United States District Court, District of Columbia
ROSEMARY M. COLLYER JUDGE.
Lesley Marlin Scholl is a federal prisoner who has brought
suit under the Freedom of Information Act and the Privacy Act
against "various agencies of the federal government and
Project Disarm Task Force Entities." Compl. Caption.
Pending is a motion to dismiss or for summary judgment
brought on behalf of all Agency Defendants discerned from the
complaint except the Federal Bureau of Investigation, which
has moved separately for the same dispositive relief [Dkt.
33]. The motion [Dkt. 27] of the Agency Defendants is
supported by declarations from the Executive Office for
United States Attorneys, the Drug Enforcement Administration,
the Bureau of Alcohol, Tobacco, Firearms and Explosives - all
components of the Department of Justice - and from U.S.
Immigration and Customs Enforcement (ICE), a component of the
Department of Homeland Security.The record establishes that
as a condition of two plea agreements, Mr. Scholl waived his
right to obtain the requested records under FOIA and the
Privacy Act. Consequently, the Court will grant summary
judgment to all Defendants, as explained more fully below.
2009, Mr. Scholl, with the assistance of counsel, pled guilty
in two separate cases in the United States District Court for
the Northern District of Indiana to the illegal transfer of a
silencer and illegal possession of machine guns (Count 2 of a
three-count indictment). The plea agreements were identical
and included the following provision:
The defendant hereby waives all rights, whether asserted
directly or through a representative, to request or receive
from the United States any further records, reports, or
documents pertaining to the investigation or prosecution of
this matter. This waiver includes, but is not limited to,
rights conferred by the Freedom of Information Act and the
Privacy Act of 1974. Further, the defendant acknowledges that
he has received all discovery required by law prior to the
entry of his plea and that he has reviewed same with his
Exs. 1 and 2, ¶ 9(k) [Dkt. 27-2] ("Waiver
Provision"). He was sentenced on October 9, 2009, to
serve fifteen years in prison. The reason for Mr.
Scholl's plethora of record requests under the Freedom of
Information (FOIA), 5 U.S.C. § 552, and the Privacy Act
(PA), 5 U.S.C. § 552a, is his insistence that he is
actually innocent of the crimes to which he pled guilty.
January 13, 2010, Mr. Scholl submitted a FOIA request to the
Executive Office of the United States Attorneys (EOUSA), the
Drug Enforcement Agency (DEA), the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), and the United States
Attorney General, which sought:
release and disclosure of any and all Reports, Records,
Indexes, FBI 302 Reports, DEA 6 Reports, Investigative
Reports, Statements, Recordings, Sprint Reports, Note Book
and Log Book entries, Surveillance Reports, Docket Reports,
Witness or Subject Statements, Agreements, Stipulations, and
other related documents wherein Lesley Marlin Scholl ... is
the subject, target interested party, or is mentioned in any
SMF ¶ 8 [Dkt. 27-1]; FBI's SMF ¶ 8 [Dkt. 33-2].
November 28, 2011, Mr. Scholl submitted a second FOIA request
to EOUSA, DEA, ATF, and the Office of Information Policy
(OIP) in the Department of Justice (DOJ) which sought
"ALL records pertaining to the individual named, "
including but not limited to:
the compiled file containing (1) arrest records, (2)
investigation and/or investigatory reports, (3) reports or
evidentiary and/or scientific information findings, (4)
wants, warrants, and/or detainers, (5) final and closing
investigation reports; and (6) any and/or all information,
data or reports not otherwise exempt by statute.
of David Luczynski, Ex. I [Dkt. 27-3]; Decl. of Katherine L.
Myrick, Ex. D [Dkt. 27-4]; Decl. of Stephanie M. Boucher, Ex.
O [Dkt. # 27-5] (capitalization in original).
response to Mr. Scholl's January 2010 request, EOUSA
created two separate files: it assigned number 2010-219 to
the request for EOUSA records and number 2010-220 to the
request for FBI and DEA records. On February 24, 2010, EOUSA
informed Mr. Scholl that it had referred the latter request
to the FBI and DEA for the respective component to process
and provide a response directly to him. On May 26, 2010,
EOUSA denied request number 2010-219 based on the Waiver
Provision. On August 24, 2010, Mr. Scholl appealed
EOUSA's decision to OIP, which dismissed the appeal as
response to Mr. Scholl's November 2011 request, EOUSA
again denied the request, by letter dated July 10, 2012, due
to the Waiver Provision. OIP affirmed that decision on
February 25, 2013.
response to Mr. Scholl's January 2010 request, DEA
searched its Investigative Reporting and Filing Systems,
utilizing Mr. Scholl's name, date of birth, and social
security number. On November 2, 2010, DEA informed Mr. Scholl
that it had located no responsive records. DEA repeated the
search upon receiving Mr. Scholl's November 2011 request
and again sent him a no-records response on December 15,
Mr. Scholl's initial request to ATF was improperly
addressed, ATF's Disclosure Division did not receive the
January 2010 request until October 19, 2010, when it received
notification from OIP. ATF's search by Mr. Scholl's
personal identifiers indicated that any responsive records
were likely to be found in its Fort Wayne Field Office in the
Columbus Field Division. Upon learning from the Columbus
Field Division that Mr. Scholl's criminal case remained
open, ATF informed Mr. Scholl on November 4, 2010, that it
was denying his request under FOIA Exemption 7(A), codified
at 5 U.S.C. § 552(b) (generally shielding from release
"records or ...