United States District Court, D. Columbia
19, 2015, Decided
BRANDON THOMPSON, Plaintiff, Pro se, Youngstown, OH.
UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION,
KENNETH COURTER, Acting Chief of the FOIA/PA Unit, UNITED
STATES DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY,
SEAN R. O'NEILL, Director of the OIP, OIP Chief of
Administrative Appeals Staff, Defendants: Rhonda Lisa
Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil
Division, Washington, DC.
E. BOASBERG, United States District Judge.
case is the fourth in a series of pro se Freedom of
Information Act suits brought by a group of criminal
defendants awaiting trial on drug-conspiracy and related
charges in the Western District of Pennsylvania. See
Gilliam v. Dep't of Justice, No. 14-36, 128
F.Supp.3d 134, 2015 WL 5158728 (D.D.C. Sept. 1, 2015);
Wright v. Dep't of Justice, No. 14-272, 121
F.Supp.3d 171, 2015 WL 4910502 (D.D.C. Aug. 17, 2015);
Ellis v. Dep't of Justice, No. 13-2056, 110
F.Supp.3d 99, 2015 WL 3855587 (D.D.C. June 22, 2015). In all
four cases, the plaintiffs filed FOIA and Privacy Act
requests with the Criminal Division of the Department of
Justice for information related to court-authorized wiretap
surveillance that they believe intercepted their
communications. " Not coincidentally, all [four] cases
raise almost identical claims and arguments under FOIA"
-- indeed, the incarcerated plaintiffs appear to have
borrowed liberally from one another's briefs in these
matters. Gilliam, 2015 WL 5158728,
at *1. Defendants in this case have also apparently deemed it
appropriate to cut corners in their submissions to the Court.
Notwithstanding the shortcomings in the parties'
materials and " the substantial overlap among these
cases, this court has an independent obligation to consider
the merits of the case before it." Id. Having
done so, it will grant Defendants' Motion for Summary
was indicted in the Western District of Pennsylvania on one
count of conspiracy to distribute heroin and one count of
using a firearm in furtherance of a drug-trafficking crime.
See MSJ, Attach. 3 (Declaration of John E. Cunningham III),
¶ 5. As far as the Court knows, that case is currently
pending. Apparently dissatisfied with the discovery furnished
by the U.S. Attorney's Office there, Thompson now seeks
to use FOIA and the Privacy Act to access information he
believes was obtained as a result of wiretap surveillance of
his personal communications. Such wiretaps are authorized by
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968. See 18 U.S.C. § § 2510-2520.
initial FOIA request, a letter addressed to Kenneth Counter
at the Criminal Division of DOJ and dated October 2, 2013,
" request[ed] 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
the following telephone number[s]: (412) 235-8173[,] (412)
302-5110[,] (330) 261-4515[,] (412) 268-0228[,] (412)
401-6606[,] (412) 901-8562[,] (412) 607-0599[,] (412)
518-1973[,] (412) 980-7644[,] (202) 769-7208[,] (412)
773-3552[,] (412) 522-3257[,] (412) 482-4974." Compl.,
Exh. B (First FOIA Request). On October 24, 2013, Thompson
sent a second letter, this time to the Director of DOJ's
Office of Information Policy. See id., Exh. C (First
Appeal Letter to OIP). He sought " to appeal the
non-reply of the DOJ Office of Enforcement Operations to a
FOIA request [he] sent to this agency via U.S. Certified
Mail" and noted that FOIA requires agencies to respond
to requests for information within twenty days. Id.
acknowledged receipt of Thompson's administrative appeal
in a letter dated November 1, 2013. Id., Exh. D
(11/1/13 OIP Letter to Thompson). Twenty-five days later, OIP
informed Thompson that under DOJ regulations, a party can
bring an administrative appeal regarding a FOIA request
" only after there has been an adverse determination by
an identified component," and that " [t]he Criminal
Division has no record of having received a FOIA request from
[him]." Id., Exh. E (11/26/13 OIP Letter to
Thompson) (citing 28 C.F.R. § 16.9(a)(2013)). The letter
stated that because there was " no action for this
Office to consider on appeal," Thompson's appeal
file would be closed. Id.
17, 2014, the Criminal Division received a letter from
Thompson requesting that its Office of Enforcement Operations
disclose its " official copy of the Title III
authorization/approval memorandums, and all other documents
from the Criminal Division that were a part of the approval
process . . . for the electronic surveillance for the
following telephone number(s) that I have been alleged, by
officers of the DOJ to have had my private telephone
conversations intercepted, monitored, and/or disclosed over
in court proceedings: 412-235-8713, 412-901-8562,
412-607-0559, 412-773-3552." MSJ, Exh. B (Second FOIA
Request) at 1. Plaintiff additionally requested " that
under the Privacy Act . . . the Criminal Division search the
following indexes for all records, and information
containing, pertaining to, and/or involving my name:
Justice/CRM-001, Justice/CRM-003, Justice/CRM-019."
Id. He further sought expedited review of those
requests due to his " exceptional need and urgency for
these Title III requested records . . . as any delay could
result in substantial lose [ sic ] of due process
rights for the requester in criminal no. 13-58."
Id. at 2.
14, 2014 -- more than a month later -- having heard nothing
from the agency, Plaintiff sent a letter to OIP appealing the
Criminal Division's refusal to respond to his Second FOIA
Request, filed in June. See Compl., Exh. G (7/14/14 Appeal to
OIP). Meanwhile, the Criminal Division sent Plaintiff a
letter acknowledging receipt of his June FOIA/PA request; the
Court presumes that the two letters must have been in transit
simultaneously. See Compl., Exh. H (7/15/14 Criminal Division
Acknowledgment Letter) at 1. In its letter, the Division
notified Thompson that it would require more than the
additional ten days beyond the twenty-day response window
provided by FOIA to process his request, and that his request
for expedited processing had been denied. Id.
having received the Criminal Division's acknowledgement
of his Second FOIA Request, Plaintiff appealed the denial of
his request for expedited processing by letter dated July 24,
2014. See Compl., Exh. I (7/24/14 Appeal to OIP) at 1. He
argued, again, that his request qualified for such rapid
treatment under various criteria set forth in 28 C.F.R.
§ 16.5(d)(1). See id.
that time, OIP acknowledged receipt of Thompson's July 14
administrative appeal, in which he had challenged the failure
of the Criminal Division to respond to his Second FOIA
Request. See Compl., Exh. K (7/25/14 OIP Acknowledgement
Letter). A few weeks later, OIP denied the July 14 appeal,
stating that because " no adverse determination has yet
been made by the Criminal Division, there is no action for
this Office to consider on appeal." MSJ, Exh. D (8/14/14
OIP Letter to Thompson). OIP assured Plaintiff, however, that
it had contacted the Criminal Division and learned that his
request " is currently being processed."
by letter dated September 17, 2014, OIP denied Thompson's
July 24 appeal from the Criminal Division's denial of his
request for expedited processing. See MSJ, Exh. E (9/17/14
OIP Letter to Thompson) at 1. OIP determined that
Thompson's FOIA request did not satisfy any of the
asserted bases for expedited treatment pursuant to 28 C.F.R.
§ 16.5(d)(1): Plaintiff had not demonstrated "
urgency to inform the public about an actual or alleged
Federal Government activity" ; a " loss of
substantial due process rights" ; or a " widespread
and exceptional media interest" in the subject matter
requested due to " possible questions about the
government's integrity that affect public
confidence." Id. § 16.5(d)(1)(ii)-(iv).
October 23, 2014, acting pro se, Plaintiff filed
this lawsuit, asking the Court to order the Criminal Division
to expeditiously process his FOIA request and disclose the
responsive documents, to award him costs and attorney fees,
and to award damages based on the Criminal Division's
wrongdoing in this FOIA matter and in Thompson's criminal
proceedings generally. See Compl., ¶ ¶ A-K.
processed Plaintiff's request, Defendants now move for
summary judgment. They assert, first, that they performed
adequate searches for materials responsive to Thompson's
request and, second, that they were entitled to invoke
Privacy Act Exemption (j)(2) and FOIA Exemptions 5, 6, and
7(C) to withhold from release all responsive records. See MSJ
at 2. Plaintiff disagrees, contending that the search was
inadequate, and the invocation of these various exemptions
was improper. See Opp. at 10. Because the Court concludes --
as did the courts in Ellis, Wright, and Gilliam -- that the
searches here were reasonable and complete, and that
Defendants properly invoked Privacy Act Exemption (j)(2) and
FOIA Exemption 5 in withholding all responsive documents, it
will grant their Motion.
judgment may be granted 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); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986); Holcomb v. Powell, 433 F.3d 889, 895,
369 U.S.App.D.C. 122 (D.C. Cir. 2006). A fact is "
material" if it is capable of affecting the substantive
outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. A dispute
is " genuine" if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty
Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. " A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion" by " citing to
particular parts of materials in the record" or "
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of
demonstrating the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527, 395 U.S.App.D.C. 155 (D.C. Cir.
2011). In a FOIA case, a court may grant summary judgment
based solely on information provided in an agency's
affidavits or declarations when they " describe 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 nor by evidence of
agency bad faith." Larson v. Dep't of
State, 565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C.
Cir. 2009) (citation omitted). Such affidavits or
declarations " are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about
the existence and discoverability of other documents."
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200,
288 U.S.App.D.C. 324 (D.C. Cir. 1991) (internal quotation
marks omitted). " Unlike the review of other agency
action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly
places the burden 'on the agency to sustain its
action' and directs the district courts to 'determine
the matter de novo.'" U.S. Dep't of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5
U.S.C. § 552(a)(4)(B)).
enacted FOIA in order " to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny." Dep't of Air Force v.
Rose,425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11
(1976) (citation omitted). " The basic purpose of FOIA
is to ensure an informed citizenry, vital to the functioning
of a democratic society, needed to check against corruption
and to hold the governors accountable to the governed."
John Doe Agency v. John Doe Corp.,493 U.S. 146,
152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation
omitted). The statute provides that " each agency, upon
any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules .
. . shall make the records promptly available to any
person," 5 U.S.C. § 552(a)(3)(A), unless the
records fall within one of nine narrowly construed
exemptions. See 5 U.S.C. § 552(b);
Rose, 425 U.S. at 361. Consistent