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King v. United States Dep't

September 9, 2009

MOSES KING, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Moses King, proceeding pro se, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, naming as defendants the Department of Justice ("DOJ") and three of its component units, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Executive Office of the United States Attorneys ("EOUSA"),and the Drug Enforcement Administration ("DEA"). ATF and EOUSA have each filed a motion for summary judgment. For the reasons stated herein, the motions will be granted, and the Department of Justice will be granted summary judgment with respect to the searches and disclosure decisions made by ATF and EOUSA.

I. BACKGROUND

King submitted a written request for information in August 2007 to ATF, EOUSA and DEA. See Compl. at 2. ATF responded, notifying him that its search had produced no responsive documents. King appealed, but ATF's search was affirmed. Id. DEA responded with some disclosures. King appealed, and the search and disclosure decisions were affirmed.

Id. at 2-3. After a year, EOUSA had not notified King of any search results or produced any documents, and his appeal of EOUSA's non-response had been re-directed. Id. at 3. In August 2008, King filed the instant action. Only the DOJ, but not its subordinate components, is a proper defendant in an action under the FOIA. See 5 U.S.C. § 552(a)(4)(B). Because ATF and EOUSA each have conducted independent searches and provided sworn declarations, their motions will be considered on the merits as representatives of the DOJ. DEA has also filed a motion for summary judgment, which is not yet ripe, and therefore is not considered in this decision in any respect.

A. ATF Searches and Disclosure Decisions

ATF maintains two databases that are likely to contain information on ATF criminal investigations, the N-Force and TECS (Treasury Enforcement Communications System). Decl. of Averill P. Graham, Dec. 17, 2008 ("Graham I") ¶¶ 33, 34 (at Docket Entry 16); Decl. of Averill P. Graham, Feb. 26, 2009 ("Graham II") ¶ 4 (at Docket Entry 23). A search of both TECS and N-Force produced no responsive documents, see Graham I ¶¶ 5, 36, but revealed that DEA had a law enforcement file on King, see Graham II ¶ 5. ATF had not opened an individual case file on King. Id. ATF advised King of the negative results of its searches and invited him to provide additional information to assist with further searching. Id. & Ex. C.

Subsequently, ATF located two pages of responsive documents that it had generated in connection with an interstate firearms nexus search relating to King. These two pages had been overlooked in the previous search because they were kept in a general file of such searches, and not in any file identified by King's name or other unique identifier. Graham I ¶ 38. Once discovered, these two pages were identified and processed by ATF, which was after it had reported to King that the search of N-Force and TECS had produced no responsive documents, and after he filed this lawsuit. Id. Also after this lawsuit was filed, EOUSA, which was conducting its own search in response to King's FOIA request, referred to ATF ten pages of documents in EOUSA's custody which had originally been generated by ATF. Id. ¶ 13. Of the two discovered pages and the ten referred pages, ATF determined that two were not related to King and four were exact duplicates, leaving six pages of non-redundant responsive documents. Id. ¶ 14. Of the six, three were withheld in full*fn1 and three were released with redactions of federal law enforcement officers' names and other identifying information, under FOIA exemption (b)(7)(C). See id., ATF Vaughn Index at 1-2 (at Docket Entry 16).

B. EOUSA Searches and Disclosure Decisions

King also directed his document request to the United States Attorney's Office for the District of South Carolina ("USAO DSC"), where he had been prosecuted. To locate responsive files, that office searched the LIONS (Legal Information Office Network System) database, the Federal Records Center criminal file index, and requested the criminal attorneys in that office to determine whether they had any files relating to King. Decl. of Clarissa W. Whaley, Feb. 6, 2009, ¶¶ 4-6 (at Docket Entry 19). These searches identified a closed criminal case for King, as well as a related pending motion filed under 28 U.S.C. § 2255, both located at the USAO DSC. Id. Subsequently, and by chance, a legal assistant at the USAO DSC discovered an unlabeled box of records relating to King's criminal trial which contained two DVDs, six CD ROMs, and approximately 1000 pages of responsive documents. Id. ¶ 8. All responsive documents located, with the exception of grand jury transcripts, were forwarded to the EOUSA for review and processing in accordance with the law. Id. ¶¶ 7, 8.

Of the responsive documents located, 631 pages of documents were referred to other agencies for review and release determinations (620 pages were referred to DEA, 10 pages were referred to ATF, and one page was referred to the Internal Revenue Service ("IRS")), 358 pages (including the 48 pages of grand jury transcripts) and the two DVDs and the 6 CD ROMS were withheld in full, 47 pages were released in full to King, and 17 pages were released with redactions. See Decl. of Karen M. Finnegan, Feb. 6, 2009 ("Finnegan I"), ¶¶ 12, 16 - 18 & n.2 (at Docket Entry 19); Decl. of Karen M. Finnegan, June 18, 2009, ¶¶ 6-7. The one page referred to the IRS was later released in full to King. See Decl. of Symeria R. Rascoe, Feb. 11, 2009, ¶¶ 1-4 (at Docket Entry 28).

II. ANALYSIS

Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment must be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." id. at 248, that would permit a reasonable jury to find in his favor, Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). 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. 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, ...


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