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Smith v. U.S. Department of Justice

United States District Court, D. Columbia.

July 20, 2015

DEVAUGHAN SMITH, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant

ROYCE C. LAMBERTH, Plaintiff, Pro se, ATLANTA, GA.

Page 49

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

In this action brought under the Freedom of Information Act (" FOIA" ), plaintiff challenges the response of the Drug Enforcement Administration (" DEA" ) to his request for records pertaining to a third party. Pending is defendant's Motion to Dismiss and for Summary Judgment, ECF No. 6. Plaintiff has filed an opposition, ECF No. 13, and defendant has replied,

Page 50

ECF No. 16. For the reasons explained below, the Court will grant defendant's motion and enter judgment accordingly.

I. BACKGROUND

In March 2007 a federal jury in the Eastern District of Louisiana convicted plaintiff of murder-for-hire and cocaine distribution. United States v. Smith, No. Crim. A. 06-325, 2010 WL 3942884, at *2 (E.D. La. Oct. 6, 2010). In April 2013, plaintiff mailed a FOIA request to DEA that was addressed to the Federal Bureau of Investigation.[1] Decl. of Katherine L. Myrick ¶ 4 & Ex. A, ECF No. 6-3. Plaintiff sought (1) records pertaining to himself and " criminal action #2.06-cr-000325," (2) the cooperation agreement of Lamont Lee, who had testified at plaintiff's criminal trial, and (3) his phone records as to incoming calls on September 4, 2006 " that [were] within the [criminal case] only."

By letter dated April 26, 2013, DEA informed plaintiff (1) that it had conducted a search of its files but located no records pertaining to him and (2) that it was neither confirming nor denying the existence of records about Lee. Myrick Decl., Ex. B. In addition, DEA " noted [that the] request letter . . . referenced the [FBI]," and suggested that plaintiff " may wish to forward a request to that agency as under the FOIA, agencies are only responsible for records under the control and custody of each agency." Id. at 1 (emphasis omitted).

In a letter to the Department of Justice's Office of Information Policy (" OIP" ) dated May 14, 2013, plaintiff stated that he was appealing DEA's decision " in part." Id., Ex. C. Plaintiff specified that " [t]he in part denial of my request is improper because Lamont Patrick Lee is not exempt under the third party privacy act[,] [having] testified in open court on March 19-20, 2007." Id. at 1. Plaintiff further stated that Lee's " cooperation agreement was suppose[d] to be disclosed to [plaintiff's] trial lawyer before trial . . . under the discovery rule," id., but that " [t]he government refused to accede to [his] trial lawyers' request and purposely withheld . . . Lee's cooperation agreement, and other evidence by the government." Id. at 2. Plaintiff then requested " any and all available public information regarding Lamont Lee's cooperation agreement only[.]" Id. He also provided his cell phone number " to assist [ ] with obtaining all incoming calls only for [ ] September 4, 2006[.]" Id.

In a letter to plaintiff dated August 13, 2013, the Chief of Administrative Appeals stated: " I note that you have limited your appeal to the portion of your request pertaining to a third party witness cooperation agreement," and upon that clarification, affirmed DEA's response " on partly modified grounds[.]" Myrick Decl., Ex. E. OIP determined that DEA had properly refused to confirm or deny the existence of responsive records and added that absent " consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. (citing 5 U.S.C. § 552(b)(7)(C)).

Page 51

In November 2014, plaintiff filed a document captioned " Vaughn v. Rosen Motion," which was construed as a complaint. Plaintiff named DEA's Katherine L. Myrick as the defendant but was granted leave on July 8, 2015, to substitute the Department of Justice. The complaint is difficult to follow but concludes with a request for an order compelling DEA to disclose Lee's cooperation agreement and related documents, as well as all " ...


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