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

• Decision Date: 25 September 2015
• Docket Number: Civil Action No. 13–1097 (EGS)
• Parties: Dracy McKneely, Plaintiff, v. United States Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

132 F.Supp.3d 44

Dracy McKneely, Plaintiff,

v.United States Department of Justice, Defendant.

Civil Action No. 13–1097 (EGS)

United States District Court, District of Columbia.

Signed September 25, 2015

Dracy McKneely, Lompoc, CA, pro se.

Jodi George, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN

, UNITED STATES DISTRICT JUDGE

Plaintiff challenges the response of the Drug Enforcement Administration ("DEA") to his Freedom of Information Act ("FOIA") request. As DEA's parent agency, the Department of Justice ("DOJ") claims that DEA has fully complied with FOIA and moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure

, ECF No. 28. Upon consideration of the parties' submissions, including plaintiff's cross motion for summary judgment, ECF No. 32, DOJ's reply, ECF No. 34, and plaintiff's reply, ECF No. 36, the Court will grant defendant's motion, deny plaintiff's motion, and enter judgment accordingly.

I. BACKGROUND

Plaintiff, a federal prisoner, was convicted by a District of Colorado jury of possession with intent to distribute fifty grams or more of cocaine base and was sentenced to life imprisonment. United States v. McKneely, 69 F.3d 1067, 1070 (10th Cir.1995)

. On November 14, 2010, plaintiff requested from DEA all records about him pertaining to the criminal investigation and his arrest. Decl. of Katherine Myrick ("Myrick Decl."), Ex. A (FOIA Req.), ECF No. 28–4. Plaintiff specifically requested (1) telephone records "from Concord Hotel room 666 regarding criminal offense dated 2/13/1992 in case 93–cr–308," which, according to plaintiff, were in the possession of "the lead agent at that time," and (2) "copies of transcripts of all tape recordings, and audio recordings regarding case 93–cr–308 dated 2/13/1992." FOIA Req. at 4.

On September 26, 2011, DEA released to plaintiff two redacted pages of information and withheld fourteen pages completely. DEA withheld information under FOIA exemptions 3, 7(C), 7(E), and 7(F), codified in 5 U.S.C. § 552(b)

, and Privacy Act exemption (j)(2), codified in 5 U.S.C. § 552a. Id. Ex. E. Plaintiff appealed DEA's decision to the Office of Information Policy ("OIP"), which affirmed the decision by letter dated June 18, 2012. Id . Ex. H.

Dissatisfied with the agency's action, plaintiff filed this civil action in July 2013. On February 12, 2014, DEA released 128 responsive pages to plaintiff, withheld 38 pages and two cassette tapes, and referred 48 pages as follows: 19 pages to the Bureau of Prisons ("BOP"); 11 pages to the Executive Office for United States Attorneys ("EOUSA"); 16 pages to the Federal Bureau of Investigation ("FBI"); 2 pages to the U.S. Marshals Service. Each of those DOJ components were directed to process the referred records and respond directly to plaintiff. Id. , Exs. I, J, K, L, M. DEA withheld information under FOIA exemptions 7(C), 7(D), 7(E), and 7(F), and Privacy Act exemption (j)(2). Id. , Ex. I.

On February 20, 2014, the Marshals Service released the two referred pages with the names of government employees redacted pursuant to FOIA exemptions 7(C) and 7(F). Id. Ex. N. On March 19, 2014, BOP released 20 referred pages, 14 containing redactions, and withheld one referred page completely. BOP invoked FOIA exemptions 5, 6, 7(C) and 7(E). Id. Ex. O. On April 4, 2014, the FBI released the 16 referred pages completely. Id. Ex. P. On August 26, 2014, EOUSA released 10 referred pages, 2 containing redactions, and withheld one referred page completely. Id. Ex. Q. EOUSA invoked FOIA exemptions 5, 7(C) and 7(F).

II. LEGAL FRAMEWORK

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56

, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party 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) ; Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. FOIA

The FOIA requires agencies to disclose all requested agency records, 5 U.S.C. § 552(a)

, unless one of nine specific statutory exemptions applies, id. § 552(b). "It is designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Consumers' Checkbook, Ctr. for the Study of Servs. v. United States HHS, 554 F.3d 1046, 1057 (D.C.Cir.2009) (internal quotation marks omitted). "Consistent with ‘the basic policy that disclosure, not secrecy, is the dominant objective of the Act,’ the statutory exemptions are ‘narrowly construed.’ " Id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ); see alsoWolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007)

("Given the FOIA's broad disclosure policy, the United States Supreme Court has ‘consistently stated that FOIA exemptions are to be narrowly construed.’ " (quoting Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) )).

"FOIA's ‘strong presumption in favor of disclosure places the burden on the agency’ to justify nondisclosure." Consumers' Checkbook, 554 F.3d at 1057

(quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ). The government may satisfy its burden by submitting appropriate declarations and, where necessary, an index of the information withheld. SeeVaughn v. Rosen, 484 F.2d 820, 827–28 (D.C.Cir.1973). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU v. Dep't of Defense, 628 F.3d 612, 619 (D.C.Cir.2011). Moreover, " ‘an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ' " Id. at 619 (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) ).

III. DISCUSSION

Plaintiff challenges the adequacy of DEA's search and the propriety of DEA's claimed exemptions. See Pl.'s Statement of Disputed Material Facts, ECF No. 32.¹

1. The Search for Records

When a requester questions the search for responsive records, an agency is entitled to summary judgment if it demonstrates that no material facts are in dispute and that it conducted a search for records in its custody or control, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150–51, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)

, that was reasonably calculated to uncover all relevant information, Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The agency may rely on a reasonably detailed affidavit or declaration that explains the scope and method of the search. Moore v. Nat'l DNA Index Sys ., 662 F.Supp.2d 136, 139 (D.D.C.2009). The adequacy of the search is determined by the methods, not the results. Thus, an agency's failure to find a particular document does not alone indicate an inadequate search. Id. (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir.2004) ; Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.Cir.1995) ).

Defendant's declarant is the Chief of the Records Management Section of DEA's FOIA/Privacy Act Unit. Myrick Decl. ¶ 1. She states that in June 2011, a FOIA Specialist conducted a search of the DEA Narcotics and Dangerous Drugs Information System (NADDIS), which "is the index to and the practical means by which DEA retrieves investigative reports and information from IFRS." Id . ¶¶ 33, 36. The latter, short for Investigative Reporting and Filing System, is DEA's Privacy Act system of records that contains all administrative, general, and criminal investigative files compiled for law enforcement purposes. Id. ¶ 33. Myrick avers that any records responsive to plaintiff's request would have been maintained in IFRS. Id. ¶¶ 25–26.

NADDIS is indexed by investigative file numbers, dates of investigative reports, forms and other such documents, and by individuals' names, social security numbers and/or dates of birth. Id . ¶ 34. A NADDIS query by plaintiff's name, social security number, and date of birth located two criminal investigative files containing the 214 pages of responsive material and two cassette tapes that are the subject of this action. Id. ¶¶ 36–37.

Plaintiff challenges the search because the agency's description of responsive records "does not list any phone records to Concord Hotel, Room 666." Pl.'s Opp'g Facts ¶ 1. Even if true, that omission alone is of no material consequence. Myrick describes the two cassette tapes that were withheld as "contain[ing] recordings of telephone conversations," and one is a "cassette tape of calls at Hotel on 2/13/92," which "is transcribed in the DEA 6 [and] documented in the Vaughn

[index] as pages 133–37." Myrick Decl. ¶ 56 & n.4. Therefore, the Court grants summary judgment to defendant on the search question.

2. Claimed Exemptions

Defendant invokes four subsections of FOIA exemption 7 as the bases of its withholdings. Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that disclosure of such records would cause one or more of the enumerated harms set out at § 552(b)(7)

; seeFed. Bureau of Investigation v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). "To show that the disputed documents were compiled for law enforcement purposes, the [agency] need only establish a rational nexus between the investigation and one of the agency's law...