Lewis v. U.S. Dept. of Justice
| Decision Date | 19 August 2010 |
| Docket Number | Civil Action No. 09-0746 (RBW) |
| Citation | 733 F.Supp.2d 97 |
| Parties | Anthony LEWIS, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Anthony Lewis, Coleman, FL, pro se.
Robert D. Trunkey, U.S. Attorney's Office, Washington, DC, for Defendant.
The plaintiff brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2010), and the Privacy Act, 5 U.S.C. § 552a (2010), demanding the release of certain records maintained by four components of the United States Department of Justice ("DOJ").1 This matter is currently before the Court on the defendant's motion for summary judgment. 2 For the reasons that follow, the Court will grant the motion in part and deny it in part.
The plaintiff submitted a FOIA request to the United States Attorney's Office for the Middle District of Florida, which referred the request to the EOUSA for processing. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss in Part, and Alternatively, for Summary Judgment ("Def.'s Mem."), Declaration of David Luczynski ("Luczynski Decl.") ¶ 4. He sought the following information:
[A]n expedicted [sic] copy of "all" compliants [sic], affidavits, and other documents filed with the United States Attorney General Janet Reno in 1993-1994 and the Office of Enforcement Operations,seeking authorization to intercept telephone communications of Anthony Lewis ... which were filed by the Prosecuting Assistant U.S. Attorney ... [and] a copy of the authorization from Janet Reno, giv[ing] the prosecuting attorney authority to obtain [a] Judicial order to intercept telephone communications ... and the judicial orders from the judge issued to the prosecuting attorney.
Id., Luczynski Decl., Exhibit ("Ex.") A (September 21, 2008 Privacy Act Identification and Request Form) at 2. The EOUSA responded to the request, which had been assigned Request No. 08-3328, by releasing 35 pages of records in full and 6 pages in part after having redacted certain information under FOIA Exemption 7(C). Id., Luczynski Decl. ¶¶ 5-6; see id., Ex. C (December 10, 2008 letter from W.G. Stewart II, Assistant Director, Freedom of Information/Privacy Act Staff, EOUSA, DOJ) at 1. In addition, the EOUSA referred 59 pages of records to the Drug Enforcement Administration, the DOJ entity from which these records originated. Id., Ex. C at 2.3
In his FOIA request to the OPR, the plaintiff sought:
Def.'s Mem., Vaughn Declaration of Patricia Reiersen ("Reiersen Decl."), Ex. A (June 17, 2004 FOIA Request). The OPR's search yielded three files containing 54 documents responsive to the request. Id., Reiersen Decl. ¶ 6. Of these 54 documents, five were deemed duplicates, and four originated at the EOUSA. Id. The OPR referred the four EOUSA documents to the EOUSA for its direct response to the plaintiff. Id. The OPR released to the plaintiff 18 documents in full and 27 documents in part, after having redacted certain information under FOIA Exemptions 2, 6 and 7(C). See id. ¶ ¶ 12-19.
The DEA's records include "several direct requests and referrals that relate to the plaintiff." Def.'s Mem., Decl. of William C. Little, Jr. ("Little Decl.") ¶ 16. The declarant explains that the DEA's FOIA request files are destroyed after six years, and information regarding the plaintiff's first three requests "was extrapolated from the E-FOIA case management system," id. ¶ 17 n. 1, a internal computer-based system used to identify, track and locate FOIA requests, id. ¶ 15.
The plaintiff "requested information related to third-parties," and the DEA closed the case related to this request administratively because "the plaintiff failed to provide release authorizations, as requested, from any third-party." Id. ¶ 17. The plaintiff did not appeal this determination administratively to the Office of Information and Privacy ("OIP"), id. ¶ 18, the office responsible for handling appeals of adverse FOIA determinations made by DOJ components. See 28 C.F.R. § 16.9.
In this second request, the plaintiff requested information about himself. Id. ¶ 19. The DEA closed the case concerning this request on April 30, 1996, after it had released 299 pages of records and withheld 77 pages of records in their entirety relying on FOIA Exemptions 2, 7(C), 7(D), and 7(F). Id. The plaintiff also failed to appeal this determination administratively to the OIP. Id. ¶ 20.
The plaintiff's third request was for records pertaining to the seizure of property. Id. ¶ 21. The DEA released 288 pages of records in response to this request, but withheld certain information under FOIA Exemptions 2, 7(C), and 7(F). Id. Again, the plaintiff did not appeal this determination administratively to the OIP. Id. ¶ 22.
In correspondence addressed to the DEA's Internal Affairs Office, the plaintiff requested the following information:
Def.'s Mem., Little Decl., Ex. A (January 15, 2004 FOIA request) at 2. The DEA notified the plaintiff that, before processing the request, he must "submit a statement expressing his intent to pay all fees incurred while processing his request." Id. ¶ 24. Absent the plaintiff's commitment to pay these fees, the DEA advised the plaintiff that he would "be afforded two (2) hours of search [time] and 100 pages of duplication at no charge." Id., Ex. B (February 24, 2004 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA). There is no record that the plaintiff appealed this decision to the OIP. Id., Little Decl. ¶ 26.
On September 11, 2009, after this civil action had been filed, the DEA released 49 pages of records in their entirety and one page in part. Id. ¶ 27. The DEA neither confirmed nor denied that information pertaining to Feeney and VanDorple existed. Id. ¶ 28.
The plaintiff requested information about himself, Def.'s Mem., Little Decl. ¶ 29, and in later correspondence clarified his request as one seeking:
Id., Little Decl., Ex E (October 29, 2008 FOIA request) at 2. The DEA responded to this request by refusing to confirm or deny the existence of responsive records regarding Feeney and VanDorple. Id., Little Decl. ¶ 32. With respect to the remaining portions of the request, the DEA "forwarded tasking memoranda to program[ ] areas within DEA that would be best suited, or would likely have records that would be responsive." Id. The plaintiff did not appeal these actions to the OIP. Id. ¶ 33.
The EOUSA referred 59 pages of records to the DEA for its direct response to the plaintiff's FOIA request, id. ¶ 34, and these pages "consisted of an unsigned document ... prepared by a DEA special agent," id., which apparently was a draft affidavit in support of an application for a court order authorizing interception of the plaintiff's wire communications, id. n. 6. On April 7, 2009, the DEA notified the plaintiff of its decision to withhold these 59 pages in their entirety under FOIA Exemptions 3, 7(C), 7(D), and 7(F). Id. ¶ 36. The plaintiff also failed to appeal this determination administratively to the OIP. Id. ¶ 37.
In total, the DEA processed 109 pages of records (59 pages referred by the EOUSA and 50 pages located in OPR files) in response to DEA FOIA Request Nos. 04-0699-F and 09-0285-P. Id. ¶ 58. Of the OPR records, the DEA released 49 pages in their entirety and released one redacted page. Id. Of the records referred by the EOUSA, the DEA withheld all 59 pages in their entirety. Id.
The plaintiff filed an administrative claim with the DOJ under the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. §§ 1346, 2671-80 (2...
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