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Kurdyukov v. Drug Enforcement Administration

September 25, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


This matter is before the Court on the defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Having considered the motion, the plaintiff's opposition, and the entire record of this case, the Court grants summary judgment for the defendant.


In December 2006, the plaintiff submitted a request for information to the Drug Enforcement Administration ("DEA") under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552 (2006), regarding the criminal case against him (Crim. No. H-99CR371) in the United States District Court for the Southern District of Texas, Houston Division. See Compl., Exhibit ("Ex.") 2 (December 27, 2006 Freedom of Information/Privacy Act Request).*fn1 The plaintiff's FOIA request sought "all records, documents, and information in [the DEA's] files pertaining to [the plaintiff] or mentioning [his] name, the Motor Vessel 'CHINA BREEZE' registered in Panama, and the Confidential Informant (CI) Nikolaos ZERVOS." Id., Ex. 2 at 1. In addition, the plaintiff requested that he be provided:

(1) All documents regarding the date that Mr. Nikolaos ZERVOS commenced his cooperation with the D.E.A. agents.

(2) The exact remuneration of benefice that Mr. Nikolaos ZERVOS received for his services in [the plaintiff's criminal case].

(3) All the declaration of Mr. Nikolaos ZERVOS to law enforcement agents regarding [the plaintiff's criminal case].

Id. In his request, the plaintiff also asked for "a fee waiver or at least a fee reduction." Id. However, he indicated that if the DEA were to deny "this request foe [sic] waiver[,] [he] agree[d] to pay the fees for search and duplication while retaining [his] right to appeal" the decision. Id. at 1-2.

The DEA acknowledged in writing on January 18, 2007, its receipt of the plaintiff's FOIA request. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or in the Alternative for Summary Judgment ("Def.'s Mot."), Declaration of William C. Little, Jr. ("Little Decl.") ¶ 14 & Ex. B (January 18, 2007 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA). However, because "the FOIA office was backlogged," the DEA did not assign the plaintiff's request a number at that time. Id. ¶ 14 & Ex. B. Rather, the "DEA informed [him] that a request number would be provided to him within 30-45 days." Id. ¶ 14.

A. Request Number 07-0491-P

The DEA assigned Request No. 07-0491-P to the portion of the request for information pertaining to the plaintiff and the CHINA BREEZE. Little Decl. ¶ 17 & Ex. E (March 29, 2007 letter from K.L. Myrick). In addition, the DEA denied the plaintiff's request for a fee waiver. Id., Ex. E at 2. The plaintiff was advised of his obligation to pay all applicable fees in excess of $25, in addition to all fees for search time exceeding two hours and 100 pages of duplication that would be provided at no charge. Id.

Upon receipt of a completed Certificate of Identity from the plaintiff, see id. ¶ 19, DEA staff conducted a preliminary search for responsive records using the plaintiff's name and M/V CHINA BREEZE as search terms. Id., Ex. H (July 9, 2007 letter from K.L. Myrick) at 1. This search identified 22 investigative case files. The plaintiff was advised that:

[o]f the 22 investigative case files identified in which [the plaintiff's] name or M/V CHINA BREEZE is mentioned, [the] DEA maintains a Headquarters and a corresponding file in the field. Each referenced headquarters file takes approximately two (2) hours to hand search. The fee for search is at the rate of $28.00 per hour. Therefore, the estimated fee to search 44 DEA investigative files at $20.00 per hour is $3,696.00. Under Department of Justice (DOJ) Agency Rules contained at 28 CFR § 16.11, [the plaintiff is] required to pay the estimated fee before further work is performed.

Id., Ex. H at 1. The DEA suggested to the plaintiff alternatives designed to reduce the costs for searching the investigative files. Id. The plaintiff was offered the option of reformulating his request by, for example, requesting that only the Headquarters or field files be searched. Id. at 1-2. As to this limitation, he was advised that "[t]o a large extent the records contained in the Headquarters and field files [were] duplicates. However, there [were] records in the field file copies which [were] not forwarded by the field for inclusion in the Headquarters file." Id. at 2. Another alternative was for the plaintiff to select for search only "those files in which [he was] the subject/defendant or related files." Id. Of the three files mentioning the plaintiff by name, he was told that one was designated a "Subject/Defendant" file, which is an "investigative file[] in which there exists a DEA Personal History Report or a DEA Defendant Disposition Report in which [he was] the 'named' individual, or in which [his] name was used as the file title or subject of the investigation." Id. The plaintiff further was advised that the two other files were "related" files, which are investigative files in which the plaintiff was mentioned without a ...

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