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North v. United States Dep't of Justice

September 30, 2009

JEFFREY NORTH, 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 a Freedom of Information Act ("FOIA") case brought by Plaintiff Jeffrey North against several agencies within the United States Department of Justice that have denied his requests for records relating to certain grand jury proceedings and a witness who testified against him at his criminal trial. With respect to each request, the responding agency either conducted a search for responsive records or determined that the request fell within one or more exemptions under FOIA. The parties have filed cross-motions for summary judgment on the dispositive issues of whether the searches conducted were legally sufficient or whether a FOIA exemption is applicable. After a thorough review of the parties' submissions and attachments thereto and applicable case law and statutory authority, the Court shall grant the agencies' motions for summary judgment and deny the plaintiff's motion for summary judgment with respect to Counts I, II, and IV of the Amended Complaint, and the Court shall dismiss without prejudice the parties' motions for summary judgment with respect to Count III of the Amended Complaint.

I. BACKGROUND

North was tried and convicted in 2000 for several drug- and gun-related offenses. See United States v. North, No. 1:98-cr-10176-GAO (D. Mass. Mar. 15, 2000). During North's trial, the government called a witness named Gianpaolo Starita to testify against North and identified Starita as a registered confidential informant. See Pl.'s Mot. for Summ. J., ¶¶ 4-5, Addendum ("Add.") at 8 (undated trial transcript excerpt). Starita's testimony implicated North in a scheme to buy marijuana. See id., ¶¶ 9-11, Add. at 18-20, 23-32 (undated trial transcript excerpts). Starita had agreed to cooperate with the government and testify against North in exchange for leniency in his own criminal case. Id., ¶¶ 5-7, Add. 17-18 (undated trial transcript excerpts). One Drug Enforcement Administration ("DEA") agent who testified at North's trial indicated in his testimony that there may be written reports describing Starita's cooperation with the government. Id., ¶ 10, Add. 40-42 (undated trial transcript excerpts). Following his conviction, North submitted several FOIA requests to various agencies within the Justice Department seeking information related to Starita. He also filed requests relating to certain grand jury proceedings.

A. Requests Filed with the Drug Enforcement Administration

On July 13, 2007, North filed a FOIA request with DEA requesting "any and all... documents which contain any debriefing/proffer statements or otherwise made/given by Gianpaolo Starita in regard to me...." See DEA's Stmt.*fn1, ¶ 15; DEA's Mot. for Summ. J., Ex. M (July 13, 2007 FOIA Request) at 1.*fn2 In its response letter, DEA neither confirmed nor denied the existence of any of the requested records and informed North that it could not release any such records without either proof of Starita's death or an authorized privacy waiver from Starita. DEA's Stmt., ¶ 17; DEA's Mot. for Summ. J., Ex. O (Sept. 20, 2007 Response Letter) at 1. DEA asserted that confirming the existence of law enforcement records relating to Starita would constitute an "unwarranted invasion of personal privacy" and that such records would be exempt from disclosure under FOIA Exemptions 6 and/or (7)(C), 5 U.S.C. §§ 522(b)(6), 522(b)(7)(C). DEA's Mot. for Summ. J., Ex. O at 1. North filed an administrative appeal with the Department of Justice Office of Information Policy ("OIP"), which affirmed DEA's refusal to confirm or deny the existence of records relating to Starita. DEA's Stmt., ¶¶ 18-20.*fn3

B. Requests Filed with the Bureau of Alcohol, Tobacco, Firearms & Explosives

On July 4, 2007, North submitted a FOIA request to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") for "any and all... documents written by ATF Agent John Mercer which contain any debriefing/proffer statements or otherwise made/given by Gianpaolo Starita in regard to me...." ATF's Mot. for Summ. J., Ex. A (July 4, 2007 FOIA Request). In its response letter, ATF indicated that it would neither confirm nor deny the existence of records relating to Starita out of concerns for Starita's privacy. ATF's Stmt., ¶ 2. North appealed ATF's denial to OIP, which remanded the request to ATF with instructions to conduct a search for responsive records. Id., ¶¶ 3, 5. On remand, ATF conducted a search for records and informed North that "[a] search of our records did not locate the requested information." ATF's Mot. for Summ. J., Ex. G (Mar. 24, 2008 Letter to Jeffrey North). North filed another administrative appeal challenging the sufficiency of the search, but OIP affirmed ATF's response. ATF's Stmt., ¶¶ 8, 10.

C. Requests Filed with the Executive Office for United States Attorneys

North submitted two separate FOIA requests to the Executive Office for United States Attorneys ("EOUSA"). On June 25, 2007, North submitted a request for "grand jury records pertaining to me, most specifically, the date in which the grand jury was very first en paneled[sic]/convened for the original and superseding indictments returned against me in the case of USA v. Jeffrey North 98-10176-GAO, and any documents that would indicate that an extension of time for the grand jury was requested and granted." EOUSA's Mot. for Summ. J., Ex. A (June 25, 2007 Letter to EOUSA) at 1.*fn4 EOUSA responded by letter informing North that his request sought public records which may be obtained from the clerk of the court and that no further action would be taken. EOUSA's Stmt., ¶ 2. North filed an administrative appeal with OIP, which remanded the request to EOUSA to conduct a search for responsive records. Id., ¶¶ 3-5. EOUSA conducted a search and referred North's request to the FOIA contact for the District of Massachusetts. EOUSA Id., ¶ 10. The FOIA contact searched the grand jury records located at the United States Attorney's Office ("USAO") in the District of Massachusetts and did not find any records responsive to this request. See EOUSA's Mot. for Summ. J., Ex. K (Decl. of Maryellen Barrett), ¶¶ 10-14, 16. The search included at least two hand reviews of six boxes of documents retrieved from the Waltham Federal Records Center and a search of the computerized tracking system put in place in November 1997. Id., ¶¶ 12-14. Grand jury records are routinely destroyed after ten years, and grand jury records pertaining to North would have been destroyed in 2007 or 2008. Id., ¶ 11. North contends that on March 31, 2008, EOUSA issued a response indicating that it had found no responsive records. Pl.'s Mot. for Summ. J., ¶ 51.

On July 5, 2007, North submitted a separate FOIA request with EOUSA for "a copy of a grand jury subpoena which issued in my name in either late 1997 or early 1998 in the Boston U.S. Courthouse." EOUSA's Mot. for Summ. J., Ex. F (July 5, 2007 FOIA Request) at 1. North further specified that the requested subpoena related to the criminal proceedings against Paul DeCologero. Id. EOUSA responded with a letter informing North that his request was denied in full because the information requested was "specifically exempted from disclosure by statute." Id., Ex. G (July 31, 2007 Letter to Jeffrey North). The denial letter cited Rule 6(e) of the Federal Rules of Criminal Procedure as prohibiting the disclosure of grand jury information. Id. North filed an administrative appeal, and OIP affirmed the EOUSA's denial. EOUSA's Stmt., ¶¶ 8-9.

II. LEGAL STANDARD

In reviewing motions for summary judgment under FOIA, the Court must conduct a de novo reviewof the record. See 5 U.S.C. §522(a)(4)(B). In the FOIA context, "de novo review requires the court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested... are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show 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).

All underlying facts and inferences are analyzed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Only after an agency seeking summary judgment proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In opposing a motion for summary judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency failed to segregate and disclose all non-exempt information in the requested documents. See Perry-Torres v. Dep't of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents.") In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if 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 evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. ...


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