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Woods v. Electronic Surveillance Unit

United States District Court, District of Columbia

February 22, 2016

SAMMIE LEE WOODS, Plaintiff,
v.
ELECTRONIC SURVEILLANCE UNIT, Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE

Plaintiff Sammie Lee Woods, a federal prisoner, challenges the government’s response to his Freedom of Information Act (“FOIA”) request for electronic surveillance records authorized by Title III of the Omnibus Crime Control and Safe Streets Act (Title III), 18 U.S.C. §§ 2510 et seq. The Criminal Division of the Department of Justice (“DOJ”), of which the Electronic Surveillance Unit (“ESU”) is a part, has withheld all responsive records under FOIA exemptions 3, 5, 6, and 7(C) and Privacy Act exemption (j)(2). Before the Court is DOJ’s motion for summary judgment. Upon consideration of the parties’ submissions and the entire record, the Court will grant DOJ’s motion for the reasons explained below.

I. Background

In November 2003, a jury in the U.S. District Court for the District of Colorado convicted Woods of conspiracy to distribute 50 grams or more of crack cocaine, possession with intent to distribute crack cocaine, and use of a communication facility to further a drug-trafficking scheme. United States v. Woods, 469 Fed. App’x 683, 684 (10th Cir. 2012) (unpublished). In a FOIA request to ESU dated September 26, 2012, Woods sought “a certified copy of the action memorandum: In Re Case: 01-cr-00214-WYD-19.10Th Cir. WESTERN DISTRICT OF COLORADO.” Def.’s Mot. Summ. J., Ex. A, ECF No. 17-2. He also sought

the authorization document which is a memorandum with the proper designated official to the Director of OEO, authorizing the Application for Title III surveillance, and a copy of the Attorney’s General delegation Order from 2000, 2001, 2002, which identifies those individuals to whom the Attorney General had delegated authority to authorize Title III Applications, and if they were duly appointed by the President of the United States and confirmed by the Senate.

Id. In a letter dated January 22, 2013, the Criminal Division informed Woods that a search had located no responsive records. Def.’s Mot. Summ. J., Ex. C. He resubmitted his request in March 2014. Id. Ex. D. In a letter dated May 19, 2014, the Criminal Division informed him that no search was conducted because any responsive records would be exempt from disclosure under FOIA Exemption 3.[1] Id. Ex. E.

Woods appealed the May 19 determination to DOJ’s Office of Information Policy (“OIP”). Id. Ex. F. In a letter dated July 16, 2014, OIP affirmed the determination “on partly modified grounds.” Id. Ex. G. Although OIP upheld the Exemption 3 determination, it offered to reconsider the appeal if Woods “provide[d] evidence that any electronic surveillance records have been unsealed by a court.” Id. OIP cited FOIA Exemption 5 as an additional basis for withholding any responsive records. Id. On October 14, 2014, Woods filed a complaint in this Court challenging ESU’s withholdings.[2]

II. Standard of Review

Congress passed “FOIA . . . ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The statute imposes a general obligation on the government to provide records to the public. See 5 U.S.C. § 552(a). Although FOIA provides exemptions to this general obligation to disclose, see 5 U.S.C. § 552(b), “[t]he 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, ” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Thus, FOIA “exemptions are ‘explicitly made exclusive, ’” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)), and they “must be ‘narrowly construed, ’” id. (quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)).

FOIA cases are appropriately decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In deciding a summary-judgment motion, the Court assumes the truth of the non-movant’s evidence and draws all reasonable inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The government bears the burden of establishing that its claimed exemptions apply to each document for which it invokes an exemption. ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The government cannot satisfy this burden with affidavits that are vague or conclusory, or that merely parrot the statutory standard. Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). The declarations should describe the justifications for withholding in “specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption.” ACLU, 628 F.3d at 619. When demonstrating that a FOIA exemption applies to some portion of a document withheld, “the agency must [also] provide a ‘detailed justification’ for its non-segregability, ” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)), and the agency should “describe what portion of the information in a document is non-exempt and how that material is dispersed throughout the document, ” Mead Data Cent., 566 F.2d at 261.

An “agency’s task is not herculean”; a justification suffices “if it ‘appears logical or plausible.’” Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 209 (D.C. Cir. 2015) (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). An agency “may invoke [FOIA] exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other.” Larson, 565 F.3d at 862-63.

III. Analysis

Although Woods’s FOIA request is imprecise, it is undisputed that he seeks records created in accordance with Title III.[3] “The purpose of [that] statute is to control the conditions under which interception will be permitted in order to safeguard the privacy of wire and oral communications.” Lam Lek Chong v. DEA, 929 F.2d 729, 732 (D.C. Cir. 1991). To that end, “Title III safeguards privacy in the first instance by significantly restricting the initiation of electronic surveillance . . . . All surveillance is subject to prior judicial approval, issued in accordance with detailed application procedures and on a showing and finding of probable cause.” Id.

To apply for a wiretap order, a federal prosecutor “must first obtain permission from the appropriate DOJ official, which includes the Assistant Attorney General for the Criminal Division (‘AAG’) and his/her deputies.” Decl. of John E. Cunningham III ¶ 14, ECF No. 17-1. DOJ’s internal process requires the prosecutor to submit the request to the Office of Enforcement Operations (“OEO”) and consult with that office’s ESU attorney. Upon finalizing the request, the ESU attorney drafts an action memorandum and recommendation to the AAG. If the AAG finds the request compliant with Title III, the AAG sends an approval memorandum to OEO, and that memorandum “together with the Attorney General’s ...


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