United States District Court, District of Columbia
ERIN D. HOUSE, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
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
commit several narcotics offenses. In 2013, he filed a
request with the Criminal Division of the United States
Department of Justice under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and the Privacy
Act, 5 U.S.C. § 552a, seeking documents regarding the
electronic surveillance used to obtain evidence for his
criminal prosecution. The Department declined to produce any
records, and House filed this action under FOIA and the
Privacy Act in 2014. See Dkt. 1. In response to
House's suit, the Department searched two of its
databases, affirmed its position that House was not entitled
to any responsive records, and moved for summary judgment.
See Dkt. 7.
24, 2016, the Court granted the Department's motion in
part and denied it in part without prejudice. House v.
Dep't of Justice, 197 F.Supp.3d 192 (D.D.C. 2016)
(“House I”). The Court concluded that,
although the Department had “demonstrated that it
lawfully withheld th[e] records [it] identified in [its]
Vaughn index, ” the “parties'
filings . . . raise[d] a question about whether other
responsive records[, ] which were not included in the index,
” might exist. Id. at 210. The Court,
accordingly, denied the motion in part but invited the
Department to “file a renewed motion for summary
judgment addressing th[e] outstanding issues.”
Id. The Department has now done so. See
Dkt. 27. For the reasons explained below, the Court concludes
that the Department's renewed motion adequately addresses
the issues identified in the Court's prior decision and
will, accordingly, grant summary judgment in favor of the
Court has previously set forth the factual and procedural
history of the case, see House I, 197 F.Supp.3d at
197-98, and, accordingly, need only address recent
prior decision, the Court identified two issues that
prevented it from entering summary judgment in favor of the
Department. First, the Court noted the apparent incongruity
between (1) the Department's assertion that the
“entire time period of communications between the
[attorneys from the Criminal Division's Office of
Enforcement Operations (“OEO”)] and the
prosecutors concerning the Title III authorizations . . . at
issue to this case” occurred “during the period
[from] April 1, 2009[, ] to September 2, 2009, ” Dkt.
7-1 at 6-7 (First Sprung Decl. ¶ 21), and (2) the
failure of the “Department's Vaughn index
. . . [to] identify any documents predating June 29, 2009,
” House I, 197 F.Supp.3d at 201. The Court
further noted that, as “early as May 26, 2009, ”
a “magistrate judge authorized the installation and use
of a ‘pen/trap' on the phone identified in
House's FOIA . . . request, ” but the
Vaughn index contained no description of any
documents regarding that authorization. Id. As a
result, the Court concluded that it could not
“foreclose the possibility that the Department
possesse[d] potentially responsive records that predate[d]
June 29, 2009.” Id.
the Court explained that House attached a document to his
opposition to the Department's summary judgment motion
that “seem[ed] to fall within the scope of his FOIA . .
. request, ” yet, “as far as the Court c[ould]
discern, . . . [was] not listed in the Vaughn
index.” Id. at 207. The Court noted that it
was “unclear whether the Department maintain[ed] that
the record”-a July 7, 2009, memorandum-was
“exempt and, if so, on what ground.” Id.
Department has now filed a renewed motion for summary
judgment addressing the two open issues. Dkt. 27. House, in
turn, opposes the Department's motion, and he raises a
new contention regarding the adequacy of the Department's
search. Dkt. 33.
Absence of Records Prior to June 29, 2009
Court previously declined to grant summary judgment in favor
of the Department because, among other things, the
Vaughn index contained no entries for records dated
prior to June 29, 2009, even though the Department had
acknowledged that communications between lawyers from OEO and
the prosecutors who handled House's case began as early
as April 1, 2009. House I, 197 F.Supp.3d at 200-01
(Citing Dkt. 7-1 at 6-7 (Sprung Decl. I ¶ 21)).
Similarly, although a “magistrate judge authorized the
installation and use of a ‘pen/trap' on the phone
identified in House's FOIA . . . request, ” the
Vaughn index contained no entries relating to that
surveillance, which also predated June 29, 2009. Id.
at 201. The Department has now explained both apparent
discrepancies to the Court's satisfaction.
the first issue, the Department explains that the Title III
“request concerning telephone number 323-208-[xxxx] . .
. grew out of earlier Title III requests concerning several
other telephone numbers and involving a large conspiracy of
which [House] was a part.” Dkt. 27-1 at 3 (Fourth
Sprung Decl. ¶ 9). The first request for one of those
associated numbers was submitted by the U.S. Attorney's
Office for the Western District of Pennsylvania to OEO on
April 10, 2009, but the “initial Title III request
concerning telephone number 323-208-[xxxx]” was not
submitted until June 29, 2009-the date of the first entry in
the Department's Vaughn index. Id.
(Fourth Sprung Decl. ¶¶ 8-9). Because House's
FOIA request sought records concerning electronic
surveillance of only the 323-208-xxxx telephone number,
House I, 197 F.Supp.3d at 197 (identifying cellular
telephone number and associated UFMI and IMSI numbers), the
Court agrees that the records pertaining to the pre-June 29
requests to intercept communication to and from the
other telephone numbers “do not fall
within” the scope of House's FOIA request, Dkt. 27
at 7. And because the Title III request relating to the
323-208-xxxx telephone number was not submitted until June
29, 2009, it is not surprising that the Department's
Vaughn index contains only entries dated June 29,
2009, or later.
the Department has provided a convincing explanation for why
the Vaughn index does not include any entries
relating to the May 26, 2009, authorization for use of a pen
register or trap and trace device on the 323-208-xxxx
telephone number. Under Title III, an application for
“an order authorizing or approving the interception of
wire or oral communications” must first be approved by
a senior Justice Department official, such as the
“Attorney General, Deputy Attorney General, Associate
Attorney General, ” or any Assistant Attorney General
or Deputy Assistant Attorney General “specifically
designated by the Attorney General.” 18 U.S.C. §
2516(1). In contrast, the Pen Register Statute merely
requires that “an attorney for the Government . . .
make application for an order . . . in writing [and] under
oath.” 18 U.S.C. § 3122(a). “[F]ederal
prosecutors, ” accordingly, “make [pen/trap]
applications based” upon only “the approval of an
appropriate supervisor, ” Dkt. 27-1 at 5 (Fourth Sprung
Decl. ¶ 13), and, unlike Title III records, the records
produced from pen/trap applications are not centrally stored
in the Criminal Division's “official information
management system for Title III applications, ” Dkt.
7-1 at 4 (First Sprung Decl. ¶ 14). It makes sense,
then, that House's FOIA request, which was directed at
the Criminal Division of the Department of Justice, and not
at the U.S. Attorney's Office for the Western District of
Pennsylvania, see Dkt. 7-2 at 2; House I,
197 F.Supp.3d at 197, failed to locate records relating to
the pen/trap application, see House I, 197 F.Supp.3d
at 202 (explaining that “the Department's FOIA
regulations mandate that requests be sent ‘directly to
the FOIA office of the component that maintains the records
being sought'” (quoting 28 C.F.R. §
Court, accordingly, concludes that the Department has
adequately explained why the Vaughn index does not
include any entries predating June 29, ...