United States District Court, District of Columbia
EMMET G. SULLIVAN, District Judge.
Plaintiff brought this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552. Defendant has filed a "Supplemental Memorandum, " ECF No. 52, which the Court treats as a renewed motion for summary judgment. Plaintiff has filed a document titled "Cost: Attorney's Fees Rule 54(d), " ECF No. 57, which the Court construes as a motion for fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E)(i). For the reasons discussed below, the Court will grant the former and deny the latter.
Since he filed his original FOIA request to the Drug Enforcement Administration ("DEA") in March 2010, see Def.'s Mem. of P. & A. in Support of its Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 41-2, Decl. of William C. Little, Jr. ("First Little Decl."), Ex. A (Letter from plaintiff dated March 9, 2010), he has reformulated the request twice. The operative request in relevant part stated:
I would like these government confident[ial] informants['] files to be search[ed]: Bruce L. Norflee, Efrem D. Dobson, Wilbert B. Smith, Willie Brown, Aaron L. Bostic, Willis L. Bostic, Markus Johnson, Micheal Williams, Larry E. Scott. I would like these government confident[ial] informants['] D.E.A.-6 files to be search[ed]. Also I would like searched for any hand written notes, any promises or agreements that was [sic] reach [sic] between these individuals. The interviewer[s] would have been Marnee Batchlor and Gerry Montalvo. The date is all of 2003 and 2004 out of the Orlando[, Florida] field office.... Also, I would like the appropriate files searched for a surveillance video and video logs and the authorization of the video of 940 E. [G]ottsche [S]treet[, ] Eustis, Fl[orida] from June 2003 to August 2003.
First Little Decl., Ex. F (Letter to DEA from plaintiff dated November 3, 2011) at 1-2.
The Court granted in part and denied in part defendant's prior motion for summary judgment, and remaining for the Court's consideration are: (1) the DEA's decision to withhold information that was provided under an implied assurance of confidentiality under Exemption 7(D); (2) the disposition of records referred by the DEA to the Federal Bureau of Investigation ("FBI"), and to the Office of Information Policy ("OIP") and the Criminal Division of the U.S. Department of Justice ("DOJ"); (3) segregability; and (4) plaintiff's demand for fees and costs.
A. Summary Judgment in a FOIA Case
FOIA cases typically are resolved on motions for summary judgment. See Petit-Frere v. U.S. Attorney's Office for the Southern District of Florida, 800 F.Supp.2d 276, 279 (D.D.C. 2011) (citations omitted), aff'd per curiam, No. 11-5285, 2012 WL 4774807, at *1 (D.C. Cir. Sept. 19, 2012). The Court grants 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). An agency may meet its burden solely on the basis of affidavits or declarations, see Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), as long as 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) (footnote omitted).
B. Referrals to OIP, FBI and the Criminal Division
The DEA's declarant explained that a one-page document originating with the Office of the Attorney General was referred to the OIP, which is "[t]he DOJ office responsible for the processing... and release of information under [FOIA] for information that originates with the Attorney General[.]" Def.'s Supplemental Mem. in Support of Mot. for Summ J., ECF No. 52 ("Def.'s Mem."), Third Supplemental Decl. of William C. Little, Jr., ECF No. 52-1 ("Fourth Little Decl.") ¶ 2. He confirmed that "OIP... include[ed] an additional page that completed the document, and released the document in its entirety to plaintiff." Fourth Little Decl. ¶ 3; see id., Ex. S (Letter to plaintiff from Vanessa R. Brinkman, Counsel, Initial Request Staff, OIP, dated February 14, 2013).
Similarly, the DEA referred 21 pages of records to the FBI, id. ¶ 7, the DOJ component where they originated, id. ¶ 8. In accordance with the FBI's recommendation, id. ¶ 9, the DEA released all pages in their entirety, id. ¶ 10; see id., Ex. V (Letter to plaintiff from William C. Little, Jr., Senior Attorney, Administrative Law Section, Office of Chief Counsel, DEA, dated February 22, 2013).
Four pages of records were referred by the DEA to the DOJ's Criminal Division, from which information was withheld under Exemptions 3, 5, 6 and 7(C). Id. ¶¶ 5-6; see id., Ex. T (Letter to plaintiff from Rena Y. Kim, Chief, FOIA/PA Unit, Criminal Division, DOJ, dated January 16, 2013) at 1.
The Court concludes that the referrals to the FBI, OIG and Criminal Division, the components where the records originated, were appropriate. The Criminal Division's decision to withhold ...