The opinion of the court was delivered by: Beryl A. Howell United States District Judge
Plaintiff, a federal prisoner, brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to challenge defendants' response to his request for information pertaining to himself and the criminal investigation of his activities. This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons discussed below, the motion will be granted.
In September 2005, plaintiff submitted a FOIA request (assigned No.
20050573) to the United States Secret Service ("Secret Service"), and
the agency's search for responsive records yielded two files
maintained by its Chicago Field Office ("CFO"). See Objection to
Defs.' Mot. to Dismiss or Alternatively, for Summary Judgment ("Pl.'s
Opp'n"), Attach. (Aff. of Factual Supp.) ¶¶ 86-89. The two files were
an asset forfeiture file and a criminal investigative file containing
"documents compiled in connection with the Secret Service's criminal
investigation of [p]laintiff." James v. U.S. Secret Serv., No.
06-1951, 2007 WL 2111034, at *2 (D.D.C. July 23, 2007) (Kessler, J.).
The Secret Service withheld all the records in full. Id. In subsequent
litigation, this Court found that the search for responsive records
was "adequate to fulfill Secret Service's obligations under FOIA." Id.
at *4. This Court further concluded that information in the criminal
investigative file was properly withheld based on Exemptions 7(A) and
7(C). See id. at *4-7.*fn1 Specifically, the Court
found that Exemption 7(A) applied because, while the appeal of
plaintiff's criminal convictions was pending before the United States
Court of Appeals for the Seventh Circuit, the requested disclosure
"could interfere with an ongoing criminal investigation."*fn2
Id. at *5. In addition, the Court considered plaintiff's
assertion that he needed the requested documents "to show that the
government acted improperly in his criminal case," id. at *7, -- a
refrain reprised in this case -- but held that the Secret Service
properly withheld documents under Exemption 7(C) in order to protect
from disclosure identifying information about law enforcement
personnel and third parties. Id. The Seventh Circuit since has
affirmed plaintiff's convictions. See United States v. James, 487 F.3d
518 (7th Cir. 2007).*fn3
In April 2009, plaintiff submitted a second FOIA request (assigned No. 20090259), which is at issue in this lawsuit, to the Secret Service for records which previously had been withheld in full under Exemption 7(A). See Compl. ¶¶ 12, 21. Specifically, plaintiff requested four items:
1. Compact Disc labeled with serial number 201-2002-CE-000442, which was inventoried in SSF 1544 on March 25, 2002[;]
2. Compact Disc labeled with serial number 201-2002-CE-000446, inventoried in SSF 1544 on March 25, 2002[;]
3. Maxwell C45 cassette tape labeled with serial number 201-2002-CE-000443, inventoried in SSF 1544 on March 25, 2002[; and]
4. Maxwell mini-digital video cassette labeled with serial number 201-2002-CE-000454, inventoried in SSF 1544 on March 25, 2002.
Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss or, Alternatively, for Summ. J. ("Defs.' Mem."), Ex. 1 (Letter from plaintiff to Kathy J. Lyerly, SAIC, Freedom of Information and Privacy Act Office, Secret Service, dated April 15, 2009) at 2; see Compl. at 11.
Plaintiff contends that the "requested materials were recorded by [the Secret Service] in March 2002, under 18 U.S.C. § 2511(2)(a)(ii)(c): where a criminal informant had given consent to have his conversations with [p]laintiff recorded." Compl. ¶ 23. These recordings were "placed . . . in Secret Service File (SSF) 1544, which [the Secret Service] now calls the 'investigative file,'" id. ¶ 24, assigned file number 201-735-0131941-S. Pl.'s Opp'n at 1; see Defs.' Mem., Decl. of Jonathan Just ("Just Decl.") ¶ 3. The Secret Service released in redacted form "information pertaining to evidence inventoried in SSF 1544 . . . as well as . . . other pieces of information contained in the investigative file . . . that are no longer exempt." Defs.' Mem., Ex. 2 (Letter from Craig W. Ulmer, Special Agent In Charge, Freedom of Information & Privacy Acts Officer, to plaintiff dated August 19, 2009) at 1. According to plaintiff, defendants "disclos[ed] materials . . . which were unresponsive to [his] request," Compl. ¶ 13, and he pursued an administrative appeal. See id.; Defs.' Mem., Ex. 3 (Letter from plaintiff to the Deputy Director, U.S. Secret Service, dated August 31, 2009).
Plaintiff argued that the agency "only disclosed the Certified Inventory Sheets, showing that [this]physical evidence was indeed inventoried in SSF 1544, with their corresponding assigned serial numbers," but his request actually "was for copies of the 'original' recordings themselves." Defs.' Mem., Ex. 3 at 1-2 (emphasis removed). The agency responded with the following explanation:
Please be advised the compact discs, the cassette tape, and the video cassette . . . were destroyed by the Secret Service on November 26, 2007. Copies of the documents evidencing this destruction are enclosed. We note that the Maxwell mini-digital video cassette you requested information on was numbered 201-2002-CE-000454, not 201-2002-CE-000434.
Id., Ex. 4 (Letter from Keith L. Prewitt, Deputy Director, Secret Service, to plaintiff dated November ...