United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
WRIGHT, Plaintiff, Pro se, Youngstown, OH.
UNITED STATES DEPARTMENT OF JUSTICE, Criminal Division,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Information
Policy, Defendants: Jesse Dyer Stewart, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
Washington, DC; Robert N. Englund, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE, Civil Division, Washington, DC.
B. WALTON, United States District Judge.
Wright, the pro se plaintiff in this civil matter, alleges
that the defendants, the United States Department of Justice
(" DOJ" ) and its Office of Information and Policy
(" OIP" ), violated the Freedom of Information Act
(" FOIA" ), 5 U.S.C. § 552 (2012), by failing
to respond adequately to his FOIA document request. Complaint
(" Compl." ) ¶ 9. Specifically, the plaintiff
requested " the Title III authorization memorandums and
all other documents from the DOJ involved in the
authorization/approval for the electronic surveillance and
interception of [the] plaintiff'[s] private telephone
conversations . . . ." Id. ¶ 3. The
defendants have moved for summary judgment, asserting that
they " have processed [the plaintiff's] FOIA request
and determined that all of the records requested are exempt
from disclosure under the FOIA." [Defendants']
Motion for Summary Judgment (" Defs.' Mot." )
at 1. After carefully considering the Complaint, the
defendants' Motion for Summary Judgment, and the
memoranda of law submitted in support of and opposition to
the motion, the Court concludes for the following
reasons that it must grant the defendants'
plaintiff alleges that he submitted a FOIA request to the DOJ
on August 31, 2013, for " the Title III authorization
memorandums and all other documents from the DOJ involved in
the authorization/approval for the electronic surveillance
and interception of the plaintiff'[s] private telephone
conversations . . . ." Compl. ¶ 3. The defendants
assert that they responded to the request in a letter dated
November 18, 2013, explaining that " to the extent that
any responsive records existed, they [are] . . . exempted
from disclosure by statute." Defs.' Facts ¶ 2
(internal quotation marks omitted); see also Sprung Decl.
¶ 7. The plaintiff appealed this response to the OIP by
letter dated November 26, 2013, Compl. ¶ 4; Defs.'
Facts ¶ 4, and subsequently filed this FOIA action on
February 18, 2014, Defs.' Facts ¶ 5.
the commencement of this action, the Criminal Division of the
DOJ conducted a search for the requested records and
processed them under the FOIA. Id. ¶ 8. The
defendants assert that " [t]he Criminal Division
conducted the search in good faith . . . and every effort has
been made to segregate nonexempt records from records that
are exempt from disclosure." Id. ¶ 9; see
also Sprung Decl. ¶ ¶ 20, 41. The defendants have
now moved for summary judgment, asserting that all responsive
records are exempt from disclosure pursuant to FOIA
Exemptions (b)(3), (b)(5), (b)(6), and
(b)(7)(C). Defs.' Facts ¶ 10.
STANDARD OF REVIEW
will grant a motion for 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). In resolving a motion for
summary judgment, all reasonable inferences that
may be gleaned from the facts before the court must be
construed in favor of the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). The moving party bears the burden of
demonstrating the absence of a genuine issue of material
fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and may do so by
" citing to particular parts of materials in the record,
including . . . affidavits or declarations,"
Fed.R.Civ.P. 56(c)(1)(A). Factual assertions in the moving
party's affidavits or declarations may be accepted as
true unless the opposing party submits affidavits,
declarations, or documentary evidence to the contrary.
Neal v. Kelly, 963 F.2d 453, 456, 295 U.S. App.D.C.
350 (D.C. Cir. 1992).
review an agency's response to a FOIA request de novo, 5
U.S.C. § 552(a)(4)(B) (2012), and " FOIA cases
typically and appropriately are decided on motions for
summary judgment," ViroPharma Inc. v. HHS, 839
F.Supp.2d 184, 189 (D.D.C. 2012) (citations omitted). 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. U.S. Dep't of State, 257 F.3d 828, 833,
347 U.S. App.D.C. 235 (D.C. Cir. 2001) (quoting Goland v.
CIA, 607 F.2d 339, 352, 197 U.S. App.D.C. 25 (D.C. Cir.
1978)). And " even if [the] agency establishes an
exemption, it must nonetheless disclose all reasonably
segregable, nonexempt portions of the requested
record(s)" to comply with its requirements of the
FOIA. Roth v. U.S. Dep't of Justice, 642 F.3d
1161, 1167, 395 U.S. App.D.C. 340 (D.C. Cir. 2011) (internal
quotation marks and citation omitted).
judgment in a FOIA case may be based solely on information
provided in an agency's supporting affidavits or
declarations if they are " relatively detailed and
nonconclusory." SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200, 288 U.S. App.D.C. 324 (D.C. Cir. 1991)
(internal quotations and citations omitted). The affidavits
or declarations should " describe the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and  not [be]
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, 211 U.S. App.D.C. 135 (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, 109 S.Ct. 2841, 106 L.Ed.2d
prevail on its motion for summary judgment, the defendant in
a FOIA case " must show beyond material doubt that it
has conducted a search reasonably calculated to uncover all
relevant documents," Morley v. CIA, 508 F.3d
1108, 1114, 378 U.S. App.D.C. 411 (D.C. Cir. 2007) (internal
quotation marks omitted), and that the responsive records
" [have] been produced . . . or [are] wholly exempt
from" disclosure, Students Against Genocide, 257 F.3d at
833. For the reasons that follow, the Court finds that: (1)
the defendants conducted reasonable and adequate searches,
where necessary; (2) the defendants withheld from disclosure
only documents for which FOIA exemptions properly apply; and
defendants satisfied their obligations under the FOIA to
review the responsive documents for segregable material.
Adequacy of the Defendants' Searches
adequacy of an agency's search is measured by a standard
of reasonableness under the attendant circumstances.
Truitt v. U.S. Dep't of State, 897 F.2d 540,
542, 283 U.S. App.D.C. 86 (D.C. Cir. 1990). To satisfy its
burden, the defendant must show that each agency component
" has conducted a search reasonably calculated to
uncover all relevant documents." Elliott v. U.S.
Dep't of Agric., 596 F.3d 842, 851, 389 U.S.
App.D.C. 272 (D.C. Cir. 2010) (quoting Weisberg v. U.S.
Dep't of Justice, 705 F.2d 1344, 1351, 227 U.S.
App.D.C. 253 (D.C. Cir. 1983)). It may base its showing on
affidavits or declarations submitted in good faith, see
Truitt, 897 F.2d at 542, provided that these affidavits
or declarations explain in reasonable detail the scope and
method of the search, see Morley, 508 F.3d at 1116
(citing Goland, 607 F.2d at 352). " In the absence of
contrary evidence, such affidavits or declarations are
sufficient to demonstrate an agency's compliance with
[the] FOIA." North v. U.S. Dep't of
Justice, 774 F.Supp.2d 217, 222 (D.D.C. 2011) (citing
Perry v. Block, 684 F.2d 121, 127, 221 U.S. App.D.C.
347 (D.C. Cir. 1982)). There is no requirement that an agency
search every record system in response to a FOIA request;
rather, it may limit its search to those locations where
responsive documents are likely maintained. Porter v.
CIA, 778 F.Supp.2d 60, 69 (D.D.C. 2011). However, if the
record " leaves substantial doubt as to the sufficiency
of the search, summary judgment for the agency is not
proper." Beltranena v. Clinton, 770 F.Supp.2d
175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542); see
also Valencia--Lucena v. U.S. Coast Guard, 180 F.3d
321, 326, 336 U.S. App.D.C. 386 (D.C. Cir. 1999) (stating
that summary judgment is inappropriate " if a review of
the record raises substantial doubt" about the adequacy
of the search (citation omitted)).
response to the plaintiff's FOIA request, the defendants
searched two sources of records where relevant documents were
likely to exist:
(1) an [Office of Enforcement Operations (" OEO" )]
database used to track federal prosecutors' requests for
permission to apply for court-authorization to
surreptitiously intercept conversations of person[s]
allegedly involved in criminal activity under Title III
(" the Title III request tracking system" ); and
(2) archived emails of Criminal Division employees that are
maintained by its IT department.
Decl. ¶ 11.
records in the OEO database are assembled as part of the
procedure for obtaining court authorization for a wiretap
pursuant to Title III of the Omnibus Crime Control Safe
Streets Act (" Title III" ), 18 U.S.C. §
2510-21. See id. ¶ 13. Internal DOJ procedures
require a federal prosecutor to " submit [a Title III]
request to OEO's Electronic Surveillance Unit ("
ESU" ), which reviews the request to ensure that it
complies with Title III." Id. " When [the]
ESU receives a prosecutor's request, an administrative
staff member logs it into the Title III request tracking
system," id. ¶ 14, along with the " date of
request; type of interception requested (e.g., cellular
phone, landline, or email); where a phone is involved, the
phone number; requesting AUSA; [the] investigative agency
that will handle the interceptions; and the date the request
was approved or rejected," id. ¶ 16. Users may also
" upload documents such as prosecutors'
applications, agents' affidavits, proposed court orders,
and action memorandums." Id. The information in
this database dates " from 1983 to the present,"
id., and the
OEO database is the " only official information
management system for Title III applications submitted to
[the] OEO by federal prosecutors across the U.S.," id.
¶ 12. The defendants searched this " system for
references to the four telephone numbers that [the plaintiff]
identified in his . . . FOIA request, and the name
'Lamont Wright.'" Id.
addition to searching the Title III request tracking system,
the defendants conducted a search of archived emails between
the federal prosecutor involved in the plaintiff's
underlying criminal matter and the ESU attorney who reviewed
the prosecutor's Title III request. Id. ¶
19. According to the defendants,
[e]mail messages (as well as any attachments) sent or
received by Criminal Division employees are archived in
'Enterprise Vault,' a file and email archiving
program . . . . All emails more than [thirty] days old are
automatically archived in Enterprise Vault. The Criminal