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Sonds v. Huff

September 27, 2005

REGINALD SONDS, PLAINTIFF,
v.
RICHARD L. HUFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Drug Enforcement Administration's ("DEA") inability to locate responsive records. He also accuses individual DEA employees of violating his constitutional rights during the processing of his FOIA request. Before the Court is defendants' motion to dismiss or for summary judgment and motion to substitute the Department of Justice as the sole defendant. The FOIA provides a cause of action only against Executive Branch departments and regulatory agencies. See Sherwood Van Lines, Inc. v. U.S. Dep't of Navy, 732 F. Supp. 240, 241 (D.D.C. 1990). The Drug Enforcement Administration is a component of the Department of Justice. Moreover, the FOIA's comprehensive remedial scheme addresses all claims relating to the disclosure of government records and therefore precludes any recovery against individual officials for alleged constitutional violations arising from the processing of a FOIA request. Johnson v. Executive Office for United States Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002). The Court therefore grants the motion to substitute the Department of Justice as the sole defendant and will refer hereafter to defendant in the singular.*fn1 Upon consideration of the parties' submissions and the entire record, the Court will grant defendant's motion for summary judgment.*fn2

I. FACTUAL BACKGROUND

The facts are taken from defendant's uncontested statement of material facts as supported by the Declaration of Leila I. Wassom ("Wassom Decl."). By letter dated August 18, 2003, plaintiff requested from DEA fourteen items or categories of information. His list included "1. Brady materials, 2. Nitro Reports NYPD, 3. Kings County District Attorneys Office, [and] 4. Arson at 207-209 Patchen Ave. on January 31, 1993 in Brooklyn." Plaintiff also sought grand jury material, records pertaining to a number of third-party individuals (including the murders of two individuals, the attempted murder of another, and the rap sheets of others), as well as information about a Mercedes-Benz and a Cadillac "owned by Juan Matos." Plaintiff also sought "video tapes & recorders of" certain street sections in an unspecified city. See Statement of Material Facts as to Which There is No Genuine Dispute in Support of Defendants' Motion for Summary Judgment ("Deft's Facts") ¶ 1 (setting forth request verbatim). By letter dated October 2, 2003, DEA informed plaintiff that it had located no responsive records.

By letter also of October 2, 2003, plaintiff requested a fee waiver and added two other items to his request, namely, "15) internal Federal Agencys Memos reports called 209s & 302s; and 16) information about Robert J. Aiello, former NYS trial Esq. & C.L. Pollac, MJ courtRm Feds Re:ME." Deft's Facts ¶ 4.*fn3 By letter dated October 14, 2003, DEA informed plaintiff that a fee waiver was not required because it had located no responsive records. Id. ¶ 5. On administrative appeal, the Office of Information and Privacy affirmed DEA's decision. Id. ¶ 12.

Plaintiff initiated this action on April 28, 2004. "Pursuant to a litigation review," DEA determined that it had responded only to plaintiff's request for records about himself and therefore had not provided a complete response. Deft's Facts ¶ 13. After a further search, by letter dated September 3, 2004, DEA informed plaintiff that in addition to not locating records about him, it did not "maintain New York police department records, and that his request for 'Nitro reports NYPD' failed to describe the records he seeks." Id ¶ 14. In addition, DEA informed plaintiff that it did not maintain grand jury records and records of non-DEA entities. He was told that to obtain non-DEA government records, he should contact the appropriate agencies. Id. DEA informed plaintiff that "[h]is request for information about an arson was not made in a manner permitting DEA to search . . . since no individual to whom the incident related was specified." Id. With respect to his request for third-party records, DEA informed plaintiff that it could not disclose such information without proof of the individual's death or his or her consent to the disclosure. It therefore neither confirmed nor denied the existence of third-party records. Id. DEA informed plaintiff that it had located no records about the Cadillac and Mercedes-Benz, and that his request for "'video tapes and recorders' of four different street addresses did not reasonably describe a record and the information was insufficient for DEA to conduct any search." Id. DEA informed plaintiff that his requests of October 2, 2003, for two additional items "did not reasonably describe any records and were incomprehensible." Id.

In response to DEA's letter, plaintiff, by letter of October 8, 2004, "reiterated his requests for information about his criminal investigation. . . ." Deft's Facts ¶ 15. DEA retrieved plaintiff's criminal docket, "obtained the names of plaintiff's co-accuseds, and conducted [] searches based on each name." It located no responsive records. Id. ¶ 16.

II. DISCUSSION

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P. In a FOIA action, the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that 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 nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). When, as here, responsive records are not located, the Court must determine whether the agency conducted an adequate search for records. A search is adequate if the agency demonstrates "beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999); Blanton v. U.S. Dep't of Justice, 63 F. Supp.2d 35, 40-41 (D.D.C. 1999). "Once the agency has shown that its search was reasonable, the burden shifts to [plaintiff] to rebut [defendant's] evidence by a showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).

1. Adequacy of the Search

The Court is satisfied from the descriptions of DEA's filing system and the searches for records about plaintiff and his "co-accuseds" that defendant conducted a search likely to locate all responsive records. See Wassom Decl. ¶¶ 11-14, 21. According to Ms. Wassom "[a]ny investigative information about plaintiff was reasonably likely to be found in the DEA's Investigative Reporting and Filing System ("IRFS")," which contains "all administrative, general and investigative files compiled by DEA for law enforcement purposes." Id. ¶ 11. Searches are conducted by accessing DEA's 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 IRFS." Id. ¶ 13. "Individuals are indexed and identified in NADDIS by their name, Social Security Number, and/or date of birth." Id. DEA searched for first-party records using those identifiers. Id. ¶ 14. It searched for third-party records by name only because "[d]ates of birth and Social Security Numbers were not available." Id. ¶ 21. DEA reasonably surmised from its inability to locate records that it "was not involved in the investigation of the case in which the plaintiff was prosecuted." Id. In the absence of any evidence to the contrary, the Court will grant defendant's motion with respect to DEA's search for responsive records.

2. Application of Exemptions

The Court also is satisfied from the Wassom declaration that DEA properly responded to plaintiff's request for third-party records. Invoking FOIA exemptions 6 and 7(C), DEA neither confirmed nor denied the existence of third-party records where plaintiff had provided neither written waivers from the individuals about whom he sought records nor proofs of death. Wassom Decl. ¶¶ 23-27. This response is commonly known as a Glomar response in reference to the subject of a FOIA request for records pertaining to a ship, the "Hughes Glomar Explorer." See Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976). Such a response has been deemed adequate in circumstances similar to those presented here by the United States Court of Appeals for the District of Columbia Circuit. See Nation Magazine v. United States Customs Service, 71 F.3d 885, 893-94 (D.C. Cir. 1995); Beck v. Department of Justice, 997 F.2d 1489, 1492 (D.C. Cir. 1993).

Exemption 6 protects information about individuals in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b)(6). All information that "applies to a particular individual," qualifies for consideration under this exemption. U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982); see also New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); Chang v. Dep't of Navy, 314 F. Supp.2d 35, 42-43 (D.D.C. 2004). DEA records are indexed and retrieved by names, social security numbers and dates of birth. Wassom Decl. ΒΆ 13. This satisfies the threshold requirement of exemption 6. See U.S. Dep't of State v. Washington Post Co., 456 U.S. at 602 (interpreting "similar files" broadly to include ...


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