United States District Court, D. Columbia.
Randee A. Gilliam, Plaintiff,
U.S. Department of Justice, et al., Defendant
[Copyrighted Material Omitted]
A. GILLIAM, Plaintiff, Pro se, Youngstown, OH.
UNITED STATES DEPARTMENT OF JUSTICE, Criminal Division, Chief
of the FOIA/PA Unit, UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF INFORMATION POLICY, SEAN R. O'NEILL, OIP
Administrator, Sued In His Individual And Official Capacity,
NITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION, TIMOTHY
A. ZIESE, OIP Attorney Adviser, Sued In His Individual And
Official Capacity, Defendants: Kenneth A. Adebonojo, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC.
OPINION AND ORDER
Mehta, United States District Judge.
case is the third in a line of cases recently brought in this
court under the Freedom of Information Act (" FOIA"
) challenging the government's withholding of all
documents relating to court-authorized wiretaps in pending
drug conspiracy cases in the Western District of
Pennsylvania. The first was brought by Anthony Ellis and
resolved by Judge Boasberg in Ellis v. DOJ, 110
F.Supp.3d99 , Civ. No. 13-2056, 2015 WL 3855587 (D.D.C. June
22, 2015). The second was brought by Lamont Wright and
resolved by Judge Walton in Wright v. DOJ, 121
F.Supp.3d 171, Civ. No. 14-272, 2015 WL 4910502 (D.D.C. Aug.
17, 2015). And this case, the third, was brought by Plaintiff
Randee Gilliam. All three men are incarcerated at the
Northeast Ohio Correctional Center in Youngstown, Ohio. In
fact, Gilliam and Wright are co-defendants in the same
criminal matter. See United States v. Randee
Gilliam, 12-cr-00093 (W.D. Pa.). Not coincidentally, all
three cases raise almost identical claims and arguments under
FOIA. Indeed, Gilliam's and Wright's
opposition briefs are, except for their final pages,
identical. Compare Gilliam v. DOJ, Pl.'s
Opp'n, ECF No. 18, with Wright v. DOJ, Pl.'s
Opp'n, ECF No. 18.
the substantial overlap among these cases, this court has an
independent obligation to consider the merits of the case
before it. And, to that end, the court has reviewed all of
the briefing and supporting materials submitted by the
Ultimately, the court concludes, for the same reasons as
those set forth in Ellis and Wright, that
Defendants' motion for summary judgment must be granted.
However, as explained below, the court grants Plaintiff's
request to amend his complaint to add new FOIA claims, but
denies the request insofar as Plaintiff seeks to add claims
arising from the alleged illegal intercept of his telephone
communications. Additionally, the court denies
Plaintiff's motion for sanctions.
March 29, 2013, Plaintiff Randee Gilliam submitted a FOIA
request to Defendant United States Department of Justice
(" DOJ" ) for " a copy of the Title III
interception approval letters and all other documents that
are a part of the electronic surveillance" for four
telephone numbers. Def.'s Mot. for Summ. J., Decl. of
Peter Sprung [hereinafter " Sprung Decl." ], ECF
No. 15-2, ¶ 8. On July 17, 2013, the Criminal
Division of DOJ denied the request in its entirety.
Id. ¶ 14, Ex. I. It advised Plaintiff that,
" to the extent responsive records do exist, they are
exempt from disclosure" under FOIA Exemption 3 because
Title III exempts them from disclosure. Id.
DOJ's Office of Information Policy affirmed the Criminal
Division's invocation of Exemption 3. Id. ¶
19, Ex. N.
January 7, 2014, Gilliam filed this lawsuit. Compl., ECF No.
1. Even though it had previously refused to search for or
produce documents, DOJ conducted a search for records and
located 2,300 pages of potentially responsive material.
Sprung Decl., Ex. Q, ECF No. 15-4. That material included,
among other things, Title III applications, agent affidavits,
proposed orders, authorization memoranda, and emails among
DOJ attorneys concerning the Title III application.
Id., Ex. P, ECF No. 15-3. DOJ moved for summary
judgment on September 12, 2014. See Def.'s Mot.
Summ. J., ECF No. 15. With its motion, DOJ produced a
150-page Vaughn index, asserting that all
potentially responsive documents were exempt under FOIA
Exemptions 3, 5, 6, or 7(C). Id., Ex. Q.
STANDARD OF REVIEW
FOIA cases are appropriately resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade Rep.,
641 F.3d 521, 527, 395 U.S. App.D.C. 155 (D.C. Cir. 2011).
Summary judgment is warranted under Federal Rule of Civil
Procedure 56 " 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 dispute is " genuine" only if a reasonable
fact-finder could find for the nonmoving party, while a fact
is " material" only if it is capable of affecting
the outcome of litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). A non-material factual dispute is insufficient to
prevent the court from granting summary judgment.
Id. The moving party must support the assertion that
no facts are in dispute by " citing to particular parts
of materials in the record, including . . . affidavits or
declarations." Fed.R.Civ.P. 56(c)(1)(A). In making its
determination as to summary judgment, the court must review
" [a]ll underlying facts and inferences . . . in the
light most favorable to the non-moving party." N.S.
ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57,
65 (D.D.C. 2010) (citing Anderson, 477 U.S. at 255).
agency seeking summary judgment in a FOIA case bears the
burden of showing that, even with the facts viewed in the
light most favorable to the requester, the agency has
conducted a search " reasonably calculated to uncover
all relevant documents." Weisberg v. DOJ, 705
F.2d 1344, 1351, 227 U.S. App.D.C. 253 (D.C. Cir. 1983). To
carry this burden, the agency may submit a " reasonably
detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched." Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 68, 287 U.S. App.D.C. 126 (D.C. Cir. 1990).
Production of such an affidavit allows a requester to
challenge, and a court to assess, the adequacy of the search
performed by the agency. Id. These affidavits are
afforded " a presumption of good faith, which cannot be
rebutted by purely speculative claims." SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.
App.D.C. 324 (D.C. Cir. 1991) (internal quotation marks
judgment based on affidavits is not warranted, however, if
the affidavits are " 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)
(citations omitted); see also Hall v. CIA,
668 F.Supp.2d 172, 196 (D.D.C. 2009) (" Courts may
permit discovery in FOIA cases where a plaintiff has made a
sufficient showing that the agency acted in bad faith."
) (citations omitted) (internal quotation marks omitted).
" 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."
Wright, 2015 WL 4910502, at *3 (citation omitted)
(internal quotation marks omitted).
Reasonableness of DOJ's Search
challenges the reasonableness of DOJ's search for
responsive materials. Pl.'s Opp'n at 52. To prevail
on this issue DOJ must show that it conducted a search
reasonably calculated to uncover all relevant records.
See Weisberg, 705 F.2d at 1351. To meet its
burden, DOJ may rely on a detailed affidavit that explains
the scope and method of its search. See
Oglesby, 920 F.2d at 68. Here, DOJ has presented a
declaration from Peter Sprung, an attorney in DOJ's
Freedom of Information Act/Privacy Act Unit, for that purpose
[hereinafter " Sprung Declaration" ].
Sprung Declaration explains that DOJ searched two databases
for responsive materials: (1) an Office of Enforcement
Operations (" OEO" ) database used to track
prosecutors' requests for Title III intercepts, and (2)
the Criminal Division's archived email system. Sprung
Decl. ¶ 21. The Sprung Declaration details why those two
databases were selected and how DOJ went about searching them
for responsive materials. Id. ¶ ¶ 22-30.
Based on these representations, the court is satisfied that
DOJ's search met its obligations under FOIA. Therefore,
for the same reasons stated in Wright and
Ellis, this court concludes that DOJ conducted a
search reasonably designed to identify all responsive
records. See Wright, 2015 WL 4910502, at
*6-8 (finding that search of OEO database and Criminal
Division's email archive system was sufficient to uncover
all relevant documents); Ellis, 2015 WL 3855587, at
court also rejects Gilliam's specific challenges to the
adequacy of the ...