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Lewis v. United States Dep't of Justice

August 17, 2010

ANTHONY LEWIS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



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

MEMORANDUM OPINION

The plaintiff brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2010), and the Privacy Act, 5 U.S.C. § 552a (2010), demanding the release of certain records maintained by four components of the United States Department of Justice ("DOJ").*fn1

This matter is currently before the Court on the defendant's motion for summary judgment.*fn2 For the reasons that follow, the Court will grant the motion in part and deny it in part.

I. BACKGROUND

A. Executive Office for United States Attorneys ("EOUSA")

The plaintiff submitted a FOIA request to the United States Attorney's Office for the Middle District of Florida, which referred the request to the EOUSA for processing. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss in Part, and Alternatively, for Summary Judgment ("Def.'s Mem."), Declaration of David Luczynski ("Luczynski Decl.") ¶ 4. He sought the following information:

[A]n expedicted [sic] copy of "all" compliants [sic], affidavits, and other documents filed with the United States Attorney General Janet Reno in 1993-1994 and the Office of Enforcement Operations, seeking authorization to intercept telephone communications of Anthony Lewis . . . which were filed by the Prosecuting Assistant U.S. Attorney . . . [and] a copy of the authorization from Janet Reno, giv[ing] the prosecuting attorney authority to obtain [a] Judicial order to intercept telephone communications . . . and the judicial orders from the judge issued to the prosecuting attorney.

Id., Luczynski Decl., Exhibit ("Ex.") A (September 21, 2008 Privacy Act Identification and Request Form) at 2. The EOUSA responded to the request, which had been assigned Request No. 08-3328, by releasing 35 pages of records in full and 6 pages in part after having redacted certain information under FOIA Exemption 7(C). Id., Luczyinski Decl. ¶¶ 5-6; see id., Ex. C (December 10, 2008 letter from W.G. Stewart II, Assistant Director, Freedom of Information/Privacy Act Staff, EOUSA, DOJ) at 1. In addition, the EOUSA referred 59 pages of records to the Drug Enforcement Administration, the DOJ entity from which these records originated. Id., Ex. C at 2.*fn3

B. Office of Professional Responsibility ("OPR")

In his FOIA request to the OPR, the plaintiff sought:

1). [A] complete copy of the file [regarding] the complaint [the plaintiff] filed against Assistant U.S. Attorney Jack Fernandez, Middle District of Florida, Tampa Division, which was filed in the year 1995, 1996, or 1997.

2). [T]he complaint filed against Jack Fernandez, Jack Fernan[d]ez's response to the complaint, the investigative documents from the investigation, any and all documents from individuals interviewed or contacted in reference to the complaint, and documents of the findings of the complaint, including the sanctions imposed as well as the outcome of the complaint and investigation.

3). [A]ny and all related documents from cases or investigations associated with the complaint and investigation in reference to Jack Fernandez.

Def.'s Mem., Vaughn Declaration of Patricia Reiersen ("Reiersen Decl."), Ex. A (June 17, 2004 FOIA Request). The OPR's search yielded three files containing 54 documents responsive to the request. Id., Reiersen Decl. ¶ 6. Of these 54 documents, five were deemed duplicates, and four originated at the EOUSA. Id. The OPR referred the four EOUSA documents to the EOUSA for its direct response to the plaintiff. Id. The OPR released to the plaintiff 18 documents in full and 27 documents in part, after having redacted certain information under FOIA Exemptions 2, 6 and 7(C). See id. ¶¶ 12-19.

C. Drug Enforcement Administration ("DEA")

The DEA's records include "several direct requests and referrals that relate to the plaintiff." Def.'s Mem., Decl. of William C. Little, Jr. ("Little Decl.") ¶ 16. The declarant explains that the DEA's FOIA request files are destroyed after six years, and information regarding the plaintiff's first three requests "was extrapolated from the E-FOIA case management system," id. ¶ 17 n.1, a internal computer-based system used to identify, track and locate FOIA requests, id. ¶ 15.

1. DEA FOIA Request Number ("No.") 95-0263-F

The plaintiff "requested information related to third-parties," and the DEA closed the case related to this request administratively because "the plaintiff failed to provide release authorizations, as requested, from any third-party." Id. ¶ 17. The plaintiff did not appeal this determination administratively to the Office of Information and Privacy ("OIP"), id. ¶ 18, the office responsible for handling appeals of adverse FOIA determinations made by DOJ components. See 28 C.F.R. § 16.9.

2. DEA FOIA Request No. 96-0264-P

In this second request, the plaintiff requested information about himself. Id. ¶ 19. The DEA closed the case concerning this request on April 30, 1996, after it had released 299 pages of records and withheld 77 pages of records in their entirety relying on FOIA Exemptions 2, 7(C), 7(D), and 7(F). Id. The plaintiff also failed to appeal this determination administratively to the OIP. Id. ¶ 20.

3. DEA FOIA Request No. 98-1218-F

The plaintiff's third request was for records pertaining to the seizure of property. Id. ¶ 21. The DEA released 288 pages of records in response to this request, but withheld certain information under FOIA Exemptions 2, 7(C), and 7(F). Id. Again, the plaintiff did not appeal this determination administratively to the OIP. Id. ¶ 22.

4. DEA FOIA Request No. 04-0699-F

In correspondence addressed to the DEA's Internal Affairs Office, the plaintiff requested the following information:

1). Any and all notes, investigative information, resources for information, end results of invest[ig]ation and complaint in reference to Agents Tom Feeney and Dale VanDorple, from compliant [sic] filed by Anthony Lewis in reference to the agents['] ...


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