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Henry Callaway v. United States Department of Treasury

September 30, 2012


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


This matter is before the Court on plaintiff's Motion Requesting That This Court Alter and/or Amend Its Judgment, or Alternatively Reconsider Its Judgment ("Pl.'s Mot. to Recons.") [Dkt. #100] and Defendants' Fourth Renewed Motion for Summary Judgment with its supporting memorandum ("Defs.' Mem.") [Dkt. #104]. The Court will deny the former and grant the latter.


Plaintiff brought this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to challenge responses to requests for information he submitted to the Executive Office for United States Attorneys ("EOUSA") and the United States Customs Service ("Customs").*fn1 Compl. at 1 (page numbers designated by plaintiff). He "basically request[ed] any and all criminal investigation and prosecution records pertaining to himself," id, at 2, and to "criminal case No. 95-209-CR-T-21(E) [in the United States District Court for the Middle District of Florida] including all Audio Recordings made involving [p]laintiff."id at 3. Plaintiff identified the audio recordings by their trial exhibit numbers: N-113, N-114, N-115, and N-116. See id., Ex. Z (Contact Log) at 50-51 (page number designated by plaintiff); Defs.' Mot. for Summ. J. [Dkt. #22], First Kornmeier Decl., Ex. J (Letter to Richard L. Huff, Office of Information and Privacy, U.S. Department of Justice, dated August 21, 2003) at 2 (emphasis in original) & First Fields Decl., Ex. A (Freedom of Information Request dated May 20, 1998) at 2. Based on subsequent submissions, however, plaintiff was interested only in two tapes, N-113 and N-116, because these "were in their redacted form when turned over to the Plaintiff during discovery" in the criminal matter. Pl.'s Mot. to Recons. at 2; see id. at 25-30.

With three exceptions, all issues in this case have been resolved. The Court discusses below; (1) plaintiff's motion for reconsideration of the Court's November 16, 2011 Memorandum Opinion and Order with respect to an alleged factual dispute as to the contents of audio tapes released by the EOUSA to plaintiff; (2) the adequacy of Customs' search for information pertaining to the services of Ron Rose Productions; and (3) whether all segregable information has been released to plaintiff.


A.Plaintiff's Motion for Reconsideration Plaintiff appealed the Court's September 10, 2008 Memorandum Opinion and Order [Dkt. #71-72], and the United States Court of Appeals for the District of Columbia Circuit remanded the case in part for resolution of an apparent factual dispute:

First, Callaway asked the [EOUSA] to provide unredacted copies of two audio tape recordings. Although the EOUSA released the tape recordings, there appears to be a factual dispute with regard to the content of the audio tape recordings, which . . . could not be resolved for summary judgment. The district court relied on an assertion by the EOUSA that it made no redactions to a CD-ROM released to Callaway containing the recordings. Callaway presented evidence in the form of his verified complaint, attached exhibits, and an expert witness report, which suggest the recordings were redacted . . . . Based on the existence of this factual dispute, summary judgment was inappropriate.

Memorandum, Callaway v. U.S. Dep't of the Treasury, No. 08-5480 (D.C. Cir. June 2, 2009) (per curiam) at 1. The EOUSA's declarant later explained the discrepancy as follows:

An investigative agency prepares physical evidence such as tapes for use at trial. Whatever modifications an investigative agency may make to prepare the evidence for trial have already been made prior to giving it to an Assistant United States Attorney to present at trial. The tapes that the USAO for the Middle District of Florida ("USAO/MDFL") had in its possession were the ones that the investigative agency, [Customs], had prepared for the criminal trial of Mr. Callaway. Any modifications . . . such as shortening of the tapes had already been made prior to the criminal trial. In response to Mr. Callaway's FOIA request long after the criminal trial, EOUSA requested the tapes from the USAO/MDFL which it received on February 1, 2005, then simply released the tapes on April 4, 2005, in the exact form it had them making no redactions.

Mem. of P. &. A. in Supp. of Defs.' Third Renewed Mot. for Summ. J. [Dkt. #88], Fourth Kornmeier Decl. ¶ 5. It appeared, then, that audio tapes released by the EOUSA to plaintiff had the same content as the audio tapes received by the EOUSA from Customs prior to the trial. The Court found that the EOUSA fulfilled its obligations under the FOIA by "releasing to [plaintiff] exactly what he requested," Reply to Pl.'s Opp'n to Defs.' Third Renewed Mot. for Summ. J. [Dkt. #95]. Fifth Kornmeier Decl. ¶ 8, namely copies of the recordings in the EOUSA's possession - - without further redaction. Callaway v. U.S. Dep't of the Treasury, 824 F. Supp. 2d 153, 158 (D.D.C. 2011).

Plaintiff takes the position that the Circuit's "ruling . . . was fashioned in an opaque and equivocal manner that left the scope of the remanded proceedings at the whim of one's perspective of the matters." Pl.'s Mot. for Recons. at 5-6. He argues that this Court misunderstood the scope of the remand, se generally id. at 5-9, and that the resolution of the factual dispute with regard to the content of the audio tape recordings requires this Court "to determine if in fact the released audio tapes were redacted audio tapes; [NOT WHO REDACTED THE AUDIO TAPES], as the defendants EOUSA would have it." Id. at 6 (brackets and emphasis in original). The Court must first tape one step back, in his view, and determine "whether or not [Customs] turned over original audio tapes or redacted audio tapes." Id. at 20. Plaintiff opines that Customs "turned over to the [USAO/MDFLA] . . . full and complete recordings of the two audio tapes in question N-113 and N-116," id. at 17, and that "at some point after [Customs] turn[ed] over the audio tapes, the USAO altered the two original versions of N-113 and N-116 to create trial composite recordings," id. at 35-36. The USAO/MDFLA need not have "discarded the originals," he suggests, but instead may have "copied portions of the original versions onto another cassette, and left the original versions intact within the files." Id. at 36.

The Court's authority is limited to directing the release of non-exempt agency records in existence at the time the EOUSA received plaintiff's FOIA request. The FOIA "only obligates [the EOUSA] to provide access to those which it in fact has created and retained." Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 153 (1980). Based on the EOUSA's declarations, the agency has shown that it has searched for and released audio tapes N-113 and N-116 in the same form as the tapes were received from Customs. There is no dispute that these tapes have been redacted, yet nothing in the record of this case demonstrates that the original tapes still exist, ...

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