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Keys v. Dep't of Homeland Security

August 11, 2008

DARREN LAMONT KEYS, PLAINTIFF,
v.
DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

STATEMENT OF REASONS

This matter is before the Court on a limited remand from the United States Court of Appeals for the District of Columbia Circuit. In compliance with the Court of Appeals' remand order, the Court issues the following Statement of Reasons.

I. Background

This case concerns a Freedom of Information Act ("FOIA") request that pro se Plaintiff Darren Lamont Keys submitted to the United States Secret Service ("Secret Service" or "the agency") on June 20, 2003 in which Plaintiff sought all records in the agency's files concerning him. (Mem. Op. [20], at 1-2.) Acting on Plaintiff's request, the agency searched its records and located three criminal investigating files relating to Plaintiff. (1st Ulmer Decl. [16-3] ¶ 8.) The agency ultimately released some documents to Plaintiff while withholding approximately 500 pages under various FOIA Exemptions. (Id. ¶¶ 10, 15-16.)

While conducting its search for responsive records, the Secret Service also located documents originating with other agencies - the United States Marshals Service ("Marshals Service")*fn1 , the Federal Bureau of Prisons ("BOP"), the Court Services and Offender Supervision Agency ("CSOSA"), the Federal Bureau of Investigation ("FBI"), the Executive Office of United States Attorney ("EOUSA"), and the United States Probation and Pretrial Services Agency ("USPPSA"). (Id. ¶¶ 11-14; 2d Ulmer Decl. [37-2] ¶¶ 5-9.) By letters dated July 18, 2007, the Secret Service referred these materials to the other agencies pursuant to the applicable Department of Homeland Security Regulations, 6 C.F.R. §§ 5.4(c) and (d), for direct response to Plaintiff. (Ulmer Decl. ¶¶ 11-14; 2d Ulmer Decl. ¶¶ 5-9.)

On September 26, 2007, this Court granted summary judgment in favor of Defendant. (Order [21].) Specifically, the Court found that: (1) Defendant met its burden of demonstrating that it conducted an adequate search for responsive records; (2) Defendant established that it properly withheld responsive documents under FOIA Exemptions 2, 7(C), and 7(E); and (3) Defendant met its burden of proving that it has disclosed all reasonably segregable, nonexempt material. (Mem. Op. 5, 6, 12.) The Court, in reaching these conclusions, did not address whether Defendant's policy of referring documents to other agencies was proper because neither of the parties raised that issue in their papers.

Plaintiff appealed this Court's decision on October 31, 2007. (Notice of Appeal [23].) On April 28, 2008, the United States Court of Appeals for the District of Columbia Circuit remanded to this Court "for a statement of reasons for the grant of summary judgment with regard to the documents referred by the appellee to other agencies for processing under the Freedom of Information Act." (Order of 4/28/08.) Because the record contained insufficient evidence to allow this Court to evaluate the propriety of the referrals, the Court ordered Defendant to submit additional materials regarding the referral procedure employed in this case. (Order [29], at 2.) In response, Defendant provided the Court with information about the manner in which each of the four other agencies processed Plaintiff's FOIA request. (See generally Def.'s Br. [37].)

II. Referral of Plaintiff's FOIA Request to Other Agencies

A. Department of Homeland Security Regulations

If, while processing a FOIA request, the Secret Service discovers that responsive records originated with another agency or contain information that originated with another agency, the Secret Service will refer the records to that agency for a determination of whether the records should be released to the requester. The Department of Homeland Security regulation that governs the referral process provides, in relevant part:

(c) Consultations and Referrals

When a component receives a request for a record in its possession, it shall determine whether another component, or another agency of the Federal Government, is better able to determine whether the record is exempt from disclosure under the FOIA and, if so, whether it should be disclosed as a matter of administrative discretion. If the receiving component determines that it is best able to process the record in response to the request, then it shall do so. If the receiving component determines that it is not best able to process the record, then it shall either:

(1) Respond to the request regarding that record, after consulting with the component or agency best able to determine whether to disclose it and with any other component or agency that has a substantial interest in it; or

(2) Refer the responsibility for responding to the request regarding that record to the component best able to determine whether to disclose it, or to another agency that originated the record (but only if that agency is subject to the FOIA). Ordinarily, the component or agency that originated a record will be presumed to be best able to determine whether to disclose it.

(d) Law enforcement information. Whenever a request is made for a record containing information that relates to an investigation of a possible violation of law and was originated by another component or agency, the receiving component shall either refer the responsibility for responding to the request regarding that information to that other component or agency or consult with that other component or agency.

6 C.F.R. § 5.4(c)-(d). When confronted with material that originated with another agency, the Secret Service generally has three options: (1) process the material itself; (2) process the material after consulting with the originating agency; or (2) refer the material to the originating agency for processing. 6 C.F.R. § 5.4(c). If, however, the material includes law enforcement information, the Secret Service must either refer it to the originating agency or consult with that agency about how to resolve the FOIA request. 6 C F.R. § 5.4(d).

B. Referral Procedures Employed in Plaintiff's Case

In the instant case, "the Secret Service determined that the information and documents at issue would be best handled by the originating agencies. Consequently, documents responsive to plaintiff's access request that contained information originating with other federal agencies were referred to the entity the Secret Service believed had originated the information." (2d Ulmer Decl. [37-2] ¶ 4.) The referral letters directed the originating agencies to respond directly to Plaintiff and to provide the Secret Service with a copy of its response. (See, e.g., Ex. A to 2d Ulmer Decl.) The Secret Service notified Plaintiff that it had referred these documents and that the originating agencies would respond directly to him. (Ex. F to 1st Ulmer Decl. [16-9].)

1. United States Marshals Service

By letter dated July 18, 2007, the Secret Service referred responsive material originating with the Marshals Service to that agency for processing. (2d Ulmer Decl. ¶ 5; Ex. A to 2d Ulmer Decl.) The documents referred to the Marshals Service consisted of a one-page Secret Service report and a five-page psychological evaluation addressed to United States Magistrate Judge Howard Snyder. (Bordley Decl. [37-3] ¶ 2.) On July 23, 2007, the Marshal's Service released the six pages of documents after redacting from the psychological evaluation "the name of a federal law enforcement officer, the names of doctors, doctor's employees, and third-party individuals associated with the plaintiff" pursuant to Exemption 7(C). (Id. ¶ 3.) Also on July 23, 2007, the Marshals Service notified the Secret Service that they had responded to Plaintiff. (2d Ulmer Decl. ¶ 5; Ex. B to 2d Ulmer Decl.)

2. Executive Office of United States Attorney

By letter dated July 18, 2007, the Secret Service referred responsive material originating with EOUSA to that agency for processing. (2d Ulmer Decl. ¶ 6.; Ex. F to Boseker Decl. [37-4].) On July 31, 2007, EOUSA released two pages in part and withheld four pages in their entirety pursuant to FOIA Exemptions 3, 5 and 7(C), Federal Rule of Criminal Procedure 6(e), and Privacy Act Exemption (j)(2). (Boseker Decl. ¶ 14.) EOUSA also notified Plaintiff "that the remainder of the 120 reviewed pages were public records, which could be obtained, if desired, by making a separate written request, and would be subject to possible copying fees." (Id.; Ex. G ...


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