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Gilliam v. U. S. Department of Justice

United States District Court, District of Columbia

February 22, 2017

U.S. DEPARTMENT OF JUSTICE, et al., Defendants.




         Before the court is the second round of Plaintiff Randee A. Gilliam's litigation under the Freedom of Information Act (“FOIA”) against Defendants the United States Department of Justice (“DOJ”), the United States Drug Enforcement Agency (“DEA”), and other federal agencies and individuals (collectively, “Defendants”). Plaintiff, proceeding pro se, seeks various documents concerning the investigation that led to his conviction for drug trafficking in the United States District Court for the Western District of Pennsylvania. In the first round of this litigation, the court granted summary judgment in favor of Defendants as to Plaintiff's request for documents relating to court-authorized Title III wiretaps. In this second round, the court considers Defendants' renewed Motion for Summary Judgment, which relates to three additional FOIA requests for other investigatory materials. For the reasons explained below, the court grants Defendants' Motion.


         Although the court ruled in favor of Defendants as to the sole FOIA claim at issue in the first round of summary judgment briefing, the court permitted Plaintiff to amend his Complaint to advance three additional FOIA claims. See Gilliam v. U.S. Dep't of Justice, 128 F.Supp.3d 134, 143 (D.D.C. 2015). These new claims are set forth in Counts II through IV of his Amended Complaint. Mot. for Leave to File Am. Compl., ECF No. 19, Am. Compl., ECF No. 19-1 [hereinafter Am. Compl.]. In Counts II and III, Plaintiff broadly seeks the disclosure of documents related to search warrants involving Plaintiff and the execution of those warrants. Id. ¶¶ 6-50. In both Counts, Plaintiff identifies two search warrants executed on packages purportedly addressed to Plaintiff-one sent via Federal Express (“FedEx”) on or about October 5, 2011, and a second sent via United Parcel Service on or about October 18, 2011. Id. ¶¶ 6-25; ¶¶ 26-50.[1] In Count IV, Plaintiff seeks all records associated with the seizure of the FedEx package on or about October 5, 2011, including its shipping label. Id. ¶¶ 51-52.

         Following the Complaint's amendment, the course of this case became somewhat drawn-out. After conducting a search for responsive records, the DEA located 25 responsive pages but invoked a variety of FOIA exceptions to withhold them in their entirety. See Defs.' Mot. to Dismiss & Renewed Mot. for Summ. J., ECF No. 32 [hereinafter Defs.' Mot.], at 8-9.[2] Among the exemptions invoked was Exemption 7(A), which permits agencies to withhold records compiled for law enforcement purposes if their disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The DEA cited Plaintiff's then-pending criminal case in the Western District of Pennsylvania as the basis for withholding all 25 pages of responsive material. Defs.' Mot. at 20. In December 2015, Defendants moved for summary judgment as to Counts II through IV, relying in part on Exemption 7(A). See Id. at 1.[3]Before ruling on Defendants' Motion, however, the court learned that Plaintiff had entered a plea in his criminal case and had not appealed his conviction and sentence. See Minute Order, Aug. 23, 2016. That development rendered moot Defendants' reliance on Exemption 7(A). See Id. (citing Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014)). The court then directed Defendants to notify the court whether they intended to release the withheld records or stand on other exemptions, in whole or in part, given the final resolution of Plaintiff's criminal case. Id.

         In the course of responding to the court's Order, Defendants discovered 36 pages of responsive material in addition to the 25 pages previously identified. See Resp. to the Court's Minute Order, ECF No. 41 [hereinafter Minute Order Resp.]. Defendants informed the court that they had disclosed to Plaintiff six pages in full and 53 pages in part, but withheld two pages in full. Defs.' Supp. Mem., ECF No. 45 [hereinafter Defs.' Supp. Mem.], at 2-3. Defendants then filed a Supplemental Memorandum in support of their Motion for Summary Judgment. Id. at 1. In that Memorandum, Defendants reiterated their request for entry of summary judgment in their favor based on (1) the adequacy of their search, and (2) their reliance on various FOIA exemptions and the Privacy Act, 5 U.S.C. § 552a, to withhold portions of the released pages and two pages in full. See Defs.' Supp. Mem. at 2-5. Plaintiff renewed his opposition to Defendants' Motion and asked the court to grant him limited discovery. Pl.'s Mot. to Oppose Defs.' Supp. Mem., ECF No. 47, at 1-6 [Pl.'s Supp. Opp'n]; Pl.'s Mot. to Oppose Defs.' Mot. for Summ. J., ECF No. 35, at 10-40 [hereinafter Pl.'s Opp'n].

         At last, the parties' motions are ripe for the court's consideration.


         A. Adequacy of the Search

         The court begins with the adequacy of Defendants' search for responsive records. To warrant entry of summary judgment in its favor on that issue, an agency must show that it conducted a search reasonably calculated to uncover all relevant records. See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). An agency may demonstrate the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits that explain the scope and method of the search conducted. See Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (per curiam). Agency affidavits are presumed to be submitted in good faith, and that presumption cannot be rebutted by speculative claims about the existence and discoverability of other documents. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

         The court is satisfied that Defendants have shown that their search was adequate. DOJ advised Plaintiff that the records he seeks are maintained by the DEA, because it is the agency that led the investigation against him. Defs.' Mot., Second Decl. of Peter C. Sprung, ECF No. 32-2 [hereinafter Second Sprung Decl.], ¶ 17. According to the DEA's affiant, Katherine Myrick, who is the agency's Chief of the Freedom of Information/Privacy Act Unit, the DEA searched its Investigative Reporting and Filing System (“IRFS”), which contains “all administrative, general, and investigative files compiled by DEA for law enforcement purposes. . . . No other DEA records system was reasonably likely to contain information responsive to Plaintiff's requests.” Defs.' Mot., Decl. of Katherine L. Myrick, ECF No. 32-2, at 25-45 [hereinafter Myrick Decl.], ¶ 26. The DEA twice searched IRFS using Plaintiff's name, alias, and other identifying information, once for each request. Id. ¶¶ 30, 32. Both searches returned one subject with the name “Randee Allen Gilliam, ” which prompted the agency's FOIA specialist to contact, after each search, investigative agents in the field. Id. In response to Plaintiff's request for records relating to the searches of the FedEx and UPS packages, the DEA identified 13 pages of responsive material. Id. ¶ 31. As to his request for documents relating to the seized FedEx package, the DEA identified 12 pages of responsive material. Id. ¶ 33.

         Later, the DEA would locate 36 more pages of responsive material. See Minute Order Resp. at 2.[4] According to a second declaration submitted by Myrick, the DEA located those 36 pages after the court ordered Defendants to reconsider their invocation of Exemption 7(A). Notice of Filing Ex. to Suppl. Defs.' Mem. in Supp. of Mot. for Summ. J., ECF No. 48, Second Decl. of Katherine Myrick, ECF No. 48-1 [hereinafter Second Myrick Decl.], at ¶ 2. Myrick explains that a follow-on search of IFRS resulted in 36 more pages because the initial searches of IRFS concerned only warrants executed on one date-October 18, 2011-even though Plaintiff also had requested records relating to a warrant executed on a different date-October 5, 2011. Id. ¶¶ 3-4.[5]

         Plaintiff makes two primary arguments about the adequacy of the DEA's search. First, he contends that the search was inadequate because the DEA did not search the DEA's field office in Pittsburgh, Pennsylvania, where, according to Plaintiff, responsive records likely would be found because that is where the warrants were executed. Pl.'s Opp'n at 23-25. The court disagrees. “[A]n agency need only search the records of a particular field office in those rare situations where red flags point[] to the probable existence of responsive agency records that arise during its efforts to respond to a FOIA request.” Dillon v. U.S. Dep't of Justice, 102 F.Supp.3d 272, 285 (D.D.C. 2015) (internal quotation marks omitted); see also Marrera v. U.S. Dep't of Justice, 622 F.Supp. 51, 54 (D.D.C. 1985) (stating that there is “no requirement that an agency search every division or field office in response to a FOIA request”). Here, the record contains no “red flags” that would overcome the presumption of good faith afforded Myrick's sworn statement that “the IRFS is the only DEA records system that ...

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