                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

                                                  )
                                                  )
    DICKINSON N. ADIONSER,
                                                  )
                                                  )
                       Plaintiff, pro se,
                                                  )
                v.                                )    Civil Case No. 10-027 (RJL)
                                                  )
                                                  )
    DEPARTMENT OF JUSTICE, et al.,
                                                  )
                                                  )
                       Defendants.

                              MEMORANBuM OPINION
                            (Septemberf-5, 2011) [#16 and #26]

        Plaintiff Dickinson Norman Adionser ("plaintiff') brings this pro se action against

the Department of Justice ("DOJ" or "defendant"), Executive Office for United States

Attorneys ("EOUSA"), Federal Bureau of Investigation ("FBI"), Federal Bureau of

Prisons ("BOP"), and Drug Enforcement Administration ("DEA") for failure to disclose

information pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act. I

Plaintiff seeks material to challenge collaterally convictions that resulted in his

imprisonment. Before this Court is defendant's Motion for Summary Judgment and

plaintiffs Cross-Motion for Summary Judgment. After due consideration of the parties'


I Defendants move to dismiss EOUSA, FBI, DEA, and BOP, contending they are not
proper parties to this action. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 4, July 12,
2007. FOIA provides a cause of action against federal agencies only. See Sherwood Van
Lines, Inc. v. Us. Dep 'f o/Navy, 732 F. SUpp. 240, 241 (D.D.C. 1990). Components of
federal agencies are not covered by FOIA. Blackwellv. FBI, 680 F. SUpp. 2d 79,86 n.1
(D.D.C.2010). Because EOUSA, FBI, DEA, and BOP are components ofDOJ, and it is
DOJ that is an agency covered by FOIA, DOJ is the proper defendant in this case. See 5
U.S.C. § 552(£)(1). Thus, EOUSA, FBI, DEA, and BOP are dismissed.
                                              1
pleadings, the relevant law, and the entire record herein, defendant's motion is

GRANTED and plaintiffs motion is DENIED.

                                    BACKGROUND

       Plaintiff is a federal inmate incarcerated at the McRae Correctional Facility in

Georgia. See Docket Entry No.8, Mar. 22, 2010. Plaintiff pleaded guilty to and is

currently serving a sentence of 240 months in prison for conspiracy to distribute and

possession with intent to distribute heroin in violation of21 U.S.C. §§ 846, 841(a)(1),

and 841(b)(1)(A)(i). Adionser v. United States, 2006 WL 2709694, at *1-2 (E.D. Va.

Sept. 21, 2006).

       Between the years of 2004 and 2009, plaintiff submitted a total of twelve FOIA

requests to defendant. Specifically, he submitted three requests to EOUSA (Request Nos.

07-3339,08-4329,09-1047); two to FBI (Request Nos. 1074188-00 and 1117918-00);

two to BOP (Request Nos. 2005-01434 and 2007-05753); and five to DEA (Request Nos.

07-0749-P, 07-0730-F, 08-0101-F, 08-1431-P, 09-0386-P).2 Although EOUSA, FBI,

BOP, and DEA released in full and, in part, some of the documents responsive to

plaintiffs request, it redacted or withheld from release the remainder pursuant to Federal

Rule of Criminal Procedure 6( e) ("Rule 6( e)"); FOIA exemptions 2, 3, 5, 6, 7(A), 7(C),




2See EOAUSA Ex. C to Def.'s Mot.; EOUSA Ex. 0 to Def.'s Mot., Nov. 18,2008;
EOUSA Ex. R to Def.'s Mot., Jan. 6, 2009; FBI Ex. B to Def.'s Mot., Feb. 9,2007; FBI
Ex. D to Def.'s Mot., July 30, 2008; BOP Ex. C to Def.'s Mot., Nov. 18,2004; BOP Ex.
W to Def.'s Mot., Apr. 16,2007; DEA Ex. F to Def.'s Mot., Feb. 9,2007; DEA Ex. H to
Def.'s Mot., July 25, 2007; DEA Ex. U to Def.'s Mot., July 12,2007; DEA Ex. CC to
Def.'s Mot., July 30, 2008; DEA Ex. MM to Def.'s Mot., Jan. 7,2009.
                                             2
7(D), 7(E), 7(F); and Privacy Act exemptionj(2).3 Further, DEA and BOP declined to

release documents and recordings for which third party authorization was not provided. 4

      On January 6, 2010, plaintiff filed this lawsuit against defendant, alleging it had

failed to comply with FOIA and the Privacy Act. 5 See Docket Entry l. On July 9, 2010,

defendant filed a motion for summary judgment contending that it fulfilled its FOIA and

Privacy Act obligations. Def.'s Mot. at l. On December 20,2010, plaintiff filed a cross-

motion for summary judgment, asserting that defendant has not shown that it conducted

adequate searches for responsive documents, did not reasonably segregate non-exempt

information from statutorily exempt information, and did not establish that any of the

exemptions claimed were appropriate. See Pl.'s Opp'n at 3-4 (EOUSA), 12-14 (FBI), 22

(DEA), 40 (BOP).6 Plaintiff further asserts that the declaration of David M. Hardy

("Hardy Decl."), Section Chief of the FBI's Record Management Division in charge of




3 See EOUSA Ex. H to Def.'s Mot., May 28, 2008; EOUSA Ex. Q to Def.'s Mot., Mar.
20,2009; EOUSA Ex. T to Def.'s Mot., June 11,2009; FBI Ex. C to Def.'s Mot., Apr. 2,
2007; FBI Ex. E to Def.'s Mot., Aug. 20, 2008; FBI Ex. F to Def.'s Mot., Sept. 17,2008;
FBI Ex. H to Def.'s Mot., Dec. 31,2008; DEA Ex. L to Def.'s Mot., Oct. 17,2007; DEA
Ex. S to Def.'s Mot., Mar. 19,2008; DEA Ex. T to Def.'s Mot., Mar. 26, 2008; DEA Ex.
Z to D to Def.'s Mot., June 18,2008; DEA Ex. Z to Def.'s Mot., June 18,2008; DEA Ex.
HH to Def.'s Mot., May 14,2009; DEA Ex. RR to Def.'s Mot., June 25, 2009.
4 See BOP Ex. H to Def.'s Mot., Mar. 17,2005; BOP Ex. J to Def.'s Mot., May 8, 2005;
BOP Ex. R to Def.'s Mot., Apr. 24,2006; BOP Ex. X to Def.'s Mot., May 23,2007;
DEA Ex. H to Def.'s Mot., July 25, 2007.
5 FBI subsequently conducted a second search for responsive documents for FOIA
request number 1074188-00. 5 Declaration of David M. Hardy ~ 22, FBI Ex. A, June 28,
2010. DEA also conducted a second search for responsive documents for FOIA request
numbers 08-1431-P, 07-0749-P, and 09-0386-P. Declaration of Katherine L. Myrick ~
49, DEA Ex. A to Def.'s Mot., June 7, 2010.
6 Plaintiff does not challenge the reasonableness of the search conducted by BOP.
                                            3
responding to FOIA and Privacy Act requests, and the Vaughn indices 7 submitted by

EOUSA and DEA are inadequate. 8 See PI. Opp'n at 4 (EOUSA), 12 (FBI), and 29

(DEA). For all the reasons set forth below, this Court disagrees and GRANTS summary

judgment in favor of defendant.

                                        ANALYSIS

    I.      Summary Judgment Standard

         "When assessing a motion for summary judgment under FOIA, the Court shall

determine the matter de novo." Judicial Watch, Inc. v. Us. Dep't a/Homeland Sec., 598

F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B». Summary judgment is

appropriate when the record demonstrates that there is no genuine issue of material fact in

dispute and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ.

P. 56( a). The moving party bears the burden, and the court will draw "all justifiable

inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477

u.S. 242, 255 (1986). Nevertheless, the non-moving party "may not rest upon the mere

allegations or denials of his pleading, but ... must set forth specific facts showing that

there is a genuine issue for trial." Id. at 248 (internal quotations omitted). Factual

assertions in the moving party's affidavits may be accepted as true unless the opposing

party submits its own affidavits, declarations, or documentary evidence to the contrary.

Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992).

         In a FOIA action, an agency must "demonstrate beyond material doubt that its

7 A Vaughan index is an index of documents that include justifications for an agency's
full or partial withholdings.
8 Plaintiff does not challenge the adequacy of the Vaughn index submitted by BOP.

                                              4
search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena

v.   us.   Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't a/State,

897 F.2d 540, 542 (D.C. Cir. 1990)). To meet its burden, the agency may submit

affidavits or declarations that explain in reasonable detail the scope and method of the

agency's search, which, in the absence of contrary evidence, are sufficient to demonstrate

an agency's compliance with FOIA. See Perry v. Block, 684 F.2d 121,126-27 (D.C. Cir.

1982) (per curiam).

           Further, with respect to an agency's non-disclosure decisions, the court may rely

on affidavits or declarations if they describe "the justifications for non disclosure with

reasonably specific detail, demonstrate that the information withheld logically falls

within the claimed exemption, and are not controverted by either contrary evidence in the

record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F .2d

724,738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption

of good faith, which cannot be rebutted by purely speculative claims about the existence

and discoverability of other documents." Sa/eCard Servs., Inc. v. SEC, 926 F.2d 1197,

1200 (D.C. Cir. 1991) (internal quotation omitted). "Ultimately, an agency's justification

for invoking a FOIA exemption is sufficient ifit appears logical or plausible." Wolfv.

CIA, 473 F.3d 370,374-75 (D.C. Cir. 2007) (internal quotations omitted).



     II       Adequacy a/the EOUSA and DEA Vaughn Indices and the Hardy Declaration

           The EOUSA Vaughn Index and the DEA Vaughn Index, together with the

declaration of Katherine L. Myrick ("Myrick Declaration"), are sufficiently specific,

                                                5
detailed, and separable to satisfy defendant's burden under Vaughn. See Johnson v. Exec.

Office for Us. Attys., 310 F.3d 771,774 (D.C. Cir. 2002); Judicial Watch, Inc. v. FDA,

449 F.3d 141, 146 (D.C. Cir. 2006). They provide a detailed description of each

document withheld in whole or in part, including the total number of pages of the

document, date of the document (when applicable), and the author and intended recipient

of the document (when known). See EOUSA Vaughn Index; DEA Vaughn Index.

Further, they provide the statutory provisions under which the information is withheld for

each document and an explanation as to why that information should be exempted under

the applicable statutory provisions. Id.

       Additionally, the Hardy Declaration is sufficiently specific, detailed, and separable

to satisfy defendant's burden under Vaughn because the declaration provides "a

reasonable basis to evaluate [each] claim of privilege." See Judicial Watch, 449 F.3d at

146 (internal quotation omitted); see also Fischer v. Us. Dep 't ofJustice, 596 F. Supp.

2d 34, 43-44 (D.D.C. 2009). In particular, the Hardy Declaration explains that each

redaction or withheld page is annotated with one or more codes that reference the FBI's

reasoning for why documents are redacted or withheld and that refer back to detailed

explanations laid out in the Declaration. Hardy Decl.   ~~   25-26; FBI Ex. I to Def.'s Mot.

The explanations contain the statutory provisions under which the information is

withheld as well as the subcategories, which explain in more detail what the information

is and why the information should be exempted under the applicable statutory provisions.

See Hardy Decl.   ~~   27; 30, 32,42,44,46,49, 52.



                                             6
   III.      Adequacy of the Searches

          An agency's search is adequate if its methods are reasonably calculated to locate

records responsive to a FOIA request. See Oglesby v.      us. Dep 't of the Army, 920 F.2d
57,68 (D.C. Cir. 1990). An agency need not search every records system so long as it

conducts "a reasonable search tailored to the nature of a particular request." Campbell v.

us. Dep't ofJustice, 164 F.3d 20, 28 (D.C. Cir. 1998).      Indeed, "the adequacy of a FOIA

search is generally determined not by the fruits of the search, but by the appropriateness

of the methods used to carry out the search." Iturralde v. Comptroller of the Currency,

315 F .3d 311, 315 (D.C. Cir. 2003) (internal citation omitted); see Hornbostel v.         Us.
Dep 't of the Interior, 305 F. Supp. 2d 21,28 (D.D.C. 2003).

          Here, plaintiff is challenging the adequacy of the EOUSA's search based on the

results of the search rather than the actual method by which the EOUSA conducted its

search. See Pl.'s Opp'n ~~ 6-7,9-12. However, as our case law makes clear, ultimately,

the results of a search do not determine whether the search is adequate. Here, the

procedures described in the declarations of Dione J. Steams ("Steams Decl.") and Doreen

Gonzoph ("Gonzoph Decl. ") explain in reasonable detail the scope and method of the

EOUSA's search. See Steams Decl.         ~~   12,27; Gonzoph Decl.   ~~   5-7, 9-10. The

database searched allowed EOUSA to conduct a search by using an individual's name or

case number-which is appropriate given plaintiffs request for records pertaining to his

criminal case. See Steams Decl.     ~~   5, 19,23,27; Gonzoph Decl.       ~   5. Thus, Steams and

Gonzoph declarations sufficiently demonstrate the EOUSA's compliance with FOIA's

search requirements.

                                                 7
          a. FBI Search

       Although plaintiff challenges the adequacy of the FBI's search for records

pursuant to request number 1074188-00, plaintiff has failed to exhaust his administrative

remedies and, therefore, judicial review is barred. 9 See Hidalgo v. FBI, 344 F.3d 1256,

1258-59 (D.C. Cir. 2003); Dettmann v. Us. Dep't 0/ Justice, 802 F.2d 1472, 1476

(D.D.C. 1986) ("[E]xhaustion of [administrative] remedies is required in FOIA cases.").

          b. DEA Search

       The Myrick Declaration sufficiently demonstrates the DEA's compliance with

FOIA's search requirements. 10 See Perry, 684 F.2d at 127. Although it is unclear on

what basis plaintiff is challenging the adequacy of the DEA's searches,1I the procedures


9  Plaintiff alleges for the first time that the FBI failed timely to respond to his FOIA
request within the statutorily required twenty days. Pl.'s Opp'n,-r 51; see 5 U.S.C. §
552(a)(6)(C)(i); Citizens/or Responsibility & Ethics in Washington v. Bd. o/Governors
o/Fed. Reserve Sys., 669 F. Supp. 2d 128,129 (D.D.C. 2009). However, because FBI
responded to plaintiffs request prior to the filing of his complaint, plaintiff has not
constructively exhausted his administrative remedies and judicial review is barred. Id.
("[W]hen an agency responds to the request after the twenty-day statutory window but
before the requester initiates a lawsuit, the administrative exhaustion requirement still
applies and judicial review is barred."). Although plaintiff exhausted his administrative
remedies with respect to request number 1117908-00, see Compl. at p. 4, he does not
challenge the adequacy and reasonableness of that search. See Pl.'s Opp'n,-r,-r 55-64.
 10 Because EOUSA identified responsive documents and referred them to DEA for
Request Numbers 06-0565-P and 08-1343-P, DEA did not conduct a separate search for
responsive documents for those requests.
II A liberal reading of the briefing suggests that plaintiff challenges the adequacy of
DEA's original searches based on the timeliness of the searches. Pl.'s Opp'n,-r,-r 102-04,
110-l2, 122, 125-27, 134. However, an "untimely response does not entitle plaintiff to
judgment in his favor." Jacobs v. Federal Bureau 0/ Prisons, 725 F. Supp. 2d 85, 89
(D.D.C. 2010) (internal citation omitted). "Once the Court determines that the agency
has, however belatedly, released all nonexempt material, [it has] no further judicial
function to perform under the FOIA." Id. (internal quotation omitted); see Tijerina v.
Walters, 821 F.2d 789,799 (D.C. Cir. 1987). As discussed in Section VI, DEA has
                                             8
described in the Myrick Declaration explain in reasonable detail the scope and method of

the agency's search, and sufficiently demonstrates the DEA's compliance with FOIA's

search requirements. See Myrick Decl.     ~~   56, 58-60; Campbell, 164 F.3d at 28; Perry,

684 F.2d at 127. Because the Investigative Reporting and Filing System ("IRFS") is the

only DEA records system that would contain criminal investigative records responsive to

plaintiffs request seeking all DEA records relating to him, see Myrick Decl.     ~   53, it is

reasonable that documents pertaining to plaintiff and his criminal case would be found

within the IRFS. DEA used the Narcotics and Dangerous Drugs Information System

("NADDIS") to retrieve records from IRFS. Id.       ~   55. Thus, the search was reasonably

tailored to plaintiffs request. See Campbell, 164 F.3d at 28.

   IV      Segregability

        An agency claiming that a document is exempt under FOIA must, after excising

the exempted information, release any reasonably segregable information unless the non-

exempt information is inextricably intertwined with the exempt information. Trans-Pac.

Policing Agmt. v.   Us.   Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999).

        Here, the EOUSA, FBI, DEA, and BOP released all reasonably segregable non-

exempt material. As the Stearns Declaration adequately states, "[ e]ach document was

evaluated [by EOUSA] to determine if any information could be segregated and released"

and the documents withheld could not be released "without destroying the integrity of the



released all non-exempt material and therefore, this issue is moot. See Crooker v. us.
State Dep't, 628 F.2d 9,10 (D.C. Cir. 1980) ("Once the records are produced the
substance of the controversy disappears and becomes moot since the disclosure which the
suit seeks has already been made.") (internal citation omitted).
                                                9
document." Steams Decl. ,-r 56. Additionally, the Hardy Declaration sufficiently states

that "[ e]very effort has been made [by the FBI] to provide plaintiff with all material in the

public domain and with all reasonably segregable portions of releasable material." Hardy

Decl. ,-r,-r 22, 53. Further, as the Myrick Declaration adequately explains, "[a]ll responsive

pages were examined [by DEA] to determine whether any reasonably segregable

information could be released" and, with regard to the records withheld in full, the non-

exempt information was inextricably intertwined with the exempt information, such that

redaction would result in incomprehensible document. Myrick Dec. ,-r 104. Finally, as

the declaration of Larry Collins ("Collins Decl.") sufficiently states, plaintiff did not

provide consent of all third parties to the calls for release of their portions of the

conversations, and because BOP does not have the equipment necessary to edit digitally

stored recordings, the "withheld recordings of telephone conversations cannot be

segregated and release of the unedited recordings would result in an unwarranted

invasion of personal privacy of other individuals." Collins Decl. ,-r,-r 39, 41.

       In the absence of contrary evidence or specific cites to potentially unsegregated

documents, the declarations are afforded the presumption of good faith.12 See SafeCard

Servs., 926 F.2d at 1200. The Vaughn indices, declarations, and annotations identify the


12 Plaintiff cites as an example of DEA's failure to segregate, the 762 pages withheld by
DEA. See Pl.'s Opp'n at,-r,-r 146,205. Although plaintiff contends the documents solely
belong to him, plaintiff provides no support for his contention. Id. The Myrick
Declaration, which lists the exemptions claimed for each document, together with Ms.
Myrick's description of the documents, are sufficient for this Court to assess whether
Defendant has properly invoked the exemptions. See infra Sec. IV. This Court finds,
therefore, that plaintiff has failed to provide evidence controverting the Myrick
Declaration's claims.
                                               10
exemptions claimed for each individual document and indicate that any information that

could be segregated, was released. Therefore, I easily find that all reasonably segregable

non-exempt material has been released.

   V.      FOIA and Privacy Act Exemptions

        Under the law of our Circuit, "[i]f an agency's statements supporting exemption

contain reasonable specificity of detail as to demonstrate that the withheld information

logically falls within the claimed exemption and evidence in the record does not suggest

otherwise, ... the court should not conduct a more detailed inquiry." Larson, 565 F.3d at

865. Here, plaintiff challenges defendant's invocation ofFOIA Exemptions 2, 3, 5, 6,

7(A), 7(C), 7(D), 7(E), and 7(F), and Privacy Act Exemptionj(2).13 Plaintiff fails,

however, to put forth any evidence to counter the detailed explanations regarding these

claimed exemptions included in the Vaughn indices and declarations. Therefore, based

on the Vaughn indices, Myrick Declaration, and Hardy Declaration, this Court finds, for

the following reasons, that defendant's justifications for invoking these FOIA exemptions

are sufficient under the law of our Circuit. See id. at 862.

        A. FOIA Exemption 2

        Exemption 2 shields from disclosure information that is "related solely to the

13 Plaintiff also challenges DEA's withholding of four pages of sealed records. Myrick
Decl. ,-; 73. Plaintiff contends that pages 1284-88 consist of one document, which he
concedes was correctly withheld by DEA. Pl.'s Opp'n'-; 153. However, plaintiff notes
that DEA refers to "documents" withheld; therefore, plaintiff challenges the withholding
of any pages beyond pages 1284-88. Id. The only pages under seal withheld by DEA are
pages 1284-88, which consist of the government's motion for downward departure and a
memorandum in support of that motion. Myrick Decl. ,-; 73. I thus believe that plaintiff
mistakenly considers those two documents as one document. Because plaintiff concedes
that DEA properly withheld pages 1284-88, no challenge remains.
                                              11
internal personnel rules and practices of an agency." 5 U.S.C. § 552(b )(2). DEA asserted

Exemption 2 to protect the release of the following: Geographical Drug Enforcement

Program ("G-DEP") identifier codes, NADDIS numbers, and internal phone and fax

numbers of DEA employees. See Myrick Decl.        ~   83; DEA Vaughn Index Doc. Nos. 1-2,

17-312,564-65,751,790-828,837-48,853-919, 922-23, 933-93,1001,1003,1012,

1020-24, 1028-38. As other judges in our court have concluded previously, G-DEP,

NADDIS, telephone, and fax numbers are properly withheld pursuant to Exemption 2.

See Wilson v. Drug Enforcement Admin., 414 F. Supp. 2d 5, 12-l3 (D.D.C. 2006); Ray v.

FBI, 441 F. Supp. 2d 27,33 (D.D.C. 2006).

       B. FOIA Exemption 3

       Exemption 3 allows an agency to withhold information otherwise exempted by

statute. 5 U.S.C. § 552(b)(3). The EOUSA withheld information based on Rule 6(e),

which relates to matters "occurring before the grand jury." Fed. R. Crim. P. 6( e).

Information can be withheld under Rule 6( e) if "disclosure would tend to reveal some

secret aspect of the grand jury's investigation[,] such matters as ... the strategy or

direction of the investigation." Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d

728, 732 (D.C. Cir. 2008) (citations omitted).

       EOUSA asserted Exemption 3 (in combination with Exemptions 5, 6, 7( c), and

7(d)) to protect grand jury records that are prohibited from release pursuant to Rule 6(e).

See EOUSA's Vaughn Index, Doc. 24. The Steams Declaration clearly states that the

material withheld consists of "grand jury transcripts and attorney notes associated with a

grand jury proceeding," the release of which "would reveal the scope of the grand jury

                                             12
and the direction of the investigation by providing the identities of the targets of the

investigation, the source of the evidence, as well as the actual evidence produced before

the grand jury." Stearns Decl.,-r,-r 36-37. Because the release of such infonnation is

prohibited, I conclude that EOUSA properly withheld the grand jury records under

Exemption 3.

       The FBI withheld records consisting of intercepted communications, which are

specifically protected from disclosure by Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510-2520. See Hardy Decl.,-r 32

("Information withheld includes telephone subscriber information and names of targeted

individuals for the Title III intercepts."). Because Exemption 3 allows the withholding of

infonnation relating to the lawful interception of communications by the FBI pursuant to

Title III, the FBI properly withheld the records under Exemption 3. Delviscovo v. FBI,

903 F. Supp. 1,2 (D.D.C. 1995); see Lam Lek Chong v.       us. Drug Enforcement Admin.,
929 F.2d 729, 733 (D.C. Cir. 1991).

       C. FOIA Exemption 5

       FOrA Exemption 5 exempts from disclosure "inter-agency or intra-agency

memorandums or letters which would not be available by law to a party other than an

agency in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for this

exemption, a document "must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it." Dep 't of

the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1, 8 (2001). Courts have

incorporated certain civil discovery privileges into Exemption 5, such as attorney-work

                                              13
product and the "deliberative process" privilege. See Nat 'I Labor Relations Ed. v. Sears,

Roebuck & Co., 421 U.S. 132,148-49 (1975); Coastal States Gas Corp. v. Dep't of

Energy, 617 F .2d 854, 862 (D.C. Cir. 1980). Here, EOUSA asserts attorney-work

product for documents 4-13, 15, 17-20, and 22-24; and deliberative process privilege for

documents 5, 13, 15, 17-20, and 22-24. See EOUSA Vaughn List.

       The attorney-work product doctrine protects records prepared by or for an attorney

in anticipation oflitigation. See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947);

Coastal States Gas Corp., 617 F.2d at 864. The materials disclosed by EOUSA were

prepared by or at the request of an Assistant U.S. Attorney in anticipation of or during

litigation of plaintiff's criminal case. 14 Steams DecI. ,-r 40. As clearly stated by the

Steams Declaration, the materials were withheld to protect records reflecting "such

matters as trial preparation, trial strategy, interpretations, and personal evaluations and

opinions pertinent to Plaintiff's criminal case." Id. Thus, EOUSA properly withheld

these materials pursuant to Exemption 5.

       The deliberative process privilege exempts from disclosure documents containing


14 Plaintiff contends EOUSA has falsely asserted Exemption 5. Plaintiff cites to a two-
page unsigned letter dated June 14,2005 written by AUSA Laura P. Tayman, which
EOUSA withheld under Exemption 5. See PI.'s Opp'n,-r 32; EOUSA Vaughn Index,
Doc. 4. Plaintiff contends this letter falsely was withheld because AUSA Tayman had
sent a copy of that same letter to Plaintiff. See PI.'s Opp'n,-r 32, PI. Ex. 46. However,
the letter Plaintiff received was a final, signed version of the letter, whereas EOUSA
withheld an unsigned, draft of the letter. See EOUSA Vaughn Index, Doc. 4. Plaintiffis
not entitled under Exemption 5 to that draft. Plaintiff further contends that an e-mail
falsely was withheld under Exemption 5 because it was written after Plaintiff was
convicted. PI.'s Opp'n ,-r 32. The e-mail, however, pertains to continued litigation,
specifically Plaintiff's pending post-conviction motion, and was not withheld pursuant to
Exemption 5. See EOUSA Vaughn Index, Doc. 21.
                                              14
deliberations comprising part of a process by which governmental decision and policies

are made so long as they are "predecisional." See Klamath, 532 U.S. at 8; Sears, 421

U.S. at 151-53. EOUSA asserted the deliberative process privilege to protect a witness

immunity request, handwritten attorney's notes, a warrant affidavit, a property list, a case

timeline, and attorney correspondence, all of which "contain pre-decisional and

deliberative information related to matters that were being considered by the USAO and

other federal and state agencies for possible criminal action against Plaintiff." Steams

Decl. ~ 41; see EOUSA Vaughn Index Doc. Nos. 5, 13, 15, 17-20,22-24. As sufficiently

stated by the Steams Declaration, "[ d]isclosure would jeopardize the candid and

comprehensive discussions that are essential for efficient and effective agency decision-

making" with respect to litigation strategy. Steams Decl.   ~   4l. Therefore, EOUSA

properly invoked Exemption 5 to protect these records.

       D. FOIA Exemption 7(A)

       DEA withheld information under FOIA exemption 7(A), which protects from

disclosure "records or information compiled for law enforcement purposes" if disclosure

"could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. §

552(b)(7)(A). To justify withholding information pursuant to Exemption 7(A), the

agency must demonstrate that "disclosure (1) could reasonably be expected to interfere

with (2) enforcement proceedings that are (3) pending or reasonably anticipated."

Mapother v. Us. Dep't ofJustice, 3 F.3d 1533,1540 (D.C. Cir. 1993).

       Here, DEA invoked Exemption 7(A) (in conjunction with Exemptions 2, 7(C),

7(D), and 7(F)) to protect from disclosure information relating to file number GW-02-

                                             15
0032. See Myrick Decl.     ~   81; DEA Vaughn Index, Page Nos. 313-563, 566-750, 752-84,

787-89,829-36,849-52,920-21,924-32,1017-18, 1039-1283, 1289, and 1305-14. That

file is a criminal investigative record compiled pursuant to DEA's law enforcement

authority, see 21 U.S.C. § 801, et. seq., and consists of criminal law investigations of

plaintiff and third parties. See Myrick Decl.   ~~   78-79. The file relates to an open

proceeding-specifically, a co-defendant's pending criminal appeal. Myrick Decl.            ~~   80-

81. For purposes of Exemption 7(A), a pending appeal of a criminal conviction qualifies

as an ongoing law enforcement proceeding. See Kidder v. FBI, No. 05-1094, 2007 WL

1020784, at *8 (D.D.C. Mar. 29, 2007); Kansi v. Us. Dep 't ofJustice, 11 F. Supp. 2d 42,

44 (D.D.C. 1998). Further, because co-defendant's conviction is not final, disclosure of

the withheld materials could reasonably be expected to interfere with the ongoing

criminal proceeding. As the Myrick Declaration clearly states, disclosure of details from

the withheld material "would reveal the scope, direction, nature and pace of the

investigation as well as reveal information that could harm the government's prosecution

in the criminal appellate process." Myrick Decl.      ~   8l. "If the information is released, the

individuals who are of investigative interest in this case could use the information to

develop alibis, create factitious defenses or intimidate, harass or harm potential

witnesses." Id.; see Kansi, 11 F. Supp. 2d at 44 ("The potential for interference with

witnesses and highly sensitive evidence that drives the 7(A) exemption exists at least

until [the] conviction is final.") (internal citations omitted).

       Therefore, because the file was created for law enforcement purposes and

disclosure of the withheld information could reasonably be expected to interfere with a

                                               16
pending law enforcement proceeding, DEA has properly asserted Exemption 7(A).




       E. FOIA Exemption 7(C/ 5

       Exemption 7 applies to "records or information compiled for law enforcement

purposes," if disclosure of such records would lead to one of various enumerated harms.

5 U.S.C. § 552(b)(7). Exemption 7(C), in particular, protects information that "could

reasonably be expected to constitute an unwarranted invasion of personal privacy." 5

U.S.C. § 552(b)(7)(C). Thus, in determining the applicability of Exemption 7(C), the

Court must balance the interests advanced by FOIA's disclosure requirements against the

privacy interests of the individuals mentioned in the records. Beck v.   Us. Dep 't of
Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). "Because the FOIA is concerned with the

right of the general public to know what their government is up to, the identity and

interest of the party requesting the document are irrelevant to this balancing." Mays v.

DEA, 234 F.3d, 1324, 1327 (D.C. Cir. 2000). This applies equally to individuals, like

plaintiff, seeking information to challenge a criminal conviction. See Willis v.   Us. Dep't


15Both Exemption 7(C) and Exemption 6 protect individual's privacy interest, when
balanced against the public interest in disclosure. Accordingly, the Stems and Hardy
Declarations makes clear that all information withheld under Exemption 6 is also
withheld under Exemption 7(C). See Steams Decl. ~ 47; Hardy Decl. ~ 37. Further,
plaintiffs challenges to Exemption 6 are combined with his challenges to Exemption
7(C). PI. Opp'n ~~ 35, 77. Therefore, because the analysis under both is also the same,
see Durrani v. us. Dep't ofJustice, 607 F. Supp. 2d 77, 90, n.4 (D.D.C. 2009), this
Court will only undertake an analysis under Exception 7(C).
                                             17
ofJustice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008); Pl.'s Opp'n ~~ 13-15,26,60,95,97.

        Here, EOUSA, FBI, DEA, and BOP asserted Exemption 7(C) to withhold

information clearly compiled for "law enforcement purposes." See 5 U.S.C. § 552(b)(7);

EOUSA Vaughn Index, Docs. 1-3,5-24; Hardy Decl.                ~    42-46; Myrick Decl.   ~   92; Collins

Decl.   ~   38. The declarations state that information withheld under Exemption 7(C)

relates to the identity of third parties, special agents, government employees, and local

law enforcement personnel who participated in the investigation and prosecution of

plaintiffs case. Steams Decl.        ~~   43-44; Hardy Decl.   ~~   38,43,45; Myrick Decl.      ~   92;

Collins Decl.    ~   38. It is well settled that these individuals have a substantial interest in

their anonymity. Nation Magazine v. Us. Customs Serv., 71 F.3d 885, 893-96 (D.C. Cir.

1995); Coleman v. FBI, 13 F. Supp. 2d 75, 80 (D.D.C. 1998). As there is no public

interest asserted by plaintiff that outweighs such a substantial privacy interest, see Mays,

234 F .3d at 1327, defendant correctly withheld the information under Exemption 7(C).16

        F. FOIA Exemption 7(D)

        Exemption 7(D) protects "the identity of a confidential source," if the information

16 Plaintiff contends that certain documents should be released because he is aware of the
identities of some of the parties involved. See Pl.'s Opp'n ~~ 38,41,78, 162. "The fact
that the requester might be able to figure out the individuals' identities through other
means or that their identities have been disclosed elsewhere does not diminish their
privacy interests for purposes" of Exemption 7. Judicial Watch, Inc. v. FBI, 2001 WL
35612541, at *6 (D.D.C. 2001) (internal citation omitted); Weisbergv. Dep'tofJustice,
745 F.2d 1476, 1491 (D.C. Cir. 1984). While public disclosure of documents may lead to
the waiver of the FOIA exemption, the plaintiff bears the initial burden of showing that
the requested information: (1) is as specific as the information previously disclosed; (2)
matches the information previously disclosed; and (3) was made public through an
official and documented disclosure. See Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
1999); Fitzgibbon v. CIA, 911 F.2d 755,765 (D.C. Cir. 1990). Plaintiff has failed to meet
this burden.
                                                   18
was furnished on a confidential basis, and "information furnished by a confidential

source," if compiled by a law enforcement authority during the course of a criminal

investigation. 5 U.S.C. § 552(b)(7)(D). As FOIA exemptions must be narrowly

construed, an agency is not entitled to a presumption of confidentiality with respect to its

sources. Us. Dep'tofJustice v. Landano, 508 U.S. 165, 181 (1993). The exemption's

applicability, therefore, "depends upon whether the particular source who furnished the

information at issue was granted confidentiality, either expressly or by implication."

Mays, 234 F.3d at 1328.

       Here, there is no question that the information provided by the FBI was compiled

for law enforcement purposes, by a criminal law enforcement authority, and during the

course of a criminal investigation. Plaintiff, however, contends that the defendant has

failed to provide information sufficient for this Court to determine whether the

information was provided by a confidential source and on a confidential basis, either

expressly or by implication. 17 PI. Opp'n ~~ 45, 50, 91, 169. I disagree.

       Here, EOUSA, FBI, and DEA asserted Exemption 7(D) to protect the identities of

confidential informants and the information they provided to law enforcement officers.

Stearns Deci.   ~~   53-54; see EO USA Vaughn Index Doc. Nos. 5-12,19,24; Hardy Deci.     ~~


48-49; Myrick Deci.     ~~   93,97. Of the third parties who provided information to

17Plaintiff also asserts that the documents were improperly withheld because some of the
confidential informants have been revealed. See PI.'s Opp'n ~ 87. This argument,
however, is irrelevant to this analysis. What is dispositive is whether the source
understood that the information provided would be kept confidential at the time the
information was disclosed. See Landano, 508 U.S. at 172; Sellers v. Us. Dep't of
Justice, 684 F. Supp. 2d 149, 162 (D.D.C. 2010).

                                                19
EOUSA, FBI, and DEA, some provided information pursuant to an express assurance of

confidentiality, while others provided information under circumstances supporting an

inference of an assurance of confidentiality. Steams Decl.        ~   53; Hardy Decl.   ~   48;

Myrick Decl. ~ 93.

        With respect to information withheld based on an express grant of confidentiality,

the Steams and Myrick Declarations, along with the Vaughn Indices, refer to notations on

the withheld documents-specifically the EOUSA's "CI" notation and the DEA

confidential informant code. See Steams Decl.       ~   53; EOUSA Vaughn Index; Myrick

Decl.   ~   94; DEA Vaughn Index. Such notations provide probative evidence that the

source received an express grant of confidentiality. See Mays v. DEA, 234 F .3d l324,

l328-29 (D.C. Cir. 2000) (internal quotation marks omitted).

        With respect to information withheld based on an implied grant of confidentiality,

the Steams Declaration explains that the third parties "supplied information to law

enforcement officers in connection with drug distribution which is characterized as

violent." Steams Decl.     ~~   52-53. Similarly, the FBI's and DEA's informants provided

information regarding plaintiffs illicit drug activities and were provided implied

assurances of confidentiality for doing so. Hardy Decl.      ~   48; Myrick Decl. ~~ 95-96.

This Court has noted that that "[t]he nature of the crime investigated and informant's

relation to it are the most important factors in determining whether implied

confidentiality exists." Amuso v. Us. Dep 't ofJustice, 600 F. Supp. 2d 78, 100 (D.D.C.

2009). The "violence and risk of retaliation attendant to drug trafficking warrant an

implied grant of confidentiality to a source who provides information to investigators."

                                               20
Lasko v.     Us. Dep't 0/ Justice, 684 F. Supp. 2d 120,   134 (D.D.C. 2010); see Mays, 234

F.3d at 1331. It is reasonable to conclude that these sources disclosed information in

confidence due to the fear of reprisal. See Mays, 234 F.3d at 1329. Therefore, EOUSA,

FBI, and DEA properly withheld documents pursuant to Exemption 7(D).

           G. FOIA Exemption 7(E)

           Exemption 7(E) protects from disclosure law enforcement records to the extent

that their production "would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law enforcement

investigations or prosecutions if such disclosure would reasonably be expected to risk

circumvention of the law." 5 U.S.C. § 552(b)(7)(E); see       Us.   Dep't a/Commerce, 337 F.

Supp. 2d at 181 ("[E]ven commonly known procedures may be protected from disclosure

if the disclosure could reduce or nullify their effectiveness.") (internal citation omitted).

FBI properly applied this exemption to protect law enforcement techniques and

procedures that relate to the identification and contents of the FBI databases. Hardy

Decl.   ~~   51-52. Hardy provides a reasonable explanation for why disclosure of such

infonnation could impede investigations. See id.     ~    52. Further, "longstanding

precedent" of this Court and our Court of Appeals supports FBI's withholding. Sussman

v.   us.   Marshals Serv., 494 F.3d 1106, 1112 (D.C. Cir. 2007) (citing Blanton v. Dep't 0/

Justice, 64 F. App'x 787,788-89 (D.C. Cir. 2003); see        Us.   Dep't a/Commerce, 337 F.

Supp. 2d at 181 ("Exemption 7(E) affords categorical protection for techniques and

procedures used in law enforcement investigations or prosecutions.") (citations and

internal quotation marks omitted). Therefore, the FBI properly withheld two pages of

                                               21
documents pursuant to Exemption 7(E).

        H FOIA Exemption 7(F)

        Finally, the DEA withheld information under Exemption 7(F), which protects

from disclosure information that "could reasonably be expected to endanger the life or

physical safety of any individual." 5 U.S.C. § 552(b )(7)(F). The DEA has asserted this

exemption (in combination with Exemptions 7(C) and 7(D)) to protect the identities of

special agents, law enforcement officers, government employees, and confidential

sources of information because these individuals may be subject to physical attacks or

other threats to their lives if their identities are revealed. 18 See Myrick Decl. ,-r 98-102.

Therefore, the DEA properly applied Exemption 7(F) to protect the physical safety of

these individuals. 19 See Linn v. Us. Dep 't ofJustice., No. 92-1406, 1995 WL 417810, at

*12 (D.D.C. June 6, 1995) (holding that identities oflaw enforcement were properly
withheld to protect from physical harm) (citing Albuquerque Pub I 'g Co. v. Dep't of

Justice, 726 F. Supp. 851, 858 (D.D.C. 1989)); Jimenez v. F.B.I., 938 F. Supp. 21

(D.D.C. 1996) (holding that identities of confidential informants, special agents, and

government officials were properly withheld because their release could result in physical

attacks. ").

        1. Privacy Act Exemptionj(2)

        Exemption j(2) allows an agency "to exempt any system of records within the



18 Plaintiff contends that certain documents should be released because he is aware of the
identities of some of the parties involved. Pl.'s Opp'n,-r 170. See supra n.16.
19 Even if Exemption 7(F) had been improperly applied, DEA had properly withheld
these documents pursuant to Exemptions 7(C) and 7(D). See supra pp. 31, 34.
                                               22
agency ... if the system of records is ... maintained by an agency ... which performs as

its principal function any activity pertaining to the enforcement of criminal laws." 5

U.S.C. § 552aU)(2). With respect to the FBI, the records at issue here are found in the

FBI's Central Records System and relate to the FBI's criminal drug investigation of

plaintiff. Hardy Dec!.   ~   24. Accordingly, the FBI's application of Exemption U)(2) to

these records is appropriate. Similarly, with respect to DEA, the records at issue are

found in DEA's IRFS and relate to DEA's criminal drug investigation of plaintiff.

Myrick Dec!. ~~ 75, 78-79. Accordingly, the DEA's application of Exemption U)(2) to

these records is appropriate. Further, with respect to EOUSA, the criminal case files at

issue here are contained in a Privacy Act System of Records and relate to EOUSA's

enforcement of criminal law and criminal drug investigation of Plaintiff. Steams Dec!.      ~~


28-29; see also 28 C.F.R. § 16.81 (exempting U.S. Attorney's criminal files from

disclosure). Accordingly, the EOUSA's application of Exemption (j)(2) to these files is
        .     20
appropnate.




20Under FOIA, a plaintiff that has "substantially prevailed" is entitled to an award of fees
and costs incurred in litigating the case. See 5 U.S.C. § 552(a)(4)(E)(i). Plaintiff has not
"substantially prevailed," and, therefore, is not entitled to attorney's fees. Further, FOIA
does not award attorney's fees to a pro se non-attorney plaintiff. Benavides v. Bureau of
Prisons, 993 F.2d 257,260 (D.C. Cir. 1993); Strunkv. Us. Dep't of Interior, 752 F.
Supp. 2d 39, 45 (D.D.C. 2010). As to Plaintiffs other claims for damages and a finding
of arbitrary and capricious, they are unavailing.

                                               23
                                  CONCLUSION

      For all of the foregoing reasons, the Court GRANTS defendants' Motion for

Summary Judgment [#16] and DENIES plaintiffs Cross-Motion for Partial Summary

Judgment [#26]. An Order consistent with this decision accompanies this Memorandum

Opinion.



                                               :z~~
                                              RICHA~ON
                                              United States District Judge




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