Jackson v. United States Department of Justice

          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 ...