United States District Court, District of Columbia
JAMES E. BOASBERG, District Judge.
Pro se Plaintiff Anthony Ellis is currently incarcerated and awaiting trial on federal drug and firearm charges, based in part on wiretap evidence. Believing that the FBI unlawfully listened to his calls, he filed a Freedom of Information Act request with the Department of Justice seeking records related to that surveillance. Dissatisfied with DOJ's response, Ellis then brought this suit. Justice now moves for summary judgment, maintaining that its search was adequate and that certain documents were properly withheld under FOIA exemptions. Because the Court agrees, it will grant the Motion.
Ellis was indicted in 2012 on one count of conspiracy to distribute 100 grams or more of heroin and one count of conspiracy to carry and possess a firearm in furtherance of a drug-trafficking crime. See Mot., Exh. 2 (Declaration of Peter C. Sprung), ¶ 6. He filed a FOIA request on May 27, 2013, asking that DOJ disclose "Title III interception of electronic communication approval letters and all other documents that are part of electronic surveillance for the following [three] telephone numbers" with which Ellis allegedly communicated. See Sprung Decl., Exh. A (Original FOIA Request). None of these telephone numbers belonged to Ellis. See id., ¶ 6. On July 3, DOJ's Office of Enforcement Operations acknowledged receipt of his request. See Compl., Exh. A (Request Acknowledgment Letter) at 1. Twelve days later, OEO mailed Ellis a letter stating that "to the extent responsive records do exist, they are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(3)." Compl., Exh. B (July 15, 2013, Response Letter) at 1. That FOIA exemption protects records that must be withheld pursuant to another statute's requirements - in this case, Title III's wiretap provisions.
After receiving this response, Ellis filed an appeal with the Director of the Office of Information Policy. See Compl., ¶ 7. OIP acknowledged receipt of the appeal on August 12, 2013, and informed Plaintiff that it would "notify [him] of the decision on [his] appeal as soon as we can." Compl., Exh. C (August 12, 2013, Appeal Acknowledgment Letter) at 1. Contending that he never received a substantive response to his appeal, see Compl., ¶ 11, Ellis filed this action on December 26, 2013, naming as defendants the head of the Criminal Division's FOIA/PA Unit, as well as the heads of OEO and OIP. See id. at 1. Because FOIA applies only to executive-branch agencies and not individuals, the Court substituted the Department of Justice as the named Defendant. See ECF No. 4 (December 31, 2013, Order). In his suit, the documents he seeks are somewhat narrower than in his original request: "Title III authorization letters, memorandums, and any other documents involved in their approval for the electronic surveillance for the following telephone numbers Plaintiff is alleged to have had conversations intercepted over...." Compl., ¶ 4.
While this suit was pending, and notwithstanding its initial categorical invocation of FOIA Exemption 3, DOJ conducted a search of two records systems and located many responsive records. See Mot. at 2; Sprung Decl., ¶¶ 10-20. In October 2014, the agency released in full 677 pages and withheld in full approximately 2, 651 others. See Sprung Decl., ¶ 36. It has now moved for summary judgment.
II. Legal Standard
Summary judgment may be granted 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavit, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations 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 nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Congress enacted FOIA in order to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). "The basic purpose of FOIA 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." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules... shall make the records promptly available to any person." 5 U.S.C. § 552(a) (3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552 (a)(3); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
"Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden on the agency to sustain its action' and directs the district courts to determine the matter de novo.'" Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552 (a)(4)(B)). "At all times courts must bear in mind that FOIA mandates a strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).
In seeking summary judgment, DOJ argues that it conducted an adequate search, properly withheld records under certain FOIA exemptions, and has no obligation to further segregate withheld material. The Court will address these arguments in turn.
A. Adequacy of Search
"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. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether ...