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Skinner v. United States Dep't of Justice

September 30, 2010

JESSE SKINNER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



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

OPINION

Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") and four of its components. The DOJ moves to dismiss in part on the ground that plaintiff's complaint fails to state claims upon which relief can be granted with respect to FOIA requests submitted to the Executive Office for United States Attorneys ("EOUSA") and the Drug Enforcement Administration ("DEA"). In addition, the DOJ moves for summary judgment with respect to FOIA requests submitted to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE"), and the Federal Bureau of Investigation ("FBI"). Plaintiff moves for summary judgment and demands the release of all information he has requested.

For the reasons discussed below, the DOJ's motion to dismiss will be denied, its motion for summary judgment will be granted in part and denied in part without prejudice, and plaintiff's motion for summary judgment will be denied without prejudice.*fn1

I. BACKGROUND

A. FOIA Request to the BATFE

On July 3, 2007, plaintiff submitted a FOIA request to the BATFE's Biloxi, Mississippi Field Office. Compl. ¶ 4; Defs.' Mem. of P. & A. in Supp. of their Mot. to Dismiss In Part, and Alternatively, Mot. for Summ. J. ("Defs.' Mem."), Decl. of Averill P. Graham ("Graham Decl.") ¶ 19.*fn2 In relevant part, the request read:

This letter serves as a FOIA request . . . for copies of any and all records created and received by the Biloxi, Mississippi Field Office for the [BATFE] in regards to myself -- JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the [BATFE] in reference to me.

EXAMPLES OF REQUEST:

Any and all written, recorded or graphic matter, however produced or reproduced, including but not limited to, photographs, logs, minutes of meetings, memoranda, inter-office communications, computer applications, electronic mail (including old or "deleted" electronic mail on back-up tapes, back-up files etc.), notes, studies, analyses, and reports created and received by [BATFE] in regards to me.

Graham Decl., Ex. Q (FOIA request) at 1. The BATFE assigned the matter a tracking number, No. 07-1248. See id., Ex. R (Letter from A. Sands, Disclosure Assistant, BATFE, to plaintiff dated July 18, 2007).

On August 6, 2007, the BATFE denied plaintiff's request pursuant to Exemption 7(A), Compl. ¶ 6, on the mistaken belief that release of the requested records "could reasonably be expected to interfere with enforcement proceedings." Graham Decl., Ex. S (Letter from S. Placanica, Disclosure Specialist, BATFE, dated August 6, 2007). Plaintiff filed an administrative appeal to the DOJ's Office of Information and Privacy ("OIP") challenging the BATFE's response. Graham Decl. ¶ 22.*fn3 The OIP remanded the matter, which it had assigned Appeal No. 07-2300, because it determined that Exemption 7(A) no longer applied. Id. ¶ 24; see id., Ex. V (Letter from J.G. McLeod, Associate Director, OIP, DOJ, to plaintiff dated October 25, 2007).

Apparently the BATFE assigned plaintiff's request a new tracking number, No. 08-171, on remand. On November 21, 2007, the BATFE granted plaintiff's FOIA request in part and denied it in part, releasing the first 100 pages of responsive records, or segregable portions thereof, pending receipt of fees arising from the search for and copy of the records. Graham Decl. ¶ 25. Upon receipt of plaintiff's money order, id. ¶ 25, on December 13, 2007, the BATFE released additional records, id. ¶ 32, after having withheld certain information under FOIA Exemptions 2, 3, 6, and 7(C). Id.; see id., Ex. DD (Letter from S. Placanica to plaintiff dated December 13, 2007) at 1; Pl.'s Opp'n, Ex. JJ (Document Cover Sheet: Exemptions List and Appeal Rights regarding File No. 08-171).*fn4 It withheld in full recordings of phone calls under Exemption 7(C). Graham Decl. ¶ 32. On "review of all the documents for litigation," the BATFE concluded that "further segregable information" could be released, and on October 26, 2009, it released 34 more pages of records. Id. ¶ 34.

1. Administrative Appeal to the OIP On December 26, 2007, plaintiff filed an administrative appeal to OIP challenging the adequacy of the BATFE's search for responsive records, Compl. ¶ 11, and its reliance on Exemptions 3, 6 and 7(C) to withhold certain information. Graham Decl. ¶ 34; see id., Ex. FF (Letter from plaintiff to the OIP dated December 26, 2007). The OIP assigned the matter Appeal No. 08-0820, id. ¶ 35, and it affirmed the BATFE's response to plaintiff's FOIA request "on partly modified grounds," Graham Decl. ¶ 37, concluding that the BATFE's decisions to withhold information under Exemptions 2, 3, 5, 7(C) and 7(E) was appropriate and that its search for responsive records was adequate. Id., Ex. II (Letter from J.G. McLeod to plaintiff dated March 8, 2008) at 1-2.

2. Referrals

In addition to the November 21, 2007 and December 13, 2007 releases of records to plaintiff, the BATFE referred records to the agencies where they originated. See Graham Decl. ¶¶ 26-27, 29-31.

a. Referral to the Department of the Army

On November 21, 2007, the BATFE referred 12 pages of records to the Department of the Army ("Army"). Graham Decl. ¶ 26; see id., Ex. X (Letter from S. Placanica to R. Dickerson, Freedom of Information and Privacy Acts Division, Department of the Army, dated November 21, 2007). The result of this referral has not been explained.

b. Referrals to the DEA (Nos. 08-0407-P and 08-0450-P)

On November 21, 2007, the BATFE referred six pages of records to the DEA. Graham Decl. ¶ 27; see id., Ex. Y (Letter from S. Placanica to K.L. Myrick, Chief, Freedom of Information Operations Unit, FOI/Records Management Section, DEA, dated November 21, 2007). The DEA assigned the matter DEA FOIA No. 08-0407-P, and notified plaintiff of its decision to withhold these records in full pursuant to FOIA Exemptions 7(C), 7(D), and 7(F). Defs.' Mem., Decl. of Katherine L. Myrick ("Myrick Decl.") ¶ 15; see id., Ex. M (Letter from K.L. Myrick to plaintiff dated March 17, 2008). Plaintiff appealed the DEA's decision to the OIP. Graham Decl. ¶ 38; see id., Ex. JJ (Letter from plaintiff to the OIP dated April 13, 2008). The OIP acknowledged receipt of the appeal in writing, and assigned the matter Appeal No. 08-1591. Id., Ex. KK (Letter from P. Jones, Supervisory Administrative Specialist, OIP, to plaintiff dated April 24, 2008). The OIP deemed the appeal a duplicate of that pursued with respect to plaintiff's previous appeal of the BATFE's response to the underlying FOIA request, Appeal No. 08-0820, Graham Decl. ¶ 40, and administratively closed the appeal. See id., Ex. LL (Letter from J.G. McLeod to plaintiff dated June 5, 2008).

The BATFE referred 22 additional pages to the DEA on December 13, 2007. Graham Decl. ¶ 30; see id., Ex. BB (Letter from S. Placanica to K.L. Myrick dated December 13, 2007). The BATFE noted that the records contained "BATFE information . . . which have been marked with deletions under [Exemptions 6 and 7(C)] because release of these records could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id., Ex. BB. The DEA denied plaintiff's request, which was assigned DEA FOIA Request No. 08-0450-P, and withheld all 22 pages in full pursuant to Exemptions 7(C), 7(D), and 7(F). Myrick Decl. ¶ 20; see id. Ex. R (Letter from K.L. Myrick to plaintiff dated March 17, 2008). Plaintiff appealed this decision to the OIP, Myrick Decl. ¶ 21; see id., Ex. S (Letter from plaintiff to the OIP dated April 13, 2008), and the OIP, which assigned the matter Appeal No. 08-1594, id., Ex. T (Letter from P. Jones to plaintiff dated April 24, 2008), affirmed the decision but remanded the matter for the sole purpose of determining whether one of the 22 pages was properly withheld in full. Id., Ex. U (Letter from J.G. McLeod to plaintiff dated June 20, 2008) at 1.

In conducting a review of the records for this litigation, the DEA determined that only 16 pages of records could be withheld in full; it released six redacted pages of records because Exemption 7(A) no longer applied. Myrick Decl. ¶ 24; see id., Ex. V (Letter from K.L. Myrick to plaintiff dated June 10, 2009) at 1. One of these redacted pages was the single page remanded by OIP on June 20, 2008. Myrick Decl. ¶ 24.

c. Referral to the U.S. Citizenship and Immigration Services

On December 13, 2007, the BATFE referred one page to the U.S. Citizenship and Immigration Service ("USCIS"). Graham Decl. ¶ 29; see id., Ex. AA (Letter from S. Placanica to B.J. Welsh, FOIA Officer, USCIS, dated December 13, 2007). The result of this referral has not been explained.

d. Referral to the EOUSA (No. 07-4371-R)

On December 13, 2007, the BATFE referred two pages of records to the EOUSA. Graham Decl. ¶ 31; see id., Ex. CC (Letter from S. Placanica to W.G. Stewart, II, Assistant Director, FOIA/Privacy Unit, EOUSA, dated December 13, 2007). The BATFE noted that the records contained "BATFE information . . . which [has] been marked with deletions under [Exemptions 6 and 7(C)] because release of these records could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id., Ex. CC. From these two pages of records, the EOUSA withheld information under Exemption 7(C). Id., Ex. HH (Letter to plaintiff from W.G. Stewart II) at 2.

B. FOIA Requests to the FBI

On July 3, 2007, plaintiff submitted nearly identical FOIA requests to the FBI's Washington, D.C. headquarters ("FBIHQ") and to its Jackson, Mississippi Field Office ("JNFO"). See Defs.' Mem., Decl. of David M. Hardy ("Hardy Decl."), Ex. A, C (July 3, 2007 FOIA requests to FBIHQ and JNFO respectively). Both letters were addressed to the DOJ's FOI/PA Referral Unit, Justice Management Division, in Washington, D.C. Id. In relevant part, the request read:

This letter serves as a FOIA request . . . for copies of any and all records created and received by the [FBIHQ and JNFO] in regards to myself -- JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the FBI in reference to me. EXAMPLES OF REQUEST: Any and all written, recorded or graphic matter, however produced or reproduced, including but not limited to, photographs, logs, minutes of meetings, memoranda, inter-office communications, computer applications, electronic mail (including old or "deleted" electronic mail on back-up tapes, back-up files etc.), notes, studies, analyses, and reports created and received by FBI in regards to me.

More specifically I am requesting a search of the FBI's Central Records System ("CRS"); Automated Case Support System ("ACSS"); Electronic Case Files ("ECF"); Universal Index Files ("UIF"); Legal Attaches ("Legats"); Investigative Case Management System ("ICMS"); Confidential Source System ("CSS"); and the "I-Drive" System.

Id., Ex. A at 1. Plaintiff's FOIA request to FBIHQ was assigned FOIPA No. 1086283-000. Hardy Decl. ¶ 8. A search of the automated indices of the agency's Central Record System ("CRS") located no main files responsive to his request. Id. The FBIHQ notified plaintiff in writing of the results of the search, and advised him of his right to file an administrative appeal with the OIP. Id.; see id., Ex. B (letter from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBIHQ, to plaintiff dated July 31, 2007).

The FBIHQ assigned the request intended for JNFO a separate tracking number, FOIPA No. 1086209-000, Hardy Decl. ¶ 10, and, without realizing that the request was meant for field office records, staff conducted a second and unproductive search of the CRS locating no responsive records in its main files. Id., Ex. D (Letter from D.M. Hardy to plaintiff dated July 31, 2007). Its written response to plaintiff also advised him of his right to file an administrative appeal of the decision with the OIP. Id. Plaintiff did appeal the FBIHQ's response to FOIPA Request No. 1086209-000. Id., Ex. E (Letter to the Director of the OIP from plaintiff dated August 17, 2007). The OIP affirmed the decision and recommended that plaintiff submit a request directly to JNFO. Id., Ex. G (Letter from J.G. McLeod to plaintiff dated October 4, 2007).

On November 6, 2007, plaintiff sent a letter to the JNFO stating that he had not received a response to his July 3, 2007 FOIA request to that field office. Hardy Decl. ¶ 14; see id., Ex. H (Letter to the FBI, JNFO, from plaintiff dated November 6, 2007); see Compl. ¶ 20. The FBIHQ treated this letter as a new request and assigned it FOIPA No. 1100573-000. Hardy Decl. ¶ 15. A search for main files in the CRS' automated indices at the JNFO yielded no responsive records. Id., Ex. I (Letter from D.M. Hardy to plaintiff dated November 27, 2007). Plaintiff appealed this decision to the OIP on December 26, 2007. Id., Ex. J (Letter to the OIP to plaintiff dated December 26, 2007); Compl. ¶ 22. The OIP affirmed. Hardy Decl. ¶ 18; see id., Ex. L (Letter from J.G. McLeod to plaintiff dated March 27, 2008).

The FBI conducted a third search of FBIHQ and JNFO records after this litigation commenced. Hardy Decl. ¶¶ 20 n.2, 34. That search located 101 pages of records responsive to his FOIA request, and on October 22, 2009, the FBI released 20 pages in full, released 68 pages in part, and withheld 13 pages in full, id. ¶ 20, invoking FOIA Exemptions 2, 6, 7(C), 7(D), and 7(E). See generally id. ¶¶ 41-79.

C. FOIA Request to the EOUSA

On July 3, 2007, plaintiff submitted a FOIA request to the EOUSA, which read in relevant part:

This letter serves as a FOIA request . . . for copies of any and all records created and received by the United States Attorney's Office for the Southern District of Mississippi ("USAO") in regards to myself -- JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the USAO in reference to me. EXAMPLES OF REQUEST: Any and all written, recorded or graphic matter, however produced or reproduced, including but not limited to, photographs, logs, minutes of meetings, memoranda, inter-office communications, computer applications, electronic mail (including old or "deleted" electronic mail on back-up tapes, back-up files etc.), notes, studies, analyses, and reports created and received by USAO in regards to me.

More specifically I am requesting a search of the USAO's Central Records System ("CRS"); Automated Case Support System ("ACSS"); Electronic Case Files ("ECF"); Universal Index Files ("UIF"); Legal Attaches ("Legats"); Investigative Case Management System ("ICMS"); Confidential Source System ("CSS"); and the "I-Drive" System.

Defs.' Mem., Decl. of Vinay J. Jolly ("Jolly Decl."), Ex. A at 1. The EOUSA "split the request into two separate files for processing purposes," Jolly Decl. ¶ 4, assigning Request No. 07-2439 "to the portion of [p]laintiff's request pertaining to himself for records in the Southern District of Mississippi," and Request No. 07-2440 "to the portion of his request pertaining [to] EOUSA's Electronic Records System." Id. n.1. The EOUSA's search for records maintained by the USAO for the Southern District of Mississippi yielded no responsive records about plaintiff himself. Id.

¶ 6. With respect to Request No. 07-2440, the EOUSA's Data Analysis Staff searched the USAO's Central Case Management System and National LIONS, the computer tracking system for the USAOs, id. ¶ 8, and located five pages of responsive records, all of which were released in full. Id. ¶ 9; see id., Ex. E (Letter from W.G. Stewart to plaintiff dated October 25, 2007) at 1.

Plaintiff administratively appealed both decisions to the OIP on November 6, 2007. Compl. ¶ 31; Jolly Decl. ¶ 10. Although the OIP affirmed the EOUSA's decision with respect to Request No. 07-2440, Jolly Decl., Ex. J (Letter from J.G. McLeod dated December 19, 2007), it remanded Request No. 07-2439 to the EOUSA so that it could conduct a further search for responsive records. Id., Ex. K (Letter from J.G. McLeod to plaintiff dated December 10, 2008). Plaintiff was advised that if the EOUSA located responsive records, it would send any releasable records to him subject to any fees. Id.

On August 7, 2009, the EOUSA notified plaintiff that it had located records responsive to his FOIA request. Jolly Decl. ¶ 14. It proposed the release of 507 pages of records in full, the release of 68 pages of records in part, the withholding in full of 703 pages of records, and the referral of 694 pages of records to other agencies for their direct response to plaintiff.

Id., Ex. L (Letter from W.G. Stewart to plaintiff dated August 7, 2009) at 1-2. Before releasing any documents, however, the EOUSA asked plaintiff whether he wanted to receive only the first 100 pages of records for which there would be no charge, or whether he wanted to receive all releasable pages of records upon payment of $47.50 to cover copying costs. Id. at 2. Lastly, the EOUSA advised plaintiff that if it did not receive timely payment, it would close the matter and any future FOIA requests would be denied until it received payment. Id. Plaintiff did not pay the copy fees and the EOUSA closed his request. Jolly Decl. ¶ 16.

D. FOIA Request to the DEA

On July 3, 2007, plaintiff submitted a FOIA request to the DEA's Biloxi, Mississippi Field Office, Compl. ¶ 35, and the DEA assigned it a tracking number, DEA FOIA Request No. 07-1134-P. Myrick Decl. ¶ 6. In relevant part, the request read:

This letter serves as a FOIA request . . . for copies of any and all records created and received by the Biloxi, Mississippi Field Office for the Drug Enforcement Administration ("DEA") in regards to myself -- JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the DEA in reference to me. EXAMPLES OF REQUEST: Any and all written, recorded or graphic matter, however produced or reproduced, including but not limited to, photographs, logs, minutes of meetings, memoranda, inter-office communications, computer applications, electronic mail (including old or "deleted" electronic mail on back-up tapes, back-up files etc.), notes, studies, analyses, and reports created and received by DEA in regards to me.

Id., Ex. A (FOIA request) at 1-2.*fn5 Of the 69 pages of records responsive to the request, the DEA released three pages in part and withheld 63 pages in full pursuant to FOIA Exemptions 2, 7(A), 7(C), 7(D), and 7(F). Id. ¶ 7; see id., Ex. D (Letter from K.L. Myrick to plaintiff dated February 28, 2008) at 2. In a separate letter, the DEA informed plaintiff that he had been referenced in five "related" files, and instructed that, if he were to request a manual search of those files, the estimated cost for this search was $224.00. Id., Ex. E (February 28, 2008 letter from K.L. Myrick). As of the filing of defendants' motion, plaintiff neither paid the search fees nor requested a waiver. Myrick Decl. ¶ 7.

On April 13, 2008, plaintiff filed an administrative appeal to the OIP challenging the DEA's decision to withhold 63 pages of records in full, Myrick Decl. ¶ 8; see id., Ex. F (Letter from plaintiff to the OIP dated April 13, 2008), and the OIP assigned the matter a tracking number, 08-1596. Id., Ex. G (Letter from OIP to plaintiff dated April 24, 2008). The OIP affirmed the DEA's determination, concluding that information properly had been withheld under the claimed exemptions. Id., Ex. H (Letter from J.G. McLeod to plaintiff dated June 20, 2008) at 1.

While performing a litigation review of the administrative file, the DEA determined that seven additional pages of records could be released to the plaintiff because Exemption 7(A) no longer applied. Myrick Decl. ΒΆ 11. All 63 pages of records were reviewed, and the DEA released six of these 63 pages in part, after redacting information pursuant to Exemptions 2, 7(C), 7(D), and 7(F). Id.; see id., Ex. I (Letter from K.L. Myrick to plaintiff dated June 10, 2009). A ...


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