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

• Decision Date: 14 July 2016
• Docket Number: Civil Action No. 14-20 (RDM)
• Citation: 197 F.Supp.3d 192
• Parties: Erin D. HOUSE, Plaintiff, v. U.S. Department of Justice,Defendant.
• Court: U.S. District Court — District of Columbia

197 F.Supp.3d 192

Erin D. HOUSE, Plaintiff,

v.U.S. Department of Justice,¹ Defendant.

Civil Action No. 14-20 (RDM)

United States District Court, District of Columbia.

Signed July 14, 2016

Erin Dale House, Youngstown, OH, pro se.

Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Erin D. House, who is proceeding pro se , was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute cocaine. On May 24, 2013, while awaiting trial, House filed a request with the Criminal Division of the United States Department of Justice ("Department") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents regarding electronic surveillance used to obtain evidence for his criminal prosecution. After the Criminal Division declined to produce any responsive records, House brought this action under FOIA and the Privacy Act.

The Department's motion for summary judgment is now pending before the Court. See Dkt. 7. For the reasons explained below, the Court will grant the Department's motion in part and deny it in part without prejudice.

I. BACKGROUND

Erin House was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine. See Dkt. 7 at 3. On May 24, 2013, he submitted a FOIA and Privacy Act request to the Criminal Division of the Department of Justice. House explained that on July 13, 2009, July 15, 2009, and July 16, 2009, the Federal Bureau of Investigation ("FBI") had intercepted his communications pursuant to a court-authorized Title III wiretap, and he sought "a copy of the Title III interception of electronic communications approval letter(s) and all other documents that are a part of electronic surveillance for the following Direct Connect Identity ("UFMI") number 124*493*[xxxx] and Cellular Telephone Number 323-208-[xxxx] bearing the International Mobile Subscriber Identity ("IMSI") number 31601015469[xxxx]."² Dkt. 7–2.

On July 3, 2013, the Criminal Division's Office of Enforcement Operations ("OEO") informed House that because "[t]he records [he] [sought] require[ed] a search in another Office of the Criminal Division," OEO needed to extend the time to respond by more than ten days, pursuant to 5 U.S.C. § 552(a)(6)(B)(i)–(iii). Dkt. 7–3. OEO invited House to narrow the scope of his request, to agree to an alternative time frame for processing any responsive records, or to await completion of the records search to discuss those options. Id. On July 11, 2013, House replied, inquiring whether the July 3 letter indicated that OEO did "not have any records ... concerning [the specified] Title III interceptions" and, "[i]f not, what other Office of the Criminal Division would these records possibly be at considering the Department of Justice procedures require[ ] all Title III wire interceptions [to] be handled by the Electronic Surveillance Unit (ESU) wh[ich] operates within ... [OEO]?" Dkt. 7–4. The Criminal Division did not separately respond to that letter.

The Criminal Division denied House's FOIA/Privacy Act request by letter dated July 15, 2013. Dkt. 7–5. It informed House that it did not conduct a search for records because "to the extent responsive record[s] do exist, they are exempt from disclosure pursuant to" FOIA Exemption 3, which permits agencies to withhold documents "specifically exempted from release by statute." Id. (citing 5 U.S.C. § 552(b)(3) ). House appealed the Division's denial of his request on July 21, 2013. Dkt. 7–6. The Department's Office of Information Policy affirmed the denial on January 7, 2014. Dkt. 7–7 at 2. It explained that "any responsive records would be protected from disclosure under" FOIA Exemption 3, and also that "the records responsive to [the] request are exempt from the access provision of the Privacy Act," citing 5 U.S.C. § 552a(j)(2). Id. House then filed this lawsuit under FOIA and the Privacy Act. Dkt. 1.

House challenges the adequacy of the Department's search and all of its withholdings, and he seeks an order directing the Department to produce the documents identified in his FOIA/Privacy Act request. Id. at 5. He also requests that the Court "provide for expeditious proceedings in this action," as the documents relate to his criminal trial. Id. After House filed suit, the Criminal Division searched two databases: an OEO "database used to track federal prosecutors' requests for permission to apply for court-authorization to surreptitiously intercept conversations of person[s] allegedly involved in criminal activity under Title III," and "archived emails of Criminal Division employees that are maintained by its IT department." Dkt. 7–1 at 4 (Sprung Decl. I ¶ 13). The Department continues to maintain, however, that House is not entitled to any responsive records. See Dkt. 7 at 12–13.

The matter is before the Court on the Department's motion for summary judgment. See Dkt. 7. The Department argues that it conducted an adequate search and that it properly withheld all responsive records pursuant to FOIA Exemptions 3, 5, 6, and 7(C) and Privacy Act Exemption (j)(2). Id. at 13. It supports its motion with three declarations by Peter C. Sprung, a trial attorney assigned to the Criminal Division's FOIA and Privacy Act Unit, see Dkt. 7–1 at 1 (Sprung Decl. I ¶¶ 1–2); see also Dkt. 18–1 (Sprung Decl. II); Dkt. 21–1 (Sprung Decl. III), as well as a 57-page Vaughn index describing the withheld records and the reasons that they were withheld, see Dkt. 7–8 (Sprung Decl. I, Ex. G); Vaughn v. Rosen , 484 F.2d 820 (D.C.Cir.1973).

II. LEGAL FRAMEWORK

The Freedom of Information Act is premised on the notion that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act embodies a "general philosophy of full agency disclosure." U.S. Dep't of Defense v. FLRA , 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). It thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. "These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’ " Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ). As explained further below, the present dispute turns on the meaning and application of Exemptions 3 and 5. Exemption 3 protects records that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). And Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id. § 552(b)(5).

It exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

The Privacy Act "safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records ... by allowing an individual to participate in ensuring that his records are accurate and properly used, and by imposing responsibilities on federal agencies to maintain their records accurately." Mobley v. CIA , 806 F.3d 568, 585 (D.C.Cir.2015) (quoting Bartel v. FAA , 725 F.2d 1403, 1407 (D.C.Cir.1984) ). Under the Privacy Act, any agency that maintains a "system of records" must provide information about a person to that person upon request. 5 U.S.C. § 552a(d)(1). But the head of an agency may exempt "systems of records" from this disclosure requirement if the principal function of the "agency or component thereof ... pertain[s] to the enforcement of criminal laws," and the records "consist of ... information compiled for the purpose of a criminal investigation." Id. § 552a(j). This broad exemption authority is premised on the notion that "[t]he Privacy Act—unlike [FOIA]—does not have disclosure as its primary goal." See Henke v. U.S. Dep't of Commerce , 83 F.3d 1453, 1456 (D.C.Cir.1996).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g. , Beltranena v. U.S. Dep't of State , 821 F.Supp.2d 167, 175 (D.D.C.2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA action, the agency may meet its burden by submitting "relatively detailed and non-conclusory" affidavits or declarations, SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C.Cir.1991) (quotation marks and citation omitted), and an index of the information withheld, which is commonly known as a " Vaughn index," see Vaughn , 484 F.2d at 827–28 ; Summers v. Dep't of Justice , 140 F.3d 1077, 1080 (D.C.Cir.1998). An 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. U.S. Dep't of State , 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA , 607 F.2d 339, 352 (D.C.Cir.1978) ). The Court reviews the agency's decision de novo , and the agency bears the burden of...