Skinner v. United States Dep't of Justice

• Citation: 744 F.Supp.2d 185
• Decision Date: 30 September 2010
• Docket Number: Civil Action No. 09–0725 (PLF).
• Parties: Jesse SKINNER, Plaintiff,v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

744 F.Supp.2d 185

Jesse SKINNER, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 09–0725 (PLF).

United States District Court, District of Columbia.

Sept. 30, 2010.

Jesse Skinner, Jonesville, VA, pro se.Robert D. Trunkey, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

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”) and four of its components. The DOJ moves to dismiss in part on the ground that plaintiff's complaint fails to state claims upon which relief can be granted with respect to FOIA requests submitted to the Executive Office for United States Attorneys (“EOUSA”) and the Drug Enforcement Administration (“DEA”). In addition, the DOJ moves for summary judgment with respect to FOIA requests submitted to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”), and the Federal Bureau of Investigation (“FBI”). Plaintiff moves for summary judgment and demands the release of all information he has requested.

For the reasons discussed below, the DOJ's motion to dismiss will be denied, its motion for summary judgment will be granted in part and denied in part without prejudice, and plaintiff's motion for summary judgment will be denied without prejudice.¹

I. BACKGROUND

A. FOIA Request to the BATFE

On July 3, 2007, plaintiff submitted a FOIA request to the BATFE's Biloxi, Mississippi Field Office. Compl. ¶ 4; Defs.' Mem. of P. & A. in Supp. of their Mot. to Dismiss In Part, and Alternatively, Mot. for Summ. J. (“Defs.' Mem.”), Decl. of Averill P. Graham (“Graham Decl.”) ¶ 19.² In relevant part, the request read:

This letter serves as a FOIA request ... for copies of any and all records created and received by the Biloxi, Mississippi Field Office for the [BATFE] in regards to myself—JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the [BATFE] in reference to me.

EXAMPLES OF REQUEST:

Any and all written, recorded or graphic matter, however produced or reproduced, including but not limited to, photographs, logs, minutes of meetings, memoranda, inter-office communications, computer applications, electronic mail (including old or “deleted” electronic mail on back-up tapes, back-up files etc.), notes, studies, analyses, and reports created and received by [BATFE] in regards to me.

Graham Decl., Ex. Q (FOIA request) at 1. The BATFE assigned the matter a tracking number, No. 07–1248. See id., Ex. R (Letter from A. Sands, Disclosure Assistant, BATFE, to plaintiff dated July 18, 2007).

On August 6, 2007, the BATFE denied plaintiff's request pursuant to Exemption 7(A), Compl. ¶ 6, on the mistaken belief that release of the requested records “could reasonably be expected to interfere with enforcement proceedings.” Graham Decl., Ex. S (Letter from S. Placanica, Disclosure Specialist, BATFE, dated August 6, 2007). Plaintiff filed an administrative appeal to the DOJ's Office of Information and Privacy (“OIP”) challenging the BATFE's response. Graham Decl. ¶ 22.³ The OIP remanded the matter, which it had assigned Appeal No. 07–2300, because it determined that Exemption 7(A) no longer applied. Id. ¶ 24; see id., Ex. V (Letter from J.G. McLeod, Associate Director, OIP, DOJ, to plaintiff dated October 25, 2007).

Apparently the BATFE assigned plaintiff's request a new tracking number, No. 08–171, on remand. On November 21, 2007, the BATFE granted plaintiff's FOIA request in part and denied it in part, releasing the first 100 pages of responsive records, or segregable portions thereof, pending receipt of fees arising from the search for and copy of the records. Graham Decl. ¶ 25. Upon receipt of plaintiff's money order, id. ¶ 25, on December 13, 2007, the BATFE released additional records, id. ¶ 32, after having withheld certain information under FOIA Exemptions 2, 3, 6, and 7(C). Id.; see id., Ex. DD (Letter from S. Placanica to plaintiff dated December 13, 2007) at 1; Pl.'s Opp'n, Ex. JJ (Document Cover Sheet: Exemptions List and Appeal Rights regarding File No. 08–171).⁴ It withheld in full recordings of phone calls under Exemption 7(C). Graham Decl. ¶ 32. On “review of all the documents for litigation,” the BATFE concluded that “further segregable information” could be released, and on October 26, 2009, it released 34 more pages of records. Id. ¶ 34.

1. Administrative Appeal to the OIP

On December 26, 2007, plaintiff filed an administrative appeal to OIP challenging the adequacy of the BATFE's search for responsive records, Compl. ¶ 11, and its reliance on Exemptions 3, 6 and 7(C) to withhold certain information. Graham Decl. ¶ 34; see id., Ex. FF (Letter from plaintiff to the OIP dated December 26, 2007). The OIP assigned the matter Appeal No. 08–0820, id. ¶ 35, and it affirmed the BATFE's response to plaintiff's FOIA request “on partly modified grounds,” Graham Decl. ¶ 37, concluding that the BATFE's decisions to withhold information under Exemptions 2, 3, 5, 7(C) and 7(E) was appropriate and that its search for responsive records was adequate. Id., Ex. II (Letter from J.G. McLeod to plaintiff dated March 8, 2008) at 1–2.

2. Referrals

In addition to the November 21, 2007 and December 13, 2007 releases of records to plaintiff, the BATFE referred records to the agencies where they originated. See Graham Decl. ¶¶ 26–27, 29–31.

a. Referral to the Department of the Army

On November 21, 2007, the BATFE referred 12 pages of records to the Department of the Army (“Army”). Graham Decl. ¶ 26; see id., Ex. X (Letter from S. Placanica to R. Dickerson, Freedom of Information and Privacy Acts Division, Department of the Army, dated November 21, 2007). The result of this referral has not been explained.

b. Referrals to the DEA (Nos. 08–0407–P and 08–0450–P)

On November 21, 2007, the BATFE referred six pages of records to the DEA. Graham Decl. ¶ 27; see id., Ex. Y (Letter from S. Placanica to K.L. Myrick, Chief, Freedom of Information Operations Unit, FOI/Records Management Section, DEA, dated November 21, 2007). The DEA assigned the matter DEA FOIA No. 08–0407–P, and notified plaintiff of its decision to withhold these records in full pursuant to FOIA Exemptions 7(C), 7(D), and 7(F). Defs.' Mem., Decl. of Katherine L. Myrick (“Myrick Decl.”) ¶ 15; see id., Ex. M (Letter from K.L. Myrick to plaintiff dated March 17, 2008). Plaintiff appealed the DEA's decision to the OIP. Graham Decl. ¶ 38; see id., Ex. JJ (Letter from plaintiff to the OIP dated April 13, 2008). The OIP acknowledged receipt of the appeal in writing, and assigned the matter Appeal No. 08–1591. Id., Ex. KK (Letter from P. Jones, Supervisory Administrative Specialist, OIP, to plaintiff dated April 24, 2008). The OIP deemed the appeal a duplicate of that pursued with respect to plaintiff's previous appeal of the BATFE's response to the underlying FOIA request, Appeal No. 08–0820, Graham Decl. ¶ 40, and administratively closed the appeal. See id., Ex. LL (Letter from J.G. McLeod to plaintiff dated June 5, 2008).

The BATFE referred 22 additional pages to the DEA on December 13, 2007. Graham Decl. ¶ 30; see id., Ex. BB (Letter from S. Placanica to K.L. Myrick dated December 13, 2007). The BATFE noted that the records contained “BATFE information ... which have been marked with deletions under [Exemptions 6 and 7(C) ] because release of these records could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id., Ex. BB. The DEA denied plaintiff's request, which was assigned DEA FOIA Request No. 08–0450–P, and withheld all 22 pages in full pursuant to Exemptions 7(C), 7(D), and 7(F). Myrick Decl. ¶ 20; see id. Ex. R (Letter from K.L. Myrick to plaintiff dated March 17, 2008). Plaintiff appealed this decision to the OIP, Myrick Decl. ¶ 21; see id., Ex. S (Letter from plaintiff to the OIP dated April 13, 2008), and the OIP, which assigned the matter Appeal No. 08–1594, id., Ex. T (Letter from P. Jones to plaintiff dated April 24, 2008), affirmed the decision but remanded the matter for the sole purpose of determining whether one of the 22 pages was properly withheld in full. Id., Ex. U (Letter from J.G. McLeod to plaintiff dated June 20, 2008) at 1.

In conducting a review of the records for this litigation, the DEA determined that only 16 pages of records could be withheld in full; it released six redacted pages of records because Exemption 7(A) no longer applied. Myrick Decl. ¶ 24; see id., Ex. V (Letter from K.L. Myrick to plaintiff dated June 10, 2009) at 1. One of these redacted pages was the single page remanded by OIP on June 20, 2008. Myrick Decl. ¶ 24.

c. Referral to the U.S. Citizenship and Immigration Services

On December 13, 2007, the BATFE referred one page to the U.S. Citizenship and Immigration Service (“USCIS”). Graham Decl. ¶ 29; see id., Ex. AA (Letter from S. Placanica to B.J. Welsh, FOIA Officer, USCIS, dated December 13, 2007). The result of this referral has not been explained.

d. Referral to the EOUSA (No. 07–4371–R)

On December 13, 2007, the BATFE referred two pages of records to the EOUSA. Graham Decl. ¶ 31; see id., Ex. CC (Letter from S. Placanica to W.G. Stewart, II, Assistant Director, FOIA/Privacy Unit, EOUSA, dated December 13, 2007). The BATFE noted that the records contained “BATFE information ... which [has] been marked with deletions under [Exemptions 6 and 7(C) ] because release of these records could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id., Ex. CC. From these two pages of records, the EOUSA withheld information under Exemption 7(C). Id., Ex. HH (Letter to plaintiff from W.G. Stewart II) at 2.

B. FOIA Requests to the FBI

On July 3, 2007, plaintiff submitted nearly identical FOIA requests to the FBI's Washington, D.C. headquarters (“FBIHQ”) and to its Jackson, Mississippi Field Office (“JNFO”). See Defs.' Mem., Decl....