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Thompson v. United States Dept. of Justice

United States District Court, D. Columbia

November 19, 2015


         November 19, 2015, Decided

          BRANDON THOMPSON, Plaintiff, Pro se, Youngstown, OH.



         JAMES E. BOASBERG, United States District Judge.

         This 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 Judgment.

         I. Background

         Plaintiff 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.

         Plaintiff's 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.

         OIP 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.

         On June 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.

         On July 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.

         Apparently 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.

         Around 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." Id.

         Next, 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).

         On 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.

         Having 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.

         II. Legal Standard

         Summary 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).

         FOIA 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)).

         III. Analysis

         Congress 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 with ...

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