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Anthony Lewis v. United States Department of Justice

November 2, 2011

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), for the release of information maintained by components of the United States Department of Justice ("DOJ"). The Court granted in part and denied in part without prejudice the DOJ's first motion for summary judgment, see generally Lewis v. U.S. Dep't of Justice, 733 F. Supp. 2d 97 (D.D.C. 2010), and this matter is now before the Court on the plaintiff's motion for relief from judgment and for in camera review [Dkt. # 65] and the defendant's renewed motion for summary judgment [Dkt. # 58]. For the following reasons, the plaintiff's motion is denied, and the defendant's motion is granted in part and denied in part.

I. BACKGROUND

A. Request to the Executive Office for United States Attorneys The plaintiff requested the following information be provided to him by the United States Attorney's Office for the Middle District of Florida ("USAO-FLM"):

[A]n expedicted [sic] copy of "all" compliants [sic], affidavits, and other documents filed with the United States Attorney Janet Reno in 1993-1994 and the Office of Enforcement Operations, seeking authorization to intercept the 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 Judicial order to intercept telephone communications . . . and the judicial orders from the judge issued to the prosecuting attorney.

Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss in Part, and Alternatively, for Summary Judgment ("Def.'s Mem.") [Dkt. # 23], Declaration of David Luczynski ("Luczynski Decl."), Exhibit ("Ex.") A (Privacy Act Identification and Request Form dated September 21, 2008) at 2. The USAO-FLM referred the matter to a central office, the DOJ's Executive Office for United States Attorneys ("EOUSA"), for processing. See id., Luczynski Decl. ¶ 4. In response to the request, which was assigned FOIA No. 08-3328, id., Luczynski Decl. ¶ 5, the EOUSA released 35 pages of records in full, released 6 pages in part after having redacted certain information under FOIA Exemption 7(C), and referred 59 pages to the Drug Enforcement Administration ("DEA") for its direct response to the plaintiff. Id., Luczynski Decl. ¶ 6.

B. Request to the Office of Professional Responsibility The records the plaintiff sought from the DOJ's Office of Professional Responsibility ("OPR") pertained to a complaint he filed against Jack Fernandez, the Assistant United States Attorney ("AUSA") who prosecuted the plaintiff's criminal case. See Def.'s Mem., Vaughn Declaration of Patricia Reiersen ("Reiersen Decl.") ¶ 5. In relevant part, the request read:

1). I am requesting a complete copy of the file in reference [to] the complaint I filed against [AUSA] Jack Fernandez, Middle District of Florida, Tampa Division, which was filed in the year 1995, 1996, or 1997.

2). I want included in the file the complaint against Jack Fernandez, Jack Fernandez's response to the complaint, investigative documents from the investigation, any and all documents from individuals interviewed or contacted in reference to the complaint, and the documents of the findings of the complaint, including the sanctions imposed as well as the outcome of the complaint and investigation.

3). I am requesting any and all related documents from cases or investitations [sic] associated with the complaint and investigation in reference to Jack Fernandez.

Id., Reiersen Decl., Ex. A (FOIA request dated June 17, 2004) at 2. The OPR's search for responsive records yielded three files containing a total of 54 pages of records, 18 of which were released in full, 27 of which were released in part after having redacted information under FOIA Exemptions 2, 5, 6, and 7(C). Id., Reiersen Decl., Ex. B (Letter from Marlene M. Wahowiak, Assistant Counsel for Freedom of Information and Privacy Acts, OPR, to plaintiff dated November 1, 2004) at 1. Five pages were duplicates and were not processed.*fn1 Id., Reiersen Decl. ¶ 6.

C. Requests and Referral to the Drug Enforcement Administration*fn2

1. Request No. 04-0699-F

The plaintiff sent a request to the DEA's Internal Affairs Office for the following information:

1). Any and all notes, investigative information, resources for information, end results of investation [sic] and compliant [sic] in reference to Agents Tom Feeney and Dale VanDorple, from complaint filed by Anthony Lewis in reference to the agents['] involvement with illegally intercepted telephone communications [sic].

2). Any and all notes, investigative information, resources for information, end results of investigation and complaint in reference to Agents Tom Feeney and Dale VanDorple, from any and all other past complaints and investigations of Agents Feeney and VanDorple.

Def.'s Mem., Declaration of William C. Little, Jr. ("Little Decl."), Ex. A (FOIA request dated January 15, 2004) at 2.*fn3 On September 11, 2009, the DEA released 49 pages of records in full and released one page in part, id., Little Decl. ¶ 27, after redacting the names of DEA personnel under FOIA Exemptions 6 and 7(C). Id., Little Decl. ¶ 28. It neither confirmed nor denied that information pertaining to Agents Feeney and VanDorple existed. Id., Little Decl. ¶ 28.

2. Request No. 09-0187-P

Request No. 09-0187-P also pertained to information in DEA records about the plaintiff's complaint to the DEA's Office of Internal Affairs against Agents Tom Feeney and Dale VanDorple. The plaintiff sought:

1) any and all documents relevant to Anthony Lewis and the Internal Affairs complaint filed against Agents Tom Feeney and Dale VanDorple in 2004. (Investigated by Pat Stancamp).

2) any and all documents relevant to the investigation of Tom Feeney and Dale VanDorple as a result of the Internal Affairs complaint filed by Anthony Lewis.

3) any and all documents relevant to the findings of the Internal Affairs complaint filed against Tom Feeney and Dale VanDorple, after complaint filed by Anthony Lewis.

4) any and all documents relevant to the Internal Affairs investigation of Tom Feeney and DaleVanDorple, complaint made by Anthony Lewis, relevant and not requested above.

Def.'s Mem., Little Decl., Ex. E (FOIA Request dated October 29, 2008) at 2. Relying on FOIA Exemptions 6 and 7(C), the DEA neither confirmed nor denied the existence of responsive records pertaining to Feeney and VanDorple, and consenquently, its staff neither conducted a search for nor released records pertaining to the agents. Id., Little Decl. ¶ 32. This Court already has determined that this response was appropriate. See Lewis, 733 F. Supp. 2d at 112-13.

3. Request No. 09-0285-P

The EOUSA forwarded to the DEA 59 pages of records "consist[ing] of an unsigned document titled Affidavit in Support of Application prepared by a DEA special agent," Def.'s Mem., Little Decl. ¶ 34 (footnote omitted), and the DEA assigned the matter Request No. 09-0285-P. Id., Little Decl. ¶ 35. The unsigned document "was believed to be a draft of an affidavit . . . submitted in support of an application for a Title III Wire Intercept." Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment ("Def.'s Renewed Mem."), First Supplemental Declaration of William C. Little, Jr. ("Supp. Little Decl.") ¶ 2. Initially the DEA withheld the document in full under FOIA Exemption 3 on the ground that disclosure of information obtained from the use of a wire intercept is prohibited under federal law. See Def.'s Mem., Little Decl. ¶ 63. The agency subsequently has abandoned this position, Def.'s Renewed Mem., Supp. Little Decl. ¶ 3, and has released five pages of the document in full, released 36 pages in part, and withheld 18 pages in full under FOIA Exemptions 7(C), 7(D), and 7(F). Id., Supp. Little Decl. ¶ 4.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

The Court will grant a motion for summary judgment "if the movant shows 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and may do so by "citing to particular parts of materials in the record, including . . . affidavits or declarations . . . ." FED. R. CIV. P. 56(c)(1)(A). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 248 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). In opposing a summary judgment motion, a party may not "replace conclusory allegations of the ...


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