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Boyd v. Exec. Office For United States Attorneys

United States District Court, D. Columbia.

March 31, 2015

WILLIE E. BOYD, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, et al., Defendants

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WILLIE E. BOYD, Plaintiff, Pro se, LEXINGTON, KY.

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEY, BUREAU OF ALCOHOL, TOBACCO & FIREARMS, Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiff Willie E. Boyd brings this pro se action against defendants the Executive Office for United States Attorney (" EOUSA" ) and the Bureau of Alcohol, Tobacco & Firearms (" ATF" ) under the Freedom of Information Act (" FOIA" ). All parties have moved for summary judgment. See Defs.' Renewed Mot. for Summ. J. [Dkt. # 20] (" Defs.' Mot." ); Mem. in Supp. of Defs.' Mot. [Dkt. # 20-3] (" Defs.' Mem." ); Pl.'s Opp. to Defs.' Mot. & Cross-Mot. for Summ. J. [Dkt. # 29] (" Pl.'s Mot." ). For the reasons that follow, the Court will grant defendants' motion in part and deny it in part, it will grant plaintiff's motion in part and deny it in part, and it will remand the case to defendants for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff is a federal prisoner confined at the Federal Correctional Institute in Greenville, Illinois. See Compl. [Dkt.

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# 1] at 1.[1] In 1998, plaintiff was convicted of multiple criminal offenses, including gun and drug charges, after a bench trial in the Eastern District of Missouri. See United States v. Boyd, 180 F.3d 967, 974--75 (8th Cir. 1999). The conviction was affirmed on appeal. Id. at 983.

Since 1998, plaintiff has filed numerous pro se FOIA actions in this District against the defendants in this case and other government agencies. See, e.g., Boyd v. Exec. Office for U.S. Atty's, 741 F.Supp.2d 150 (D.D.C. 2010); Boyd v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 496 F.Supp.2d 167 (D.D.C. 2007); Boyd v. Criminal Div., U.S. Dep't of Justice, No. 04-cv-1100 (ESH), 2005 WL 555412, at *1 (D.D.C. March 9, 2005) (FOIA lawsuit against the Criminal Division of the U.S. Department of Justice, the U.S. Probation Office for the Eastern District of Missouri, the U.S. Parole Commission, the U.S. Marshals Service, and EOUSA); see also Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 384-85, 392, 374 U.S.App.D.C. 372 (D.C. Cir. 2007) (describing plaintiff's history of FOIA litigation and affirming Boyd, 2005 WL 555412).

Plaintiff has also filed numerous pro se petitions in other courts attacking his criminal conviction. See, e.g., Boyd v. Walton, No. 13-cv-651-CJP, 2014 WL 128341, at *1 (S.D. Ill. Jan. 14, 2014) (noting that the U.S. District Court for the Eastern District of Missouri no longer accepts filings from Boyd related to his closed criminal case and his closed 28 U.S.C. § 2255 case because of his " history of filing a multitude of motions for reconsideration, rehearing, or the like" ; that plaintiff had filed " at least six post-conviction petitions in this District" ; and that the U.S. Court of Appeals for the Seventh Circuit had issued sanctions against plaintiff " [b]ecause of his repeated raising of the same frivolous claim" ) (citations and internal quotation marks omitted).

This case involves three more FOIA requests submitted by plaintiff to defendants EOUSA and ATF.

I. Plaintiff's March 26, 2013 FOIA Request to EOUSA

On March 26, 2013, plaintiff submitted a FOIA request to EOUSA that sought " any and all documents, records and information in [his] criminal case United States v. Willie E. Boyd, 4:97CR301, in the Eastern District of Missouri." App. " Count I" to Compl. at ECF 8.[2] Plaintiff further stated that he sought " information from the criminal case file that would expose the badfaith nondisclosure of Brady/Giglio/Jencks and Rule 16 materials and information of governmental misconduct with the didcovery [sic] materials in the case." Id.

On April 22, 2013, EOUSA acknowledged plaintiff's FOIA request and advised him that it was searching for responsive records. See Decl. of David Luczynski [Dkt. # 20-5] (" 1st Luczynski Decl." ) ¶ 5; Ex. B to 1st Luczynski Decl. [Dkt. # 20-6] at 1; Pl.'s Statement of Material Facts in Opp. to Defs.' Mot. [Dkt. # 28] ¶ 4.

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On May 3, 2013, plaintiff sent a letter " to inform EOUSA that there had been a request also for documents and information in its files on Bryant Troupe that should be disclosed," as well as " documents and information on Bryant Troupe that appear in the April 15, 1998 discovery disclosure letter that had allegedly been hand-delivered to Trial Counsel Carl Epstein by the Government's counsel." Ex. D to 1st Luczynski Decl. [Dkt. # 20-6] at 1.

On February 27, 2014, EOUSA disclosed to plaintiff 201 pages of responsive records in full and 267 pages with redactions. 1st Luczynski Decl. ¶ 8; Pl.'s Mot. at 4. In addition, EOUSA informed plaintiff that it was withholding 139 responsive pages under FOIA Exemptions 3, 5, 6, and 7(C). 1st Luczynski Decl. ¶ 8; Pl.'s Mot. at 4. EOUSA also stated that it had referred an unspecified number of records to other components of the government -- ATF, the Internal Revenue Service (" IRS" ), the Department of the Treasury (" Treasury" ), the Bureau of Prisons (" BOP" ), and the U.S. Marshals Service (" USMS" ) -- for further processing. Ex. E to 1st Luczynski Decl. [Dkt. # 20-6] at 2; see also 1st Luczynski Decl. ¶ 8. Finally, EOUSA informed plaintiff of his right to appeal its determination, but he did not do so.[3] Luczynski Decl. ΒΆΒΆ 8--9; Ex. E to 1st Luczynski Decl. at 2.

II. Plaintiff's March 26, 2013 FOIA Request to ATF

On March 26, 2013, plaintiff submitted a FOIA request to ATF, seeking " any and all documents, records and information associated with" his name or identification number, and specifying that the relevant records " are all associated with the [ATF] Case File # 745519-19-0012, from the criminal prosecution of the case United States v. Boyd, 4:97CR301, from the Eastern District of Missouri." App. " Count 2" to Compl. at ECF 79. In addition, plaintiff stated: " The requester specifically seek [sic] documents and information in its files of the government's paid informant Bryant Troupe, and his working relation with ATF Agent James Green." Id.

On April 22, 2013, ATF acknowledged plaintiff's FOIA request and advised him that it would begin processing his request for information relating to himself. Decl. of Stephanie M. Boucher, Chief, Disclosure Division, ATF [Dkt. # 20-7] (" Boucher Decl." ) ¶ 5; Ex. B to Boucher Decl. [Dkt. # 20-8] at 1 (letter from Boucher to plaintiff). The agency informed plaintiff, though, that it would not process the portions of his request that sought information about third parties because, pursuant to the Privacy Act, " [r]ecords pertaining to a third party generally cannot be released without the express authorization and written consent of the third party, proof of death of the third party, or a clear demonstration that the public interest in the disclosure outweighs the personal privacy interest of the third party." Ex. B to Boucher Decl. at 1. The agency stated that because plaintiff had provided no evidence that he had the right to access third-party records, it could not disclose the information he sought. Id.

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Plaintiff responded to the agency's letter on May 3, 2013, conveying his view that FOIA Exemptions 7(C) and 7(D) did not apply to the information he sought about Bryant Troupe " [b]ecause the Government has waived any privacy interest in nondisclosure by being involved in misconduct with Bryant Troupe, and deliberately concealing discovery materials of misconduct with Troupe." Ex. C to Boucher Decl. [Dkt. # 20-8] at 1. Plaintiff also alleged that " Bryant Troupe had been utilized in a covert operation in the investigation of Willie Boyd." Id.

On August 30, 2013, ATF informed plaintiff that it would take no further action on his FOIA request because the records he sought had " already been subject to the full process contemplated by the FOIA (i.e. initial processing, agency appeal and judicial review,[)] and all of [his] arguments ha[d] been fully considered therein." Ex. D to Boucher Decl. [Dkt. # 20-8] at 1.

On February 21, 2014, the ATF received a referral of records from the EOUSA. Boucher Decl. ¶ 8. ATF's Disclosure Division determined that all of the referred records had also " been subject to the full process contemplated by the FOIA," and so they were not subject to release. Id. ¶ 9; Ex. F to Boucher Decl. [Dkt. # 20-8] at 1. On March 14, 2014, ATF informed plaintiff that, for this reason, it would take no further action on his FOIA request and that it considered the matter closed. Ex. F to Boucher Decl. at 1.

III. Plaintiff's December 3, 2013 FOIA Request to EOUSA

On December 3, 2013, plaintiff submitted another FOIA request to EOUSA. App. to Am. Compl. [Dkt. # 16] at ECF 4--5. This request sought " any and all document [sic] and information in the files of EOUSA on Bobby Garrett," whom plaintiff described as a " former rogue St. Louis Police Officer . . . who was indicted and convicted in United States v. Bobby Lee Garrett." Id. Plaintiff specified in great detail the information he was looking for with respect to Garrett, which included:

Any investigations of his wrongdoing or governmental corruption by Garrett. How many defendants had been released based on the corruption by Bobby Garrett and others. How many cases Bobby Garrett testified in on behalf of the Government. Any and all complaints filed against Bobby Garrett about his corruption in the files of the Government. Requesting information about search warrants found to be invalid based on wrongdoing by Bobby Garrett. The amount of cash money illegally taken by Bobby Garrett from citizens while he was acting as an [sic] St. Louis Police Officer.

Id. Plaintiff also sought information about defendants who had been exonerated " doing [sic] to Bobby Garrett being exposed as a corrupt cop," public records on Garrett, a list of properties Garrett had illegally entered, and information about the relationship between Garrett and Bryant Troupe. Id. at ECF 4--5.

" Due to an error or an omission," EOUSA did not timely respond to plaintiff's December 3, 2013 request. Supp. Decl. of David Luczynski [Dkt. # 20-4] (" 2d Luczynski Decl." ) ¶ 7. Plaintiff submitted an administrative appeal on January 24, 2015, Ex. C to 2d Luczynski Decl. [Dkt. # 20-4], which was denied on March 6, 2014, on the grounds that plaintiff had already initiated a lawsuit related to this request. Ex. E to 2d Luczynski Decl. [Dkt. # 20-4]. In addition, " [t]o make up for" its earlier failure to respond, EOUSA sent plaintiff a response to his December 3, 2013 request on April 21, 2014. 2d Luczynski Decl. ¶ 7; see also Ex. F to 2d Luczynski Decl. [Dkt. # 20-4]. The response letter stated that

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plaintiff's December 3, 2013 request was denied in full because he sought records concerning third parties without any authorization or justification, and so the information was exempt from disclosure under the Privacy Act. Ex. F to 2d Luczynski Decl. at 1. In addition, the agency claimed that FOIA Exemptions 6 and 7(C) protected the third-party information from disclosure. Id.

IV. Procedural History

Plaintiff filed this action on August 28, 2013. Compl. The Court granted plaintiff leave to amend the complaint on March 5, 2014. Minute Order (Mar. 5, 2014); see also Am. Compl.

On March 18, 2014, defendants moved for summary judgment, Defs.' Mot. for Summ. J. [Dkt. # 17], but because the motion did not address Count 3 of plaintiff's amended complaint, the Court afforded defendants an opportunity to file a renewed motion. Minute Order (Apr. 22, 2014). Defendants filed the renewed motion on June 23, 2014. Defs.' Mot.

On October 27, 2014, plaintiff filed a combined memorandum in opposition to defendants' renewed motion for summary judgment and cross-motion for summary judgment. Pl.'s Mot. On November 17, 2014, defendants filed a combined reply and cross-opposition. Reply Mem. & Mem. in Opp. to Pl.'s Mot. [Dkt. # 31] (" Defs.' Reply" ). Plaintiff filed a cross-reply on December 10, 2014. Pl.'s Sur-Reply to Defs.' Opp. [Dkt. # 33] (" Pl.'s Reply" ).

On February 27, 2015, plaintiff filed a motion to expedite the proceedings in this case, arguing that the government misconduct his pleadings and evidence had established constituted " good cause shown." Pl.'s Mot. to Expedite [Dkt. # 34] at 5. The Court notified the parties that it would hold plaintiff's motion to expedite in abeyance until it had resolved the pending motions for summary judgment. Order (Mar. 26, 2015).

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency's action de novo and " the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). " FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, a court " must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706, 383 U.S.App.D.C. 290 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But where a plaintiff has not provided evidence that an agency acted in bad faith, " a court may award summary judgment solely on the basis of information provided by the agency in declarations." Moore, 601 F.Supp.2d at 12.

While the same legal framework applies in every case, where a plaintiff proceeds pro se, " the Court must take particular care to construe the plaintiff's filings liberally, for such complaints are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Cheeks v. Fort Myer Constr. Co., 722 F.Supp.2d 93, 107 (D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520--21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

ANALYSIS

FOIA requires the release of government records upon request and its

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purpose is to " ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). At the same time, Congress recognized " that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused." FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 925, 356 U.S.App.D.C. 333 (D.C. Cir. 2003) (" FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." ). The Supreme Court has instructed that " FOIA exemptions are to be narrowly construed." Abramson, 456 U.S. at 630.

To prevail in a FOIA action, an agency must, first, demonstrate that it has made " a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68, 287 U.S.App.D.C. 126 (D.C. Cir. 1990). " [A]t the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890, 315 U.S.App.D.C. 177 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Second, the agency must show that " materials that are withheld . . . fall within a FOIA statutory exemption." Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252 (D.D.C. 2005). " '[W]hen an agency seeks to withhold information, it must provide a relatively detailed justification,'" for the withholding, Morley v. CIA, 508 F.3d 1108, 1122, 378 U.S.App.D.C. 411 (D.C. Cir. 2007), quoting King v. Dep't of Justice, 830 F.2d 210, 219, 265 U.S.App.D.C. 62 (D.C. Cir. 1987), through a Vaughn Index, an affidavit, or by other means. Gallant v. NLRB, 26 F.3d 168, 172--73, 307 U.S.App.D.C. 27 (D.C. Cir. 1994).

After asserting and explaining its exemptions, an agency must release " [a]ny reasonably segregable portion of a record," 5 U.S.C. § 552(b), unless the non-exempt portions are " inextricably intertwined with exempt portions" of the record. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260, 184 U.S.App.D.C. 350 (D.C. Cir. 1977); see also Johnson v. Exec. Office of U.S. Att'ys, 310 F.3d 771, 776, 354 U.S.App.D.C. 49 (D.C. Cir. 2002). " In order to demonstrate that all reasonably segregable material has been released, the agency must provide a 'detailed justification' for its nonsegregability," although " the agency is not required to provide so much detail that the exempt material would be effectively disclosed." Johnson, 310 F.3d at 776, quoting Mead Data, 566 F.2d at 261. " A district court has the obligation to consider the segregability issue sua sponte, regardless of whether it has been raised by the parties." Id., citing Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028, 336 U.S.App.D.C. 189 (D.C. Cir. 1999).

I. EOUSA's Response to Plaintiff's FOIA Requests

In response to plaintiff's March 26, 2013 FOIA request, EOUSA released 201 pages of records to plaintiff in full and 267 pages in part, and it withheld 139 pages in full. Luczynski Decl. ¶ 8. EOUSA invoked FOIA Exemptions 3, 5, 6, and 7(C) to justify its withholdings, as well as Privacy Act Exemption (j)(2). Id. The agency also categorically withheld " all records pertaining to third party individuals" under Exemptions 6 and 7(C), stating that plaintiff had provided no evidence of authorization

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to receive the third parties' personal information. Id. ¶ ¶ 24, 27. To explain and support its response, the agency submitted a declaration by David Luczynski, an Attorney Advisor with EOUSA, 1st Luczynski Decl. ¶ 1, and a Vaughn Index. Ex. F to 1st Luczynski Decl. [Dkt. # 20-6] (" Vaughn Index" ).

EOUSA also categorically withheld all records responsive to plaintiff's December 3, 2013 FOIA request under FOIA Exemptions 6 and 7(C) and Privacy Act Exemption (j)(2). 2d Luczynski Decl. ¶ ¶ 8, 11. The agency again stated that it was withholding " all records pertaining to third party individuals" and that plaintiff had shown no authorization to receive this information. Id. ¶ 11. In support of this withholding, the agency submitted a second declaration by David Luczynski.[4] Id.

A. EOUSA's search for responsive records was adequate.

" An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325, 336 U.S.App.D.C. 386 (D.C. Cir. 1999), quoting Truitt v. Dep't of State, 897 F.2d 540, 542, 283 U.S.App.D.C. 86 (D.C. Cir. 1990); see also Oglesby, 920 F.2d at 68; Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351, 227 U.S.App.D.C. 253 (D.C. Cir. 1983). To demonstrate that it has performed an adequate search, an agency must submit a reasonably detailed affidavit describing the search. Oglesby, 920 F.2d at 68 (finding summary judgment improper where agency's affidavit lacked sufficient detail); see also Defenders of Wildlife v. U.S. Border Patrol (Defenders II), 623 F.Supp.2d 83, 91 (D.D.C. 2009) (same). A declaration is " reasonably detailed" if it " set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68; see also White v. Dep't of Justice, 840 F.Supp.2d 83, 89 (D.D.C. 2012) (finding declarations sufficient where they " explain[ed] what system was searched, the terms used, why it was likely to contain responsive documents, and that no other search method would reveal responsive documents" ); Defenders II, 623 F.Supp.2d at 92 (finding declaration deficient where it failed to detail the types of files searched, the filing methods, and the search terms used).

" 'The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.'" Defenders of Wildlife v. U.S. Dep't of Interior (Defenders I), 314 F.Supp.2d 1, 8 (D.D.C. 2004), quoting Perry v. Block, 684 F.2d 121, 128, 221 U.S.App.D.C. 347 (D.C. Cir. 1982); see also SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (finding that an adequate search need not " uncover[] every document extant" ). " [A]n agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, 71 F.3d at 890, citing Oglesby, 920 F.2d at 68. Agency affidavits attesting to a reasonable search " are afforded a presumption of good faith," Defenders I, 314 ...


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