Cooper v. DOJ, No. 99-2513, 2022 WL 602532 (D.D.C. Mar. 1, 2022) (Walton, J.)

Cooper v. DOJ, No. 99-2513, 2022 WL 602532 (D.D.C. Mar. 1, 2022) (Walton, J.)

Re:  Request for records relating to plaintiff's arrest and prosecution

Disposition:  Granting in part and denying in part defendants' motion for summary judgment, denying plaintiff's cross-motion for summary judgment and denying plaintiff's motions to take judicial notice and discovery

• Litigation Considerations, Pleadings:  "The defendants are correct that the plaintiff's Complaint does not mention either a United States Attorney's Office or the Executive Office by name and does not specifically refer to a request to the United States Attorney's Office for the Southern District of Florida."  "However, the plaintiff's Complaint does refer to a FOIA request submitted to the Justice Department . . . of which the Executive Office is a 'component.'"  "Accordingly, in light of the liberal construction afforded complaints filed by pro se plaintiffs; [defendant's] statement that the Executive Office 'considered [itself] to be a defendant in th[is] [ ] action[,]' . . . and the fact that the Executive Office subsequently conducted searches in response to the plaintiff's alleged FOIA request . . . the Court disagrees with the defendants that the plaintiff's FOIA request to the United States Attorney's Office for the Southern District of Florida should be considered 'outside the scope of this action.'"
   
• Litigation Considerations, Constructive Exhaustion:  "[U]nder the FOIA, 'a party [must] exhaust his administrative remedies before seeking judicial review.'"  "'Exhaustion does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees.'"  "Accordingly, because its search efforts had already resulted in a fee of $602.00 . . . the Executive Office was authorized to require that the plaintiff pay the fee prior to continuing its search and processing of the requested records."  "Because the plaintiff does not argue that he paid the required fees . . . the Court concludes that the plaintiff has not demonstrated that he exhausted his administrative remedies by paying the fees required by the FOIA and Justice Department regulations."
   
• Procedural Requirements, Searching for Responsive Records & Litigation Considerations, Adequacy of Search:  "[P]laintiff argues that the DEA's search was inadequate because it did not locate records related to the alleged forfeiture of two vehicles, a BMW and an Infiniti Q-45, and additional United States Treasury checks."  Regarding the Infiniti Q-45, "the plaintiff has provided no 'countervailing evidence' of the existence of records regarding an Infiniti Q-45."  "Accordingly, the plaintiff's speculative assertions that the defendants should have located such records fail to demonstrate that any records related to an Infiniti Q-45 'likely existed at the time of the search.'"  However, "[r]egarding the BMW and the Treasury checks, the Court agrees with the plaintiff that these records tend to suggest that the DEA would possess some records regarding the forfeiture of the BMW and the issuance of Treasury checks to the additional agencies that participated in the task force that conducted the criminal investigation of the plaintiff."  Nevertheless, "to the extent that the records provided by the plaintiff constitute 'countervailing evidence[,]' . . . the DEA has adequately 'explain[ed] those holes in the record' and 'the absence of the responsive records from the results of [its] search.'"  "[T]he DEA represents that '[n]o system exists, to which [the] DEA has access, to retrieve asset forfeiture records by an individual's name or personal identifier' and, '[t]hus, the records were not and could not be located during the initial DEA search.'"  "Accordingly, based on the information provided by the plaintiff in his FOIA request . . .  any forfeiture records pertaining to either the BMW or additional Treasury checks, to the extent they exist, 'could not [have] be[en] located during the initial DEA search.'"  "Moreover, in light of the plaintiff's failure to argue that he provided any information to the defendants that would have resulted in the discovery of records related to the forfeiture of the BMW . . . the Court concludes that the DEA has sufficiently 'explained the absence of the responsive records from the results of the search.'"  "[T]he Court declines to fault the DEA for allegedly failing to locate records that could not have been located with the information it was provided."  "Accordingly, the Court concludes that the DEA's search for records responsive to the plaintiff's FOIA request was adequate."
  
  Regarding ATF's search, "[t]he Court concludes that, despite the efforts taken by the ATF, it has not provided sufficient information to demonstrate that its search was adequate."  ATF "does not provide any information about which 'identifiers supplied by [the p]laintiff' were used."  "Without a complete list of the search terms used in response to [a] FOIA request, the Court is unable to conclude that [the agency's] search was adequate."  Regarding other searches by ATF, "the ATF does not provide the requisite level of detail."  "For example, although the ATF represents that it 'made an inquiry into the individual's name provided in the [p]laintiff's [s]ummary [j]udgment [m]otion [e]xhibits[,]' . . . it provides no indication as to either the type of 'inquiry' it made or as to which individual's name—out of the multiple 'additional names of individuals related to his case' that were provided by the plaintiff—was searched."  "Moreover, the [ATF] Declaration also fails to provide any statement that, in response to this additional information provided by the plaintiff during this litigation, the ATF searched all places where responsive records were reasonably likely to be found."
  
  Regarding Customs' search, "the Court cannot speculate as to the specifics of the searches that were conducted when the declaration itself does not provide any information to that effect."  "Accordingly, the Court cannot agree with the defendants that Customs 'searched for records using the [TECS,]' . . . or that the [Customs'] Declaration 'establish[es] the reasonableness and adequacy of [Customs'] initial searches[,]' . . . and will direct Customs to submit an additional supplemental declaration or Vaughn Index information regarding its search in response to the plaintiff's FOIA request."
   
• Exemption 3:  "'ATF applied Exemption 3 in conjunction with [the] Consolidated Appropriations Act of 20[05] to protect certain firearms trace information.'"  "According to the ATF, '[t]he portions of the two pages withheld-in-part pursuant to Exemption [3] are part of a firearms [t]race [r]eport wholly derived from the contents of the Firearms Trace System [d]atabase referenced in [the Consolidated Appropriations Act of 2005].'"  "The ATF further represents that these '[t]race [r]eports are based [on] and derived from information required to be kept by a Federal Firearms Licensee [ ] pursuant to ... § 923(g).'"  "Therefore, under the plain language of the Consolidated Appropriations Act of 2005, the ATF is prohibited from disclosing this information because it represents both 'part . . . of the contents of the Firearms Trace Systems database' and 'information required to be kept by licensees pursuant to [§] 923(g).'"  "Accordingly, the Court concludes that this information is properly withheld pursuant to Exemption 3."
  
  "According to the State Department . . .  it applied Exemption 3 to withhold information that 'relates directly to the issuance or refusal of a visa or permit to enter the United States in a specific case.'"  "As the defendants correctly note . . .  this Circuit has held that 8 U.S.C. § 1202(f) 'expresses Congress' belief that information pertaining to visa issuances and denials should be kept from the public[,]' and, accordingly, 'Exemption 3 . . . precludes [a FOIA requester] from circumventing that congressional directive by the use of a FOIA request.'"  "Accordingly, the Court concludes that the State Department properly withheld information related to 'the issuance or refusal of a visa or permit to enter the United States in a specific case, . . . pursuant to Exemption 3."
   
• Exemption 7, Threshold:  "Here, each of the defendant agencies—Customs, the DEA, the Marshals Service, and the ATF—are law enforcement agencies, whose 'principal function is law enforcement.'"  "Moreover, the plaintiff sought 'records under the FOIA related to his arrest and prosecution[,]' . . . which are quintessential 'law enforcement records within the scope of Exemption 7.'" 
   
• Exemption 7(C):  "[T]he Marshals Service states that it withheld information pursuant to Exemption 7(C) 'to withhold the names and telephone numbers pertaining to law enforcement officers[,] [ ] other government employees[,] and third-party individuals.'"  "The Marshals Service states that release of this information could (1) 'subject [the law enforcement officers and government employees] to unwarranted public attention, harassment, and annoyance, and would thereby impair the effectiveness of these employees in carrying out their official duties[,]' (2) 'potentially cause unwarranted attention to them in their private lives,' and (3) 'possibly pose a danger to their life or physical safety.'"  "Regarding the names of the third parties, the Marshals Service states that '[r]elease of this information could expose these individuals to unnecessary public attention, criticism, harassment[,] and embarrassment.'"  "Against these strong privacy interests, the Court must weigh 'citizens' right to be informed about what their government is up to.'"  "Although the plaintiff presents no explicit argument why the 'public interest sought to be advanced is a significant one[,]' . . . he does argue that the requested information will demonstrate impropriety by the defendants in their criminal investigation and prosecution of him."  "From the Court's review of the plaintiff's filings in this case, it appears that he argues that the requested documents will demonstrate improprieties with the Marshals Service's handling of the money that was confiscated during the agencies' investigation of him."  "The Court concludes that the evidence proffered by the plaintiff fails to 'warrant a belief by a reasonable person[,]' . . . that any improprieties occurred regarding the three assets seized that were converted into cashier's checks."  "Th[e] evidence demonstrates that (1) the government agents involved in this case followed their agencies’ usual practices, (2) the seized assets were transferred from the DEA to the Marshals Service, who deposited the First Union cashier's checks into an account at Nation's Bank, and (3) the assets were properly administratively forfeited to the government."  "Moreover, even assuming that the plaintiff's evidence rose to the level of 'warrant[ing] a belief by a reasonable person[,]' . . . that the money confiscated in his criminal case was not documented or that a DEA agent gave perjured testimony about the money, the plaintiff fails to identify how 'the names and telephone numbers pertaining to law enforcement officers[,] [ ] other government employees[,] and third-party individuals' that were withheld by the Marshals Service pursuant to Exemption 7(C) . . . will demonstrate this alleged malfeasance."  "Accordingly, the Court concludes that the plaintiff has not met his burden to demonstrate that the public interest outweighs the strong privacy interests present in the information withheld by the Marshals Service pursuant to Exemption 7(C)."
  
  Regarding similar information withheld by DEA, Customs, and ATF, the court reiterated that the strong privacy interests at stake prevailed in light of plaintiff's failure to articulate a FOIA public interest under Favish.
   
• Exemption 7(D):  "The DEA states that certain information withheld pursuant to Exemption 7(D) was information from '[c]oded informants[,]' who 'are individuals who have a continuing cooperative association with [the] DEA' and 'are expressly assured confidentiality in their identities and the information they provide to [the] DEA.'"  "The DEA further states that coded informants are 'assured that their names will not be used in DEA investigative materials' and are instead 'assigned an identification code which is used in place of their name or referred to as [']CI['].'"  "Additionally, the DEA states that certain information was withheld pursuant to Exemption 7(D) because it was from sources with implied confidentiality, for whom 'an inference of confidentiality' was warranted due to 'the character of the crime being investigated[ ] and the source's relation to the nature of the crime.'"  Regarding the information pertaining to "coded informant" who received "an express promise of confidentiality," the court notes that, according to DEA "it was both 'compiled' by the DEA in the course of its investigation of the plaintiff and 'furnished by' coded informants, who are 'confidential sources.'"  "Accordingly, the Court concludes that the DEA appropriately applied Exemption 7(D) to the information from coded informants."  Additionally, regarding the information pertaining to "confidential informants for whom [DEA] represents that there was an implied promise of confidentiality[,]" DEA argued that "the Court should infer an implied promise of confidentiality due to the nature of the plaintiff's conviction."  "Consistent with the conclusion reached by this Circuit that 'information about a conspiracy to distribute crack and powder cocaine . . . warrant[s] an implied grant of confidentiality for such a source[,]' . . . the [DEA's] Declaration's representations are sufficient to demonstrate that the information from sources with implied confidentiality withheld by the DEA was 'furnished by a confidential source.'"  "Accordingly, and because the plaintiff raises no argument to the contrary . . . the Court concludes that the DEA appropriately applied Exemption 7(D) to withhold information from coded informants and sources with implied confidentiality."
  
  Similarly, "Customs states that the withheld information was 'supplied to [it] by a source on a confidential basis[,]' reflects 'names or other identifying information relating to that source[,]' and, if disclosed, 'would identify the source either by the name of the individual or by confidential information furnished by the individual.'"  "In light of the plaintiff's conviction and his FOIA requests seeking information related to that conviction, as the Court concluded in [a prior decision of the court] regarding the information withheld by the DEA pursuant to Exemption 7(D), 'it is reasonable to infer that the information provided was in connection with the [ ] drug importation and distribution investigation of the plaintiff.'"  "Accordingly, and because the plaintiff makes no argument to the contrary . . . the Court concludes that Customs appropriately withheld information that was 'supplied . . . by a source on a confidential basis' and 'the names or other identifying information relating to that source.'"
   
• Exemption 7(E):  "Customs used Exemption 7(E) to withhold information . . . because the 'information [], if released, would disclose investigative techniques and procedures for law enforcement investigations and prosecutions or disclose guidelines for the conduct of such law enforcement investigations or prosecutions where disclosure could reasonably be expected to risk circumvention of the law or avoid apprehension."  "Customs's explanation meets the defendants' burden to show 'how the release of the requested information might create a risk of circumvention of the law.'"  "Accordingly, and because the plaintiff has raised no argument to the contrary . . . the Court concludes that Customs appropriately applied Exemption 7(E) as the basis for its withholdings."
  
  Similarly "[t]he ATF states that it applied Exemption 7(E) 'to withhold the information related to TECS and NCIC computer access codes and file numbers.'"  "Again, given the 'relatively low bar' that an agency must meet to withhold information pursuant to Exemption 7(E), the Court concludes that the ATF has satisfied its burden to 'demonstrate logically how the release of the requested information might create a risk of circumvention of the law.'"  "Accordingly, and because the plaintiff has raised no argument to the contrary . . . the Court concludes that the ATF appropriately applied Exemption 7(E) as the basis for its withholdings."
   
• Exemption 2 & Exemption 7(E):  "[D]uring the pendency of this case, the Supreme Court issued its opinion in Milner v. Department of the Navy, . . . which held that 'Exemption 2, consistent with the plain meaning of the term "personnel rules and practices," encompasses only records relating to issues of employee relations and human resources.'"  "According to the defendants, this 'caus[ed] three of the agencies[,]' the Marshals Service, the ATF, and the DEA, 'to review and revise their Exemption 2 withholdings."  "Customs, however, 'failed to submit evidence about any reconsideration of its treatment of Exemption 2 after Milner.'"  "Despite this lack of reassessment by Customs, the defendants urge the Court to conclude that the information is properly withheld pursuant to Exemption 7(E)."  "According to Customs, it 'utilized [Exemption 2] for information regarding [(1)] Customs['] filing system[s], record identification, case numbers, and access codes' and (2) 'case and file numbers and other administrative markings that are used solely for the purposes of indexing, storing, locating, retrieving[,] and distributing information in the investigative files of [Customs'] Office of Investigations.'"  "In accordance with its conclusion regarding the ATF's assertion of Exemption 7(E) to withhold information related to TECS and NCIC access codes and file numbers, the Court concludes that Customs properly withheld 'information regarding Customs filing system[s], record identification, case numbers, and access codes' and 'case and file numbers and other administrative markings that are used solely for the purposes of indexing, storing, locating, retrieving[,] and distributing information in the investigative files of the [Customs'] Office of Investigations.'"
   
• Exemption 7(F):  "[T]he DEA applied Exemption 7(F) in conjunction with Exemption 7(C) to withhold '[t]he names and identities of DEA Special Agents, Supervisory Agents, and other law enforcement officers involved in the drug investigation of the plaintiff.'"  "The DEA states that 'the release of Special Agents' identities has, in the past, resulted in several instances of physical attacks, threats, harassment[,] and attempted murder of undercover and other DEA Special Agents.'"  "It further represents that the 'DEA considers it to be within the public interest not to disclose the identity of Special Agents so that they may effectively pursue their undercover and investigatory assignments' and that '[p]ublic disclosure of the identities of [] investigatory personnel would [therefore] have a detrimental effect on the successful operation of [the] DEA.'"  "Accordingly, and without argument to the contrary by the plaintiff . . . the Court concludes that the DEA appropriately withheld the information not provided to the plaintiff pursuant to Exemption 7(F)."
   
• Litigation Considerations, Vaughn Index/Declarations:  "Regarding whether the DEA's Vaughn Index accounts for the DEA's January 3, 2000 production, the plaintiff is correct to the extent that the pagination of the DEA's Vaughn Index is difficult to follow."  "Despite the incorrect pagination of several pages in the DEA's Vaughn Index—including but not limited to the pages numbered 1 through 6—the DEA's Vaughn Index accounts for 288 pages, which matches the [DEA] Declaration's statement that the DEA processed 288 pages."  "Accordingly, the Court disagrees with the plaintiff that the DEA's Vaughn Index does not account for all pages processed by the DEA."  "The plaintiff further argues that the 'DEA admitted that it had in fact referred a total of thirty-nine [ ] pages to Custom[s] and that deletions from those documents have not been defended in its Vaughn [I]ndex.'"  "The plaintiff misrepresents the [DEA's] Declaration."  "Therefore, without any evidence from the plaintiff demonstrating that 'deletions from [the thirty-nine documents referred to Customs by the DEA] have not been defended[,]' . . . the Court disagrees with the plaintiff that Customs and the DEA have not included the withholdings from the DEA's thirty-nine page referral to Customs in their Vaughn indices."
  
  "Second, the plaintiff argues that the [DEA's] Declaration and the DEA's Vaughn Index do not present 'the authority for withholding the deleted portions of the [thirteen] pages' produced by the DEA on January 3, 2000, thereby 'depriving [him] and the Court of a meaningful opportunity [to] evaluate the soundness of the exemption claims.'"  "To support their argument, the defendants have provided a chart in which they connect pages provided by the plaintiff."  "Although the DEA's chart indicates that the DEA's Vaughn Index accounts for most of the documents in Tab A, for the reasons that follow, the defendants' representations . . . are insufficient to support the conclusion that the DEA has accounted for all of these documents in its Vaughn Index."  "Thus, the Court will require the defendants to submit a supplemental declaration or Vaughn Index regarding these documents." 
  
  "The plaintiff next argues that the DEA's August 21, 2001 production 'contain[s] no exemption markings in the pages to identify and correspond with the authority for withholding the deleted portions of the pages.'"  "In addressing this dispute, the Court first notes that the plaintiff provides no—and the Court has been unable to find any—authority to support the proposition that records produced under the FOIA must contain 'exemption markings in the pages' themselves."  "In this case, as is customary in FOIA cases, the defendants provided Vaughn indices to support their claimed exemptions, which 'describe[ ] the documents withheld or redacted and the FOIA exemptions invoked, and explain[ ] why each exemption applies.'"  "However, assuming that the plaintiff is arguing that the DEA's Vaughn Index does not adequately state the bases for the withholdings in the DEA's August 21, 2001 production because the documents at Tab C, which were allegedly produced to the plaintiff by the DEA in that production, are not accounted for in the DEA's Vaughn Index, the Court agrees to a degree and concludes that the defendants' Vaughn Index requires further supplementation."  "This is necessary due to the fact that the defendants' chart in their reply and the documents in Tab C, at minimum, reflect notable discrepancies between the DEA's Vaughn Index and the documents that were allegedly produced to the plaintiff."
  
  "The Court next turns to the plaintiff's argument that the [Customs'] Declaration does not account for the 154 pages withheld by Customs."  "The plaintiff correctly notes . . . that the [Customs'] Declaration does not explicitly indicate the number of pages withheld in their entirety."  "However, Customs' Vaughn Index states that 154 pages were withheld in their entirety."  "Accordingly, the Court concludes that Customs' Vaughn Index and the [Customs'] Declaration provide an adequate basis for the Court to review whether the 154 pages were properly withheld pursuant to the FOIA."
  
  "The plaintiff next 'challenge[s] the overall adequacy of the defendants' initial Vaughn indices and dispute[s] the defendants['] reliance on blanket [e]xemptions to justify their withholdings.'"  "Specifically, he argues that the defendants' '[b]ox-by-box description[s] and generic categorization[s] without cross-references and information about [ ] individual document[s]' are 'insufficient to allow [the plaintiff] or this Court to realistically evaluate the claimed exemption[s].'"  "The Court concludes, however, that aside from the specific deficiencies that the Court has already identified, the Vaughn indices are otherwise sufficient."  "An adequate Vaughn Index must 'index[ ] and specifically describe[ ] withheld or redacted documents and explain[ ] why each withheld record is exempt from disclosure.'"  "As a general matter, the Vaughn indices provided by the defendants 'describe the withheld documents or deletions' and 'state the particular FOIA exemption[ ] and explain why the exemption applies.'"  "Thus, contrary to the plaintiff's assertion, the Vaughn indices provided by the defendants do not rely 'on blanket [e]xemptions' or provide 'generic categorization[s] without cross-references and information about [ ] individual documents.'"
   
• Procedural Requirements, Consultations and Referrals & Litigation Considerations, Vaughn Index/Declarations:  "The plaintiff also argues that the ATF's and DEA's Vaughn indices are incomplete because '[e]ven though [the] DEA has acknowledged its receipt of' the referral of eight pages by the ATF to the DEA made on January 20, 2000, and February 7, 2000, 'neither the DEA nor the ATF has accounted for the [eight]-page referral.'"  "In response, the defendants argue that the 'DEA has no record of receiving [this referral] and[,] after extensive efforts to find the documents referred, [the] ATF has been unable to locate the pages in order to re-send them.'"  "But, although the defendants argue that the 'DEA has no record of receiving [this referral,]' . . . they provide no citation to a declaration from a representative of the DEA or any other source stating that the DEA has no record of receiving the ATF's referral."  "Although the declarations provided by representatives of the ATF describe the extensive search efforts undertaken by the ATF to locate the files . . . and the defendants correctly note that, '[i]f [an] agency is no longer in possession of [a] document, for a reason that is not itself suspect, then the agency is not improperly withholding that document[,] and the court [should] not order the agency to take further action in order to produce it[,]' . . . the lack of representations from the DEA regarding its receipt of the referral compels the Court to decline to address the propriety of the defendants’ handling of the seven pages at this time."  "Accordingly, the Court will direct the defendants to provide supplemental Vaughn Index information or a supplemental declaration addressing whether the DEA received this referral from the ATF, prior to resolving whether summary judgment is merited for the defendants regarding the ATF's referral to the DEA."
   
• Procedural Requirements, Entities Subject to the FOIA & Waiver and Discretionary Disclosure:  "Finally, the plaintiff argues that 'the fact that the City of West Palm Beach has released [certain] documents in full[,]' causes 'the DEA and the [Marshals Service's] exemption claims with respect to the same [documents to be] null and void.'"  "This argument lacks merit because the FOIA does not apply to the City of West Palm Beach, a State of Florida municipality . . . and, accordingly, the City of West Palm Beach's disclosure of records is not pertinent to the Court's determination of whether the defendants have appropriately withheld information pursuant to the FOIA."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "First, the Court considers whether Customs has demonstrated that it released all reasonably segregable information."  "According to Customs, '[a]ll of the[ ] records [it released to the plaintiff] have been reviewed on a line[-]by[-]line basis and all segregable portions have been released."  "Customs also provides a Vaughn Index which provides specific insight as to the information that was withheld from each record and the exemptions pursuant to which the information was withheld."  "The combination of Customs' Vaughn Index, the [Customs'] Declaration 'attesting to the agency's line-by-line review of each document[,]' and Customs’ 'determination that no documents contained releasable information which could be reasonably segregated from the nonreleasable portions[,]  . . . suffice[,]'  . . . to satisfy Customs’ burden to establish that it disclosed all reasonably segregable non-exempt information."  "The Court held similarly for the State Department."  Conversely, "[l]ike the DEA and the ATF, the Marshals Service has failed to provide the requisite explanation with 'reasonable specificity' of 'how the agency undertook its segregability analysis.'"  "Accordingly, the Court will direct th[ose] defendants to supplement the record in order to “provide the 'reasonable specificity' necessary to enable judicial review with respect to segregability.'"