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Aguiar v. Drug Enforcement Administration

United States District Court, District of Columbia

September 24, 2018

STEPHEN AGUIAR, Plaintiff,
v.
DRUG ENFORCEMENT ADMINISTRATION, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE

         Plaintiff Stephen Aguiar filed this action to challenge the Drug Enforcement Administration's ("DEA") response to his multiple Freedom of Information Act ("FOIA") requests for agency records related to its criminal investigation of him. The Court granted summary judgment to the DEA. See Aguiar v. DEA, 139 F.Supp.3d 91 (D.D.C. 2015) ("Aguiar I"); see also Aguiar v. DEA, Civ. No. 14-0240, slip op., 2015 WL 7566661 (D.D.C. Nov., 24, 2015) (granting summary judgment on remaining issue). On appeal, the United States Court of Appeals for the District of Columbia Circuit vacated the judgment and remanded the case for further proceedings on two issues: (1) the DEA's denial of Aguiar's request for the GPS mapping software that was used to track his movements; and (2) the adequacy of the DEA's search for four administrative subpoenas. See Aguiar v. DEA, 865 F.3d 730 (D.C. Cir. 2017) ("Aguiar II). Before the Court are the DEA's Renewed Motion for Summary Judgment, Aguiar's Cross-Motion for Partial Summary Judgment, and Aguiar's Motion for Leave to File a Supplemental Complaint.

         For the reasons set forth below, the Court grants in part the DEA's motion, because the DEA has demonstrated that Aguiar is not entitled to GPS tracking software or new map images. The Court denies the DEA's motion as to the adequacy of its search for administrative subpoenas and orders the DEA to pursue the possibility that the agent who signed the subpoenas has information regarding their current whereabouts. The Court also denies Aguiar's motion to supplement his complaint.

         I. BACKGROUND

         In 2011, Aguiar was convicted in federal court in Vermont of conspiracy to distribute and distribution of cocaine. See United States v. Aguiar, Crim. No. 2:09-90 (D. Vt. Dec. 16, 2011), aff'd, 737 F.3d 251 (2d Cir. 2013). He is currently serving a 30-year prison sentence. Id. Between June 2013 and July 2014, Aguiar submitted multiple FOIA requests seeking information relating to the DEA's investigation of him.

         A. Request for Administrative Subpoenas

         Aguiar submitted his first FOIA request on June 6, 2013, seeking all DEA reports "regarding any investigation and all surveillance performed or conducted from March 1, 2009 through July 30, 2009" and all "reports memorialized by the Drug Enforcement Administration Asset Forfeiture Department." (Deck of Katherine L. Myrick, Apr. 7, 2015, ECF No. 30-3 ("1st Myrick Deck"), Ex. A.) After some back-and-forth with the agency relating to the breadth of this initial request, in a letter dated August 1, 2013, Aguiar added a request for "any administrative subpoena form issued by any DEA Agent operating out of the Burlington, Vermont Regional Office between the dates of: December 19, 2008 and October 19, 2009 pertaining to [Aguiar's criminal case]." (Id. Ex. E.)

         The DEA searched its Investigative Reporting and Filing System ("IRFS"). This system "contains all administrative, general and investigative files compiled by DEA for law enforcement purposes." (1st Myrick Decl. ¶¶ 47-48.) The DEA then searched another index to identify four "investigative case files that mentioned plaintiff," two of which were relevant to the date range in Aguiar's FOIA requests. (Id. ¶ 57.) The DEA's Burlington Resident Office ("Burlington Office") was then "tasked with conducting a search" of those two files to identify "all investigative reports, administrative subpoenas, asset forfeiture and seizure records, and GPS data and images." (Id. ¶ 58.) The Burlington Office staff identified 338 pages of responsive materials, none of which included the four requested administrative subpoenas. (Id. ¶¶ 10, 58.) Among the documents identified were several administrative subpoenas, with dates ranging from January 9, 2009 to March 1, 2011, but the four administrative subpoenas Aguiar requested in his August 1 request were not located in the search. (See Vaughn Index, ECF Nos. 30-5, 30-6, 30-7, at 151-59.)

         In a September 10, 2013 letter, the DEA notified Aguiar that in response to his June and July requests (its response did not expressly mention the August 1 request), it had located four files "pertaining to" Aguiar, "processed" the two files covering dates in the range of Aguiar's request, and identified 338 pages of responsive records, 106 pages of which were not subject in their entirety to FOIA exemptions and were therefore released to Aguiar with some redactions. (1st Myrick Decl. ¶ 10 & Exs. F, H.)

         Aguiar believed that other administrative subpoenas existed and should have been produced. (Id. Ex. I.) He then filed an appeal with the Office of Information Policy ("OIP"), challenging the DEA's production as "incomplete." (Id.) On January 27, 2014, the OIP notified Aguiar that it was affirming the DEA's action, concluding that the DEA had "conducted an adequate reasonable search for [responsive] records." (Id. Ex. K.)

         While Aguiar's appeal to the OIP was still pending, he submitted another request to the DEA for all administrative subpoenas issued between December 19, 2008, and March 28, 2011, as part of the DEA's investigation of him. (Id. Ex. X.) After further correspondence with the agency, Aguiar submitted another FOIA request on April 28, 2014, for four specific administrative subpoenas:

1. One January 2009 DEA subpoena issued for my 617-549-2915 phone.
2. One March 2009 DEA subpoena issued for my Experian credit report.
3. One April 2009 DEA subpoena issued for my Equifax credit report.
4. One April 2009 DEA subpoena issued for my Trans-Union credit report.

(Id. Ex. BB.) On July 28, 2014, Aguiar sent a letter inquiring as to the status of this request (id. Ex. EE), but he never received a formal response from the DEA or copies of the records he had requested.

         B. Request for GPS Tracking Records

         The other FOIA request at issue relates to the DEA's GPS surveillance of Aguiar. In August 2013, Aguiar submitted a request to the DEA for:

[a] CD from DEA containing the DEA computer file of all tracking information collected via GPS devices attached to my vehicles with all images and proprietary software associated with that information from January 23, 2009 thru July 30, 2009, the very same file used by DEA to prepare exhibits for trial.

(Id. Ex. L.). Aguiar explained that he sought this information in order "to study and view the exact data and images DEA monitored while agents were tracking [his] vehicle(s)" and noted that he recalled that a DEA agent had at trial "prepared several images from his computer screen as he was tracking [Aguiar's] vehicle(s) on several different dates using DEA proprietary software that employs a Google mapping service." (Id.)

         The DEA collects GPS tracking data by attaching to a vehicle a GPS transmitter, which "connects to satellites to determine the precise location of the vehicle," then sends that information "back to a computer where a DEA agent can see a vehicle icon moving on a map" on his or her computer monitor. (Def.'s Reply to Opp'n to Mot. for Summ. J., May 18, 2015, ECF No. 33 ("Def.'s 1st Reply") at 8 (describing this process of collecting GPS data).) The GPS transmitter

only sends data to the DEA computer when an agent 'pings' the transmitter. The pings can be requested, or scheduled for every ten minutes, or turned off until needed, to save battery power. When a ping happens, the computer system records the time, date, longitude, latitude and a vehicle description. When queried the computer creates a table of the pings on a spreadsheet.

(Id.)

         Initially, the DEA told Aguiar that it had identified and received from its Boston office a potentially responsive CD containing GPS tracking information, but that "to process the CD, DEA [would] require the services of an outside audio/video contractor." (Id. Ex. O, at 2.) The DEA informed Aguiar that the estimated cost for this service, which Aguiar would have to pay in advance, would be $608.25 ($8.25 for the reproduction and $600 for the post-production editing/review). (Id.) Aguiar, who is incarcerated, was unable to pay that amount and requested a waiver or reduction of these costs. (Id. Ex. P, at 1.) After further correspondence and litigation about the fee, the DEA informed Aguiar that it had

conducted a preliminary review of the CD in an effort to reduce the initial estimated fees. After review of the CD, we learned that the CD contained formatted spreadsheets of the tracking data related to the subject of request. Given that many federal prisons prohibit the receipt of CDs by inmates, as a courtesy, we printed (in hardcopy format) all of the spreadsheets (without redactions) that we propose to release to you at no cost to you (free of charge). Further, be advised that with regard to your request for "All images..." no records were located related to any images.

(Id. Ex. Z, at 2.)

         As described in its letter, the DEA provided to Aguiar 351 hardcopy pages of these spreadsheets showing GPS coordinates. After receiving the hardcopy spreadsheet pages, Aguiar notified the DEA that in his opinion its production did not fully respond to his request. (1st Myrick Decl., Ex. D.) He then appealed to OIP, arguing that the DEA should have provided him with a CD with the GPS data and the "compatible software used by agents of the DEA to track [his] movements." (Id. Ex. AA.) "In the alternative," Aguiar asked for

an unredacted version of each and every GPS ping report displaying: date, time, its corresponding geographical coordinates, altitude, speed, etc., including its corresponding satellite image plot on google maps at the lowest available altitude between 50-100 feet on the version of google maps in place at ...

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