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Higgins v. United States Dept. of Justice

United States District Court, District of Columbia

January 30, 2013

Oliver J. HIGGINS, Plaintiff,

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Oliver J. Higgins, Pine Knot, KY, pro se.

Sean Joseph Vanek, U.S. Department of Justice, Washington, DC, for Defendants.


ROBERT L. WILKINS, District Judge.

Plaintiff brings this action against the United States Departments of Justice (" DOJ" ) and Homeland Security (" DHS" ), and various components of these two agencies, under the Freedom of Information Act (" FOIA" ), see 5 U.S.C. § 552. This matter is before the Court on defendants' motion to dismiss or, alternatively, for summary judgment. For the reasons discussed below, the motion will be granted in part and denied in part without prejudice.


On or about September 4, 2008, plaintiff submitted FOIA requests to the Executive Office for United States Attorneys (" EOUSA" ), the Federal Bureau of Investigation (" FBI" ), the Drug Enforcement Administration (" DEA" ), the Bureau of Alcohol, Tobacco, Firearms and Explosives (" BATFE" ), and the United States Secret Service (" Secret Service" ). See Compl., Ex. P1 (EOUSA), P9 (FBI), P15 (DEA), P24 (ATF) & P35 (Secret Service). Each request included the following language:

I request any and all documents, records, memoranda, Statements, reports, and other information in whatever form maintained by your agency that relates to or makes reference to me directly or indirectly. More specifically, I request any information in the possession or control of your agency related to the investigation and prosecution of me by State and Federal authorities for violation of federal controlled substance and counterfeiting laws. This occurred in and around the Madison County, Tennessee area (Western District of Tennessee). I am requesting all records from January 2006 through the present.

Compl., Ex. P1 (Freedom of Information/Privacy Request to the EOUSA dated September 4, 2008) at 1.

A. Executive Office for United States Attorney

The EOUSA acknowledged receipt of plaintiff's FOIA request, No. 08-3384, and forwarded it to the United States Attorney's Office for the Western District of Tennessee. Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss, or Alternatively, for Summ. J. (" Defs.' Mem." ), Decl. of John W. Kornmeier (" Kornmeier Decl." ) ¶ 5. Staff at that office located responsive records and forwarded them to the EOUSA for processing. Kornmeier Decl. ¶ 6. The EOUSA released 293 pages of records in full, released 10 pages in part, and withheld 39 pages in full. Id.; see id., Ex. B (Letter to plaintiff from William G. Stewart II, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated February 13, 2010) at 1.

In addition to records originating at the EOUSA, the search yielded 165 pages of records originating elsewhere. Id., Ex. B at 2. The EOUSA referred 15 pages of records to the Secret Service, 147 pages of records to the DEA (DEA FOIA No. 10-00574-PR), and 3 pages of records to the BATFE (Request No. 2010-644).

B. Federal Bureau of Investigation

The FBI acknowledged receipt of plaintiff's FOIA request, FOIPA No. 1119833, on September 18, 2008. Defs.' Mem., Decl. of David M. Hardy (" Hardy Decl." ) ¶ 6. " [A] search of the automated and manual

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indices of the [Central Records System] located no FBIHQ records responsive to his request." Hardy Decl. ¶ 7. Plaintiff pursued an administrative appeal to the DOJ's Office of Information Policy (" OIP" ), id. ¶ 8, which affirmed the FBI's " no records" determination, id. ¶ 9.

C. Drug Enforcement Administration

DEA FOIA Request No. 08-1373-P

Because plaintiff's initial request to the DEA, assigned FOIA number 08-1373-P, did not adequately describe the records sought, see Defs.' Mem., Decl. of William C. Little, Jr. (" Little Decl." ) ¶ 15, plaintiff later specified that he requested a " search [of] the DEA's Investigative reporting and Filing System, the DEA's Electronic Surveillance idices [sic], and any other DEA data systems" that may contain relevant information." Little Decl., Ex. D (Letter from plaintiff to Kathryn L. Myrick, Freedom of Information Unit, DEA, dated December 11, 2008). The DEA released 22 pages of records in part, released three pages in full, and withheld five pages of records in full. Id. ¶ 19; see id., Ex. D (Letter to plaintiff from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA, dated June 17, 2010) at 3.

DEA FOIA Request No. 10-0574-PR

The EOUSA referred 147 pages of records to the DEA. Little Decl. ¶ 22. It was determined that only 22 of these 147 pages of records originated with the DEA. Id. n. 2. Although the DEA referred 10 pages of records to the FBI for its direct response to plaintiff, id. ¶ 23, the disposition of these records is unknown. The remainder of the records originated with state and local law enforcement agencies. Id. ¶ 22 n. 2. Of the DEA records, 22 pages were released in part, 62 pages were released in full, and five pages were withheld in full. Id. ¶ 24.

D. Bureau of Alcohol, Tobacco, Firearms and Explosives

Request No. 08-1538

Based on the language of plaintiff's request, the BATFE's search " failed to produce" responsive records. Defs.' Mem., Decl. of Marilyn R. LaBrie (" LaBrie Decl." ) ¶ 5. This determination was affirmed on plaintiff's appeal to the OIP. See id. ¶¶ 6-8.

Request No. 2010-644

The records referred by the EOUSA to the BATFE comprised a separate matter assigned Request No. 2010-644. Id. ¶ 9; see id., Ex. H (Letter to plaintiff from Marilyn R. LaBrie, Team Leader, Disclosure Division, BATFE, dated March 9, 2010). The records " consist[ed] of firearms trace information that can only be provided to a law enforcement agency or a prosecutor solely in connection with a bona fide criminal investigation or prosecution." Id. ¶ 9. Federal law prohibited BATFE from processing a request from a private individual, and the request therefore was denied. Id. Plaintiff pursued an administrative appeal to the OIP which affirmed the determination on modified grounds. Id. ¶¶ 11-12. OIP took the position that the BATFE " properly withheld ... information ... protected from disclosure ... pursuant to 5 U.S.C. § 552(b)(3)," concerning " matters specifically exempted from release by statute." Id., Ex. J (Letter to plaintiff from Janice Galli McLeod, Associate Director, OIP, dated July 2, 2010).

E. Secret Service

After plaintiff supplied certification of his identity, see Defs.' Mem., Decl. of Keith L. Prewitt (" Prewitt Decl." ) ¶¶ 7-9, and it was determined that Exemption 7(A) no longer applied, see id. ¶¶ 11-12, the Secret Service released an unspecified number of pages of records in full or in part, see generally id., Ex. I (Letter to plaintiff

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from Craig W. Ulmer, Special Agent In Charge, Freedom of Information & Privacy Acts Officer, Secret Service, dated March 4, 2010).[1] It released additional records to plaintiff on August 13, 2010, ...

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