United States District Court, D. Columbia
John J. Coleman, Plaintiff,
Drug Enforcement Administration, Defendant
[Copyrighted Material Omitted]
JOHN B. COLEMAN, Plaintiff: Daniel J. Stotter, LEAD ATTORNEY,
STOTTER & ASSOCIATES LLC, Corvallis, OR.
DRUG ENFORCEMENT ADMINISTRATION, Defendant: Rhonda Lisa
Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil
Division, Washington, DC.
OPINION AND ORDER
Mehta, United States District Judge.
Freedom of Information Act (" FOIA" ) case,
Defendant Drug Enforcement Administration (" DEA" )
produced over 1,900 pages of documents to Plaintiff John J.
Coleman. Plaintiff filed this suit to challenge two aspects
of the DEA's response. First, he contends that the
DEA's search was deficient in multiple respects and thus
not reasonably calculated to produce all responsive records.
He asks the court to compel the DEA to broaden its search and
to look for more responsive records. Second, he asserts that
the DEA wrongfully denied him a statutory fee waiver.
Although the agency ultimately decided not to charge him a
fee for the records that it produced, Plaintiff nevertheless
seeks a declaration from the court that the DEA's
decision to deny him a fee waiver was unlawful under FOIA.
parties have moved for summary judgment under Federal Rule of
Civil Procedure 56. For the reasons set forth below, the
court holds that the DEA did not conduct an adequate search
in response to Plaintiff's request because it failed to
search the office of the Deputy Assistant Administrator of
the Office of Diversion Control, an office likely to contain
responsive records. In all other respects, the DEA's
search was reasonable. In addition, because Plaintiff has not
established that the DEA's decision to deny him a fee
waiver is likely to cause him future injury, the
court denies Plaintiff's request for declaratory relief
on the ground that Plaintiff lacks standing. The parties'
cross motions for summary judgment thus are both granted in
part and denied in part.
John J. Coleman is the president of Drug Watch International,
an organization dedicated to drug abuse prevention and
education. Pl.'s Mot. for Summ. J., ECF No. 19, at 1
[hereinafter Pl.'s Mot.]. Plaintiff previously worked at
the DEA for 33 years, rising to the level of Assistant
Administrator for Operations before he retired. Decl. of John
Coleman, ECF No. 19-2, ¶ ¶ 3, 5 [hereinafter
October 25, 2012, Plaintiff submitted a FOIA request to the
DEA seeking the disclosure of nine categories of documents
relating to the proposed reclassification of
carisoprodol as a Schedule IV drug, as well as the
rescheduling of hydrocodone. Def.'s Mot. for Summ.
J. [hereinafter Def.'s Mot.], Ex. A, ECF No. 17-4, at 2-3
[hereinafter FOIA Request]. He also sought a public-interest
fee waiver. See FOIA Request. Plaintiff argued
that disclosure was in the public interest because he
intended " to write about how the government drug
regulatory agencies schedule controlled substances and how
petitions for doing so are handled by the respective federal
agencies[.]" Id. at 2.
acknowledged receipt of Plaintiff's FOIA request on
November 29, 2012. However, it determined that
Plaintiff's request was for commercial rather than
public-interest use and denied his fee waiver request. Decl.
of Katherine Myrick, ECF No. 17-3, ¶ 8 [hereinafter
Myrick Decl.]. On February 5, 2013, Plaintiff filed an appeal
to the Department of Justice's
Office of Information Policy (" OIP" ) contesting
the DEA's fee decision. He also complained that the fee
determination was rendered more than 20 working days after
its receipt, in violation of the statutory 20-working day
limit for responding to such requests. Id. ¶ 9.
On September 11, 2013, the OIP remanded the decision to the
DEA for reconsideration of the fee waiver request,
id. ¶ 11, whereupon the DEA again denied
Plaintiff's fee waiver, id. ¶ 12. Plaintiff
again appealed the fee waiver denial, but no formal decision
issued before Plaintiff filed this suit on February 26, 2014.
Id. ¶ ¶ 13-15.
Plaintiff's records request, the DEA initially did not
process any documents because of the pending fee waiver
dispute. Id. ¶ 18. Although the DEA never
answered Plaintiff's second appeal, the agency decided
that it could not deny Plaintiff a fee waiver because it had
not responded to his fee request in a timely manner.
Id. Thereafter, the DEA commenced a search for
responsive records. Id. The DEA's FOIA Unit
reviewed records found in two offices: the Office of
Diversion Control and the Office of Chief Counsel.
Id. ¶ ¶ 17-20. On October 17, 2014, eight
months after Plaintiff filed suit, the DEA released 1,906
pages of responsive records without assessing a fee.
Id. ¶ 16. It also released another 79 pages on
November 3, 2014, again without assessing a fee. Id.
FOIA cases are appropriately resolved on a motion 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).
" To prevail on summary judgment . . . the defending
'agency must show beyond material doubt . . . that it has
conducted a search reasonably calculated to uncover all
relevant documents.'" Morley v. CIA, 508
F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007)
(quoting Weisberg v. DOJ, 705 F.2d 1344, 1351, 227
U.S.App.D.C. 253 (D.C. Cir. 1983)). To carry its 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 the
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. " Agency
affidavits enjoy a presumption of good faith, which will
withstand purely speculative claims about the existence and
discoverability of other documents." Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S.App.D.C.
1 (D.C. Cir. 1981). Summary 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).
Adequacy of the Search
first issue before the court is whether the DEA performed an
adequate search. The DEA contends that it conducted an
adequate search reasonably designed to locate responsive
records and that it adequately described that search in the
agency's affidavits. Plaintiff disagrees, arguing that:
(1) the search was unreasonably restricted to only ...