Higgins v. U.S. Dep't of Justice

• Decision Date: 30 January 2013
• Docket Number: Civil Action No. 10–1485 (RLW).
• Citation: 919 F.Supp.2d 131
• Parties: Oliver J. HIGGINS, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

919 F.Supp.2d 131

Oliver J. HIGGINS, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 10–1485 (RLW).

United States District Court, District of Columbia.

Jan. 30, 2013.

Oliver J. Higgins, Pine Knot, KY, pro se.

Sean Joseph Vanek, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERT L. WILKINS, District Judge.

Plaintiff brings this action against the United States Departments of Justice (“DOJ”) and Homeland Security (“DHS”), and various components of these two agencies, under the Freedom of Information Act (“FOIA”), see5 U.S.C. § 552. This matter is before the Court on defendants' motion to dismiss or, alternatively, for summary judgment. For the reasons discussed below, the motion will be granted in part and denied in part without prejudice.

I. BACKGROUND

On or about September 4, 2008, plaintiff submitted FOIA requests to the Executive Office for United States Attorneys (“EOUSA”), the Federal Bureau of Investigation (“FBI”), the Drug Enforcement Administration (“DEA”), the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”), and the United States Secret Service (“Secret Service”). See Compl., Ex. P1 (EOUSA), P9 (FBI), P15 (DEA), P24 (ATF) & P35 (Secret Service). Each request included the following language:

I request any and all documents, records, memoranda, Statements, reports, and other information in whatever form maintained by your agency that relates to or makes reference to me directly or indirectly. More specifically, I request any information in the possession or control of your agency related to the investigation and prosecution of me by State and Federal authorities for violation of federal controlled substance and counterfeiting laws. This occurred in and around the Madison County, Tennessee area (Western District of Tennessee). I am requesting all records from January 2006 through the present.

Compl., Ex. P1 (Freedom of Information/Privacy Request to the EOUSA dated September 4, 2008) at 1.

A. Executive Office for United States Attorney

The EOUSA acknowledged receipt of plaintiff's FOIA request, No. 08–3384, and forwarded it to the United States Attorney's Office for the Western District of Tennessee. Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss, or Alternatively, for Summ. J. (“Defs.' Mem.”), Decl. of John W. Kornmeier (“Kornmeier Decl.”) ¶ 5. Staff at that office located responsive records and forwarded them to the EOUSA for processing. Kornmeier Decl. ¶ 6. The EOUSA released 293 pages of records in full, released 10 pages in part, and withheld 39 pages in full. Id.; see id., Ex. B (Letter to plaintiff from William G. Stewart II, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated February 13, 2010) at 1.

In addition to records originating at the EOUSA, the search yielded 165 pages of records originating elsewhere. Id., Ex. B at 2. The EOUSA referred 15 pages of records to the Secret Service, 147 pages of records to the DEA (DEA FOIA No. 10–00574–PR), and 3 pages of records to the BATFE (Request No. 2010–644).

B. Federal Bureau of Investigation

The FBI acknowledged receipt of plaintiff's FOIA request, FOIPA No. 1119833, on September 18, 2008. Defs.' Mem., Decl. of David M. Hardy (“Hardy Decl.”) ¶ 6. “[A] search of the automated and manualindices of the [Central Records System] located no FBIHQ records responsive to his request.” Hardy Decl. ¶ 7. Plaintiff pursued an administrative appeal to the DOJ's Office of Information Policy (“OIP”), id. ¶ 8, which affirmed the FBI's “no records” determination, id. ¶ 9.

C. Drug Enforcement Administration

DEA FOIA Request No. 08–1373–P

Because plaintiff's initial request to the DEA, assigned FOIA number 08–1373–P, did not adequately describe the records sought, see Defs.' Mem., Decl. of William C. Little, Jr. (“Little Decl.”) ¶ 15, plaintiff later specified that he requested a “search [of] the DEA's Investigative reporting and Filing System, the DEA's Electronic Surveillance idices [sic], and any other DEA data systems” that may contain relevant information.” Little Decl., Ex. D (Letter from plaintiff to Kathryn L. Myrick, Freedom of Information Unit, DEA, dated December 11, 2008). The DEA released 22 pages of records in part, released three pages in full, and withheld five pages of records in full. Id. ¶ 19; see id., Ex. D (Letter to plaintiff from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA, dated June 17, 2010) at 3.

DEA FOIA Request No. 10–0574–PR

The EOUSA referred 147 pages of records to the DEA. Little Decl. ¶ 22. It was determined that only 22 of these 147 pages of records originated with the DEA. Id. n. 2. Although the DEA referred 10 pages of records to the FBI for its direct response to plaintiff, id. ¶ 23, the disposition of these records is unknown. The remainder of the records originated with state and local law enforcement agencies. Id. ¶ 22 n. 2. Of the DEA records, 22 pages were released in part, 62 pages were released in full, and five pages were withheld in full. Id. ¶ 24.

D. Bureau of Alcohol, Tobacco, Firearms and ExplosivesRequest No. 08–1538

Based on the language of plaintiff's request, the BATFE's search “failed to produce” responsive records. Defs.' Mem., Decl. of Marilyn R. LaBrie (“LaBrie Decl.”) ¶ 5. This determination was affirmed on plaintiff's appeal to the OIP. See id. ¶¶ 6–8.

Request No. 2010–644

The records referred by the EOUSA to the BATFE comprised a separate matter assigned Request No. 2010–644. Id. ¶ 9; see id., Ex. H (Letter to plaintiff from Marilyn R. LaBrie, Team Leader, Disclosure Division, BATFE, dated March 9, 2010). The records “consist[ed] of firearms trace information that can only be provided to a law enforcement agency or a prosecutor solely in connection with a bona fide criminal investigation or prosecution.” Id. ¶ 9. Federal law prohibited BATFE from processing a request from a private individual, and the request therefore was denied. Id. Plaintiff pursued an administrative appeal to the OIP which affirmed the determination on modified grounds. Id. ¶¶ 11–12. OIP took the position that the BATFE “properly withheld ... information ... protected from disclosure ... pursuant to 5 U.S.C. § 552(b)(3),” concerning “matters specifically exempted from release by statute.” Id., Ex. J (Letter to plaintiff from Janice Galli McLeod, Associate Director, OIP, dated July 2, 2010).

E. Secret Service

After plaintiff supplied certification of his identity, see Defs.' Mem., Decl. of Keith L. Prewitt (“Prewitt Decl.”) ¶¶ 7–9, and it was determined that Exemption 7(A) no longer applied, see id. ¶¶ 11–12, the Secret Service released an unspecified number of pages of records in full or in part, see generally id., Ex. I (Letter to plaintiff from Craig W. Ulmer, Special Agent In Charge, Freedom of Information & Privacy Acts Officer, Secret Service, dated March 4, 2010).¹ It released additional records to plaintiff on August 13, 2010, December 10, 2010, and May 27, 2011. Id. ¶¶ 17–19.

II. DISCUSSION ²

A. Summary Judgment in a FOIA Case

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). The Court will grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(a). In a FOIA action to compel production of agency records, the agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ ” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978)).

Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with 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 [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738(D.C.Cir.1981). “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.” Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C.2010) (quoting Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).

B. Searches for Responsive Records

Upon receipt of a request under the FOIA, an agency generally must search its records for responsive documents. See5 U.S.C. § 552(a)(3)(A). “The adequacy of an agency's search is measured by a standard of reasonableness and is dependent upon the circumstances of the case.” Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (internal quotation marks and citations omitted). An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C.Cir.2011) (citations and internal quotation marks omitted). A search need not be exhaustive. See Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir.1985). “The issue in a FOIA case is not whether the [agency's] searches uncovered responsive documents, but rather whether the searches were reasonable.” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citations omitted).

To meet its burden, the agency may submit affidavits or declarations that explain...