Kendrick v. DEA, No. 21-01624, 2022 WL 3681442 (D.D.C. Aug. 25, 2022) (McFadden, J.)

Kendrick v. DEA, No. 21-01624, 2022 WL 3681442 (D.D.C. Aug. 25, 2022) (McFadden, J.)

Re:  Requests for records concerning plaintiff

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  Preliminarily, the court relates that “[plaintiff] focuses . . . on the destruction of his paper investigative file.”  Defendant “said it had destroyed the paper copies per the agency’s Record Management Schedule.”   “[Plaintiff] says otherwise.”  “But he includes no evidence supporting this assertion, relying instead on conclusory statements to rebut the agency’s declaration on this point.”  The court finds that “[s]peculation is not enough to overcome the good-faith presumption afforded [defendant’s] declaration.”  “More, [plaintiff] has not refuted or otherwise questioned DEA’s later search of the electronic file room that yielded ‘a complete electronic version’ of the investigative file.”  “So even if DEA improperly destroyed the paper files, it has provided those files in electronic form, complying with its duty to ‘search for the [requested] records in electronic form or format.’”
  
  Regarding the remainder of defendant’s searches, the court first addresses “the search of [Narcotics and Dangerous Drugs Information System (“DEA”)].”  “When queried, that system allows DEA to locate any ‘intelligence and investigative records generated across all DEA offices.’”  “The agency searches NADDIS through certain terms like a person’s ‘name, Social Security number, or date of birth.’”  “NADDIS therefore is a reasonable place to search for documents about [plaintiff].”  “And the agency did so ‘using [plaintiff]’s name.’”  “Because the agency searched a database likely to have responsive records and testifies that it used an appropriate search term, [the court finds that] that search of NADDIS was adequate.”  “Not so for the searches of [Asset Forfeiture Section (“AFS”)] and the Office of Administration.”  “To begin with, the Court agrees with the agency that, because [plaintiff] sought records about a seizure, AFS ‘was an appropriate office to search.’”  “But DEA says nothing more about how it conducted that search.”  “It says that AFS used [plaintiff’s] ‘name’ to locate ten pages, but not how it used his name to find those ten pages.”  “DEA’s declaration thus merely states the search's results without ‘information about its search strategies,’ . . . or about ‘how [AFS] searched within’ its own files . . . .”  “More, AFS unearthed more pages recently, creating ‘substantial doubt’ as to the thoroughness of the initial AFS searches.”  “Ditto the search of the Office of Administration.”  “Nothing [was provided] about how the Office located [certain responsive pages] or how this search was conducted.”  “Based on such a light record, the Court cannot determine whether this search was adequate.”
   
• Exemption 7, Threshold:  The court relates that “DEA asserts that it gathered these records under its ‘law enforcement responsibility,’ . . . and as part of its ‘investigative authority’ to enforce drug laws . . . .”  “[Plaintiff] does not say otherwise, so the Court considers only whether the information meets the conditions of Exemption 7’s subparts.”
   
• Exemption 6 & Exemption 7(C):  The court first notes that “the Court need not ‘consider Exemption 6 separately[.]’”  “Here, DEA always invokes the two exemptions in tandem.”  “The Court thus considers only Exemption 7(C).”  The court relates that “[u]nder 7(C), DEA redacted the names and other identifying information of third-party individuals, including those of law enforcement personnel.”  “The individuals have a more than cognizable privacy interest here.”  “The D.C. Circuit has ‘consistently supported nondisclosure of names or other information identifying individuals appearing in law enforcement records, including investigators, suspects, witnesses, informants,’ . . . and ‘federal government personnel’ . . . .”  The court then finds that “[plaintiff] suggests no [public] interest.”  “He says instead that ‘he has a personal interest in obtaining the withheld documents and information . . . to help him fight his criminal case.’”  “That is indeed a weighty personal interest.”  “But such a ‘personal stake in the release of the [redacted] information is irrelevant to the balancing’ required by 7(C).”  Regarding plaintiff’s public domain argument, the court notes that “[h]e merely offers a long ‘list of witnesses [who] testified, for the Government’ at his criminal trial ‘and who were also involved with the 2000 case and/or [i]nvestigation or work for the Rochester Police Department.’”  “Because FOIA disclosures are to the public at large, [the court finds that] individuals who testify at trial do not ‘waive the government's right to invoke’ exemptions in FOIA litigation.”
  
  “This brings [the court] to the foreseeable harm from disclosure.”  “As this Court has noted, fulfilling the terms of exemptions outside Exemption 5 ‘goes a long way to meeting the foreseeable harm requirement.’”  “Given the lower burden, DEA says little but enough.”  “It asserts that disclosure would cause invasions of privacy and would subject the named individuals to ‘harassment,’ ‘derogatory inferences,’ and ‘suspicion.’”  “‘These predicted results of disclosure are exactly what Exemption 7(C) seeks to prevent[.]’”  “DEA has thus shown a risk of foreseeable harm from disclosure of this information and has therefore properly invoked Exemption 7(C).”
   
• Exemption 7(E):  “The Court will grant summary judgment to the agency on its withholdings under Exemption 7(E).”  The court relates that “DEA invoked the exemption to withhold ‘sensitive case and file numbers, including NADDIS numbers and Geo-Drug Enforcement Program (G-DEP) identifiers.’”  “[Defendant] attests that disclosure of this information could identify ‘the investigative interest or priority given to such matters,’ thereby enabling suspects ‘to avoid detection’ or ‘apprehension’ by changing ‘their pattern of activity’ or creating ‘alibis for suspected activities.’”  Additionally, the court finds that “the agency has shown a self-evident risk of foreseeable harm.”  “If disclosed, criminals could use these identifiers to change their activity and to evade detection.”  “DEA has therefore met its burden on foreseeable harm.”
   
• Exemption 7(F):  The court relates that “DEA also withheld information under Exemption 7(F) . . . .”  “But the agency relied on that exemption ‘always in conjunction with Exemption[ ] 7(C).’”  “Because the Court upheld the assertion of 7(C), it need not consider whether DEA properly invoked 7(F).”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court finds that “DEA admittedly does not say much on segregability, but it says just enough.”  “The agency reviewed ‘[a]ll responsive information’ and withheld only that information that would implicate one of the claimed exemptions.”  “That is barely enough to carry DEA’s burden.”