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Scholl v. Various Agencies of Federal Government & Project Disarm Task Force Entities

United States District Court, District of Columbia

September 22, 2016

LESLEY MARLIN SCHOLL, Plaintiff,
v.
VARIOUS AGENCIES OF THE FEDERAL GOVERNMENT AND PROJECT DISARM TASK FORCE ENTITIES, Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER JUDGE.

         Plaintiff 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.[1]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.

         I. BACKGROUND

         A. Plea Agreements

         In July 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 attorney.

         Gov't's 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.

         B. FOIA Requests

         On 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 capacity.

         Gov't's SMF ¶ 8 [Dkt. 27-1]; FBI's SMF ¶ 8 [Dkt. 33-2].

         On 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.

         Decl. 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).

         1. EOUSA's Response

         In 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 untimely.

         In 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.

         2. DEA's Response

         In 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, 2011.

         3. ATF's Response

         Because 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 ...


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