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Love v. U.S. Department of Justice

United States District Court, District of Columbia

August 26, 2015

ABDUL LOVE, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

Plaintiff Abdul Love, proceeding pro se, is an Illinois state prisoner serving a 15-year prison term imposed in 2009 for possession of a controlled substance with intent to deliver.[1] (Compl. ¶ 15, ECF No. 1.) He surmises that he was “set up by an individual named Silas Peppel, whom [plaintiff] believed had been implicated in a scheme to counterfeit U.S. currency in Carbondale, Illinois.” (Id. ¶ 6.) In May 2012, plaintiff submitted a Freedom of Information Act (FOIA) request to the Drug Enforcement Administration (DEA), a component of the Department of Justice (DOJ), seeking investigative records pertaining to the counterfeit scheme and Peppels. In October 2012, DEA released some records and withheld others. Dissatisfied with DEA’s response, plaintiff filed this action in August 2013.

Pending is DOJ’s motion for summary judgment (ECF No. 29). Plaintiff has opposed the motion (ECF No. 32) and defendant has replied (ECF No. 34). Upon consideration of the entire record, and for the reasons explained below, the Court GRANTS DOJ’s motion.

I. BACKGROUND

In a prolix FOIA request, plaintiff listed ten categories of records pertaining to “case # 20050424008 originating out of Carbondale, Illinois.” In sum, plaintiff sought “any and all documents and communications” involving (1) agent Paul Fisher of the United States Secret Service, (2) Silas Peppel described by plaintiff as an “informant/ cooperating witness, ” and (3) various federal, state and local enforcement entities with regard to plaintiff and “his alleged involvement in counterfeiting U.S. currency discovered out of independent investigations and/or as a result of [the foregoing case].” (Compl. Ex. E (FOIA Request at 3, 5-6)) (page numbers supplied).

In October 2012, DEA released 41 pages, 39 of which contained redacted material, and withheld 34 pages completely. Decl. of Katherine L. Myrick ¶¶ 7, 11, 38 (“Myrick Decl.”) (ECF No. 29-3). DEA withheld information under FOIA exemptions 7(C), 7(D), 7(E), and 7(F). (Id.) In the release letter, DEA explained that it could not process plaintiff’s request pertaining to “several agencies and their staff mentioned in [the] request” because such records were unlikely to be maintained by DEA, which was responsible for processing only those records in its custody and control. It invited plaintiff “to contact [those] agencies directly to discuss [that] aspect of [the] request.” (Oct. 22, 2012 letter at 1) (ECF No. 29-4). DEA further informed plaintiff that it could not search by the criminal case number he supplied because “DEA does not index, maintain or retrieve investigative information by reference to criminal case numbers.” (Id.) Finally, DEA informed plaintiff that it could not process information pertaining to third-party “individuals mentioned in [the] request” absent proof of death or an original notarized authorization, and it neither confirmed nor denied “the existence of records relating to . . . Peppel being a confidential source/informant or [having] provided information that assisted this agency in any investigative matter.” (Id. at 2.) Plaintiff appealed the decision to the Office of Information Policy, which affirmed DEA’s action by letter dated June 7, 2013. (Myrick Decl., Ex. F.)

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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id.

“FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such “information is exempted under [one of nine] clearly delineated statutory language.” Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b).

“‘FOIA cases typically and appropriately are decided on motions for summary judgment.’” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). The district court conducts a de novo review of the government’s decision to withhold requested documents under any of FOIA’s specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). Thus, the burden is on the agency to show that nondisclosed, requested material falls within a stated exemption. Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)); Liberty Lobby, 477 U.S. at 254. In cases concerning the applicability of exemptions and the adequacy of an agency’s search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU v. U.S. Dep’t. of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t. of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, ” and “is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should be granted in favor of the FOIA requester “[w]hen an agency seeks to protect material which, even on the agency’s version of the facts, falls outside the proffered exemption[.]” Coldiron v. DOJ, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).

III. ANALYSIS

Plaintiff “contends that DEA’s search for responsive records was more than adequate . . . so adequate that it uncovered criminal and civil rights violations by the Lake County Illinois States Attorneys Office.” (Pl.’s Opp’n at 11-12.) Hence the Court finds no genuine dispute about the adequacy of the search for records and turns now to the contested withholdings.

1. DEA’s Glomar Response

Plaintiff argues first that DEA’s refusal to either confirm or deny records regarding Peppel was not appropriate. (Id. at 5-7.) DEA’s response is commonly referred to as a Glomar response. See Phillippi v. CIA, 546 F.2d 1009, 1010-11 (D.C. Cir. 1976) (addressing the CIA’s refusal to confirm or deny whether it had documents concerning its relationship with the Hughes Glomar Explorer, which was “a large vessel publicly listed as a [privately owned] research ship”). An agency’s Glomar response is proper if either confirming or denying the existence of responsive records “would itself ‘cause harm cognizable under an FOIA exception.’” Am. Civil Liberties Union (“ACLU”) v. CIA., 710 F.3d 422, 426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)) (other citation omitted). DEA invoked FOIA exemption 7(D), which exempts from disclosure ‚Äúrecords or ...


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