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Gabriel Scaff-Martinez v. Drug Enforcement Administration et al

March 14, 2011

GABRIEL SCAFF-MARTINEZ, PLAINTIFF,
v.
DRUG ENFORCEMENT ADMINISTRATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION

In this action brought pro se under the Freedom of Information ("FOIA"), 5 U.S.C. § 552, the Plaintiff challenges the Drug Enforcement Administration's ("DEA") response to his request for records pertaining to the investigation of an alleged drug smuggling operation in Panama.*fn1

Pending before the Court are the Defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56 [Dkt. # 14]*fn2 , the Plaintiff's motion for summary judgment [Dkt. # 26], and the Defendants' motion to strike the Plaintiff's motion, which is also their opposition to the motion [Dkt. # 28]. Upon consideration of the parties' submissions and the entire record, the Court will grant the Defendants' motion for summary judgment, deny their motion to strike, and deny the Plaintiff's motion for summary judgment.

I. BACKGROUND

By letter of January 18, 2007, the Plaintiff requested from DEA certified copies of "written consents" from the Department of Justice ("DOJ") and the "Sovereign Republic of Panama's Government" that authorized DEA and the U.S. Army Criminal Investigation Command to "conduct [] cocaine smuggling activities" in February 1990, "and any and all other document [sic], reports, and bilateral agreement between the U.S. Government with the Government of Panama, related to the specific matter detailed for this criminal case." Complaint Pursuant to Title 5 U.S.C. § 552(a) et seq. ("Compl."), Ex. 1. The alleged operation resulted in the Plaintiff's criminal prosecution and conviction in the United States District Court for the Southern District of Florida. See Compl. at 2. By letter of October 23, 2007, DEA informed the Plaintiff that his request was deficient in several ways and invited him to reformulate the request. Def.'s Mot., Declaration of William C. Little, Jr. ("Little Decl.") [Dkt. # 14-1], Ex. J.*fn3 It further invited the Plaintiff to "reformulate your request and provide your intent to satisfy any fees that may be assessed for processing a 'First Party/Self' request pertaining to you." Id. at 2.

By letter of November 6, 2007, the Plaintiff attempted to clarify his request by emphasizing his "need [for] a copy of the [actual] authorization issued by the U.S. Attorney [sic] Office through the Department of Justice, to the DEA & CID agents that travelled [sic] to Panama in January, 1990, to bring back to U.S. Territory 182 kilograms of cocaine, for Criminal Case No. 90-CR-06036-JAG, United States v. Maria Del C. Gulfo et [al]." Id., Ex. L. By letters of December 24, 2007, and March 3, 2008, the Plaintiff sought the status of his request. Id., Ex. M; Compl. Attach. 10. On September 29, 2008, the Plaintiff reiterated his request to DEA on a form captioned "Freedom of Information Request." Little Decl., Ex. N; Compl. Attach. 11. By letter of October 10, 2008, DEA informed the Plaintiff that it had not yet completed its search for responsive records. Little Decl., Ex. O. By letter of March 2, 2009, the Plaintiff, having received no records, appealed to the Office of Information and Privacy ("OIP"), which informed Plaintiff by letter of July 8, 2009, that it had nothing to consider because DEA had yet to make an adverse determination. Id., Ex. T.

The Plaintiff filed this civil action on February 18, 2010. By letter of April 5, 2010, DEA informed the Plaintiff that his request was not sufficiently detailed to permit it to conduct a reasonable search for responsive records. Id., Ex. U. Nevertheless, based on the information contained in the Plaintiff's Certificate of Identity, DEA searched its Narcotics and Dangerous Drug Information System ("NADDIS"), using the Plaintiff's name, social security number and date of birth, and located seven files mentioning the Plaintiff. Id. at 3. Each file "is available through DEA Headquarters information systems and a corresponding file . . . in a DEA field office[,]" thereby amounting to "10 DEA investigative case files . . . ." Id. Five of the files were opened between 1984 and 1990 but none contained information pertaining to "any DEA foreign office located in Central America." Id. DEA explained that it does not "index[,] retrieve or maintain records based upon a criminal case name and/or docket number, or by reference to evidence submitted at trial." Id. It offered to search the "10 DEA investigative files that possibly contain information responsive to [the Plaintiff's] request," if the Plaintiff agreed to pay the estimated search fee of $840. Id. It also informed the Plaintiff about reformulating the request to reduce the fee. Id. at 4. DEA advised the Plaintiff that he had 30 days to indicate in writing his consent for the search and which files to search, and to remit his payment of "the associated fee." Id. By letter of April 13, 2010, DEA supplemented the April 5 letter by informing the Plaintiff that "knowing the citation to the 'mandate' or 'requirement' to which you refer will assist in determining if records exist and where they may be located." Little Decl., Ex. V at 3. In response, the Plaintiff, in a letter dated May 5, 2010, reiterated his request and referred to his criminal case information. Id., Ex. W.

Mr. Little made inquiries to "several DEA offices" and conducted a search within the Office of Chief Counsel "to ascertain whether any mandate existed that required DEA or its agents to obtain authority from the [Attorney General] to bring cocaine into the United States in the course of a criminal investigation." Little Decl. ¶ 42. He located no such authority. Id. ¶ 46.

II. LEGAL STANDARD

Summary judgment is warranted "if the movant shows [through facts supported in the record] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

The FOIA is violated when an agency improperly withholds agency records. See 5 U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). An agency's inadequate search for responsive records is equivalent to an improper withholding. See Maydak v. U.S. Dep't. of Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003). In a FOIA lawsuit, summary judgment may be granted based on the 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) (citations omitted); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

When, as here, the search for records is challenged, an agency is entitled to summary judgment if it establishes "beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency "may rely upon affidavits . . . , as long as they are relatively detailed and nonconclusory and . . . submitted in good faith." Id. (citations and quotations marks omitted). The required level of detail "set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched. . . ." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). "If the requester produces countervailing evidence placing the sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is inappropriate." Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of Scientology v. Nat'l Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)); see Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (summary judgment is inappropriate "if a review of the record raises substantial doubt" about the adequacy of the search) (citation omitted).

In determining the adequacy of a FOIA search, the court is guided by principles of reasonableness "based on what the agency knew at its conclusion rather than what the agency speculated at its inception." Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). "[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Thus, "the [mere] fact that a particular document was not found ...


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