United States District Court, D. Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
CAMPBELL, Plaintiff, Pro se, Youngstown, OH.
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.
OPINION [Dkt. #16]
J. LEON, United States District Judge
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. 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.
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
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). 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
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.
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.
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.,
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).
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 ...