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

• Decision Date: 09 September 2014
• Docket Number: Civil Action No. 12–1674TFH
• Citation: 67 F.Supp.3d 109
• Parties: Herardo Ortiz, Plaintiff, v. United States Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

67 F.Supp.3d 109

Herardo Ortiz, Plaintiff

v.United States Department of Justice, Defendant.

Civil Action No. 12–1674TFH

United States District Court, District of Columbia.

Signed September 9, 2014

Herardo Ortiz, Bastrop, TX, pro se.

Peter Rolf Maier, Hubert T. Lee, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN Senior United States District Judge

This matter is before the Court on defendant's Motion for Summary Judgment [ECF No. 22].¹ For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, against the United States Department of Justice (“DOJ”) for the purpose of obtaining information about his criminal case that purportedly is maintained by the Drug Enforcement Administration (“DEA”). See Complaint for Declaratory and Injunctive Relief [ECF No. 1] (“Compl.”) ¶¶ 1–2, 4; Motion for Summary Judgment Upon Defendant's Failure to Comply with This Court's Order and Due Date to File an Answer to Plaintiff's Complaint [ECF No. 26] at 1.

A. DEA FOIA Request No. 12–00038–P

In relevant part, plaintiff's request to the DEA read:

This is a non-commercial request for information pursuant to [the FOIA] for a copy of all records in the possession of [the DEA] concerning specifically:

Mag. No. L–04–228TM–01

DEA FILE NO.: M6–04–0273

DEA S/A RHUE DEA FORM 6

DATED: 03/12/2004

any other investigative reports filed by any other federal agent in regards to United States v. Herardo Ortiz, Southern District of Texas (Laredo Division), criminal case number: 5:08–0031–1[.]

Memorandum in Support of Defendant's Motion for Summary Judgment [ECF No. 22–1] (“Def.'s Mem.”), Declaration of Katherine L. Myrick (“Myrick Decl.”), Ex. A (Freedom of Information Act/Privacy Act Request dated October 14, 2011) at 1. The DEA's initial response to the request was the release of 48 pages of records in part and the withholding of two pages in full. Id. ¶ 7; see id., Ex. C (Letter to plaintiff from Katherine L. Myrick, Chief, Freedom of Information/Privacy Act Unit, FOI/Records Management Section, DEA, dated June 21, 2012) at 2. The DEA also referred two pages of records to U.S. Immigration and Customs Enforcement (“ICE”), id. ¶ 9, and three pages to the Executive Office for United States Attorneys (“EOUSA”), id. ¶ 10, for direct responses to plaintiff.

In addition, the DEA forwarded 12 pages of records to the Bureau of Customs and Border Protection (“CBP”) “as a consultation, for review and return” to the DEA, and referred six additional pages of records to the CBP for its review and direct response to plaintiff. Id. ¶ 8; see id., Ex. D (Letter to Mark Hanson, Director, FOIA Division, CBP from Katherine L. Myrick dated June 21, 2012). The DEA informed plaintiff that he would be “notified if more material [became] available for release pending results from the consultation.” Id., Ex. C at 1.

The CBP returned to the DEA the twelve pages of records referred on June 21, 2012, along with “[a]n additional four pages belonging to the Office of Border Patrol.” Id., Ex. G (Memorandum to Katherine L. Myrick from Dale G. Martin, Acting Director, FOIA Division, Office of International Trade, CBP, dated July 13, 2012). The DEA, in turn, released to plaintiff these 12 pages of records in redacted form, relying on FOIA Exemptions 6, 7(C), 7(E) and 7(F). Id. ¶ 12; see generally id., Ex. H (Letter to plaintiff from Katherine L. Myrick dated August 1, 2012). With respect to the remaining six pages of records, the CBP returned them to the DEA rather than responding directly to plaintiff. See Def.'s Mem. at 2 n.3; Myrick Decl. ¶¶ 12–13; see id., Ex. H. These pages were included in the DEA's June 14, 2013 response to plaintiff. See Def.'s Mem. at 2 n.3; Myrick Decl. ¶ 13.

DEA staff determined that plaintiff's request “could be interpreted in several ways,” for example, as one for “a particular DEA Form 6 created on March 12, 2004, by DEA Special Agent Rhue, under DEA file number M6–04–0273 that was utilized in a court proceeding assigned docket number Mag. No. L–04–2287M–01.”² Myrick Decl., Ex. I (Letter to plaintiff from William C. Little, Senior Attorney, Administrative Law Section, Office of Chief Counsel, DEA, dated June 13, 2013) at 1. However, “[s]ince DEA does not index records based upon a criminal case name or docket number, Mag. No. L–04–2287M–01 [and] CR 5:08–0031–1 [were] of no use in identifying investigative records [ ] or case file(s) that would contain investigative reports and documents that reference plaintiff.” Id. ¶ 15. DEA staff initially treated plaintiff's request as one for records within DEA Investigative Case File No. M6–04–0273 referencing plaintiff by name. Id., Ex. I at 2. In light of plaintiff s request for “any other investigative reports filed by any other federal agent,” DEA staff expanded the search to include “all investigative reports maintained by DEA that referenced [plaintiff] by name.” Id., Ex. I at 2.

On June 14, 2013, relying on FOIA Exemptions 3, 7(C), 7(D), 7(E), and 7(F), the DEA released three pages in full, released 285 pages in part, and withheld 201 pages in full. Id. ¶ 13; see generally id., Ex. I. A third release by the DEA resulted in disclosure of “portions of materials numbered Page 34, Page 35, Page 53 and Page 57 ... in further response to [his FOIA] request dated October 14, 2011.” Id., Ex. J (Letter to plaintiff from William C. Little dated February 5, 2014) at 1. Certain information had been redacted under FOIA Exemptions 7(E) and 7(F). Id., Ex. J at 1.

B. Referral to the EOUSA (Request No. 12–2733–R)

The EOUSA received the referral of three pages of records from the DEA on June 25, 2012, and on July 31, 2012, it released these pages in full. Def.'s Mem., Declaration of John W. Kornmeier ¶¶ 4–5.

C. Referral to ICE (Case No. 2012FOIA15550)

Of the two pages of records referred by the DEA, ICE released both pages in part, relying on FOIA Exemptions 6, 7(C), and 7(E). Id., Declaration of Catrina Pavlik–Keenan (“Pavlik–Keenan Decl.”) ¶¶ 6–7.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

FOIA cases typically are resolved on a motion for summary judgment. See, e.g., Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice, 48 F.Supp.3d 40, 46–47, 2014 WL 2604640, at *2 (D.D.C.2014) (citations omitted). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA case to compel production of 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 as long as they are relatively detailed and 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).

B. The DEA's Search for Responsive Records

“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 must “demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990) ). The agency may submit affidavits or declarations that explain in reasonable detail the scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). “The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.” Id. at 128.

The DEA's declarant explains that the “[c]riminal investigative files maintained by DEA about individuals ... of investigative interest are reasonably likely to be found in the DEA Investigative Reporting and Filing System (‘IRFS').” Myrick Decl. ¶ 20. IRFS “contains all administrative, general and investigative files compiled by DEA for law enforcement purposes.” Id. ¶ 21. Investigative case files maintained therein include “[a]ll information compiled during the course of a DEA investigation” relating to either the case subject or to “other individuals ... suspected of engaging in criminal activity in association with the subject of the file.” Id. The DEA office commencing an investigation establishes the investigative case file, and its title is “the name of the principal suspect violator or entity known to DEA at the time the file is opened.” Id. ¶ 22.

“NADDIS is the index to and practical means by which DEA retrieves investigative reports and information from IRFS.” Id. ¶ 24. An individual is “indexed and identified in NADDIS by [his] name, social security number and/or date of birth.” Id. ¶ 25. A NADDIS query generates “a list of investigative file number(s) and particular DEA Report[s] of Investigation ... or other documents by date regarding a particular individual or entity.” Id. ¶ 24.

The DEA initially construed plaintiff's FOIA request as one “not seeking a single report,' but instead “seeking all criminal investigative records that referenced plaintiff's name contained in DEA Investigative Case File No. M6–04–0273.” Myri...