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Aguiar v. Drug Enforcement Administration

United States District Court, D. Columbia

September 30, 2015


Page 92

          STEPHEN AGUIAR, Plaintiff, Pro se, PETERSBURG, VA.

         For DRUG ENFORCEMENT ADMINISTRATION, Defendant: Eric Joseph Young, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         ELLEN SEGAL HUVELLE, United States District Judge.

         Plaintiff Stephen Aguiar brings this action against the Drug Enforcement Administration (" DEA" ) under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., challenging the DEA's response to several of his FOIA requests. Between June 2013 and July 2014, plaintiff submitted multiple FOIA requests to the DEA, all seeking information that had been collected by the DEA during a criminal investigation that led to plaintiff's indictment and conviction.[1] In response, the DEA has produced a number of records, but it has not produced two items which plaintiff asked for: (1) four administrative subpoenas; and (2) a CD with the GPS tracking data obtained from plaintiff's vehicles along with mapping software used by the DEA to create images from this data at plaintiff's criminal trial. Before the Court is defendant's motion for summary judgment. (Def.'s Mot. for Summary Judgment, Apr. 8, 2015 [ECF No. 30].) For the reasons stated herein, the motion will be granted.



         A. Requests for Administrative Subpoenas

         Plaintiff's first FOIA request, dated June 6, 2013, asked for all DEA reports " regarding any investigation and all surveillance performed or conducted from March 1, 2009 through July 30, 2009" and all " reports memorialized by the Drug Enforcement Administration Asset Forfeiture Department." (Decl. of Katherine L. Myrick, Chief of the FOIA/Privacy Act Unit at the DEA, Apr. 7, 2015 (attached to Def.'s Mot. for Summary Judgment) (" Myrick Decl." ), Ex. A.) He subsequently " reformulated" this request[2] to specify that he was seeking " all DEA Form 6 Report[s] of Investigation" related to his criminal case and " all civil forfeiture notices issued by the DEA Asset Forfeiture Section" relating to the seizure of his automobile and $60,000 in cash.[3] ( Id. Ex. C.) Then, in a

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letter dated August 1, 2013, he added a request for " any administrative subpoena form issued by any DEA Agent operating out of the Burlington, Vermont Regional Office between the dates of: December 19, 2008 and October 19, 2009." ( Id. Ex. E.)

         In a letter dated September 10, 2013, the DEA notified plaintiff that in response to his June and July requests (its response did not expressly mention plaintiff's August 1 supplemental request), it had located " four (4) files pertaining to you," processed two (2) of those files, and identified 338 pages of responsive records, 232[4] pages of which were being withheld in full pursuant to various FOIA exemptions and 106 pages of which were being released (2 pages in their entirety and 104 pages with redactions). ( Id. ¶ 10 & Ex. F.) Initially, the DEA advised plaintiff that it would search the remaining two files upon receipt of money to cover the search costs, but it subsequently concluded that the files covered dates that were not within the parameters of plaintiff's requests. ( Id. Exs. F, H.)

         The documents released by the DEA in September 2013 included several administrative subpoenas, with dates ranging from January 9, 2009 to March 1, 2011. ( See Vaughn Index at 151-59.) Plaintiff, however, believed that other administrative subpoenas existed and should have been produced, and he filed an appeal with the Office of Information Policy, challenging the DEA's production as " incomplete." (Myrick Decl. Ex. I.) On January 27, 2014, the OIP notified plaintiff that it was affirming the DEA's action, concluding (without further explanation) that the DEA had " conducted an adequate reasonable search for [responsive] records." ( Id. Ex. K.)

         While plaintiff's appeal to OIP was still pending, he submitted another request to the DEA for administrative subpoenas, this time asking for all subpoenas issued between December 19, 2008, and March 28, 2011, as part of the DEA's investigation of him. ( Id. Ex. X.) The DEA informed plaintiff that because it believed that he was attempting to avoid fees by dividing a single request into a series of requests, it would " aggregate" this request with his earlier requests and not initiate processing until plaintiff remitted the estimated fees. ( Id. Ex. Y.) No further action was taken on this request.

         Finally, on April 28, 2014, plaintiff submitted a FOIA request requesting four specific administrative subpoenas:

1. One January 2009 DEA subpoena issued for my 617-549-2915 phone.
2. One March 2009 DEA subpoena issued for my Experian credit report.
3. One April 2009 DEA subpoena issued for my Equifax credit report.
4. One April 2009 DEA subpoena issued for my Trans-Union credit report.

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( Id. Ex. BB.) The DEA acknowledged receipt of this request and stated that it would proceed with processing it, although it advised plaintiff that its response might be delayed due to its backlog. ( Id. Ex. CC.) Plaintiff responded by sending the DEA letter " to clarify . . . the limited scope of [his] FOIA request." ( Id. Ex. DD.) On July 28, 2014, plaintiff sent a letter inquiring as to the status of this request ( Id. Ex. EE), but he never received a formal response from the DEA or copies of the records he had requested.

         B. Request for CD with GPS Tracking Data and Associated Mapping Software

         In August 2013, plaintiff submitted a request to the DEA for:

[a] CD from DEA containing the DEA computer file of all tracking information collected via GPS devices attached to my vehicles with all images and proprietary software associated with that information from January 23, 2009 thru July 30, 2009, the very same file used by DEA to prepare exhibits for trial.

( Id. Ex. L.[5] Initially, the DEA told plaintiff that it had " received a copy of a CD that we believe may be responsive to the subject of your request," but that " to process the CD, DEA will require the services of an outside audio/video contractor." ( Id. Ex. O, at 2.) The DEA informed plaintiff that the estimated cost for this service, which plaintiff would have to pay in advance, would be $608.25 ($8.25 for the reproduction and $600 for the post-production editing/review). ( Id. Ex. O, at 2.) After further correspondence and litigation about the fee, though, the DEA informed plaintiff that it had " conducted a preliminary review of the CD in an effort to reduce the initial estimated fees" and " learned that the CD contained formatted spreadsheets of the tracking data related to the subject of [plaintiff's] request." [6] ( Id. Ex. Z, at 2.) It produced all of this data to plaintiff in hard copy (351 pages) at no cost.[7] ( Id.) The DEA simultaneously

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informed plaintiff that that " no records were located related to any ...

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