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House v. U.S. Department of Justice

United States District Court, District of Columbia

March 5, 2017

ERIN D. HOUSE, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         On July 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 Department.

         I. BACKGROUND

         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 developments.

         In its 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.

         Second, 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.

         The 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.

         II. ANALYSIS

         A. Absence of Records Prior to June 29, 2009

         The 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.

         As to 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.[1]

         Similarly, 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. § 16.3(a)(1)).

         The Court, accordingly, concludes that the Department has adequately explained why the Vaughn index does not include any entries predating June 29, ...


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