Marino v. DEA, No. 06-1255, 2021 WL 3793053 (D.D.C. Aug. 26, 2021) (Kelly, J.)

Marino v. DEA, No. 06-1255, 2021 WL 3793053 (D.D.C. Aug. 26, 2021) (Kelly, J.)

Re:  Request for records concerning witness who testified against plaintiff's deceased spouse at his trial

Disposition:  Denying plaintiff's motion for summary judgment; granting plaintiffs cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DEA has carried its burden."  The court relates that "[a]fter [the previous judge assigned to the case] construed the FOIA request at issue as seeking 'all documents indexed to [a particular Narcotics and Dangerous Drug Information System ("NADDIS") number],' . . . the DEA searched its Investigative Reporting and Filing System [("IRFS")] for [the] NADDIS [number] . . . ."  "A search of IRFS using a NADDIS number is a worldwide search for DEA records, including records maintained at field offices."  The court also finds that "DEA likely went above and beyond what the request called for by searching the three case files for all documents referring to [plaintiff's deceased spouse], even if [such documents] were not indexed."
   
• Litigation Considerations, Waiver of Exemptions in Litigation:  The court relates that "[plaintiff] does not challenge that the DEA has met the invoked exemptions' requirements; rather she argues that the assertion of any exemption other than 7(C) as to certain documents is untimely."  Regarding one batch of exemptions, the court notes that "[the prior judge in this case] already decided that the DEA could assert these exemptions . . . and the Court declines to reconsider that decision."  Regarding another batch of exemptions, the court relates that "[plaintiff] does not suggest that the DEA is seeking to assert additional exemptions over the same documents as to which it once asserted different exemptions."  "Rather, the DEA asserted Exemption 7(E) the first time it addressed the five pages at issue, in its now-pending motion for summary judgment."  The court finds that "obviously, the DEA has no obligation to anticipate documents that may be later identified as FOIA litigation runs its course and somehow preemptively raise exemptions."  "Finally, that the DEA may have previously asserted 7(E) in conjunction with 7(C) and 7(F) over [another group of] pages, but now asserts only 7(E) . . . [is not impermissible] because the DEA has added no new exemptions."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "DEA has met its burden."  "As [defendant] explained:  'All responsive information was examined to determine whether any reasonably segregable information could be released,' and information was withheld only where it met the requirements for an exemption or where 'the release of any additional information would . . . provide no useful information, or [be] incomprehensible words or phrases.'"  "Further, the DEA re-reviewed the documents and narrowed its redactions and withholdings, . . . which the Court then reviewed in camera."  "Based on the record and that review, the Court finds that the DEA redacted and withheld what it represents it did, and that any reasonably segregable portion of these records was provided to [plaintiff]."