Djenasevic v. EOUSA, No. 16-2085, 2018 WL 3869129 (D.D.C. Aug. 14, 2018) (Lamberth, J.)

Djenasevic v. EOUSA, No. 16-2085, 2018 WL 3869129 (D.D.C. Aug. 14, 2018) (Lamberth, J.)

Re:  Request for records related to requester's criminal conviction

Disposition:  Granting defendant's motion to dismiss and motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court finds that, "EOUSA and DEA met their burden to demonstrate that they conducted reasonable searches."  "The agencies searched the record systems likely to contain responsive records."  "The plaintiff has not provided any 'countervailing evidence as to the adequacy of the agency's search.'"  "And even if there are records that pertain to his FOIA requests which have not been produced, that in itself does not render the search unreasonable under FOIA."  "'[I]t is long settled that the failure of an agency to turn up one specific document in its search does not alone render a search inadequate.'"  "Instead, 'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'"
   
• Exemption 3:  The court finds that, "[a]ny disclosure [of grand jury information] to persons outside of the government may only be made pursuant to a court order."  "Since there is no evidence that the plaintiff has obtained a court order entitling him to the records, the Court finds that EOUSA's invocation of Exemption 3 is appropriate."
   
• Exemption 5, Attorney Work Product Privilege & Deliberative Process Privilege:  The court finds that, "EOUSA properly withheld the draft plea agreement and superseding indictment under both the deliberative process privilege and the attorney work-product privilege."  "The documents were 'predecisional' in that no final agency action had been taken and were deliberative in that they were shared as part of a consultative process."  "Moreover, the attorney work-product privilege applies because the documents were prepared by, or at the request of an attorney, and made in anticipation of litigation."
   
• Exemptions 6 & 7(C):  The court finds that, "withholding information pertaining to third-parties implicates an important privacy interest."  "And there is no conceivable public interest, let alone a significant one, that warrants overriding the third-parties' privacy interest in having their identities protected."  "The Court is unable to identify from the plaintiff's pleadings any evidence that rises above 'bare suspicion' that 'Government impropriety might have occurred' . . . [t]herefore, both EOUSA and DEA properly applied Exemption 7(C) and EOUSA properly applied Exemption 6.
   
• Exemption 7(D):  The court notes that, "the confidential source was 'involved and maintained a close relationship with several individuals who trafficked in cocaine and engaged in other violent and illegal activities.'"  The court find that, "under these circumstances confidentiality was implied and that any information that could identify the informant could subject them to serious harm."
   
• Exemption 7(E):  The court notes that, "the DEA invoked Exemption 7(E) to withhold information related to the plaintiff's investigations, including 'filing numbers and specific times and locations of meetings with confidential sources.'"  "DEA also withheld 'sensitive non-public portions of its Agents' Manual regarding the modus operandi for numerous of its law enforcement objectives, including segments of the sections on operational travel, undercover operations, and the use of confidential informants.'"  "In its declaration, the DEA compellingly argues that releasing that information would allow criminals to restructure their activities to circumvent the law."  The court finds that, "[a]pplying a mosaic analysis, suspects could use these numbers in conjunction with other information known about other individuals and techniques to change their pattern of activity to avoid detection, apprehension, or create alibis for suspected activities."
   
• Exemption 7(F):  The court notes that, "DEA invoked [Exemption 7(F)] in conjunction with Exemption 7(C) to protect the names of DEA Special Agents and individuals involved in criminal investigations."  "The DEA asserts that releasing the names of its Special Agents would endanger their lives and physical safety."  The court finds that, "[a]s with previous exemptions, the plaintiff does not appear to offer any argument as to this why the names should not be exemption."