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House v. U.S. Department of Justice

United States District Court, District of Columbia

July 14, 2016

ERIN D. HOUSE, Plaintiff,


          RANDOLPH D. MOSS United States District Judge

         Erin D. House, who is proceeding pro se, was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute cocaine. On May 24, 2013, while awaiting trial, House filed a request with the Criminal Division of the United States Department of Justice ("Department") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents regarding electronic surveillance used to obtain evidence for his criminal prosecution. After the Criminal Division declined to produce any responsive records, House brought this action under FOIA and the Privacy Act.

         The Department's motion for summary judgment is now pending before the Court. See Dkt. 7. For the reasons explained below, the Court will grant the Department's motion in part and deny it in part without prejudice.

         I. BACKGROUND

         Erin House was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine. See Dkt. 7 at 3. On May 24, 2013, he submitted a FOIA and Privacy Act request to the Criminal Division of the Department of Justice. House explained that on July 13, 2009, July 15, 2009, and July 16, 2009, the Federal Bureau of Investigation ("FBI") had intercepted his communications pursuant to a court-authorized Title III wiretap, and he sought "a copy of the Title III interception of electronic communications approval letter(s) and all other documents that are a part of electronic surveillance for the following Direct Connect Identity ("UFMI") number 124*493*[xxxx] and Cellular Telephone Number 323-208-[xxxx] bearing the International Mobile Subscriber Identity ("IMSI") number 31601015469[xxxx]."[2] Dkt. 7-2.

         On July 3, 2013, the Criminal Division's Office of Enforcement Operations ("OEO") informed House that because "[t]he records [he] [sought] require[ed] a search in another Office of the Criminal Division, " OEO needed to extend the time to respond by more than ten days, pursuant to 5 U.S.C. § 552(a)(6)(B)(i)-(iii). Dkt. 7-3. OEO invited House to narrow the scope of his request, to agree to an alternative time frame for processing any responsive records, or to await completion of the records search to discuss those options. Id. On July 11, 2013, House replied, inquiring whether the July 3 letter indicated that OEO did "not have any records . . . concerning [the specified] Title III interceptions" and, "[i]f not, what other Office of the Criminal Division would these records possibly be at considering the Department of Justice procedures require[] all Title III wire interceptions [to] be handled by the Electronic Surveillance Unit (ESU) wh[ich] operates within . . . [OEO]?" Dkt. 7-4. The Criminal Division did not separately respond to that letter.

         The Criminal Division denied House's FOIA/Privacy Act request by letter dated July 15, 2013. Dkt. 7-5. It informed House that it did not conduct a search for records because "to the extent responsive record[s] do exist, they are exempt from disclosure pursuant to" FOIA Exemption 3, which permits agencies to withhold documents "specifically exempted from release by statute." Id. (citing 5 U.S.C. § 552(b)(3)). House appealed the Division's denial of his request on July 21, 2013. Dkt. 7-6. The Department's Office of Information Policy affirmed the denial on January 7, 2014. Dkt. 7-7 at 2. It explained that "any responsive records would be protected from disclosure under" FOIA Exemption 3, and also that "the records responsive to [the] request are exempt from the access provision of the Privacy Act, " citing 5 U.S.C. § 552a(j)(2). Id. House then filed this lawsuit under FOIA and the Privacy Act. Dkt. 1.

         House challenges the adequacy of the Department's search and all of its withholdings, and he seeks an order directing the Department to produce the documents identified in his FOIA/Privacy Act request. Id. at 5. He also requests that the Court "provide for expeditious proceedings in this action, " as the documents relate to his criminal trial. Id. After House filed suit, the Criminal Division searched two databases: an 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. 7-1 at 4

         (Sprung Decl. I ¶ 13). The Department continues to maintain, however, that House is not entitled to any responsive records. See Dkt. 7 at 12-13.

         The matter is before the Court on the Department's motion for summary judgment. See Dkt. 7. The Department argues that it conducted an adequate search and that it properly withheld all responsive records pursuant to FOIA Exemptions 3, 5, 6, and 7(C) and Privacy Act Exemption (j)(2). Id. at 13. It supports its motion with three declarations by Peter C. Sprung, a trial attorney assigned to the Criminal Division's FOIA and Privacy Act Unit, see Dkt. 7-1 at 1 (Sprung Decl. I ¶¶ 1-2); see also Dkt. 18-1 (Sprung Decl. II); Dkt. 21-1 (Sprung Decl. III), as well as a 57-page Vaughn index describing the withheld records and the reasons that they were withheld, see Dkt. 7-8 (Sprung Decl. I, Ex. G); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).


         The 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 (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) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (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 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630 (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 (1975).

         The 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 (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 the head of an agency may exempt "systems of records" from this disclosure requirement if the principal function of the "agency or component thereof . . . pertain[s] to the enforcement of criminal laws, " and the records "consist of . . . information compiled for the purpose of a criminal investigation." Id. § 552a(j). This broad exemption authority is premised on the notion that "[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 (D.C. Cir. 1996).

         FOIA 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 (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 (D.C. Cir. 1991) (quotation marks and citation omitted), and an index of the information withheld, which is commonly known as a "Vaughn index, " see Vaughn, 484 F.2d at 827-28; Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (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] inspection requirements." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (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).


         A. FOIA

         1. Adequacy of the Search House first argues that the Department violated FOIA by failing to conduct a search for responsive records until after he filed suit. See Dkt. 10 at 9-10. Although House is correct about the timing of the search, see Dkt. 7-1 at 2-6 (Sprung Decl. I ¶¶ 6-19), "this does not mean [that] he is entitled to all requested records, " Ellis v. U.S. Dep't of Justice, 110 F.Supp. 3d 99, 105 (D.D.C. 2015). Nothing in FOIA or the caselaw supports the novel contention that an agency waives otherwise available exemptions simply because it fails to respond to a FOIA request prior to the time the FOIA requester brings suit or that "[t]he delay in DOJ's search . . . affect[s] its adequacy." Id. Nor does FOIA permit a requester to recover damages based on an agency's "dilatory conduct, " id., or to recover attorneys' fees where the plaintiff has not "substantially prevailed, " Sai v. TSA, No. 14-403, 2016 WL 74397, at *3 (D.D.C. Feb. 6, 2016). And although an agency's delay in conducting a search might justify "a finding that [the] [p]laintiff constructively exhausted his administrative remedies, " Ellis, 110 F.Supp. 3d at 105 (citing Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 184 (D.C. Cir. 2013)), the Department has not raised an exhaustion defense in this case. Thus, "while [House] is correct that the [Department of Justice] violated FOIA by failing to conduct a search until after the suit was filed, that result has no legal consequence in this case." Gordon v. Courter, 118 F.Supp. 3d 276, 284 (D.D.C. 2015).

         House next argues that the Department's FOIA search was "[i]nadequate, [i]nsufficient, [u]nreasonable, and [c]onducted in [b]ad [f]aith." Dkt. 10 at 11. "An agency has an obligation under FOIA to conduct an adequate search for responsive records." Ewell v. U.S. Dep't of Justice, No. 14-495, 2016 WL 316777, at *3 (D.D.C. Jan. 26, 2016). The adequacy of an agency's FOIA search "is judged by a standard of reasonableness, " Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1982) (per curiam), and "[a]n agency fulfills its obligations . . . if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents, '" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). "In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). "[W]hether a search is adequate is determined by methods, not results." Nance v. FBI, 845 F.Supp.2d 197, 201 (D.D.C. 2012). Although the agency "cannot limit its search to only one record system if there are others that are likely to turn up the information requested, " it need not "search every record system." Oglesby, 920 F.2d at 68. The agency can show that it conducted an adequate search by relying on "[a] reasonably detailed affidavit [or declaration], setting forth the search terms and the type of search performed, and averring that all files likely to obtain responsive records (if such records exist) were searched." Valencia-Lucena, 180 F.3d at 326.

         The Department has introduced a declaration explaining its search methodology. The declaration, provided by trial attorney Peter C. Sprung, explains that "[t]here were two sources of records in [the Criminal Division] where documents responsive to Mr. House's FOIA request were likely to be located: (1) an OEO database used to track federal prosecutors' requests for permission to apply" for Title III wiretaps, and "(2) archived emails of Criminal Division employees that are maintained by its IT department." Dkt. 7-1 at 4 (Sprung Decl. I ¶ 13). Sprung states that the Department searched both sources. Id. He explains that the Department searched the Title III database for "references to the telephone number that Mr. House identified in his May 24, 2013 FOIA request" and for the name "Erin House." Id. (Sprung Decl. I ¶ 14). He also attests that the Department identified the Criminal Division attorney who reviewed the request for permission to apply for a wiretap, as well as the prosecutor who made the request, and searched the Criminal Division attorney's email account for emails exchanged between the two from April 1, 2009 through September 2, 2009-"the entire time period of communications between the [Criminal Division] attorneys and the prosecutor concerning the Title III authorizations that are at issue in this case." Id. at 6 (Sprung Decl. I ¶ 21). Sprung explains: "[The Criminal Division] searched the two records systems that would contain information responsive to Mr. House's request. Its search was conducted in good faith, and was reasonable and complete." Id. at 7 (Sprung Decl. I ¶ 22).

         (a) Vaughn Index

         As an initial matter, the Court notes that the first Sprung declaration raises a question about the scope of the Vaughn index that the Department has submitted in support of its motion. In particular, Sprung avers that in conducting its search, the Department determined that an OEO attorney and the prosecutor assigned to the matter were in communication about the surveillance of the specified phone between April 1, 2009 and September 2, 2009. Id. at 6 (Sprung Decl. I ¶ 21). The Department's Vaughn index, however, does not identify any documents predating June 29, 2009. See generally Dkt. 7-8. And although the Vaughn index does include two undated entries, see Dkt. 7-8 at 3-4, neither of those entries is for an email or other "communication" between the OEO attorney and the prosecutor. As early as May 26, 2009, moreover, a magistrate judge authorized the installation and use of a "pen/trap" on the phone identified in House's FOIA/Privacy Act request. See United States v. House, No. 09-273-03, 2015 WL 4111457, at *9 (W.D. Pa. July 8, 2015), reconsideration denied, 2015 WL 6134031 (W.D. Pa. Oct. 16, 2015); see also 18 U.S.C. § 3127(3)-(4) (defining "pen register" and "trap and trace device, " which capture information about calls dialed and received, respectively, but not the contents of a communication).

         As a result, the Court cannot foreclose the possibility that the Department possesses potentially responsive records that predate June 29, 2009, and the Vaughn index offers no explanation for why any such records were withheld. It may be that the Department excluded such documents based on a construction of House's request as encompassing only records relating to a Title III authorization, as opposed to authorizations for pen registers and trap and trace devices. The Court is skeptical, however, that House's request is amenable to such a limited construction, since it seeks "all . . . documents that are a part of the electronic surveillance" of the specified phone, and not just "Title III . . . approval letter(s)." See Dkt. 7-2 at 2. In any event, the Court cannot determine on the present record whether additional potentially responsive records exist and, if so, the Department's rationale for omitting them from its Vaughn index or for withholding them. Thus, with respect to the time period from April 1, 2009 to June 29, 2009, the Court concludes ...

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