United States District Court, District of Columbia
S. CHUTKAN, United States District Judge.
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.
FOIA request, which was not materially different as to all
five agencies, 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
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.
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.
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).
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).
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).
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;
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.
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).