Schwartz v. U.S. Drug Enforcement Admin.
| Decision Date | 08 January 2016 |
| Docket Number | 13-CV-5004 (CBA) (RML) |
| Parties | MATTATHIAS SCHWARTZ, Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
REDACTED MEMORANDUM & ORDER
Plaintiff Mattathias Schwartz, an investigative journalist freelancing for the New Yorker magazine, brings this action to compel the U,S, Drug Enforcement Administration ("DEA") to disclose certain records related to a Freedom of Information Act ("FOIA") request he filed on August 27, 2012. This Memorandum and Order addresses Schwartz's specific request for production of a portion of a video, taken by a government surveillance plane, depicting a drug interdiction operation near Ahuas, Honduras, in which four civilians were killed (hereafter, the "Ahuas Video" or "Video"). Schwartz originally sought the entire Video, but subsequently narrowed his request to "the portion of the Ahuas Video that takes place after the tracked aircraft touches down at the airstrip." (D.E. # 67 at 1.)1 Based on its claim that production of the Ahuas Video would reveal previously unknown law enforcement techniques and procedures, the DEA withheld the Video under FOIA Exemption 7(E), 5 U.S.C § 552(b)(7)(E), and moved for summary judgment. Schwartz cross-moved seeking disclosure and opposed the DEA's motion by arguing that the DEA has not supported its reliance on Exemption 7(E), had failed to conducta reasonable search for responsive documents and had exhibited bad faith in responding to his FOIA request.
This case proceeds within a FOIA regime that reflects "a general philosophy of full agency disclosure," Dep't of the Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)), requiring "all doubts [to be] resolved in favor of disclosure," Local 3, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). Despite extensive litigation and four relevant declarations—including one filed ex parte and under seal—the DEA has failed to identify previously unknown techniques and procedures that would be exposed by disclosure of the limited portion of the Ahuas Video that Schwartz seeks.
Accordingly, because there are no further disputed issues of fact, the Court grants Schwartz's motion for summary judgment and orders the DEA to produce the requested portion of the Video, as ordered redacted below, see infra at 35-36.
In April 2012, following a request from the Honduran government, the DEA and the Tactical Response Team of the Honduran National Police commenced Operation Anvil, a joint operation designed to disrupt and interdict traffickers in northeastern Honduras. (See D.E. # 38, "First Wedoff Decl.," Ex. J.) The DEA provided both support and training for the Honduran police and personnel in the form of an elite DEA unit known as the Foreign-Deployed Advisory Support Team ("FAST"). (See id. Exs. H-J, Q.)
On the night of May 11, 2012, a small aircraft suspected to be carrying contraband was detected in rural Honduras. (See D.E. # 45, "Second Soiles Decl." ¶ 26.) Agents from FAST, along with Honduran police officers, were dispatched in helicopters to intercept the suspectedtraffickers. (See First Wedoff Decl. Exs, H, L.) Overhead, a surveillance plane operated by U.S. Customs and Border Protection ("CBP") covertly tracked the aircraft and observed it landing in a remote airstrip near the village of Ahuas in the early hours of the morning. (See id. Exs. F, H, L.) Dozens of men met the plane and worked quickly to transfer its cargo—later determined to be cocaine—to waiting trucks. (See id. Exs. H, L.) The trucks then drove the drugs down to the nearby Patico River and re-loaded them onto a motorized canoe. (See id. Exs. H, L, P.) As helicopters carrying the DEA agents and Honduran officers closed in on the riverbank, the drug traffickers fled and abandoned their now-cocaine-laden canoe. (See id.) When law enforcement boarded the canoe, they found more than 400 kilograms of cocaine. (See id.) While officers struggled to start the canoe's motor, a larger riverboat struck the front of the canoe. (See id.) Apparently believing that they had been ambushed, officers both on the canoe and in a circling helicopter opened fire on the larger boat. (See id.) As it later turned out, the four resulting casualties were in fact not traffickers but unarmed villagers. (See id. Exs. H, I, M.)
In January 2013, 58 members of Congress called for further investigation into the DEA's role in the deaths. (See id. Ex. I.) In July 2013, the DEA sent a letter in response, reporting that the DEA's Office of Investigations had conducted an internal review and concluded that no American agents fired their weapons during the Ahuas Incident. (See id. Ex. J.)
The CBP-operated surveillance plane that initially tracked the smugglers also recorded a video of the entire interdiction operation, including the moments when the officers opened fire on the larger boat. (Second Soiles Decl. ¶¶ 3, 26; First Wedoff Decl. Exs. H, P.) In response to the public outcry caused by the civilian deaths, the DEA screened the Ahuas Video for members of Congress and briefed them on the DEA's role in the Ahuas Incident. (First Wedoff Decl. Exs. H, P.)
An undisclosed source permitted Thorn Shanker and Charlie Savage, reporters from the New York Times, to view the Ahuas Video. (Id. Ex, P.) In an article titled "Video Adds to Honduran Drug Raid Mystery," Shanker and Savage provided a play-by-play of the moments leading up to the fatal shooting. (Id.)
On August 27, 2012, Schwartz made a FOIA request for: (1) documents related to "an operation that took place in or around the town of Ahuas, Honduras on May 10 and/or May 11, 2012"; (2) documents related to "any subsequent investigation" of the Ahuas Incident; (3) all "video recording and digital images" of the Ahuas Incident; (4) internal documents from the DEA Office of Investigations, the DEA Review Board, and the DEA Office of Professional Responsibility; and (5) all "Reports of Shooting Incidents" that took place "in Honduras or Honduran territorial waters" from January 1, 2012, to August 27, 2012. Schwartz and the DEA corresponded on the timing of his request for nearly a year, culminating in Schwartz's August 2, 2013, letter to the DEA appealing its constructive denial of his request and requesting a response within 20 days. (First Myrick Decl. Ex. D; Def.'s Rule 56.1 ¶ 4.) After receiving no response, Schwartz filed the instant action on September 6, 2013.
A month after Schwartz initiated this lawsuit, the DEA made an initial production of 12 pages of documents and withheld 148 pages of documents and one CD-ROM. (First Myrick Decl. Ex. G; First Wedoff Decl. Ex. E; Def.'s Rule 56.1 ¶ 7.) That initial release consisted solely of a handful of publicly available news articles regarding the Ahuas Incident. (See First Wedoff Decl. Ex. E.) Nearly eight months later, on June 20, 2014, the DEA released an additional 329 pages of heavily redacted documents and withheld entirely 135 additional pages and the Ahuas Video. (See First Myrick Decl. Ex. H; First Wedoff Decl. Ex. G; Def.'s Rule 56.1 ¶ 9.) Tojustify its withholdings, the DEA invoked five provisions of the so-called "law enforcement" exemption—Exemption 7.2 (First Myrick Decl. Exs. G, H.) It later clarified, however, that it withheld the Ahuas Video based solely on Exemption 7(E). (See D.E. # 46, "Nov. 13, 2014, Hr'g Tr.," at 3:2-22.)
The FOIA request here has been the subject of lengthy motion practice, numerous rounds of supplemental filings including an ex parte submission by the DEA, and in camera review by the Court of the disputed video. Following this motion practice, Schwartz narrowed his request with respect to the Ahuas Video to only the portion "that takes place after the tracked aircraft touches down at the airstrip." (D.E. # 67 at 1.) In doing so, Schwartz mooted the DEA's arguments for withholding the portion of the Ahuas Video dealing with the identification and tracking of the smuggling plane. The Court therefore does not address those arguments. The remaining arguments raised by the parties in their various motion papers are summarized below.
In its summary judgment motion, the DEA argued that each of the records withheld, in whole or in part, was exempt from FOIA disclosure under the law enforcement exemption. (D.E. # 28.) In support of that motion, it submitted two declarations: one from Katherine Myrick, Chief of the FOIA and Privacy Act Unit (First Myrick Decl.), and another from Special Agent James Soiles, Deputy Chief of Operations for the Office of Global Enforcement (D.E. # 31, "First Soiles Decl."). The First Myrick Declaration provided an overview of Myrick's qualifications, (First Myrick Decl. ¶¶ 1-2); the DEA's law enforcement mission, (id. ¶¶ 5-7); theprocedural history of and correspondence related to Schwartz's FOIA request, (id. ¶¶ 8-19); the search performed for responsive records, (id. ¶¶ 20-28); and described, in exceedingly general terms, the exemptions underlying each of the DEA's withholdings, (id. ¶¶ 32-33 (Exemption 7), ¶¶ 34-45 (Exemption 7(A)), ¶¶ 46-48 (Exemption 7(C)), ¶¶ 49-50 (Exemption 7(D)), ¶¶ 51-54 (Exemption 7(E)), ¶¶ 55-56 (Exemption 7(F)). For example, the justification for withholding the Ahuas Video read in its entirety:
Release of that record would easily identify techniques and procedures involved in operations, including tracking and observation methodologies and coordination and tactical procedures. The disclosure of these techniques and procedures would enable criminal investigative subjects to identify law enforcement capabilities and limitations, thereby enabling them to improve evasive...
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