King v. DOJ, No. 15-1445, 2017 WL 1166309 (D.D.C. Mar. 28, 2017) (Moss, J.)

King v. DOJ, No. 15-1445, 2017 WL 1166309 (D.D.C. Mar. 28, 2017) (Moss, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search: First, "[b]ecause the OSG has conducted a reasonable search, and because neither [of the two documents OSG located] are responsive to [plaintiff's] FOIA request, the Court concludes that the OSG has satisfied its FOIA obligations." Second, the court concludes that DEA's search was adequate because "DEA employed search methods reasonably expected to produce responsive results . . . and specifically identified which systems and terms it searched to identify records responsive to Plaintiff's requests[.]"
   
• Litigation Considerations, Exhaustion of Administrative Remedies: "The Court will . . . grant the Department's motion for summary judgment as to the FBI for failure to exhaust administrative remedies." The court finds that "it is undisputed that the FBI responded to [plaintiff's] request within twenty working days[.]" "[Plaintiff] was thus obliged to appeal the FBI's determination to the Office of Information Policy within the Department of Justice before bringing suit." "He did not file any such appeal."
   
• Exemption 7(C): The court holds that, "[b]ecause [plaintiff] has not provided 'compelling evidence that the agency is engaged in illegal activity,' . . . and has not identified any other countervailing public interest that would be served by disclosure, the agency's invocation of Exemption 7(C) was proper." The court relates that "DEA concluded that disclosure of the 'names and other identifying information' in the responsive records could lead to the individuals becoming 'targets of harassment and humiliation,' . . . which is a 'legitimate interest' weighing against disclosure."
   
• Exemption 7(D): The court holds that "[t]he DEA . . . properly invoked Exemption (7)(D)." The court relates that defendant "has attested that '[t]he investigation of Plaintiff involved Confidential Sources,' that 'the responsive investigative reports include source-related information,' that '[s]ome of the information at issue pertains to a "coded" Confidential Source with an express assurance of confidentiality,' and that sixty pages of the responsive material 'contain information that would disclose the identity of, and the information provided by, Confidential Sources.'"
   
• Litigation Considerations "Reasonably Segregable" Requirement": The court holds that "DEA properly withheld records under FOIA Exemptions 7(C), (D), (E), and (F), and properly concluded that no non-exempt material was reasonably segregable."
   
• Litigation Considerations, Vaughn Index/Declaration & Procedural Requirements: The court holds that, "[b]ecause the EOUSA declarant has not indicated whether and how [a] seal precludes the Department from disclosing any or all of the records at issue, the Court cannot grant summary judgment in the Department's favor on this ground." The court explains that "'the proper test for determining whether an agency improperly withholds records under seal is whether the seal, like an injunction, prohibits the agency from disclosing the records.'" Additionally, the court finds that "[it] cannot discern from the declaration . . . whether the Department has actually reviewed all of the responsive records or has, instead, merely hypothesized that they would likely be exempt."