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March 29, 2000


The opinion of the court was delivered by: Kessler, District Judge.


I. Background

On August 8, 1995, Willie Jefferson sent a letter to the United States Attorney General requesting the complete file pertaining to an indictment brought against him and twelve others for various criminal violations. At the time of his request, Mr. Jefferson had been convicted of drug offenses in the United States District Court for the Middle District of Florida and had appealed his conviction along with three co-defendants. The Executive Office for United States Attorneys ("EOUSA"), which handles FOIA requests made to the Attorney General's office, forwarded his FOIA request to the United States Attorney's Office for the Middle District of Florida Mr. Jefferson's FOIA request was denied in its entirety, citing FOIA exemption (7)(A), because the requested criminal matter was then on direct appeal. The agency's complete denial of Mr. Jefferson's FOIA request was affirmed on administrative appeal. On June 10, 1996, Mr. Jefferson filed this action pro se against the Attorney General, Bonnie L. Gay, the Attorney-in-Charge of the FOIA/Privacy Act Unit of the Executive Office for United States Attorneys, and Richard L. Huff, the Co-Director of the Office of Information and Privacy of the Department of Justice. Ms. Gay signed the form notifying Mr. Jefferson that his request was denied and Mr. Huff signed the letter notifying him that the decision was affirmed on appeal.

Defendant's initial motion for summary judgment was denied because it had "failed to show how their categorical withholding was limited `to the extent that' production could reasonably be expected to interfere with [a pending enforcement] proceeding." Memorandum and Order of March 17, 1997 (quoting Campbell v. Department of Health and Human Servs., 682 F.2d 256, 265 (D.C.Cir. 1982)). Defendant's first renewed motion for summary judgment was denied, because the declaration of Assistant United States Attorney Jeffrey Downing, dated April 23, 1997, was too conclusory to support EOUSA's justification for withholding records under FOIA Exemption 7(A). See Memorandum and Order of August 12, 1997, at 7-8. On October 1, 1997, Defendant filed its second renewed motion for summary judgment in which it notified the Court that the criminal case file requested by Plaintiff had been "purged" in late June 1997 at the completion of the criminal appeals by the prosecutor in Mr. Jefferson's criminal trial — Assistant United States Attorney Downing.

The Court appointed counsel for Plaintiff "for the purpose of assisting plaintiff in this Freedom of Information Act claim and, in particular, in investigating and proposing what sanctions should be imposed, if any, on individuals responsible for the destruction of documents responsive to plaintiff's FOIA request" See Order filed December 18, 1997. Appointed counsel began working with Defendant to recreate the file of destroyed records. The case was stayed for a brief time and status reports were submitted by the parties. After a status conference with the Court, the Parties agreed to a schedule for the reconstruction of files and production of records, discovery on the circumstances surrounding the destruction of records, further status reports and the withdrawal of the pending motions for summary judgment See Order of February 12, 1999.

The parties completed discovery and filed and briefed the motions that are currently at issue before the Court: Plaintiff's motion for sanctions, Defendants' unopposed motion to dismiss the individual Defendants, and Defendant's motion for reconsideration of the Court's Order of October 15, 1999. Although the pending cross-motions for summary judgment were withdrawn "without prejudice, and may be renewed after completion of discovery", see Order of February 12, 1999, the parties have not renewed their cross-motions for summary judgment. Because summary judgment briefing is necessary for final resolution of this action, the Court will schedule such briefing.

Based on Plaintiffs discovery, it appears that Mr. Downing destroyed the majority of the criminal files at issue in this litigation shortly after all of the direct appeals had been affirmed and approximately six weeks after the lead defendant's petition for writ, of certiorari was denied. Plaintiffs petition for writ of certiorari, however, was still pending. Mr. Downing, a criminal prosecutor with ten years experience, apparently purged these files by himself, without the assistance of his secretary as was his normal practice. Mr. Downing asserts that he destroyed the records in reliance on a paralegal in his office who had recently attended a training seminar on the FOIA. Although the paralegal understood that records that were the subject of a FOIA action could not be destroyed until after any appeal was concluded on the FOIA action, Mr. Downing asserts that he understood her to say that it was acceptable to destroy the records upon the completion of the criminal appeal.

II. Discussion

A. Defendants' Motion to Dismiss the Individual Defendants

Defendants' motion to dismiss the individual defendants is unopposed by Plaintiff. Individual federal officials are not proper defendants in a FOIA action because it is the agency's responsibility to produce records. See 5 U.S.C. § 552(a)(4)(B); Stone v. Defense Investigative Service, 816 F. Supp. 782, 785 (D.D.C. 1993). The parties agree that the United States Department of Justice is the proper agency defendant for purposes of this action. The individual Defendants will be dismissed and substituted by the Department of Justice. The Court previously granted individual Defendant Bonnie L. Gays motion to substitute counsel. Because there is no need for counsel to represent Ms. Gay individually, the Court will vacate its prior order granting Ms. Gay's motion for leave to substitute counsel.

B. Plaintiff's Motion for Sanctions

Plaintiff seeks sanctions for Defendant's (1) routine withholding of all records in pending criminal actions pursuant to FOIA exemption 7(A), (2) destruction of records that were the subject of this pending FOIA action, and (3) failure to comply with the Court's February 12, 1999 Order directing the reconstruction of destroyed files. Although FOIA has its own provisions for imposing sanctions, those provisions require findings that the agency arbitrarily withheld records and failed to produce records in violation of the Court's orders. 5 U.S.C. § 552 (a)(4)(F), (G). Sanctions under section 552(a)(4)(F) and (G) are premature because the Court's findings necessary to impose such sanctions must await the production of improperly withheld records. Perry v. Block, 684 F.2d 121, 125 n. 19 (D.C.Cir. 1982).*fn1 Because the parties have not yet presented a motion for the Court to decide whether records have been properly or improperly withheld, no such finding can be made.*fn2

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