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Clay v. United States Dep't of Justice

January 29, 2010

LEWIS NATHANIEL CLAY, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2008), the plaintiff challenges the responses of the Drug Enforcement Administration ("DEA") and the Executive Office for United States Attorneys ("EOUSA") to his requests for records "to wit: Receipts for Cash used in the purchase of drugs on March 11, 2002." Complaint for Declaratory and Injunctive Relief to Effect Release of Records ("Compl.") [Dkt. No. 1] at 1. The defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Upon consideration of the parties' submissions and the entire record, the Court will grant the defendants' motion and enter judgment in their favor accordingly.

I. BACKGROUND

1. The EOUSA Records Request

By letter dated June 21, 2004, the plaintiff requested from the EOUSA "the voucher on the amount of money paid" to a confidential informant, phone records of calls between him and his attorney that were "made and recorded" from the Atlanta Pretrial Detention Center from "the 10th through the 28th" of February, and "the grand jury minutes or transcripts." Declaration of John F. Boseker ("Boseker Decl.") [Dkt. No. 18-4], Exhibit ("Ex.") A. The plaintiff narrowed his request by letter on January 15, 2005, to (1) "[r]eceipt(s) . . . verifying the amount of money that was issued from the cashier to the confidential informant" to purchase drugs from the plaintiff on March 11, 2002, (2) "[r]eceipt(s) of . . . money returned that was not used in [the] transaction . . . [and] (3) receipt(s) of the government's funds used to pay the CI for services furnished during the investigation and conviction of [the plaintiff]." Id., Ex. I.

By letter dated February 9, 2005, the EOUSA informed the plaintiff that a search conducted in the United States Attorney's Office for the Northern District of Georgia ("USAO/NDGA") located no responsive records. Id., Ex. J. It suggested that the plaintiff make a request to the DEA and informed the plaintiff of his right to appeal that determination to the Department of Justice's Office of Information and Privacy ("OIP"). Id. In response to the plaintiff's appeal submitted February 22, 2005, id., Ex. K., the OIP affirmed the EOUSA's no-records response by letter on May 9, 2005, id., Ex. M.

2. The DEA Records Request

By letter dated October 23, 2004, the plaintiff requested from the DEA "[r]eceipts of money paid to a confidential informant, Voucher's Drug Buy/Michelle Hardy, 3/11/2002. CASHIER: Spring Williams, DEA" and "copies of the contents of the file complied [sic] by the DEA during the investigation and prosecution of the cited [criminal] case." Declaration of William C. Little, Jr. ("Little Decl.") [Dkt. No. 18-5], Ex. A. By letter on November 16, 2004, the DEA neither confirmed nor denied the existence of such records and advised the plaintiff of his right to appeal to the OIP. Id., Ex. C. By letter dated February 16, 2005, the plaintiff requested substantially the same records, id., Ex. D, to which the DEA responded by letter on April 25, 2005, id., Ex. G, advising the plaintiff that it was denying his request and withholding three pages of information under the Privacy Act, 5 U.S.C. 552a(j)(2), and FOIA exemptions (b)(2), (b)(7)(C) and (b)(7)(F), id., Ex. G at 2. On appeal, the OIP affirmed the DEA's withholding but under FOIA exemptions (b)(2), (b)(7)(C), (b)(7)(D), (b)(7)(E) and (b)(7)(F). Id., Ex. J.*fn1

II. LEGAL STANDARD

Under Rule 56(c)(2), summary judgment is appropriate if "the pleadings, the discovery 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." When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted), for "conclusory allegations unsupported by factual data will not create a triable issue of fact," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal brackets and quotation marks omitted). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The FOIA requires a federal agency to release all records responsive to a request for production. 5 U.S.C. § 552(a)(3)(A). The Court is authorized under the FOIA "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); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). When a FOIA requester files a civil action, the agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation marks omitted); see accord Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (government has the burden of proving each claimed FOIA exemption). The Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations when they describe "the documents and 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).

III. ANALYSIS

1. The EOUSA Records Request

The sole issue with respect to the EOUSA request is whether its search for records responsive to the plaintiff's FOIA request was adequate. An agency that is responding to a FOIA request must make "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (citation and internal quotation marks omitted); see also Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating that "[an] agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents") (internal quotation marks omitted)). While "an agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested," Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (internal quotation marks omitted), the search "need not be perfect, only adequate, and adequacy is measured by the ...


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