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Patino-Restrepo v. Department of Justice

United States District Court, District of Columbia

March 30, 2017

DEPARTMENT OF JUSTICE, et al., Defendants.


          TANYA S. CHUTKAN, United States District Judge.

         Plaintiff Carlos Arturo Patino-Restrepo seeks documents under the Freedom of Information Act (“FOIA”) related to his own prosecution in a criminal case, as well as medical and prison records related to his incarceration. Plaintiff was convicted by jury of various counts involving a conspiracy to import cocaine into the United States and internationally. See United States v. Restrepo, 547 F.App'x 34, 37 (2d Cir. 2013). Defendants the Executive Office for United States Attorneys (“EOUSA”), Immigration and Customs Enforcement (“ICE”), Bureau of Prisons (“BOP”), Department of State (“State”), Federal Bureau of Investigation (“FBI”), Department of Justice (“DOJ”), and Drug Enforcement Agency (“DEA”) have all responded to Plaintiff's request and now move for summary judgment. For the reasons identified below, Defendants' motion will be GRANTED.

         I. BACKGROUND

         Plaintiff's FOIA request, which was not materially different as to all five agencies, [1]sought the following information:

1. Any Document, which memorializes, summarizes, reports or comments on, or is evidence of any i) interview, ii) debriefing; iii) proffer; or iv) description of any of the occurrences in (i) - (iii) regarding the Listed Individuals which was conducted by the Department of Justice or its agents or conducted by or participated in by any other person or entity, regardless of whether an employee of the Department of Justice, in any Document within your files, records or custody or control.
2. Any Document which contains summarizes (sic), reports, comments upon or concerns Mr. Restrepo where such information regarding Mr. Restrepo was provided by or attributed to any of the Listed Individuals.
3. Any Document which contains information, summarizes, reports or comments upon whether Mr. Restrepo was (or was not) a participant, member of, or affiliated in any way with the Norte Valle Cartel.
4. Any Document concerning Bonnie Klapper and/or Romedio Viola relating or concerning their activities that concen (sic) Mr. Restrepo.
5. Any agreement-between any Listed Individual and the United States, Department of Justice, and/or any Assistant United States Attorneys, including, but not limited to, any United States or foreign prosecutor or foreign prosecutorial entity or representative.
6. A1l medical records and prison records concerning Mr. Restrepo in the possession, custody or control of the authorities in the Eastern District of New York.

(Wallace Decl., ECF No. 18-2 Exs. A, C; Myrick Decl., ECF No. 18-4 Ex. A; Cunningham Decl., ECF No. 18-5 Ex. 1; EOUSA Decl., ECF No. 18-6 Ex. A; Hardy Decl., ECF No. 18-8 Ex. A; Pineiro Decl., ECF No. 18-10 Ex. 2). The “Listed Individuals, ” a list of 38 or 39 names and various aliases and nicknames, follow the text above in each request. The agencies responded as set forth below.

         A. EOUSA

         The DOJ Criminal Division, which received a January 28, 2014 FOIA request from Plaintiff through his attorney Jeffrey C. Hoffman, (ECF No. 18-8 Ex. A), re-routed the request to EOUSA on April 28, 2014. EOUSA also received a FOIA request on June 20, 2014 directly from Plaintiff, containing the same language. (EOUSA Decl., ECF No. 18-6 Ex. A). EOUSA consolidated the two identical requests, and informed Plaintiff that it had done so. In October 2015, EOUSA released to Plaintiff and his attorney 12 full pages and 6 partly redacted pages pursuant to FOIA exemptions 6 and 7(C). (EOUSA Decl. ¶ 12). EOUSA informed Plaintiff that it had referred some responsive records to other agencies to review and respond directly to Plaintiff.

         EOUSA told Plaintiff in November 2015 that it had processed 126 pages, previously referred to ICE for review, and was withholding all 126 pages in full pursuant to FOIA exemptions 5, 6, and 7(C). (Id. ¶ 14). EOUSA subsequently released partially redacted versions of 16 of the 126 pages, which consisted of memoranda of interviews of Plaintiff conducted by an Assistant United States Attorney and a law enforcement official. (Id. ¶ 15). Several weeks later, EOUSA released an additional 16 partially redacted pages. (Id. ¶ 16). EOUSA also processed 16 pages that had previously been referred to DEA for review and ultimately determined to belong to the United States Attorney's Office for the Eastern District of New York (“USAO-EDNY”), and in December 2015 released 9 pages in full and withheld 7 pages in full pursuant to FOIA exemptions 6 and 7(C). EOUSA provided a Vaughn index describing the specific reasons for exemption. (Id. ¶ 21; Ex. D).

         EOUSA also directed USAO-EDNY, the office responsible for Plaintiff's criminal prosecution, to search for responsive records. (Id. ¶ 23). USAO-EDNY searched its computerized docketing case management system, the Legal Information Network System, and located the name of the lead AUSA on Plaintiff's criminal case. (USAO-EDNY Decl., ECF No. 18-7 ¶¶ 10-11). The USAO-EDNY FOIA specialist obtained the lead prosecutor's files, consisting of attorney litigation work product documents, correspondence, witness interview statements, law enforcement records, and selected court filings not on the docket sheet, and sent them to EOUSA for review. (Id. ¶ 12-14). EOUSA's declaration does not explicitly state whether any of the records received from USAO-EDNY were released, but it appears from the Vaughn index that all were withheld pursuant to FOIA exemptions 5 and 6 and 7(C). (EOUSA Decl. ¶ 21-36; Ex. D).

         B. ICE

         ICE directed Homeland Security Investigations (“HSI”), which investigates narcotics smuggling, to search for records responsive to Plaintiff's request. (Pineiro Decl., ECF No. 18-9 ¶¶ 17, 33). HSI searched its offices in Mexico City, New York, and Tampa. (Id. ¶ 37). It also searched the Records and Disclosure Unit and Treasury Enforcement Communication System, which maintain records relevant to ICE's mission. (Id. ¶¶ 37, 38). HSI used search terms calculated to access investigation records, arrest records, and records related to Plaintiff's criminal trial. (Id. ¶ 38).

         HSI provided responsive records to ICE's FOIA office, which reviewed the records and released 30 pages in full, and 94 partially redacted pages, pursuant to Privacy Act exemption (k)(2) and FOIA exemptions 6, 7(C), and 7(E). (Id. ¶ 20). Plaintiff appealed the ICE response, and ICE's Office of the Principal Legal Advisor Government Information Law Division affirmed the withholdings but remanded the FOIA request for a new or modified search. (Id. ¶¶ 22-23). After the second search, ICE provided Plaintiff an additional 40 pages, redacting 39 of the pages. (Id. ¶ 24). Plaintiff appealed again. (Id. ¶ 26). The Office of the Principal Legal Advisor closed the appeal because the documents at issue had become the subject of federal litigation when Plaintiff had filed this case. (Id. ¶ 28). ICE then discretionarily released some of the information previously withheld in the 40 pages pursuant to 7(E). (Id. ¶ 29). ICE provided two Vaughn indexes describing the redactions. (Id. ¶ 46; ECF 18-10).

         C. BOP

         BOP also received an original request through Hoffman and a subsequent pro se request from Plaintiff. It collected 732 pages in response to the original request, but closed the request after Plaintiff did not pay a duplication fee. (Wallace Decl. ¶ 8). BOP ultimately processed 773 pages of records responsive to Plaintiff's pro se request, releasing 100 in full and 673 with redactions pursuant to FOIA exemptions 6, 7(C), and 7(F). (Id. ¶ 6). BOP conducted its searches using Plaintiff's name and federal register number in the BOP Medical and Central Inmate File. (Id. ¶ 11). BOP did not submit a Vaughn index, but explained the nature of the withholding in its declaration. (Id. ¶¶ 12-29).

         BOP also processed 192 pages referred by EOUSA for review. (Second Wallace Decl., ECF No. 18-3 ¶ 6). It released in full 78 of those pages; released 102 with redactions pursuant to FOIA exemptions 6, 7(C), and 7(F); and withheld 12 pages in their entirety pursuant to the same exemptions. (Id. Ex. D).

         D. ...

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