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Duncan v. Drug Enforcement Administration

May 30, 2007


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Marco D. Duncan, proceeding pro se, filed this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, appealing the disposition of his records requests by the Drug Enforcement Administration ("DEA") and the United States Marshals Service ("USMS"). Defendants have filed a motion for summary judgment and plaintiff an opposition to the motion. For the following reasons, the Court will grant Defendants' motion.



On July 14, 2004, Plaintiff sent a request to the DEA for the following records: DEA Forms 6, inventory reports, arrest reports, a list of evidence sized by DEA agents and United States Marshals during Plaintiff's arrest on April 21, 2003, and any information regarding video surveillance tapes seized from the El Dorado Hotel in conjunction with Plaintiff's arrest. Decl. of Leila I. Wassom Ex. A. The DEA treated Plaintiff's request as one seeking all records pertaining to him. Id. Ex. K. On August 11, 2004, the DEA released 29 pages of records to Plaintiff. Id. Ex. B. The DEA withheld 12 pages of records pursuant to FOIA Exemptions 2, 7(C), 7(D), and 7(F), and the Privacy Act. Id. Ex. C.The DEA made two supplemental releases of documents on September 18 and 27, 2006. Id. Ex. D & E. In these releases, the agency disclosed portions of three documents previously withheldand released another page in its entirety. Id.

On July 5, 2005, Plaintiff sent another FOIA request to the DEA for any and all materials from the central file related to him. Id. Ex. F. In response, the DEA told the Plaintiff that the agency had already provided this information to him and had no further responsive records. Id. Ex. H. On October 17, 2005, Plaintiff appealed this decision to the Office of Information and Privacy ("OIP"), requesting his entire file and a Vaughn index of the documents. Id. Ex. I. The OIP affirmed DEA's disposition of Plaintiff's records request. Id. Ex. K.

The USMS referred 11 pages of documents found during its search to the DEA. Id. Ex. L & Ex. O. On December 15, 2005, DEA released four of these referred pages in part, invoking FOIA Exemptions 2, 7(C), and 7(F), and the Privacy Act. Id. Ex. N. The remaining pages were referred back to the USMS for further processing. Id. Ex. R & Ex. S.


On July 14, 2005, Plaintiff sent a request to the USMS seeking records pertaining to himself and the assets that were seized from him by the agency. Decl. of William E. Bordley Ex. 1. The USMS located 256 pages of documents pertaining to Plaintiff in the agency's district offices. Id. ¶ 6. The USMS released 148 pages to Plaintiff, 97 pages in their entirety, and 51 pages with information excised pursuant to Exemptions 2, 7(C), and 7(E). Id. Ex. C-1. The remaining records were referred to the Bureau of Prisons ("BOP"), DEA, Federal Bureau of Investigation ("FBI"), and the Executive Office for United States Attorneys ("EOUSA") because the pages had originated with those agencies. Id. Ex. C-1 The USMS also searched for the seized asset information requested by Plaintiff. Id. Ex. C. The agency located ten pages of records responsive to Plaintiff's request. Id. Ex. C. Three pages were referred to the DEA, and 7 redacted pages were released to Plaintiff. Id. The USMS cited Exemptions 2 and 7(C) to justify withholding information in these records. Id.

Plaintiff appealed this decision to the OIP. Id. Ex. D and Ex. D-1. In his appeal, Plaintiff noted that the USMS had not addressed his request for information about video surveillance at a hotel and casino in Reno, Nevada. Id. Ex. D-1. The agency conducted an additional search of its files, but did not locate any video surveillance evidence. Decl. of William E. Bordley ¶ 11. The OIP affirmed the USMS's disposition of Plaintiff's FOIA request. Id. Ex. E.

On June 28 and June 30, 2006, the USMS informed Plaintiff of its determination regarding the documents referred to the other agencies. Id. Ex. F and Ex. G. The USMS informed Plaintiff that the referred records were being released to him, except for the names, addresses, telephone numbers, and other information on USMS and other government employees, third-party individuals, confidential sources and related information exempt from disclosure pursuant to exemptions 7(C), 7(D), and 7(F). Bordley Decl Ex. F & ¶¶ 14, 16.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show 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. Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat 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). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (citation and quotation omitted).


A. Adequacy of the Agency Searches

To obtain summary judgment on the issue of the adequacy of the search for records under FOIA, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] 'has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with FOIA. Id. at 127. The agency must show that it made a "good faith effort to conduct a search for the requested records, using methods ...

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