United States District Court, District of Columbia
DOMINIQUE L. JACKSON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
This
case involves two requests for records that pro se plaintiff
Dominique Jackson submitted to the Department of Justice
pursuant to the Freedom of Information Act, 5 U.S.C. §
552 (“FOIA”). Pending before the Court is
defendants' Renewed Motion for Summary Judgment [Dkt. #
54] (“Defs.' Mot.”), to which plaintiff did
not respond. Upon consideration of defendants' motion,
the supporting declaration, and the statement of undisputed
material facts, the Court finds that there are no genuine
issues of material fact, and defendants are entitled to
judgment as a matter of law. Accordingly, it will grant
summary judgment in favor of the defendants.
FACTUAL
AND PROCEDURAL BACKGROUND
I.
Plaintiff's FOIA Requests
A.
The First FOIA Request
On May
24, 2013, plaintiff submitted a FOIA request to the Criminal
Division of the Department of Justice seeking a “copy
of the Title III interception of wire, oral, and electronic
communication approval letters order applications and all
other documents that are a part of the electronic
surveillance” of two specific phone numbers listed on
the request. Ex. B-2 to Compl. [Dkt. # 1-5] (“First
FOIA Request”).
On July
29, 2013, the Criminal Division responded by letter advising
that any responsive records were exempt from disclosure
pursuant to FOIA Exemption 3 because they were exempted from
release by another federal statute: Title III of the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. §§
2510-20 (“Title III”). Second Declaration of
Peter C. Sprung [Dkt. # 54-2] (“Decl.”) ¶ 7;
Ex. B to Decl., citing 5 U.S.C. § 552(b)(3). The letter
advised plaintiff of his right to appeal the decision to the
Department's Office of Information Policy
(“OIP”), Ex. B to Decl., which he did on August
28, 2013. Decl. ¶ 8; Ex. C to Decl.
On
December 30, 2013, OIP affirmed the decision to withhold the
records under FOIA Exemption 3 and further advised that the
records were also except from release pursuant to the Privacy
Act. Decl. ¶¶ 8-9; Ex. D to Decl.
On
February 10, 2014, plaintiff filed this lawsuit. Compl. [Dkt.
# 1].[1]
B.
The Second FOIA Request
On
April 9, 2014, plaintiff submitted a second FOIA request to
the Criminal Division seeking “all files and recordings
relating to the activities of” the plaintiff and a
specified telephone number ending in 7751, “including
but not limited to all Cell Site Location Information [CSLI],
call detail records, pen register trap and trace data,
Physical surveillance, GPS tracking, search warrants
for” a residence specified in the request, and
including “all orders, applications, affidavits, and
Data[].” Decl. ¶ 28; Ex. E to Decl. [Dkt. # 54-7]
(“Second FOIA Request”).
On
September 19, 2014, the Criminal Division sent plaintiff a
letter that stated that records responsive to the cell site
location information request would be exempt from disclosure
pursuant to FOIA Exemption 3, and that his request for
documents related to his prosecution - such as the
transcripts of the wire intercepts themselves, as opposed to
the memoranda seeking Title III authority - had been routed
to the Executive Office of United States Attorneys
(“EOUSA”) because he was prosecuted by a local
United States Attorney's Office and not the Department of
Justice. Decl. ¶ 29; Ex. F to Decl.
Plaintiff
appealed the response, which OIP denied as untimely, and the
Criminal Division conducted a search for records it possessed
responsive to the Second FOIA Request. Decl. ¶¶
31-33; Exs. G & H to Decl.
II.
Defendants' First Motion for Summary Judgment and
Plaintiff's Amended Complaint
On
August 19, 2014, defendants filed a motion for summary
judgment as to plaintiff's original complaint. Mot. for
Summ. J. [Dkt. # 12]. The Court granted plaintiff a number of
extensions of time to respond to the motion because he was
trying to obtain transcripts of his criminal trial that he
considered relevant to his response, and on June 11, 2015, it
stayed the case at his request so he could request to have
audio recordings of the trial transcribed. See
Minute Order of Nov. 28, 2017 (setting forth procedural
history of plaintiff's extension and stay requests).
On
April 19, 2017, after plaintiff filed a status report
advising that his conviction had been upheld on appeal, the
Court lifted the stay of this case and ordered him to respond
to the motion by May 17, 2017, warning him of the
consequences if he failed to do so. See id.; Order
[Dkt. # 33]. Plaintiff was granted a number of further
extensions but did not respond to the motion. See
Minute Order of Nov. 28, 2017. On September 8, 2017, the
Court granted defendants' motion for summary judgment on
the merits. Order [Dkt. # 35].
On
December 4, 2017, plaintiff filed a motion for relief from
judgment raising various procedural and evidentiary matters,
Pl.'s Mot. for Relief from Summ. J. [Dkt. # 40], and a
motion for leave to file an amended complaint to add his
Second FOIA Request. Pl.'s Mot. for Leave to File
Amendment and/or Supplement Pleadings [Dkt. # 41]. On July 9,
2018, defendants responded, stating they did not oppose
plaintiff's motions but maintained that the amended
complaint should be limited to records that may be in the
Criminal Division's possession, and not controlled by the
EOUSA, which handles the records of U.S. Attorneys.
Defs.' Response to Pl.'s Mots. [Dkt. # 45].
On July
11, 2018, the Court granted plaintiff's motions but
limited the scope of the amended complaint “only to the
existing defendants in this case, the U.S. Department of
Justice's Criminal Division and the U.S. Department of
Justice's Office of Information Policy.”
See Minute Order of July 11, 2018 (“Any other
claims plaintiff may have against separate defendants must be
filed in a new case against them.”). So the order
granting summary judgment was vacated and the amended
complaint became the operative document in this case.
The
amended complaint alleged that defendants failed to properly
respond to plaintiff's FOIA requests. Am. Compl. [Dkt. #
47] ¶¶ 59-67, 75-81. It also alleged that portions
of intercepted communications had entered into the public
domain because they had been admitted into evidence at his
trial. See Am. Compl. ¶¶ 2-58; Ex. A
(search warrant affidavit), Ex. B (trial transcripts), and
Ex. C (call transcripts) to Am. Compl. [Dkt. #
47-1].[2]
III.
The Search for Responsive Records
A.
The First FOIA Request Search
After
plaintiff filed his first complaint, the Criminal Division
conducted a search for records responsive to the First FOIA
Request. Decl. ¶ 11. It searched two locations: (1) a
database in the Division's Office of Enforcement
Operations (“OEO”) used to track requests from
federal prosecutors for permission to apply for court
authorization to surreptitiously intercept conversations of
person allegedly involved in criminal activity under Title
III (“the Title III request tracking system”);
and (2) archived files and emails of Division employees
maintained by the Division's IT department
(“Enterprise Vault”). Decl. ¶¶ 11-12,
17.
The
Title III request tracking system is the Criminal
Division's information management system for tracking
Title III applications submitted by all federal prosecutors
for internal Department review by the OEO's Electronic
Surveillance Unit (“ESU”). Decl. ¶¶
13-16. The system, which stores information from 1983 to the
present, contains data on the date of a Title III request;
the type of interception requested; the phone number, if a
phone is involved; the name of the requesting prosecutor; the
investigative agency that will handle the interceptions; and
the date the request was approved or rejected. Decl. ¶
16. It also contains uploaded request documents, such as
prosecutors' applications, law enforcement ...