Dale v. DEA, No. 20-1248, 2022 WL 3910502 (D.D.C. Aug. 31, 2022) (Sullivan, J.)
Date
Dale v. DEA, No. 20-1248, 2022 WL 3910502 (D.D.C. Aug. 31, 2022) (Sullivan, J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendants’ motion for summary judgment
- Litigation Considerations, Adequacy of Search: “Based on information plaintiff provided in his FOIA request, including his criminal case number and place where events relevant to the criminal case occurred, [the court finds that] it is reasonable that DEA conducted searches of Omaha Division and North Central Laboratory records using plaintiff’s name as a search term.” “Notwithstanding plaintiff’s dissatisfaction with the search results, the Court concludes that DEA’s searches for records responsive to plaintiff’s FOIA request were adequate.” “The Court makes three observations upon review of plaintiff’s opposition to DEA’s summary judgment motion.” “First, plaintiff appears to equate DEA’s obligation to respond to a FOIA request with the government’s obligation to produce discovery materials to a defendant in a criminal case.” “He is mistaken.” “‘[D]isclosure obligations under FOIA and disclosure obligations in criminal proceedings are separate matters, governed by different standards.’” “Second, plaintiff focuses entirely on the results of DEA's searches, complaining that certain documents were not located and released.” “The adequacy of a search is determined by its methods, not its results.” “Third, plaintiff demands that DEA explain why it failed to produce certain documents.” “Plaintiff imposes an obligation FOIA does not place on DEA.” “No agency is required to create materials or to answer questions in responding to a FOIA request.”
- Exemption 3: The court relates that at issue “‘are two firearms trace summaries relating to efforts by the ATF’s National Tracing Center to track the history of a firearm recovered by DEA agents during the course of a federal criminal investigation.’” “ATF’s declarant explains that ‘[t]hese firearms trace summaries are generated entirely from information maintained in the ATF's Firearms Tracing System database,’ and that ‘Congress barred federal agencies from using appropriated funds’ to disclose any information maintained therein.” “Accordingly, ATF applies Exemption 3 in conjunction with the Consolidated Appropriations Act of 2012, Pub. L. No. 112–55, 125 Stat. 552 (2011), to withhold the responsive material.” “Given ‘the statutory prohibition on the disclosure of firearms trace information,’ ATF ‘decline[s] to produce the trace summaries to Plaintiff.’” “The Court concludes that this firearms trace information properly is withheld under Exemption 3.”
- Exemption 7, Threshold: The court relates that “DEA’s declarant explains that the agency’s principal mission is ‘enforce[ment] of the controlled substance laws and regulations of the United States’ pursuant to the Controlled Substances Act . . . .’” “Among other functions, DEA conducts criminal investigations of individuals and organizations ‘involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States.’” “Plaintiff is the subject of such an investigation.” “The declarant states that all of the responsive records ‘were compiled as part of a law enforcement criminal investigation’ of which plaintiff was the subject and are ‘maintained as part of a criminal investigative case.’” “DEA relies on Exemption 6 in conjunction with Exemptions 7(C), 7(D) and/or 7(F) to protect identifying information about third parties.” “Because all the responsive records were compiled for law enforcement purposes, the Court’s analysis is limited to Exemption 7.”
- Exemption 7(C): The court relates that “DEA withholds ‘personally identifying information about non-law enforcement individuals,’ . . . such as their ‘names, addresses, phone numbers, Social Security numbers, dates of birth, and medical information,’ . . . .” “It also withholds ‘serial numbers of firearms seized during the investigation because disclosure of the information could be traced back to a specific individual.’” “The declarant explains that DEA identified no public interest in disclosure of this information to outweigh the individuals’ significant privacy interests.” “In addition, relying on Exemption 7(C) in conjunction with Exemption 7(F), DEA withholds ‘personally identifying information [about] DEA employees and state law enforcement employees working in conjunction with DEA investigations, such as Task Force Officers.’” “Specifically, it withholds identifying information about ‘DEA Special Agents, laboratory personnel, employees involved in the custody and disposition of drug and non-drug evidence, and state law enforcement employees,’ to include their ‘names; unpublished individual phone numbers; specific locations of offices that are not generally made public by DEA, including the street address of a DEA evidence storage facility; and Group Numbers (solely internal code that identifies an office location).’” The court holds that “[i]n this Circuit, there exists ‘a categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is “necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.”’” “Plaintiff makes no such showing, and the Court concludes that the personal identifying information about third parties, among whom are DEA and state law enforcement personnel, properly is protected under Exemption 7(C).” “However, DEA fails to demonstrate that office or storage facility locations fall within the scope of Exemption 7(C).”
- Exemption 7(D): The court holds that “DEA adequately demonstrates that it expressly granted confidentiality to a source who provided information in the course of a criminal investigation, and the confidential source’s identity and the information the source provided properly are withheld.” The court specifically takes note of “‘a written agreement between DEA and the [source] where DEA explicitly states that the United States Government and DEA will protect the [source’s] identity to the extent that it can under the law.’” “Disclosure of this information ‘could potentially reveal the [source’s] identity,’ and ‘would hamper future cooperation’ with other informants.” Further, the declarant explains, “‘[b]ecause of the nature of DEA’s criminal investigations, any information that could identify a [confidential source] could subject the [source or the source’s] family members to serious bodily harm, substantial repercussions, and possibly even death.’”
- Exemption 7(E): The court relates that “DEA withholds six categories of information under Exemption 7(E): investigative case numbers, G-DEP identifiers, [Narcotics and Dangerous Drugs Information System (“NADDIS”)] numbers, controlled substance codes, and qualitative characterization codes.” “Three categories require no discussion.” “G-DEP identifiers and NADDIS numbers routinely are withheld, . . . and insofar as controlled substances codes are ‘part of the G-DEP identifier,’ . . . they, too, are protected.” “And the Court is persuaded that the remaining categories of information properly are withheld under Exemption 7(E).” “Regarding investigative case numbers,” “DEA asserts, disclosure of investigative case numbers ‘could reasonably be expected to create a risk of circumvention of the law’ in three ways.” “Disclosure could ‘reveal[ ] how DEA’s law enforcement databases work and render them vulnerable to manipulation[;]’ suggest ‘the scope of a target’s criminal operation[;]’ and ‘reveal law enforcement techniques’ in the DEA Agents Manual.” “Qualitative characterization codes, the declarant explains, are internal codes with ‘information about the primary role or criminal activity conducted within a drug trafficking organization by the subject or target of an investigation.’” “DEA asserts that disclosure of these codes ‘could reasonably be expected to create a risk of circumvention of the law’ by ‘reveal[ing] the scope of DEA’s investigation and its understanding of the roles of the individuals involved.’” “Disclosure also ‘reveal[s] sensitive, non-public references to the DEA Agents Manual,’ specifically, DEA law enforcement techniques.” “Lastly, DEA withholds ORI and NCIC numbers, described as ‘unique identifiers assigned by the FBI to criminal justice agencies,’ under Exemption 7(E).” “These numbers authorize an entity, such as a court or state law enforcement agency, ‘to access data maintained by the FBI’s Criminal Justice Information Services (“CJIS”)’ system.” “The declarant explains that disclosure of the numbers could allow a ‘unauthorized access to CJIS databases or NCIC criminal record information.’” “Further, she states, disclosure ‘would reveal techniques and practices used in DEA investigations and could provide information to individuals seeking to violate or circumvent the law to take proactive steps to counter operations and investigative actions taken by DEA during drug enforcement operations.’” “Thus, DEA adequately demonstrates that disclosure of investigative case numbers, qualitative characterization codes, and ORI and NCIC numbers either would reveal law enforcement techniques and procedures, or would create a risk of circumvention of the law.”
- Exemption 7(F): The court relates that “DEA relies on Exemption 7(F) in conjunction with Exemption 7(C) . . . to protect ‘personally identifying information of DEA Special Agents, laboratory personnel, employees involved in the custody and disposition of drug and non-drug evidence, and state law enforcement employees,’ . . . .” “The Court need not revisit the withholding personal identifying information about third parties, to include names and individual telephone numbers, as this information already is protected under Exemption 7(C).” “Relevant here is DEA’s decision to withhold ‘specific locations of offices that are not generally made public by DEA, including the street address of a DEA evidence storage facility; and Group Numbers (solely internal code that identifies an office location).’” “The declarant states that ‘the disclosure of the identities and specific locations of DEA employees actively working on investigations, or who have worked on investigations resulting in a conviction, could endanger their [lives] and physical safety if members of the public, including drug trafficking organizations, have access to the information and wish to harm DEA employees because of their work.’” “The Court concludes that this information falls within the scope of and properly is withheld under Exemption 7(F).”
- Litigation Considerations, “Reasonably Segregable” Requirements: “The Court accepts the declarant’s representations that DEA staff reviewed the responsive records to ensure that all non-exempt segregable information has been released to plaintiff.”
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 7
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7(F)
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 13, 2022