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Barouch v. United States Department Of Justice

United States District Court, District of Columbia

September 18, 2015

DAVID JACK BAROUCH, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

On April 1, 2014, plaintiff David Jack Barouch filed a pro se complaint under the Freedom of Information Act (“FOIA”) and the Privacy Act of 1974 against the United States Department of Justice (“DOJ”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). The parties cross-moved for summary judgment, and the Court granted judgment to defendants on all but two issues, remanding the matter for further proceedings. The parties have now cross-moved for summary judgment a second time, and the Court finds that defendants have addressed the only two issues that remain in this case, and that judgment in their favor is appropriate. Accordingly, the Court will grant defendants’ renewed motion for summary judgment and deny plaintiff’s renewed cross-motion for summary judgment.

BACKGROUND

Plaintiff is incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas, Compl. [Dkt. # 1] at 1, serving a 120-month sentence for possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See Barouch v. DOJ (Barouch I), 962 F.Supp.2d 30, 40 (D.D.C. 2013). This is plaintiff’s second action against DOJ and ATF seeking disclosure of records in his name and those related to the crime for which he is incarcerated, and the Court’s second Memorandum Opinion in this particular case. See id.; Barouch v. DOJ (Barouch II), No. 14-0552 (ABJ), 2015 WL 1505965, at *1 (D.D.C. Mar. 31, 2015).

I. Plaintiff’s First FOIA Request and Lawsuit

In April and May of 2011, plaintiff submitted FOIA requests to the Criminal Division of the DOJ, the United States Marshals Service, the Executive Office for United States Attorneys, the Federal Bureau of Prisons, the Department of the Treasury, and ATF. Barouch I, 962 F.Supp.2d at 39-40. Plaintiff’s requests sought “full disclosure and release of all files, records, data and/or information maintained by” each agency under plaintiff’s name. Id. at 41.

On January 23, 2012, plaintiff filed a pro se complaint in this Court under FOIA and the Privacy Act against all of the agencies to which he had sent FOIA requests, as well as the Department of Justice and the Parker County Sheriff Department.[1] Id. at 39-40 & n.1. The complaint alleged that defendants had failed to respond to plaintiff’s FOIA requests, and asked the Court to compel disclosure of the “entire record of investigation” related to plaintiff for the years 2010 and 2011. Id. at 46.

The defendants filed two partial motions for summary judgment or dismissal. Id. at 46- 47. The Court granted the defendants’ first partial motion for summary judgment, and granted in part and denied in part the defendants’ second partial motion for summary judgment. Id. at 70. With respect to ATF, one of the two defendants in the instant case, the Court found that plaintiff’s claim for one set of documents was barred for failure to exhaust administrative remedies, id. at 50, and that ATF had properly withheld a second set of documents under the relevant FOIA exemptions. Id. at 62. The Court also found that it did not have jurisdiction to consider plaintiff’s claims under the Privacy Act because plaintiff had not exhausted his administrative remedies under the Act. Id. at 66-68.

II. Plaintiff’s Second FOIA Request and Lawsuit

On September 3, 2013, plaintiff submitted another FOIA request to ATF seeking “access to all records in agency files, including but not limited to” the following information:

1) A micro cassette tape recording taken at the Fort Worth Jail Unit in September or October of 2010, in which David Barouch was recorded talking with ATF Agent Riddle and Attorney Franklyn “Mic” Mickelsen on the subject of the Government’s promise of 5K1 treatment in this case in exchange for a signed written confession by murderer Eddie Sutton and Barouch provided a map of the burial location and location of the murder weapon. Mr. Barouch was informed that he would be recorded and he viewed the operation of this tape recording.
2) A recording taken at the Fort Worth Jail Unit in October or November of 2010 in which Eddie Sutton, ATF Agent Riddle and an unnamed Texas Ranger discussed the Government’s prior commitment to provide a 5K1 for Barouch due to Sutton’s prior cooperation with Barouch . . . .
3) A third recording [that] was taken at the Fort Worth Jail Unit [in] October or November or December of 2010 attended by ATF Agent Riddle, unnamed Texas Ranger, and Eddie Sutton about his concern of the Governmetn’s [sic] prior ...

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