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Barbosa v. Dep't of Justice

April 23, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


In this action brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Drug Enforcement Administration's ("DEA") response to his request for records. Defendant moves for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant defendant's motion and dismiss the case.


By letter of April 7, 2005, plaintiff requested from the DEA Northeast Regional Laboratory the "Chemical Signature Breakdown Analysis Report" of material DEA had seized from him. Def.'s Mot., Declaration of Leila I. Wassom ("Wassom Decl."), Ex. A. Plaintiff amended the request by letter of May 28, 2005, to include "any and all materials for the [agency's] entire central file" presumably about plaintiff. Id., Ex. B. Plaintiff renewed his request for the lab report by letter of October 22, 2005. Id., Ex. F. Meanwhile, by letter of September 8, 2005, DEA released 37 redacted pages of material, 14 of which pertained to laboratory reports. It withheld 40 pages of material in their entirety. DEA withheld information pursuant to FOIA exemptions 2, 7(C), 7(D) and 7(F), and section (j)(2) of the Privacy Act, 5 U.S.C. § 552a. Id., Ex. D.

By letter of October 28, 2005, DEA released four redacted pages and withheld three pages of material located in related files in which plaintiff's name was mentioned. Id., Ex. G. It also referred seven (Ex. G) or eight (Ex. H) pages of material originating with Immigration and Customs Enforcement ("ICE") to that component for processing. ICE, in turn, returned "six" referred documents to DEA after redacting the names of ICE agents and inspectors pursuant to exemptions 7(C) and 7(F). Id., Ex. I. By letter of December 21, 2005, DEA released seven redacted pages, asserting exemptions 2, 7(C), 7(D) and 7(F) as the bases for the deletions. Id., Ex. J.*fn1

That letter indicated that no further pages were withheld in their entirety or referred to another agency.

In response to plaintiff's administrative appeal of DEA's withholding of 40 pages of material from the September 8 release (Ex. K)., the Office of Information and Privacy released an additional page of information with redactions by letter of March 8, 2006. Id., Ex. M. Plaintiff initiated this lawsuit on May 9, 2006. By letter of August 31, 2006, during the course of this litigation, DEA released an additional 22 pages of material, 13 of which were previously withheld in their entirety. Id., Ex. N.


Summary judgment is appropriate when there is "no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The FOIA requires a federal agency to release all records responsive to a request except those protected from disclosure by one or more of nine enumerated exemptions. See 5 U.S.C. § 552(b). This Court has jurisdiction under the FOIA "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The Court may award summary judgment in a FOIA case solely on the information provided in affidavits or declarations when the affidavits or declarations describe "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).


Plaintiff generally contests defendant's withholding of information pursuant to FOIA exemptions. He also asserts that defendant acted in bad faith merely because it released additional information, some of which was previously withheld, during the course of this litigation. See Pl.'s Opp. [Dkt. No. 19] at 8. A FOIA claim based on additional disclosures would be difficult, if not impossible, to sustain because "however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform." Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982); accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007). In any event, defendant has adequately explained that the subsequent release was consistent with DEA's "practice and procedure" of taking "remedial action . . . to correct or remedy any [administrative] error" discovered during litigation. Def.'s Reply, Declaration of William C. Little, Jr. ¶ 21. This approach complies with the dictates of the FOIA. See Western Center for Journalism v. I.R.S., 116 F. Supp.2d 1, 10 (D.D.C. 2000) (Kollar-Kotelly, J.) ("[I]t is unreasonable to expect even the most exhaustive search to uncover every responsive file; what is expected of a law-abiding agency is that the agency admit and correct error when error is revealed.") (quoting Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986)).

Plaintiff mostly argues that the information contained in a drug analysis report released to him under the FOIA (and introduced as evidence at his criminal trial) confirms his theory that "he was charged for a drug and/or controlled substance he never possessed." Pl.'s Opp. at 11, ¶ 47. As will become apparent, however, plaintiff's supposition is probative only with regards to defendant's invocation of exemption 7(C). Otherwise, his identity and the purpose of his request are immaterial to the FOIA analysis. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 770-71 (1989); Swan v. S.E.C.,96 F.3d 498, 499-500 (D.C. Cir. 1996); North v. Walsh, 881 F.2d 1088, 1096-97 (D.C. Cir. 1989).

In addition to exemption 7(C), defendant invoked exemptions 2, 7(D) and 7(F) to justify its withholdings. The Court discusses next the ...

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