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Campbell v. United States Department of Justice

United States District Court, D. Columbia

September 28, 2015


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          ERIC CAMPBELL, Plaintiff, Pro se, Youngstown, OH.

         For UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION, KENNETH COURTER, Chief of the FOIA/PA Unit - Individual and Official Capacity, OFFICE OF INFORMATION POLICY, DIRECTOR OF OIP, Melanie Ann Pustay, SEAN R. O'NEILL, OIP Chief Administrator - Individual and Official Capacity, Defendants: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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         MEMORANDUM OPINION [Dkt. #16]

         RICHARD J. LEON, United States District Judge

         Plaintiff Eric Campbell brings this action pro se against the United States Department of Justice, Criminal Division (" defendant" ); Kenneth Courter in his individual and official capacity as the Chief of the Freedom of Information Act (" FOIA" )/Privacy Act Unit; Office of Information Policy (" OIP" ); the Director of OIP, Melanie Ann Pustay; and Sean R. O'Neill in his individual and official capacity as the OIP Chief Administrator for failure to disclose records, pursuant to the FOIA and Privacy Act.[1] See generally Compl. [Dkt. # 1]. This case comes before the Court on defendant's Motion for Summary Judgement [Dkt. #16] (" Def.'s Mot." ). Upon review of the parties' pleadings, the relevant law, and the entire record herein, this Court GRANTS defendant's motion and DISMISSES this case.


         The facts of this case are not unique. Indeed, this is the fifth case recently resolved in this District challenging the government's withholding of all documents related to court-authorized wiretaps in pending drug conspiracy cases in the Western District of Pennsylvania. Plaintiffs in all five cases are incarcerated at the Northeast Ohio Correctional Center in Youngstown, Ohio, and three, including plaintiff in this case, are co-defendants in a case charging them with conspiracy to distribute and possess with the intent to distribute cocaine. See United States v. Gilliam, 12-cr-00093, (W.D. Pa.); Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. 4 [Dkt. #16] (" Def.'s Mem." ). In June of this year, Judge Boasberg dismissed a suit brought by Anthony Ellis, see Ellis v. Dep't of Justice. Civ. No. 13-2056, 110 F.Supp.3d 99, 2015 WL 3855587 (D.D.C. June 22, 2015); in July, Judge Kollar-Kotelly dismissed a suit brought by Juan

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Gordon, Gordon v. Courter, Civ. No. 14-1382, 118 F.Supp.3d 276, 2015 WL 4602588 (D.D.C. July 31, 2015); in August, Judge Walton dismissed a suit brought by Lamont Wright, Wright v. Dep't of Justice, Civ. No. 14-272, 121 F.Supp.3d 171, 2015 WL 4910502 (D.D.C. Aug. 17, 2015); and in September, Judge Mehta dismissed claims brought by Randee Gilliam, Gilliam v. Dep't of Justice, Civ. No. 14-00036, 128 F.Supp.3d 134, 2015 WL 5158728 (D.D.C. Sept. 1, 2015).[2] Although these four cases present nearly identical questions of law and fact, this Court has independently considered the arguments offered in this case. Perhaps not surprisingly though, this Court finds the reasoning in Ellis, Wright, Gordon, and Gilliam convincing and does not reach a different conclusion.

         On May 10, 2013, plaintiff filed a FOIA request addressed to the U.S. Department of Justice Criminal Division, seeking " a copy of the Title III interception of electronic communication approval letters and all other documents that are a part of the electronic surveillance for [one] telephone number[]" with which plaintiff allegedly communicated. Def.'s Mem. 4. Plaintiff was not the subscriber of this telephone number. See Cunningham Decl. ¶ 5 [Dkt. #16-2]. Defendant responded on July 15, 2013, advising plaintiff that, " to the extent that any responsive records existed, they were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(3)." Id. ¶ 6. That FOIA exemption applies to documents which must be withheld pursuant to another statute--in this case, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § § 2510-2521. Id.

         On July 28, 2013, plaintiff appealed defendant's decision to OIP. Id. ¶ 7. On December 30, 2013, OIP affirmed the Criminal Division's refusal to conduct a search because any documents identified would be properly withheld under FOIA Exemption 3. Id. ¶ 8. Plaintiff filed this suit on August 8, 2014 alleging that defendant failed to properly respond to his FOIA request, see Compl. 1-2, and claiming, inter alia, that the records requested had been disclosed through discovery in his criminal case. Cunningham Decl. ¶ 9. Although defendant had initially refused to conduct a search for documents, in response to this suit, defendant searched for records responsive to plaintiff's request in two records systems: (1) the database used to track federal prosecutors' requests for permission to apply for court-authorization for wiretaps under Title III (" the Title III request tracking system" ) and (2) the database containing archived emails of Criminal Division employees (" Enterprise Vault" ). Id. ¶ 10. The records identified through these searches were withheld in full under Privacy Act Exemption (j)(2), 5 U.S.C. § 552a(j)(2) and FOIA Exemptions 3, 5, 6, and 7(C); id. § § 552(b)(3), (5), (6), and 7(C). Id. ¶ ¶ 21-38. Defendant now moves for summary judgment.


         A court will grant 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). Courts review an agency's response to a FOIA request de nova, 5 U.S.C. § 552(a)(4)(B), and " FOIA cases typically and appropriately are decided on motions for summary judgment," Petit-Frere v. U.S. Att'y 's Office for the S. Dist. of Fla.,

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800 F.Supp.2d 276, 279 (D.D.C. 2011), aff'd per curiam, No. 11-5285, 2012 WL 4774807, at *1 (D.C. Cir. Sept. 19, 2012). To prevail on summary judgment, an agency must demonstrate that it conducted a search reasonably designed to uncover responsive documents, that any materials withheld fall into a FOIA statutory exemption, and that it disclosed all reasonably segregable, nonexempt material. See Reliant Energy Power Generation. Inc. v. Fed. Energy Regulatory Comm'n, 520 F.Supp.2d 194, 200 (D.D.C. 2007).

         Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they " describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not 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 ...

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