United States District Court, District of Columbia
ERIN D. HOUSE, Plaintiff,
U.S. DEPARTMENT OF JUSTICE,  Defendant.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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.
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.
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
31601015469[xxxx]." Dkt. 7-2.
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.
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.
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
Decl. I ¶ 13). The Department continues to maintain,
however, that House is not entitled to any responsive
records. See Dkt. 7 at 12-13.
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.
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).
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.
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).
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).
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.
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).
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).
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 ...