an acknowledgement letter. Ex. C to Hansten Decl. The DEA responded with another courtesy reply on April 7, 2021, which provided him a FOIA number but did not provide an estimated timeline for an acknowledgement letter. Ex. D to Hansten Decl. Having received no further communication from the DEA, Mr. Hansten filed suit on July 28, 2021. Compl., ECF No. 1.
A month into this lawsuit, the DEA responded to Mr. Hansten's request, claiming that any responsive records were “categorically exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(E)” and therefore it was “not required to conduct a search for the requested records.” Ex. E to Hansten Decl. (“Response Letter”). The DEA then filed its answer, and subsequently the parties both moved for summary judgment. Pl.'s Mot. Summ. J. (“Pl. MSJ”), ECF No. 11; Def. MSJ. In support of its motion, the DEA submits the declaration of Angela D. Hertel, Unit Chief of the Legal and External Affairs Unit of the DEA. Hertel Decl. ¶ 1. The DEA did not submit a Vaughn index.
The Freedom of Information Act is meant “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that ‘each agency, upon any request for records . . . shall make the records promptly available to any person' unless the requested records fall within one of the statute's nine exemptions.” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent with the Act's goal of broad disclosure,” those exemptions should be “given a narrow compass.” U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014).
Summary judgment is warranted “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). In assessing whether the movant has met that burden, a court “must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). Because FOIA cases do not ordinarily involve disputed facts, they “are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009) (citations omitted). An agency may show that it is entitled to summary judgment by submitting affidavits that, in “reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Id. (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). An agency's justification for withholding records “is sufficient if it appears ‘logical' or ‘plausible.'” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)).
The DEA's sole basis for claiming a categorical exemption and refusing to search for responsive documents is Exemption 7(E). This exemption protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would 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). A record must therefore meet three requirements to qualify for withholding pursuant to Exemption 7(E). See Advancement Project v. U.S. Dep't of Homeland Sec., 549 F.Supp.3d 128, 142 (D.D.C. 2021). First, it must have been “compiled for law enforcement purposes.” Id. That means that the record was “created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption.” Pub. Emps. for Env't Resp. v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mex. (“PEER”), 740 F.3d 195, 203 (D.C. Cir. 2014). Second, the release of the record must disclose techniques, procedures, or guidelines used for law enforcement investigations or prosecutions. 5 U.S.C. § 552(b)(7)(E). Third, the disclosure of those techniques, procedures, or guidelines “could reasonably be expected to risk circumvention of the law.” Id.[1] In other words, disclosure “might increase the risk ‘that a law will be violated or that past violators will escape legal consequences.'” PEER, 740 F.3d at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
Exemption 7(E) first requires that the record was “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). An agency whose “principal function is law enforcement” is entitled to deference when it claims that records were compiled for law enforcement purposes. PEER, 740 F.3d at 203. Yet this deferential standard of review is not “vacuous.” Campbell v. U.S Dep't of Just., 164 F.3d 20, 32 (D.C. Cir. 1998) (quoting Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982)). Even a law enforcement agency must establish: (1) “a rational nexus between the investigation and one of the agency's law enforcement duties,” and (2) “a connection between an individual or incident and a possible security risk or violation of federal law.” Blackwell v. F.B.I., 646 F.3d 37, 40 (D.C. Cir. 2011). A law enforcement purpose can exist “outside the context of a specific...
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