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Ortiz v. United States Department of Justice

United States District Court, D. Columbia.

September 10, 2014

HERARDO ORTIZ, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant

Decided September 9, 2014.

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HERARDO ORTIZ, Plaintiff, Pro se, BASTROP, TX.

For U.S. DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT ADMINISTRATION, Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC; Hubert T. Lee, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

THOMAS F. HOGAN, Senior United States District Judge.

This matter is before the Court on defendant's Motion for Summary Judgment [ECF No. 22].[1] For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff brings this action under the Freedom of Information Act (" FOIA" ), see 5 U.S.C. § 552, against the United States Department of Justice (" DOJ" ) for the purpose of obtaining information about his criminal case that purportedly is maintained by the Drug Enforcement Administration (" DEA" ). See Complaint for Declaratory and Injunctive Relief [ECF No. 1] (" Compl." ) ¶ ¶ 1-2, 4; Motion for Summary Judgment Upon Defendant's Failure to Comply with This Court's Order and Due Date to File an Answer to Plaintiff's Complaint [ECF No. 26] at 1.

A. DEA FOIA Request No. 12-00038-P

In relevant part, plaintiff's request to the DEA read:

This is a non-commercial request for information pursuant to [the FOIA] for

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a copy of all records in the possession of [the DEA] concerning specifically:
Mag. No. L-04-228 TM-01
DEA FILE NO.: M6-04-0273
DEA S/A RHUE DEA FORM 6
DATED: 03/12/2004
any other investigative reports filed by any other federal agent in regards to United States v. Herardo Ortiz, Southern District of Texas (Laredo Division), criminal case number: 5:08-0031-1[.]

Memorandum in Support of Defendant's Motion for Summary Judgment [ECF No. 22-1] (" Def.'s Mem." ), Declaration of Katherine L. Myrick (" Myrick Decl." ), Ex. A (Freedom of Information Act/Privacy Act Request dated October 14, 2011) at 1. The DEA's initial response to the request was the release of 48 pages of records in part and the withholding of two pages in full. Id. ¶ 7; see id., Ex. C (Letter to plaintiff from Katherine L. Myrick, Chief, Freedom of Information/Privacy Act Unit, FOI/Records Management Section, DEA, dated June 21, 2012) at 2. The DEA also referred two pages of records to U.S. Immigration and Customs Enforcement (" ICE" ), id. ¶ 9, and three pages to the Executive Office for United States Attorneys (" EOUSA" ), id. ¶ 10, for direct responses to plaintiff.

In addition, the DEA forwarded 12 pages of records to the Bureau of Customs and Border Protection (" CBP" ) " as a consultation, for review and return" to the DEA, and referred six additional pages of records to the CBP for its review and direct response to plaintiff. Id. ¶ 8; see id., Ex. D (Letter to Mark Hanson, Director, FOIA Division, CBP from Katherine L. Myrick dated June 21, 2012). The DEA informed plaintiff that he would be " notified if more material [became] available for release pending results from the consultation." Id., Ex. C at 1.

The CBP returned to the DEA the twelve pages of records referred on June 21, 2012, along with " [a]n additional four pages belonging to the Office of Border Patrol." Id., Ex. G (Memorandum to Katherine L. Myrick from Dale G. Martin, Acting Director, FOIA Division, Office of International Trade, CBP, dated July 13, 2012). The DEA, in turn, released to plaintiff these 12 pages of records in redacted form, relying on FOIA Exemptions 6, 7(C), 7(E) and 7(F). Id. ¶ 12; see generally id., Ex. H (Letter to plaintiff from Katherine L. Myrick dated August 1, 2012). With respect to the remaining six pages of records, the CBP returned them to the DEA rather than responding directly to plaintiff. See Def.'s Mem. at 2 n.3; Myrick Decl. ¶ ¶ 12-13; see id., Ex. H. These pages were included in the DEA's June 14, 2013 response to plaintiff. See Def.'s Mem. at 2 n.3; Myrick Decl. ¶ 13.

DEA staff determined that plaintiff's request " could be interpreted in several ways," for example, as one for " a particular DEA Form 6 created on March 12, 2004, by DEA Special Agent Rhue, under DEA file number M6-04-0273 that was utilized in a court proceeding assigned docket number Mag. No. L-04-2287M-01." [2] Myrick Decl., Ex. I (Letter to plaintiff from William C. Little, Senior Attorney, Administrative Law Section, Office of Chief Counsel, DEA, dated June 13, 2013) at 1. However, " [s]ince DEA does not index records based upon a criminal case name or docket number, Mag. No. L-04-2287M-01 [and] CR 5:08-0031-1 [were] of no use in identifying investigative records[] or case file(s) that would contain investigative reports and documents that

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reference plaintiff." Id. ¶ 15. DEA staff initially treated plaintiff's request as one for records within DEA Investigative Case File No. M6-04-0273 referencing plaintiff by name. Id., Ex. I at 2. In light of plaintiff's request for " any other investigative reports filed by any other federal agent," DEA staff expanded the search to include " all investigative reports maintained by DEA that referenced [plaintiff] by name." Id., Ex. I at 2.

On June 14, 2013, relying on FOIA Exemptions 3, 7(C), 7(D), 7(E), and 7(F), the DEA released three pages in full, released 285 pages in part, and withheld 201 pages in full. Id. ¶ 13; see generally id., Ex. I. A third release by the DEA resulted in disclosure of " portions of materials numbered Page 34, Page 35, Page 53 and Page 57 . . . in further response to [his FOIA] request dated October 14, 2011." Id., Ex. J (Letter to plaintiff from William C. Little dated February 5, 2014) at 1. Certain information had been redacted under FOIA Exemptions 7(E) and 7(F). Id., Ex. J at 1.

B. Referral to the EOUSA (Request No. 12-2733-R)

The EOUSA received the referral of three pages of records from the DEA on June 25, 2012, and on July 31, 2012, it released these pages in full. Def.'s Mem., ...


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