House v. DOJ, No. 14-20, 2017 U.S. Dist. LEXIS 30753 (D.D.C. Mar. 5, 2017) (Moss, J.)

House v. DOJ, No. 14-20, 2017 U.S. Dist. LEXIS 30753 (D.D.C. Mar. 5, 2017) (Moss, J.)

Re: Request for records concerning electronic surveillance used to obtain evidence for plaintiff's criminal prosecution

Disposition: Granting defendant's motion or summary judgment

• Litigation Considerations, Vaughn Index/Declaration: "The Court . . . concludes that the Department has adequately explained why the Vaughn index does not include any entries predating June 29, 2009, or referring to the pen/trap application." "The Court previously declined to grant summary judgment in favor of the Department because, among other things, the Vaughn index contained no entries for records dated prior to June 29, 2009, even though the Department had acknowledged that communications between lawyers from OEO and the prosecutors who handled [plaintiff's] case began as early as April 1, 2009." As to the first issue, the court relates that defendant states that "because the Title III request relating to the . . . telephone number [at issue] was not submitted until June 29, 2009, it is not surprising that the Department's Vaughn index contains only entries dated June 29, 2009, or later." "Similarly, the Department has provided a convincing explanation for why the Vaughn index does not include any entries relating to the May 26, 2009, authorization for use of a pen register or trap and trace[.]" "'[F]ederal prosecutors,' . . . 'make [pen/trap] applications based' upon only 'the approval of an appropriate supervisor,'" . . . and, unlike Title III records, the records produced from pen/trap applications are not centrally stored in the Criminal Division's 'official information management system for Title III applications[.]'" "It makes sense, then, that [plaintiff's] FOIA request, which was directed at the Criminal Division of the Department of Justice, and not at the U.S. Attorney's Office for the Western District of Pennsylvania, . . . failed to locate records relating to the pen/trap application[.]" "The Court, accordingly, concludes that the Department has adequately explained why the Vaughn index does not include any entries predating June 29, 2009, or referring to the pen/trap application." Finally, regarding what the court describes as "simply a ministerial error[,]" "[t]he Court sees no reason – and [plaintiff] does not provide one – why this minor error should call into question the adequacy of the Department's search and response to [plaintiff's] FOIA request."
   

• Procedural Requirements, Searching for Responsive Records: The court holds that "[t]he fact that references to [plaintiff] appear in documents maintained by OEO, but not in the subject field of the tracking system, does not discredit the Department's search, nor has [plaintiff] identified any reason to conclude that the Department has failed to locate all potentially responsive records." The court finds that "[plaintiff] . . . simply misunderstands how the Title III tracking system operates." The court relates that "the Department explains, the prosecutors who 'submitted the requests' in connection with 'the narcotics trafficking investigation of which [[plaintiff]] was a part' never 'identif[ied] [him] as the lead subject of the intended surveillance,' and, accordingly, [plaintiff's] name was not entered into the tracking system."