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Durrani v. U.S. Dep't of Justice

March 24, 2009

ARIF A. DURRANI, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

In this action brought pro se under the Freedom of Information ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the responses of the Departments of Justice, State and Homeland Security to his FOIA requests. Pending before the Court are plaintiff's motion for summary judgment [Dkt. No. 28], the Department of Justice's ("DOJ") motion for summary judgment [Dkt. No. 31] and the Departments of State and Homeland Security's joint motion for summary judgment [Dkt. No. 33]. Upon consideration of the parties' submissions and the entire record, the Court will (1) deny plaintiff's summary judgment motion because it is not "properly made and supported," Fed. R. Civ. P. 56(e)(2),*fn1 (2) grant DOJ's motion for summary judgment and (3) grant in part and deny in part the Departments of State and Homeland Security's joint motion for summary judgment.

I. FACTUAL BACKGROUND

1. Department of Justice

By letter of July 11, 2007, plaintiff requested records from DOJ's Executive Office for United States Attorneys ("EOUSA") pertaining to "the kidnapping, abduction, and arrest of the undersigned arranged by the U.S. Attorney's Office in the Southern District of California [and] any [related] Release[.]." Def.'s Attachment A, Declaration of David Luczynski ("Luczynski Decl.") [Dkt. No. 31-2] ¶ 4 & Ex. A. By letter of October 31, 2007, EOUSA released to plaintiff 29 pages of responsive records in their entirety, withheld 23 pages in their entirety and referred 25 pages to Homeland Security and two pages to the United States Marshals Service, a DOJ component. Id. ¶ 6 & Ex. C. EOUSA withheld information under FOIA exemptions 5, 7(A), 7(C) and 7(D), see 5 U.S.C. § 552(b). Id., Ex. C. By letter of February 26, 2008, DOJ's Office of Information and Privacy affirmed EOUSA's release determination. Id., Ex. F. In addition, EOUSA withheld in their entirety seven pages that were referred from the State Department under FOIA exemptions 5 and 7(C). See generally Def.'s Attachment B, Supplemental Declaration of David Luczynski [Dkt. No. 31-3].

By letter of November 16, 2007, the Marshals Service released the two referred pages but redacted the names of law enforcement officers under FOIA exemption 7(C). Def.'s Attachment C, Declaration of William E. Boardley [Dkt. No. 31-4] ¶ 4 & Ex. B.

2. Department of State

By letter of April 5, 2006, addressed to the State Department's Bureau of Political-Military Affairs Defense Trade Control, plaintiff requested the following: (a) records pertaining to communications between the State Department and Assistant United States Attorney William Crowfoot concerning the export licensing of the Royal Jordanian Embassy for shipments made on May 16, 1994; (b) "[c]opies of all export licenses applications, endorsements made by U.S. Customs or any other [U.S.] agency . . . for export licenses that are subject of this case #CR99- 470-PA;" (c) "reports and correspondence submitted by the Royal Jordanian Embassy and Circle International Inc. under 22 U.S.C. § 2778 9(i) within [] (15) days of May 16, 1994 shipment[;]" and (d) communications between the State Department and Crowfoot used "to verify any matter related to this" FOIA request. Def.'s Mot., Second Declaration of Margaret P. Grafeld ("Grafeld Decl.") [Dkt. No. 33-2] ¶ 4 & Ex. 1. Plaintiff's request was forwarded to the Office of Information Programs and Services ("IPS"), "which is the office to which FOIA requesters are to submit their requests[.]" Id. ¶ 5.

By letter of December 20, 2007, IPS released to plaintiff "one document containing information about the licenses in question" and informed him that any information that "relates to licenses, manufacturing license agreements, or other records authorizing the commercial export of defense articles and services" was exempt from disclosure under FOIA exemption 3. Id. ¶ 10 & Ex. 7. By letter of October 9, 2008, IPS informed plaintiff that it had located an additional 25 responsive records, 13 of which were released with redactions. IPS withheld eight pages in full and referred four pages to DOJ. Id. ¶ 12 & Ex. 9. It cited exemptions 3 and 5 as the bases for withholding information. Id., Ex. 9. In addition, the State Department withheld in full three documents referred from Immigration and Customs Enforcement ("ICE") under exemption 3. Id. ¶¶ 22-23.

3. Department of Homeland Security

By letter dated September 11, 2006, plaintiff requested from Customs and Border Protection ("CBP") material pertaining to communications between CBP "and any other agency, department or office of the U.S. government . . . [;]" the names "of all individuals, including the three U.S. Customs Agents [,] who were at LAX Airport . . . on June 15, 2005, when [plaintiff] was kidnapped and illegally brought from Mexico City . . . [t]ogether with copies of all photographs taken by [] Customs Agents . . . from Oxnard/Camarillo. . . ." Def.'s Mot., Declaration of Reba A. McGinnis ("McGinnis Decl.") [Dkt. No. 33-3], Ex. 1. Also by letter dated September 11, 2006, plaintiff requested from CBP documents "that clearly show that [seized jet] Engines were imported by S & S Turbine. . . ." Id., Ex. 2. CBP referred plaintiff's requests to ICE, which informed plaintiff by letters of September 26, 2007 and September 28, 2007 that responsive records were being withheld in their entirety under FOIA exemption 7(A). It further informed plaintiff that once that exemption no longer applied, records may still be withheld under exemptions 2, 7(C), 7(D) and 7(E). Id., Exs. 6, 7. By letter of October 10, 2008, ICE, in a supplemental response, informed plaintiff that it had located 94 responsive records. It released seven redacted pages and one unredacted page of information. ICE withheld 86 pages in their entirety. ICE withheld information under exemptions 2, 6, 7(A), 7(C) and 7(E). Id., Ex. 8.

By letter dated December 28, 2007, plaintiff requested from ICE "all my immigration records that were obtained by ICE Attache in Mexico City and ICE representative in Tijuana, Mexico" and related records pertaining to his "immigration status in Mexico" and his extradition from Mexico to the United States. Id., Ex. 9. By letter of September 5, 2008, ICE released to plaintiff 43 responsive records in their entirety. Id. ¶ 7. Also by letter dated December 28, 2007, plaintiff requested from ICE documents titled "'Hostage Negotiations' given by Manuel Pires in July 1987 to U.S. Custom Agent Steven Arruda. . . ." Id., Ex. 14 [Dkt. No. 42-4]. By letters of February 1, 2008 and March 24, 2008, ICE informed plaintiff that it had located no responsive records. Id., Exs. 15, 17.

At some point, CBP "discover[ed] that it should have independently processed Plaintiff's FOIA request" and proceeded to do so. Def.'s Mot., Declaration of Mark Hanson ("Hanson Decl.") [Dkt. No. 33-4] ¶ 4. By letter of October 9, 2008, CBP informed plaintiff that it had located 22 responsive pages, 11 of which were being released in full and eight of which were being released with redactions. It withheld three pages in full. Id. ¶ 11. CBP withheld information under exemptions 2, 5, 6, 7(A), 7(C) and 7(E). Id., Ex. A.

II. LEGAL STANDARD

Summary judgment is appropriate upon a showing that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The FOIA requires a federal agency to release all records responsive to a properly submitted request except those protected from disclosure by one or more of nine enumerated exemptions. See 5 U.S.C. § 552(b). The agency's disclosure obligations are triggered by its receipt of a request that "reasonably describes [the requested] records" and "is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "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). Thus, the elements of a FOIA claim are (1) improperly (2) withheld (3) agency records. "Judicial authority to devise remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5 U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).

In a FOIA case, the Court may award summary judgment to an agency solely on the information provided in affidavits or declarations when they 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). In opposing a summary judgment motion, plaintiff may not "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit," Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248.

III. DISCUSSION

1. Department of Justice Records

EOUSA Records

EOUSA withheld 23 responsive pages in their entirety under FOIA exemption 5, in conjunction with exemptions 7(C) and 7(D). Luczynski Decl. ¶¶ 16, 20-22, 26. Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This provision applies to materials that normally are privileged in the civil discovery context, including those protected by the attorney work product privilege, the attorney-client privilege, and the deliberative process privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) ("The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."); accord Martin v. Dep't. of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007).

The 23 withheld pages consisted of "a draft of an indictment, an email between attorneys, a draft of a prosecutorial memorandum, and a single handwritten page, [] all written by attorneys preparing the case." Id. ¶ 19. Because EOUSA rightly asserts that the foregoing pages constitute attorney work product, id. ¶ 16, it properly withheld them in their entirety under exemption 5. See Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371 (D.C. Cir. 2005) ("If a document is fully protected as work product, then segregability is not ...


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