Thelen v. DOJ, No. 15-0102, 2016 U.S. Dist. LEXIS 32011 (D.D.C. Mar. 12, 2016) (Howell, J.)

Thelen v. DOJ, No. 15-0102, 2016 U.S. Dist. LEXIS 32011 (D.D.C. Mar. 12, 2016) (Howell, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "The Court concludes that the EOUSA conducted a reasonable search for records responsive to the plaintiff's FOIA request."  The court relates that defendant "'searched for records from the case files in the criminal prosecution case . . . identified [by the] plaintiff . . . in his request,'" and "searched LIONS to locate records on '[plaintiff].'"  The court also notes that "[a]ccording to the EOUSA's declarant, there are no other records systems or locations within the Eastern District of Michigan or the EOUSA where other files pertaining to the plaintiff were maintained."  The court also finds that "[n]either the EOUSA's failure to produce particular documents nor the plaintiff's 'mere speculation that as yet uncovered documents might exist, undermines the adequacy of the EOUSA's search.'"
   
• Exemption 3:  "The Court concludes that the EOUSA properly has withheld grand jury information under Exemption 3."  The court relates that, in this case, defendant relied on "Federal Rule of Criminal Procedure 6(e), which prohibits disclosure of matters occurring before a grand jury."  The court notes that, "[s]pecifically, the EOUSA protects the name of a grand jury witness and other information from which the witness's name could be ascertained."  The court notes that "[defendant's] declarant explains that release of these grand jury materials affords 'the requester . . . the scope of the grand jury's investigation by setting forth [the source of] evidence to develop [the government's] case, how the [g]overnment developed its case, and [on] whom the [g]overnment relied . . . to develop the elements of the alleged crimes.'"  In response to plaintiff's argument, the court also finds that "[d]isclosure of grand jury materials to the plaintiff and his defense counsel in the context of the criminal proceedings does not amount to release of information into the public domain."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product:  "The plaintiff does not challenge the EOUSA's decision to withhold information under Exemption 5, and based on the supporting declaration and Vaughn Index, the Court concludes that the withholdings are proper."  The court relates that defendant withheld "'information related to trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to [the] plaintiff's criminal case,'" and "records 'contain[ing] deliberations concerning asset forfeiture decisions [and] possible strategies as they relate to the [plaintiff's criminal] case,' as well as deliberations between 'the United States Attorney's Office and other federal and state agencies in their consideration of possible criminal actions against [the] plaintiff.'"
   
• Exemption 7, Threshold:  The court holds that "EOUSA easily meets its initial burden by establishing that the records at issue are law enforcement records within the scope of Exemption 7."  The court finds that "[i]t is apparent from the plaintiff's criminal history, the nature of his FOIA request, and the declarant's explanation that the 'information at issue was compiled . . . to facilitate the investigation and criminal prosecution of [the] plaintiff,' [ ] that the responsive records were compiled for law enforcement purposes."
   
• Exemption 7(C):  "Absent a showing by the plaintiff of a public interest to outweigh the privacy interests of the third parties mentioned in these responsive records, the Court concludes that the defendant properly has withheld information under Exemption 7(C)."  The court relates that "EOUSA withholds the identities of third-parties, including witnesses and law enforcement personnel."  Additionally, in response to plaintiff's argument, the court finds that "release of grand jury materials to the plaintiff in the context of his criminal case is not a release of information into the public domain."
   
• Exemption 7(D):  "The Court concludes, based on the declarants' statements, that the FBI and DEA properly withhold information pertaining to confidential sources under Exemption 7(D)."  The court relates that "[t]he FBI withholds 'the name, identifying data, and information of an individual who provided information to the FBI . . . during the course of its on-going criminal investigations of various third parties connected to Organized Crime[.]'"  Additionally, the court notes that "[defendant's] declarant explains that 'the words "PROTECT IDENTITY" [appear] next to the individual's name in the documents,' offering 'a positive indication of an express assurance of confidentiality.'"  Similarly, the court notes that "DEA, too, withholds information provided by individuals from which an informant could be identified."  The court relates that "[defendant's] declarant explains, the withheld information was provided to the DEA by a coded confidential source who has 'a continuing cooperative association, by written signed agreement, with [the] DEA or another law enforcement agency.'"  "In addition, the DEA withholds 'source-identifying and source-supplied investigative information,' provided by 'an individual with a close connection to [the] plaintiff's criminal activities.'"  "Under these circumstances, and in light of plaintiff's history of 'possession with intent to distribute cocaine and methamphetamine . . . , possession of a firearm by a felon,' and, for example, his practice of 'maintain[ing] several firearms and other weapons at his residence,' the declarant asserts that confidentiality was implied."
   
• Exemption 7(E):  "The Court concludes that both the DEA and BATFE demonstrate that the decision to withhold information under Exemption 7(E) was appropriate."  The court notes that "DEA withholds G-DEP and NADDIS numbers" which "'indicate[] the classification of the violator(s), the types and amounts of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity'" and disclosure of which "'would help identify priority given to narcotics investigations, types of criminal activities involved, and violator ratings,' and with this information a suspect could 'change [his] pattern of drug trafficking in an effort . . . to avoid detection and apprehension,' thus 'thwart[ing] the DEA's investigative and law enforcement efforts.'"  The court also relates that "BATFE withholds 'codes and file numbers contained on a criminal history printout'" which "'could allow individuals outside the agency to circumvent agency functions and gain access to sensitive investigative information.'"
   
• Exemption 7(F):  "The Court concludes that these components properly withheld information under Exemption 7([F])."  The court relates that "[t]he FBI invokes Exemption 7(F) to protect 'detailed information provided by an individual, who expressly asked the FBI to protect his identity, about alleged criminal activities,' including 'alleged criminal activities involving Organized crime,' on the ground that 'disclosure . . . would readily reveal [his] identity.'"  "Similarly, the DEA withholds 'the names of third parties or any individual . . . identified as a confidential source' on the ground that disclosure 'could [render him or her] target[s] of ["]physical attacks, threats, harassment, and murder [or] attempted murder[.]'''"
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "[o]n review of all of the defendant's supporting declarations and Vaughn Indices, the Court concludes that the defendant has adequately specified 'which portions of the document[s] are disclosable and which are . . . exempt.'"