Higgins v. DOJ, No. 10-1485, 2013 WL 358177 (D.D.C. Jan. 30, 2013) (Wilkins, J.)

Wednesday, January 30, 2013
Re: First party request for records on self Disposition: Granting defendants' motion for summary judgment in part and allowing defendants to file a renewed motion for summary judgment so that EOUSA can provide further details regarding its search and withholdings and so that defendants can explain the disposition of certain referred records
  • Adequacy of Search: The court finds that it cannot determine whether EOUSA conducted a reasonable and adequate search. The court notes that EOUSA's declaration "does not describe the types of records maintained at the office, the records actually searched, the scope or method of the search, or a description of the responsive records." The court finds that the FBI conducted an adequate search. The court declares that "[t]he FBI does not fail to meet its obligations under the FOIA by conducting a search of FBIHQ records only." The court notes that "it is plaintiff's responsibility to tell the FBI where responsive records might be located." The court rejects plaintiff's contention that DEA's search was inadequate because DEA only located thirty-one responsive pages. As the court makes clear, "[t]he level of plaintiff's satisfaction with the results of the search is not dispositive." Since plaintiff did not "present evidence rebutting the agency's initial showing of a good faith search," the court rejects plaintiff's argument that DEA conducted an inadequate search. With regard to ATF's search, the court rejects plaintiff's argument that ATF must give him further information regarding the co-defendant for whom records were found. The court notes that "[p]laintiff's request for information about himself does not obligate any agency to search for and disclose records pertaining to any other individual." Finally, the court notes that because plaintiff sought records concerning himself, "Secret Service staff conducted a search of the [Secret Service's Common Index], and that 'search . . . identified a single investigative case file.'"
  • Exemption 3: The court agrees that ATF properly withheld a "'Firearms Trace Report, all related to the same firearms, and which are wholly derived from and/or related to the contents of the Firearms Trace System Database referred to in Public Law[s] 108-447 and 111-117'" pursuant to Exemption 3. The court finds that "[t]he appropriations legislation on which [ATF] relies explicitly bars disclosure of information 'maintained by the National Trace Center.'"
  • Exemption 7: The court determines that the records withheld by DEA and the Secret Service both meet the law enforcement threshold for Exemption 7. The court indicates that "[i]t is apparent not only from the nature of the FOIA request but also from the type and content of the documents produced by the DEA and the Secret Service that the responsive records were compiled for law enforcement purposes." DEA explained that its responsive records "'were compiled during criminal law enforcement investigations of the plaintiff and several third parties." The Secret Service likewise asserted that its records "were 'compiled in connection with the Secret Service's investigative mission and under its authority to conduct such investigations . . . [here] a counterfeit investigation.'"
  • Exemption 7(C):The court concludes that DEA and Secret Service properly withheld third-party information from the responsive records. DEA withheld "'[t]he identities of DEA Special agents, and other state and local law enforcement officers.'" DEA cited concerns about the potential for "'undue invasions of privacy, harassment and humiliation' where, as here, the disclosure occurs in the context of a criminal investigation.'" Finding that no public interest outweighs these privacy concerns, the court agrees that the information was properly withheld. Likewise, the court finds that the Secret Service properly invoked Exemption 7(C) "to withhold 'the names of Secret Service personnel and law enforcement personnel from other agencies . . . to avoid subjecting [these] public servants to harassment and annoyance either in the conduct of their official duties or their private lives.'" Additionally, "Secret Service identification numbers of Agency personnel" and the Social Security Number of a third-party mentioned in the files were also properly withheld. The court notes that the Secret Service has not identified a public interest that outweighs the privacy rights inherent in the withheld information, and noting that plaintiff did not challenge the withholdings, concludes that Exemption 7(C) was properly invoked. In addition, the court opines that "a third party may testify in open court and maintain an interest in his personal privacy," and that "he maintains an interest in his personal privacy even if the requester already knows, or is able to guess, his identity."
  • Exemption 7(D): The court finds that DEA properly applied Exemption 7(D) to withhold "'material provided by individual(s), other than a DEA agent, . . . regarding the criminal activities related to the illicit trafficking in drugs.'" Taking note of the fact that "[t]he D.C. Circuit has held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source," the court finds that "DEA demonstrates that its decision to withhold this material under Exemption 7(D) is proper." The court finds that plaintiff incorrectly assumed that DEA based its withholding on an express grant of confidentiality. However, as the court notes, "DEA's declarant articulates the agency's rationale for withholding the identities of and information provided by sources about inherently violent activities in order that disclosure not subject them to reprisal and to encourage others to cooperate with law enforcement."
  • Exemption 7(E): The court finds that DEA properly withheld G-DEP (Geographical Drug Enforcement Program) codes and NADDIS (Narcotics and Dangerous Drugs Information System) numbers. The court accepts DEA's argument that release of GDEP codes would "'thwart [DEA's] investigative and law enforcement efforts'" and allow suspects to "decode this information, change their behavior of drug trafficking in an effort to respond to what they determined DEA knows about them or avoid detection and apprehension, and allow them to create alibis for suspected activities.'" Likewise, release of NADDIS numbers, which are unique to the violator, "'could allow violators to avoid apprehension, and could place law enforcement personnel or informants in danger, since many details of a DEA investigation would be disclosed.'"
  • Segregability: The court concludes that all reasonably segregable portions have been released. Plaintiff's objections are based solely on the "the amount of information redacted from Secret Service records." The court notes that "[t]he Secret Service is not obliged to release information which it rightfully protects under Exemption 7(C)." Accordingly, the court reviews the defendants' "declarations, Vaughn indices, and copies of the redacted records" and determines that all reasonably segregable information has been released.
  • Waiver: The court reject plaintiff's argument that information withheld under Exemption 7(C) by DEA should be disclosed because plaintiff assumes it relates to the DEA's investigation of him and his prosecution and that "'[s]uch information was publicly released in the news media at that time.'" The court declares that "[s]peculation as to the content of the withheld information does not establish that it has entered the public domain." Plaintiff bears the "burden of showing that the requested information is: (1) is as specific as the information previously disclosed; (2) matches the information previously disclosed; and (3) was made public through an official and documented disclosure." The court further notes that "the privacy interests belong to the individuals, not to the government agency."
Adequacy of Search
District Court
Exemption 3
Exemption 7
Exemption 7C
Exemption 7D
Exemption 7E
Updated August 6, 2014