United States District Court, D. Columbia.
Ewell, Plaintiff, Pro se, Youngstown, OH USA.
United States Department of Justice, Criminal Division,
United States Department of Justice, Office of Information
Policy, Defendants: Fred Elmore Haynes, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
Washington, DC USA; Rhonda C. Fields, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE, Washington, DC USA.
OPINION AND ORDER
D. MOSS, United States District Judge.
Ewell, who is proceeding pro se in this matter, was
charged in the Western District of Pennsylvania with
conspiracy to distribute and to possess with intent to
distribute heroin in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(A)(i). While awaiting trial, Ewell filed a
request with the United States Department of Justice under
the Freedom of Information Act (" FOIA" ), 5 U.S.C.
§ 552, and the Privacy Act, 5 U.S.C. § 552a,
seeking documents regarding the wiretap the government used
to obtain evidence disclosed to Ewell during discovery in his
criminal case. When the Justice Department declined to
produce any responsive records or to expedite his
administrative appeal, Ewell brought this action under FOIA
and the Privacy Act.
the Court are the government's motion for summary
judgment, Dkt. 12, and Ewell's motion for leave to amend
his complaint, Dkt. 25. Because the government has
demonstrated that it conducted a reasonable search for
responsive records and that all responsive records were
properly withheld under FOIA and the Privacy Act, the Court
grants summary judgment to the Justice Department. Because
Ewell's motion for leave to amend his complaint would
fundamentally alter the nature and scope of this action,
would unduly burden the defendant, and is, at least in
significant respects, futile, the Court denies that motion.
Ewell was charged in the Western District of Pennsylvania
with conspiracy to distribute and to possess with intent to
distribute one kilogram or more of heroin in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). See
United States v. Ewell, No. 13-cr-125 (W.D. Pa. Apr.
30, 2013). In advance of Ewell's detention hearing in
June 2013, the government disclosed that it had intercepted
and recorded his telephone communications under the authority
of a wiretap obtained pursuant to Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (" Title
III" ). See Dkt. 130 at 1, Ewell, No.
13-cr-125 (W.D. Pa. June 27, 2013). In November 2013, Ewell
filed a request with the Department of Justice under FOIA and
the Privacy Act, seeking " an authentic Department of
Justice (DOJ) Office of Enforcement Operation (OEO) copy of
the Title III authorization letter(s), memorandums, and any
other documents involved in their approval for the electronic
surveillance" of several phone numbers that he alleged
had been wiretapped. See Dkt. 12-2 at 2 (Cunningham
Decl., Ex. A); see also Dkt. 12 at 3 (Defs.'
Statement of Material Facts ¶ 1).
Justice Department responded to Ewell's FOIA/Privacy Act
request in December 2013. The Department informed Ewell that
" to the extent responsive records do exist, they are
exempt from disclosure pursuant to" Exemption 3 of FOIA,
which permits agencies to withhold documents "
specifically exempted from disclosure by statute." Dkt.
12-3 at 2 (Cunningham Decl, Ex. B) (citing 5 U.S.C. §
552(b)(3)). For this reason, the Department explained, it
" did not conduct a search for records" and would
not produce any records responsive to his request.
Id. Ewell appealed the Department's denial of
his request and sought expedited treatment, Dkt. 12-4 at 2-5
(Cunningham Decl., Ex. C), but, when the Department's
Office of Information Policy (" OIP" ) denied his
request for expedited treatment, see Dkt. 12-5 at 2
(Cunningham Decl., Ex. D), he filed this action. OIP then
informed Ewell that, in light of the pendency of this
lawsuit, it was closing his administrative appeal. Dkt. 12-6
at 2 (Cunningham Decl., Ex. E).
challenges the adequacy of the Department's search and
all of its withholdings. Dkt. 1 at 7 (Compl.). He also
requests that, if the Court remands the matter to the
Department, that it " provide for expeditious proceeding
in this action." Id. After Ewell brought suit,
the Department searched two databases: the Office of
Enforcement Operations (" OEO" ) " database
used to track federal prosecutors' requests for
permission to apply for court-authorization to
surreptitiously intercept conversations of person[s]
allegedly involved in criminal activity under Title
III," and " archived emails of [Criminal Division]
employees that are maintained by its IT department."
Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). The Department
maintains, however, that Ewell is not entitled to any records
in response to his request, and it has asserted several
additional grounds for nondisclosure that it did not
matter is before the Court on the Department's motion for
summary judgment. See Dkt. 12. The Department argues
that it conducted an adequate search for responsive records;
that it properly withheld all responsive records under the
Privacy Act and FOIA Exemptions 3, 5, 6, and 7(C); and that
it properly denied Ewell's request for expedited
treatment. Id. It supports its motion with a
declaration by John E. Cunningham III, a trial attorney
assigned to the Criminal Division's FOIA and Privacy Act
Unit, see Dkt. 12-1 (Cunningham Decl.), and a
208-page Vaughn index detailing the withheld records
and the reasons they were withheld, see Dkt. 12-7
(Cunningham Decl., Ex. H); Vaughn v. Rosen, 484 F.2d
820, 157 U.S.App.D.C. 340 (D.C. Cir. 1973). Ewell has also
moved for leave to file an amended complaint. See
Dkt. 25. Ewell's amended complaint would include new
claims under Bivens v. Six Unknown Named Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); the Federal
Tort Claims Act, 28 U.S.C. § 1346; the remedial
provisions of Title III, 18 U.S.C. § 2520; and 42 U.S.C.
§ 1985(3). Id. at 2. The proposed amended
complaint would also add new defendants, including the Drug
Enforcement Administration (" DEA" ) and several of
its agents, as well as various members of the U.S.
Attorney's Office for the Western District of
Pennsylvania. Id. at 3. Both motions are opposed.
See Dkts. 16, 27.
Freedom of Information Act is premised on the notion that an
informed citizenry is " vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed."
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act embodies a
" general philosophy of full agency disclosure."
U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 494
(1994), 114 S.Ct. 1006, 127 L.Ed.2d 325 (quoting
Dep't of Air Force v. Rose, 425 U.S. 352,
360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). It thus
mandates that an agency disclose records on request, unless
they fall within one of nine exemptions. " These
exemptions are 'explicitly made exclusive' and must
be 'narrowly construed.'" Milner v.
Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259,
179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410
U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI
v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72
L.Ed.2d 376 (1982)). As explained further below, the present
dispute turns on the meaning and application of Exemptions 3
and 5. Exemption 3 protects records that are "
specifically exempted from disclosure by statute." 5
U.S.C. § 552(b)(3). And Exemption 5 protects "
inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency." Id. §
552(b)(5). It exempts " those documents, and only those
documents, normally privileged in the civil discovery
context." NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
Privacy Act " safeguards the public from unwarranted
collection, maintenance, use and dissemination of personal
information contained in agency records . . . by allowing an
individual to participate in ensuring that his records are
accurate and properly used, and by imposing responsibilities
on federal agencies to maintain their records
accurately." Mobley v. CIA, 806 F.3d 568, 585
(D.C. Cir. 2015) (quoting Bartel v. FAA, 725 F.2d
1403, 1407, 223 U.S.App.D.C. 297, 233 U.S.App.D.C. 297 (D.C.
Cir. 1984)). Under the Privacy Act, any agency that maintains
a " system of records" must provide information
about a person to that person upon request. 5 U.S.C. §
552a(d)(1). But an agency may promulgate regulations "
to exempt any system of records within the agency" from
such a request, provided that the system meets certain
criteria. Id. § 552a(j). This is because "
[t]he Privacy Act--unlike [FOIA]--does not have disclosure as
its primary goal." See Henke v. U.S.
Dep't of Commerce, 83 F.3d 1453, 1456, 317
U.S.App.D.C. 405 (D.C. Cir. 1996).
cases are typically resolved on motions for summary judgment
under Federal Rule of Civil Procedure 56. See, e.g.,
Beltranena v. U.S. Dep't of State, 821 F.Supp.2d
167, 175 (D.D.C. 2011). To prevail on a summary judgment
motion, the moving party must demonstrate that there are no
genuine issues of material fact and that he or she is
entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a
FOIA action, the agency may meet its burden by submitting
" relatively detailed and non-conclusory"
affidavits or declarations, SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C.
Cir. 1991) (quotation marks and citation omitted), and an
index of the information withheld, Vaughn, 484 F.2d
at 827-28; Summers v. Dep't of Justice, 140 F.3d
1077, 1080, 329 U.S.App.D.C. 358 (D.C. Cir. 1998). An agency
" is entitled to summary judgment if no material facts
are in dispute and if it demonstrates 'that each document
that falls within the class requested either has been
produced . . . or is wholly exempt from the [FOIA's]
section requirements." Students Against Genocide v.
U.S. Dep't of State, 257 F.3d 828, 833, 347
U.S.App.D.C. 235 (D.C. Cir. 2001) (quoting Goland v.
CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir.
1978)). The Court reviews the agency's decision de
novo, and the agency bears the burden of sustaining its
action. 5 U.S.C. § 552(a)(4)(B).
The Department's Motion ...