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Dorsey v. Executive Office for United States Attorneys

United States District Court, District of Columbia

March 20, 2015

ALVIN DORSEY, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This matter is before the Court on Defendant's Renewed Motion for Summary Judgment, ECF No. 34.[1] For the reasons discussed below, the motion will be granted.

I. BACKGROUND

A. Plaintiff's FOIA Request to the EOUSA

In June 2011, pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, plaintiff submitted to the Executive Office for United States Attorneys ("EOUSA") a request for "[s]urveillance video, video logs, handwritten call logs, warrants D.E.A.-6, promises, agreements and any information that is required to be released under [FOIA]." Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment, ECF No. 13-2, Declaration of David Luczynski, ECF No. 13-4 ("Luczynski Decl."), Exhibit ("Ex.") A (FOIA request); see Complaint Violation of the Freedom of Information Privacy Act ("Compl.") at 2.

The Court has found that the EOUSA conducted a search reasonably calculated to locate records responsive to plaintiff's FOIA request, see Dorsey v. Exec. Office for U.S. Attorneys, 926 F.Supp.2d 253, 256 (D.D.C. 2013), that it properly withheld information under Exemptions 3, 5 and 7(C), Memorandum Opinion and Order, ECF No. 28 at 3-10, and that it released all reasonably segregable information to plaintiff, id., ECF No. 38 at 10-11.

Among the records responsive to plaintiff's FOIA request to the EOUSA were records that originated at other components of the United States Department of Justice ("DOJ"). Luczynski Decl. ¶ 9. The EOUSA "referred [these records to] the originating agencies[.]" Id. Defendant has moved for summary judgment with respect to these referrals. See generally Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment, ECF No. 34-1 ("Def.'s Renewed Mem.") at 7-18.

B. Referral to the Drug Enforcement Administration

The EOUSA referred 349 pages of records to the Drug Enforcement Administration ("DEA"). Def.'s Renewed Mem., Declaration of Katherine L. Myrick, ECF No. 34-3 ("Myrick Decl.") ¶ 5. On review by DEA staff, it was determined that 159 pages of records were not responsive to the FOIA request, that one page was blank, and that 31 pages were duplicates. Myrick Decl. ¶ 7. The remaining pages were processed; the DEA released 8 pages in full, released 55 pages in part, and withheld 95 pages in full, relying on Exemptions 7(C), 7(D), 7(E) and 7(F). Id. ¶ 6.

C. Referral to the Federal Bureau of Investigation

The EOUSA referred 37 pages of records to the Federal Bureau of Investigation ("FBI"). Def.'s Renewed Mem., Declaration of David M. Hardy, ECF No. 34-5 ("Hardy Decl.") ¶¶ 4, 6. Two of these pages were deemed duplicates, and "[i]n order to avoid duplication cost and to speed... processing, " the FBI did not process these two pages. Id. ¶ 4 n.1. The FBI released three pages in full, released 16 pages in part, and withheld 16 pages in full, id. ¶ 4, relying on Exemptions 6 and 7(C), id. ¶ 5.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

In a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested either has been produced... or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

A. Exemptions 6 and 7(F)

"The FBI's practice is to assert Exemption 6 in conjunction with Exemption 7(C)." Hardy Decl. ¶ 17 n.5. Review of the FBI's submission reveals that, in each instance that the FBI withholds information under Exemption 6, it also withholds the same information under Exemption 7(C). See generally Hardy Decl., Ex. B (Bates-numbered copies of pages released in full or in part and deleted information sheets reflecting pages withheld in full). The Court finds that the relevant information properly is withheld under Exemption 7(C) alone, and it does not consider whether Exemption 6 applies to the same information. See Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) ("If the information withheld here was compiled for law enforcement purposes, thus implicating Exemption 7(C), then we would have no ...


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