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McKneely v. United States Department of Justice

United States District Court, D. Columbia

September 25, 2015


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          DRACY MCKNEELY, Plaintiff, Pro se, LOMPOC, CA.


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         Plaintiff challenges the response of the Drug Enforcement Administration (" DEA" ) to his Freedom of Information Act (" FOIA" ) request. As DEA's parent agency, the Department of Justice (" DOJ" ) claims that DEA has fully complied with FOIA and moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, ECF No. 28. Upon consideration of the parties' submissions, including plaintiff's cross motion for summary judgment, ECF No. 32, DOJ's reply, ECF No. 34, and plaintiff's reply, ECF No. 36, the Court will grant defendant's motion, deny plaintiff's motion, and enter judgment accordingly.

         I. BACKGROUND

         Plaintiff, a federal prisoner, was convicted by a District of Colorado jury of possession with intent to distribute fifty grams or more of cocaine base and was sentenced to life imprisonment. United States v. McKneely, 69 F.3d 1067, 1070 (10th Cir. 1995). On November 14, 2010, plaintiff requested from DEA all records about him pertaining to the criminal investigation and his arrest. Decl. of Katherine Myrick (" Myrick Decl." ), Ex. A (FOIA Req.), ECF No. 28-4. Plaintiff specifically requested (1) telephone records " from Concord Hotel

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room 666 regarding criminal offense dated 2/13/1992 in case 93-cr-308," which, according to plaintiff, were in the possession of " the lead agent at that time," and (2) " copies of transcripts of all tape recordings, and audio recordings regarding case 93-cr-308 dated 2/13/1992." FOIA Req. at 4.

         On September 26, 2011, DEA released to plaintiff two redacted pages of information and withheld fourteen pages completely. DEA withheld information under FOIA exemptions 3, 7(C), 7(E), and 7(F), codified in 5 U.S.C. § 552(b), and Privacy Act exemption (j)(2), codified in 5 U.S.C. § 552a. Id., Ex. E. Plaintiff appealed DEA's decision to the Office of Information Policy (" OIP" ), which affirmed the decision by letter dated June 18, 2012. Id., Ex. H.

         Dissatisfied with the agency's action, plaintiff filed this civil action in July 2013. On February 12, 2014, DEA released 128 responsive pages to plaintiff, withheld 38 pages and two cassette tapes, and referred 48 pages as follows: 19 pages to the Bureau of Prisons (" BOP" ); 11 pages to the Executive Office for United States Attorneys (" EOUSA" ); 16 pages to the Federal Bureau of Investigation (" FBI" ); 2 pages to the U.S. Marshals Service. Each of those DOJ components were directed to process the referred records and respond directly to plaintiff. Id., Exs. I, J, K, L, M. DEA withheld information under FOIA exemptions 7(C), 7(D), 7(E), and 7(F), and Privacy Act exemption (j)(2). Id., Ex. I.

         On February 20, 2014, the Marshals Service released the two referred pages with the names of government employees redacted pursuant to FOIA exemptions 7(C) and 7(F). Id., Ex. N. On March 19, 2014, BOP released 20 referred pages, 14 containing redactions, and withheld one referred page completely. BOP invoked FOIA exemptions 5, 6, 7(C) and 7(E). Id., Ex. O. On April 4, 2014, the FBI released the 16 referred pages completely. Id., Ex. P. On August 26, 2014, EOUSA released 10 referred pages, 2 containing redactions, and withheld one referred page completely. Id., Ex. Q. EOUSA invoked FOIA exemptions 5, 7(C) and 7(F).


         A. Rule 56

         Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991, 353 U.S.App.D.C. 205 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

         B. FOIA

         The FOIA requires agencies to disclose all requested agency records, 5 U.S.C. § 552(a), unless one of nine specific statutory exemptions applies, id. § 552(b). " It is designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Consumers' Checkbook, Ctr. for the Study of Servs. v. United States HHS, 554 F.3d 1046, 1057, 384 U.S.App.D.C. 306 (D.C. Cir. 2009) (internal quotation marks omitted). " Consistent with 'the basic policy that disclosure, not secrecy, is the dominant objective of the Act,' the statutory exemptions are ...

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