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Willis v. United States Dep't of Justice

October 10, 2008

JAMES A. WILLIS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This is an action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a, in which Plaintiff, proceeding pro se, seeks access to certain records from four agency Defendants, the Federal Bureau of Prisons ("BOP"), the Drug Enforcement Administration ("DEA"), the Executive Office for United States Attorneys ("EOUSA"), the Federal Bureau of Investigation ("FBI"), and one state entity, the Missouri Police Department. Through a series of duplicative FOIA/Privacy Act requests directed to Defendants, Plaintiff has repeatedly sought all documents related to himself. Despite Plaintiff's protestations to the contrary, the Court finds that the four federal agencies have met all of their obligations under the FOIA and Privacy Act, and that the Missouri Police Department is not a federal agency subject to the FOIA and Privacy Act. Accordingly, the Court shall GRANT Defendants' [27] Motion to Dismiss and for Partial Summary Judgment, for the reasons set forth below.

I. BACKGROUND

A. Federal Bureau of Prisons ("BOP")

Plaintiff's Amended Complaint alleges that he sent, on January 15, 2002, FOIA requests to BOP prisons located at Lompoc, California; Tucson, Arizona; and Phoenix, Arizona. Am. Compl. ¶ 9. The BOP has no record of these FOIA requests and a search conducted in response to this lawsuit did not reveal any record of such requests. See Defs.' Mot., Ex. 7 ¶¶ 3-4 (Decl. of R. Hill). In particular, Ron Hill, the Administrator for the BOP, Freedom of Information Act/Privacy Act Section in the BOP's Office of General Counsel, confirmed that no record of the requests are reflected in the "Central Office's database" where such requests are logged as a matter of course, and that the staff at each of the three BOP locations have no record of such requests. Id.

B. Drug Enforcement Agency ("DEA")

Plaintiff submitted a FOIA/Privacy Act request to the DEA for all records concerning himself by letter dated October 27, 1992. Defs.' Stmt. ¶ 1. The DEA released approximately 41 pages of documents to Plaintiff and withheld approximately 100 other pages of documents on December 7, 1992, but Defendant claims not to have received them. Defs.' Stmt. ¶ 2; Pl.'s Resp. Stmt. ¶ 2; Willis v. FBI, No. 96-1455, Report & Recommendation at 2 (D.D.C. Aug. 6, 1997), Docket No. [76]. The DEA also advised Plaintiff that his name was mentioned in six additional "related" files in which he was not the subject, but that could be searched for additional fees. Defs.' Stmt. ¶ 2. Plaintiff's counsel submitted payment for the additional searches and by letter dated December 22, 1993, the DEA released additional documents to Plaintiff. Defs.' Stmt. ¶ 3. Plaintiff also alleges that he never received these records. Pl.'s Resp. Stmt. ¶ 2.

On June 25, 1996, Plaintiff filed an action in this Court alleging that the DEA improperly withheld records in response to his FOIA request. See Willis v. FBI, No. 96-1455, Complaint (D.D.C. Jun. 25, 1996), Docket No. [1]. On August 6, 1997, Magistrate Judge Alan Kay issued a Report & Recommendation that recommended that the DEA's Motion for Summary Judgment be granted. Id., Report & Recommendation at 2 (Aug. 6, 1997), Docket No. [76]. This Court adopted the Magistrate Judge's Report and Recommendation on February 13, 1998, granted the DEA's Motion for Summary Judgment, and dismissed Plaintiff's case in its entirety. Id., Docket No. [106]. On appeal, the D.C. Circuit affirmed. Willis v. FBI, 274 F.3d 531, 533 (D.C. Cir. 2001) (holding that the district court acted within its discretion when it denied Plaintiff's request for counsel).

C. Executive Office of United States Attorneys ("EOUSA")

Plaintiff has submitted numerous FOIA and Privacy Act requests to the EOUSA since 1999. Plaintiff's first request was sent to the EOUSA on March 15, 1999, requesting all records related to himself. Defs.' Stmt. ¶ 19. Plaintiff then submitted three additional requests directly to the United States Attorney's Office for the Western District of Missouri ("USA-MOW") for "access to all records concerning himself and his criminal conviction in the United States District Court for the Western District of Missouri."*fn1 Id. ¶ 20. Although these requests were consolidated as duplicates and routed to the EOUSA for processing, Plaintiff believes the requests were not properly consolidated as duplicates (but provides no further elaboration on this point).*fn2 Pl.'s Resp. Stmt. ¶ 7. The EOUSA's search located 84 pages of nonpublic records and 650 pages of publicly-filed court records. Defs.' Stmt. ¶ 21. The EOUSA processed only the nonpublic records, and after invoking certain FOIA and Privacy Act exemptions, released the nonpublic records, in part, to Plaintiff on May 11, 2000. Id. The EOUSA also advised Plaintiff that, pursuant to the EOUSA's operating procedures, the 650 pages of publicly-filed court records could "be obtained from the clerk of the court or [the EOUSA], upon specific request, subject to a copying fee." Id. Plaintiff did not request the 650 pages of publicly-filed court records, and Plaintiff did not administratively appeal the EOUSA's FOIA/Privacy Act response. Id.

Plaintiff's next FOIA/Privacy Act request for all records concerning himself was sent to the USA-MOW by letter dated October 29, 2001. Id. ¶ 22. That office sent Plaintiff a letter indicating that all releaseable information pertaining to him had already been released. Id. ¶ 23. Plaintiff's request was nevertheless forwarded to the EOUSA for processing. Id. The EOUSA sent a letter to Plaintiff dated November 16, 2001, advising that all nonpublic records pertaining to him had been released, but reminding Plaintiff that 650 pages of publicly-filed Court records were available but never requested by Plaintiff. Id. ¶ 24.

By letter dated December 7, 2001, Plaintiff requested that the EOUSA send him the 650 pages of publicly-filed court records described in previous correspondence.*fn3 Id. ¶ 25. The EOUSA then initiated a search for these records but could not locate them.*fn4 Id. ¶ 26. In particular, the USA-MOW, at the request of the EOUSA, performed an automated search of its Prosecutors Management Information System ("PROMIS") and Legal Information Office Network System ("LIONS"), reviewed the indices of the Federal Records Center, and sent a "global email" dated February 22, 2002, to all staff "requesting a district-wide search for the files." Defs.' Mot., Ex. 8 ¶ 30 (Decl. of A. Ciccone). By letter dated July 23, 2002, the EOUSA informed Plaintiff that it could not locate the records. The EOUSA also advised Plaintiff that "any future requests from [P]laintiff for those records would be treated as duplicate requests." Id. ¶ 27.

Plaintiff administratively appealed the EOUSA's failure to locate the 650 pages of publicly-filed Court records. Id. ¶ 28. After receiving notice of Plaintiff's administrative appeal, EOUSA again advised the USA-MOW to conduct another search for the missing records. Id. ¶ 33. The USA-MOW then undertook a second search for the records, as reflected in multiple memoranda that were drafted that reflected the same. See Id., Ex. 16 (Memoranda dated 11/5/2002; 11/8/2002; 11/19/2002; and 11/20/2002). These memoranda describe the extensive but unsuccessful search for these records. By letter dated April 7, 2003, the Office of Information and Privacy ("OIP") affirmed the adequacy of the EOUSA's search for the records and "advised [P]laintiff that the missing public court records could be obtained by contacting the clerk of court directly." Id. ¶ 34.

By letter dated May 14, 2003, Plaintiff submitted his fifth FOIA/Privacy Act request to the USA-MOW for all documents related to himself. Id. ¶ 29. The letter was referred to EOUSA for processing. Id. EOUSA determined that this request duplicated his previous four requests. Id. Because EOUSA had previously advised Plaintiff that all nonpublic records pertaining to him had been released, id. ¶ 24, and that any subsequent requests for the 650 pages of publicly-filed court documents would be treated as duplicative, id. ¶ 27, the EOUSA did not respond to the request. Id. ¶ 29.

D. Federal Bureau of Investigation ("FBI")

On March 15, 1999, Plaintiff submitted a FOIA/Privacy Act request to the Kansas City Field Office of the FBI ("KCFO") for all records concerning himself. Defs.' Stmt. ¶ 7. By letter dated December 28, 1999, the KCFO informed Plaintiff that its search identified a multi-subject, multi-volume case file and that the portions pertaining to Plaintiff were processed pursuant to his request. Id. ¶ 9. By letter dated January 31, 2000, the KCFO informed Plaintiff that 24 pages of records pertained to him. Id. ¶ 10. The KCFO released 20 pages in part and withheld four pages in full. Id. The KCFO withheld information pursuant to Exemption (j)(2) of the Privacy Act, and Exemptions 2, 7(C), and 7(D) of the FOIA. Id. Plaintiff administratively appealed the KCFO's search and withholding determinations on February 17, 2000. Id. ¶ 11. On May 2, 2000, the KCFO's search and withholding determinations were affirmed. Id.

By letter dated October 29, 2001, Plaintiff submitted a second FOIA/Privacy Act request to the KCFO for records pertaining to himself and records related to case number 90-00010- 01/16-CR-W-6. Id. ¶ 12. Plaintiff also included a list of seven sub-categories of documents "maintained by the [USA-MOW] as well as from [the KCFO]" and labeled as follows:

(a) 1-66B-2367;

(b) 166B-2567-113;

(c) 1-245F-199;

(d) Italian Drug Smuggling Operation;

(e) any complaint or affidavit in support of the complaint in the indictment of [Plaintiff];

(f) copies of any and all wiretap information which was intercepted by the FBI (or any other agency) involved in the investigation of this case wherein [Plaintiff's name] was mentioned and recorded;

(g) copies of any transcripts of intercepted telephone calls made from the Skyway Motel in Los Angeles, California from the room which was rented by and occupied by [Plaintiff] during the time period from 9/10/88 until 9/12/88 which were allegedly made to Kansas City Missouri to the Pumpernickel Deli which was owned by James 'Junior' Bradley.

Id. Plaintiff also complained about the KCFO's processing of his first FOIA/Privacy Act request. Id.

By letter dated January 9, 2002, the KCFO advised Plaintiff that its search for responsive records yielded no records in addition to the ones already processed and released to him as a result of his first request. Id. ¶ 14. In response to Plaintiffs' complaints about his first FOIA/Privacy Act request, the KCFO explained that its decision had been upheld on appeal. Id. The KCFO also informed Plaintiff that one of his sub-categories of document requests, records in a file labeled 166B-2367, could not be searched because the file was destroyed on November 23, 1977 (i.e., over 20 years prior to Plaintiff's FOIA request) pursuant to the KCFO's records- destruction schedules. Id. The KCFO also explained that file 166B-2567-113 was previously searched in response to Plaintiff's first request, and that file 245-199 pertained to third parties and that Plaintiff's name was not indexed to that file. The KCFO also explained that no records were located in the KCFO concerning "Italian Drug Smuggling Operation," complaints or affidavits in support of the complaint in his indictment, wiretap information concerning plaintiff, or transcripts of intercepted telephone calls from the Skyway Motel during the time frame requested. Id. Finally, the KCFO explained that 90-00010-01/16-CR-W-6 was not a recognized FBI number and that Plaintiff should redirect that request to an appropriate United States Attorneys office. Id. Plaintiff did not administratively appeal KCFO's response.*fn5 Id.

Finally, James H. Lesar, attorney for Plaintiff, requested by letter dated October 2, 2002, copies of all prior FOIA/Privacy Act requests made by Plaintiff or on Plaintiff's behalf, and any correspondence related to such requests. Id. ¶ 15. KCFO returned Mr. Lesar's request because he failed to include a Privacy Waiver and Certification of Identity from Plaintiff. Id. ¶ 16. Mr. Lesar resubmitted his FOIA request with an enclosed privacy waiver by letter dated December 22, 2002. Id. ¶ 17. By letter dated January 10, 2003, the KCFO provided Plaintiff's counsel ...


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