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Byrnes v. DOJ, No. 19-0761, 2021 U.S. Dist. LEXIS 186266 (D.D.C. Sept. 29, 2021) (Mehta, J.)


Byrnes v. DOJ, No. 19-0761, 2021 U.S. Dist. LEXIS 186266 (D.D.C. Sept. 29, 2021) (Mehta, J.)

Re:  Request for records concerning DEA compliance with Uniform Services Employment and Reemployment Rights Act

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court analyzes each of defendant's searches in turn.  First, regarding a request for certain DEA communications, the court finds that "[plaintiff] has not offered anything other than his own speculation that records exist in other divisions of DEA to support his argument that DEA's search was unreasonable."  "DEA thoroughly explained why it identified [two offices] as the offices most likely to have responsive records."  "Nor has he identified a particular division that DEA clearly should have searched in response to his requests."  Additionally, "given that all of [plaintiff's] requests in [one category of this topic] explicitly reference his 'actions as counsel for the individuals that are listed in paragraph 6,' . . . it was reasonable for DEA to conclude that the legal files for the matters listed in paragraph 6 and the files of attorneys who litigated those matters were the most likely to contain relevant documents."  However, regarding another set of records in this category, the court finds that "the agency's search was not 'reasonably calculated to uncover all relevant documents.'"  "None of the requests in these paragraphs seek communications from government entities."  "Rather, they seek communications from nonprofits, the media, outside attorneys, and state bar authorities."  "It therefore makes little sense for the agency to limit the communications searched to those that end in '.gov,' the domain for entities of the federal government."  However, regarding another portion of this request, the court finds that "DEA had an obligation to search [plaintiff's] files beyond the legal files for the matters identified in [in another area of plaintiff's request]" because "the request explicitly goes beyond [plaintiff's] role in matters that he litigated on behalf of DEA."  "It is not clear, however, from [defendant's] declarations that DEA searched all of [the] communications [at issue]."  "To cure this defect, the Department of Justice is ordered to provide a more detailed supplemental declaration."  Separately, regarding the custodians searched, "the court orders the Department of Justice to file a supplemental declaration disclosing the custodians whose records were searched."  "As to DEA's search methods, [plaintiff] has given the court no reason to doubt the agency's statement that it could not automatically search its legal files, and the agency's declaration is presumed to be in good faith."  "The court therefore finds no fault in the agency's decision to conduct manual searches of the legal files of current . . . employees while conducting automated searches for former . . . employees."  "But [plaintiff's] argument raises another concern that precludes the court from granting the Department of Justice summary judgment on this issue:  [defendant's] declarations do not identify the search terms that CC attorneys employed in manually reviewing legal files and that DEA employed in automatically searching former . . . attorneys' files."  "Accordingly, the Department of Justice is ordered to produce a supplemental affidavit [on this matter]."

    Regarding the portion of plaintiff's request concerning surveillance records, the court finds that "[plaintiff] must 'provide[] a reasonable basis for concluding' that additional 'systems of records might contain responsive items.'"  "Other than his own disbelief that DEA stores surveillance records where it says it stores surveillance records, [plaintiff] has not offered any reason for the court to think that there are other stones for the agency to turn over."  The court does find that a defendant should file a supplemental declaration concerning on aspect of this search to clarify where one search regarding this topic was conducted.  The court also finds that "DEA could not in good faith ignore that [plaintiff[] provided the names of sixteen of his clients in paragraph 6 of his request."  "Further, to the extent the agency came across records identifying clients in its searches pursuant to paragraphs 1 and 2, the agency was required 'to account for leads that emerge[d] during its inquiry' . . . ."  "The agency's blanket refusal to search for records related to any of [plaintiff's] clients indicates that it failed to follow patently obvious leads, and [plaintiff] is entitled to summary judgment that DEA's search in response to paragraph 3 as it pertains to his clients was unreasonable."

    Regarding the portion of plaintiff's request concerning discussions about plaintiff, the court relates that, to rebut defendant's assertions, "[plaintiff] submitted the affidavit of . . . a former Supervisory Special Agent Criminal Investigator assigned to the Technical Operations Group at DEA's San Diego Field Division."  The court finds that "[i]n the parties' battle of affidavits, [defendant's] declaration is entitled to the greatest weight."  "The court cannot take [the former Supervisory Special Agent Criminal Investigator's] declaration as probative of DEA's current email technology because [the former Supervisory Special Agent Criminal Investigator] has not worked for DEA since 2015."  "Even then, his expertise within DEA is limited to the San Diego Field Division to which he was assigned."  "His declaration provides the court with no basis to infer that he has knowledge of DEA's systemwide email storage, let alone knowledge of DEA's systemwide email storage as of 2021."  "[Defendant's declarant], in contrast, is the current 'Unit Chief of the Legal and External Affairs Unit, Freedom of Information and Privacy Act Section, of the United States Department of Justice[,] . . . Drug Enforcement Administration.'"  "Her duties in that position have made her 'knowledgeable about the policies and practices of the DEA related to search, process, and disclosure of DEA information under the FOIA and the [Privacy Act].'"  "[Defendant's declarant] provides a clear basis for her knowledge of the capabilities of DEA's systems, and on balance, the court concludes that [defendant's] declarations are the definitive statement on DEA's processing capabilities." 

    "Accepting [defendant's] declarations' characterization of DEA's search capabilities as true, the court concludes that DEA properly declined to search for records responsive to the requests in paragraphs four and five."  "[Plaintiff] has requested information pertaining to any agent or employee of DEA without specifying what types of employees might have responsive records."  "Requests that do 'not specify any particular DEA office to be searched, type of record, or author, recipient, or a date of any record that would be responsive, and, further, do[] not specify any time period or date when any record may have been created' do not reasonably describe the records sought, and DEA was not required to search for such records."  "Further, even if DEA were able to winnow the custodians who might have responsive records, the requests in paragraphs 4 and 5 would fail to satisfy the 'linchpin' requirement of a FOIA request that the agency be 'able to determine precisely what records are being requested.'"  "For example, whether a particular record constitutes an attempt to 'deter an[] employee of the Agency from selecting or maintaining [plaintiff] as a legal representative' or whether a record seeks 'to disparage [plaintiff]' . . . depends on subjective value judgments about what would constitute 'deterrence' or 'disparagement,' and such requests are not susceptible to any standardized review or search."
  • Exemption 6:  "[T]he court grants summary judgment to [plaintiff] and orders DEA to disclose the names of the attorneys that it withheld under Exemption 6."  The court relates that plaintiff "argues that DEA has not justified its withholding of attorney names under Exemption 6."  "DEA's primary explanation for withholding the names of attorneys is that '[t]he attorneys provide legal advice and advocacy for purposes of supporting a law enforcement mission, which includes a component of national security.'"  "DEA says, '[b]y virtue of their employment with DEA and the nature of their work, the attorneys would be targets for harassment, intimidation, undue public attention, and physical attacks from criminal organizations.'"  "These statements, however, are little more than conclusory allegations that disclosure of the attorneys' mere association with DEA will subject them to negative consequences."  The court finds that "DEA has therefore not made a 'particularly strong' showing of a privacy interest; nonetheless, because the demonstration of a privacy interest is 'not very demanding' at this initial step, the court will balance this intrusion on the attorneys' privacy interests with the public interest."  Regarding the public interest, "[e]ven if [the] court were to assume that DEA, an agency tasked with enforcing drug laws, also has a broad mission to 'protect[] . . . civil rights' and fairly treat its employees, [plaintiff] fails to explain how disclosing the names of DEA attorneys would 'contribute significantly' – or at all – to that goal."  "Likewise, [plaintiff] has made a meager showing of how disclosure of the attorneys' names would 'contribute significantly' to the public's understanding of DEA's compliance with FOIA."  "The court accepts that [plaintiff] might be able to make out some minor public interest in disclosure . . . ."  "But more importantly, the court is cognizant that, 'under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.'"  "Thus, where, as here, both the privacy interests and the public interests implicated by the disputed information are minimal, the law breaks in favor of disclosure."
Court Decision Topic(s)
District Court opinions
Exemption 6
Litigation Considerations, Adequacy of Search
Updated October 28, 2021