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Lasko v. United States Dep't of Justice

February 17, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on defendant's motion for summary judgment. Having considered defendant's motion, plaintiff's opposition, and the entire record in this case, the Court will grant summary judgment for the defendant.


Plaintiff was convicted "(1) following a jury trial, of conspiring to manufacture 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, and (2) following his plea of guilty, of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). [He] was sentenced . . . to 210 months' and 120 months' imprisonment, respectively, to run concurrently." United States v. Lasko, 146 Fed. Appx. 530, 531 (2d Cir. 2005) (affirming criminal judgment in part and remanding in part), cert. denied, 546 U.S. 1155 (2006). On remand for reconsideration of the sentence, the trial court "considered all the relevant sentencing factors and determined that the original sentence was appropriate and reasonable." United States v. Lasko, No. 3:03-CR-0210, 2008 WL 189930, at *1 (N.D.N.Y. Jan. 18, 2008).

Plaintiff brings this action against the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.*fn1 Generally, plaintiff alleges that the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Administration ("DEA"), both components of DOJ, failed to release the records he requested.*fn2

A. Request to the Federal Bureau of Investigation

In February 2008, plaintiff submitted a FOIA request to the FBI's Philadelphia Field Office ("PHFO") for agency records about himself, a business identified as the Quick Lunch Diner in Newark Valley, New York, and about seven individuals, covering the period from January 2001 through January 2003. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment ("Def.'s Mem."), Declaration of David M. Hardy ("Hardy Decl.") ¶ 12; see id., Ex. G (February 8, 2008 FOIA/PA Request) at 1-2.*fn3 Plaintiff asked that the FBI search both its general indices and electronic surveillance ("ELSUR") indices. Id., Ex. G at 2. PHFO staff forwarded the request to the FBI's Washington, D.C. headquarters ("FBIHQ"), and its staff divided the request into three parts and assigned each part a reference number. See id. ¶¶ 13-15.

FBI staff returned to plaintiff the portion of the request, assigned FOIA No. 1112960, for information about the eight individuals, because he had submitted neither a privacy waiver from each individual nor proof of each individual's death. Hardy Decl. ¶ 13; see id., Ex. H (March 4, 2008 letter from D.M. Hardy, Section Chief, Records Information and Dissemination Section, Records Management Division, FBIHQ). Next, agency staff notified plaintiff that the PHFO maintained no records pertaining to the Quick Lunch Diner or to plaintiff himself. Hardy Decl. ¶¶ 14-15; see id., Ex. I-J (respectively, March 5, 2008 and March 10, 2008 letters from D.M. Hardy regarding FOIA Nos. 1111045 and 1111044). On administrative appeal to the DOJ's Office of Information and Privacy ("OIP"), the FBI's initial determinations were affirmed. See Hardy Decl. ¶¶ 16-18; see id., Ex. O (April 21, 2008 letter from J.G. McLeod, Associate Director, Office of Information and Privacy, regarding Appeal Nos. 08-1404 through 08-1406).

B. Requests to the Drug Enforcement Administration

Plaintiff's first request to the DEA sought only information about himself. Def.'s Mem., Declaration of Leila Wassom ("Wassom Decl."), Ex. A (April 28, 2008 FOIA Request) at 1. Because the DEA did not respond promptly, plaintiff submitted a separate four-page request about two months later. Compl. ¶ 8; Wassom Decl., Ex. B (June 12, 2008 FOIA Request). In addition to records about himself, plaintiff sought information pertaining to fourteen individuals (seven of whom were listed in his prior request to the PHFO), and to the Quick Lunch Diner. Id., Ex. B at 2. Plaintiff requested a waiver of fees associated with the processing of his request. Id. at 2-3. DEA staff combined the two requests and assigned a single tracking number, DEA FOIA No. 08-0996-P. See id., Ex. D (October 27, 2008 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA) at 1.

The DEA neither confirmed nor denied the existence of records pertaining to the fourteen individuals, explaining that "[i]n order to receive information about a third-party[,] it would be necessary for him to submit a release authorization from each third[] party." Wassom Decl. ¶ 9. Further, the DEA rejected a portion of his request because it did not constitute a proper request. Specifically, the agency found that "his request for a search of all records maintained by the DEA was not specific enough, and that his request for records between the dates of January 2001 through January 2003 was tantamount to research." Id. ¶ 10. The DEA denied plaintiff's request for a fee waiver. Id. Lastly, the agency conducted a preliminary search for records pertaining to plaintiff, and that search yielded DEA Investigative Case File No. CO-03-0048. Id. Plaintiff was instructed to notify the DEA in writing if he wanted its staff to conduct a search for records maintained in this investigative file. Id., Ex. D at 2. Plaintiff responded that he was "interested in . . . reports prior to January 29, 2003" pertaining to himself, as well as "a full and compleat [sic] color copy of all photos taken[.]" Id., Ex. H (December 30, 2008 letter to W.C. Little, Jr.).

Even though plaintiff filed an administrative appeal to the OIP, see Wassom Decl., Ex. E (November 3, 2008 FOIA Appeal), the DEA began to process Investigative Case File No. CO-03-0048 and ultimately released 42 pages of records in full, released 124 pages in part, and withheld 14 pages in full. See Wassom Decl. ¶¶ 13, 15, 17.


A. Summary Judgment in FOIA Case

The Court may grant a motion for summary judgment "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." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the information provided in an agency's supporting 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 Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

The Court is mindful that the plaintiff is a pro se litigant whose pleadings and other submissions are construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). For this reason, the Court relies on plaintiff's general assertion that the DOJ improperly withheld requested records, see generally Plaintiff's Consolidated Motion for Leave as in Bequest to File a Five-Page Extended Reply Brief to Defendants' Opposition and with Disclosure Statement Herein As Shown [Dkt. #19] ("Pl.'s Opp'n"), as a sign that plaintiff does not concede the defendant's motion, notwithstanding his utter failure to challenge the adequacy of the agency's searches or to address substantively any of the claimed exemptions.

B. Searches for Responsive Records

Upon receipt of a request under the FOIA, the agency must search its records for responsive documents. See 5 U.S.C. § 552(a)(3)(A). "An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance ...

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