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Wright v. United States Department of Justice

United States District Court, D. Columbia.

August 17, 2015


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          LAMONT WRIGHT, Plaintiff, Pro se, Youngstown, OH.

         For 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.

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         REGGIE B. WALTON, United States District Judge.

         Lamont 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,[1] the Court concludes for the following reasons that it must grant the defendants' motion.[2]


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         I. BACKGROUND

         The 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.[3]

         Following 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).[4] Defs.' Facts ¶ 10.


         Courts 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

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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).

         Courts 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).

         Summary 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 112 (1989)).

         III. ANALYSIS

         To 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 (3) the

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defendants satisfied their obligations under the FOIA to review the responsive documents for segregable material.

         A. Adequacy of the Defendants' Searches

         The 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)).

         In 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.

         Sprung Decl. ¶ 11.

         The 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

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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.

         In 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 ...

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