                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


 ADARUS MAZIO BLACK,

    Plaintiff
                                                           Civil No. 13-1195 (CKK)
           v.

 U.S. DEPARTMENT OF JUSTICE, et al,

    Defendants.



                                     MEMORANDUM OPINION
                                       (September 23, 2014)

       Plaintiff Adarus Mazio Black submitted a Freedom of Information Act (“FOIA”) request

with the Executive Office for U.S. Attorneys (“EOUSA”) seeking all criminal files possessed by

the EOUSA referencing Aida Prendushi and all tape recordings and wiretaps which reference

Ms. Prendushi or Ms. Prendushi speaking to “John Beason, Waad Murad, Joey Murad, David

White, Joe Hermosillo, Case No. 06-CR-20385-MOB-SDP-1, Undercover Agents, and Reginald

Coleman.” Def.s’ Ex. A, ECF No. [22]. Dissatisfied with the agency’s refusal to search for

responsive documents pursuant to the Privacy Act, 5 U.S.C. § 552a, and FOIA Exemptions 6 and

7(C), Plaintiff filed suit against the Department of Justice and the EOUSA on August 2, 2013.

Presently before the Court is Defendants’ [22] Motion to Dismiss or, in the alternative, for

Summary Judgment and Plaintiff’s [29] Cross-Motion for Summary Judgment.                 Upon

consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the



       1
        Def.s’ Mot. to Dismiss or, in the alternative, for Summ. J. (“Def.s’ Mot.”), ECF No.
[22]; Decl. of David Luczynski (“Luczynski Decl.”), ECF No. [22-3]; Pl.’s Cross-Mot. for
Summ. J. (“Pl.’s Mot.”), ECF No. [29]; Pl.’s Opp’n. to Def.s’ Mot. (“Pl.’s Opp’n.”), ECF No.
[31]; Def.s’ Opp’n, to Pl.’s Cross-Mot. for Summ. J. and Reply to Pl.’s Opp’n. (“Def.s’
Court finds that Defendants have properly invoked Exemption 7(C) to justify their refusal to

conduct a search in response to Plaintiff’s FOIA request. Accordingly, Defendants’ [22] Motion

to Dismiss or, in the alternative, for Summary Judgment is GRANTED and Plaintiff’s [29]

Cross-Motion for Summary Judgment is DENIED.

                                       I.     BACKGROUND

     Plaintiff Adarus Mazio Black was convicted on May 29, 2009, in the Eastern District of

Michigan, Detroit Division, of Conspiracy to Distribute and Possession of Cocaine and

Marijuana for Intended Distribution, 21 U.S.C. §§ 841, 846. By letter dated February 27, 2013,

Plaintiff submitted a FOIA request for:

       All criminal files which in any fashion reference the name of the person, “Aida
       Prendushi” with the U.S. Attorney’s Office in Detroit, Michigan, Los Angelos
       [sic], California, and the Southern District of New York. I am requesting all tape
       recordings and wire taps (or the transcribed equivalents) which in any fashion
       reference “Aida Prendushi” in them. I am further requesting all tape recordings,
       wire recordings which involve or reference Aida Prendushi, speaking to John
       Beason, Waad Murad, Joey Murad, David White, Joel Hermosillo, Case No. 06-
       CR-20385-MOB-SDP-1, undercover agents and Reginald Coleman.

Def.s’ Ex. A, ECF No. [22-4]. By letter dated April 8, 2013, the EOUSA responded to Plaintiff

informing him that since his entire request was for records concerning third parties, those records

could not be released without “express authorization and consent of the third party, proof that the

subject of [the] request is deceased, or a clear demonstration that the public interest in disclosure

outweighs the personal privacy interest and that significant public benefit would result from the


Opp’n.”), ECF No. [34]; Pl.’s Reply to Def.s’ Opp’n. to Pl.’s Cross-Mot. for Summ. J. (“Pl.’s
Reply”), ECF No. [37]; Def.s’ Supp. Mem. (“Def.s’ Supp.”), ECF No. [48]; Supp. Decl. of
David Luczynski (“Supp. Luczynski Decl.”), ECF No. [48-1]; Pl.’s Supp. Reply (“Pl.’s Supp.
Reply”), ECF No. [50]. Shortly after filing his Cross-Motion for Summary Judgment and his
Opposition to Defendants’ Motion, Plaintiff also filed a document entitled “Motion to Compel
Production of a Vaughn Index.” The Court let this document be filed as part of Plaintiff’s Cross-
Motion for Summary Judgment, not as a separate motion. See ECF No. [33].

                                                 2
disclosure of the requested records.” Def.s’ Ex. B, ECF No. [22-4]. The EOUSA concluded that

since Plaintiff had not provided any of the above information, “the release of records concerning

a third party would result in an unwarranted invasion of personal privacy and be in violation of

the Privacy Act, 5 U.S.C. § 552a.” Id. The EOUSA also categorically denied the request

pursuant to sections (b)(6) and (b)(7)(C) of the FOIA, 5 U.S.C. § 552.2 Id. Plaintiff appealed

the denial of his request to the Office of Information Policy (“OIP”) on or around April 23, 2013.

See Def.s’ Ex. C, ECF No. [22-4]. OIP affirmed the EOUSA’s refusal to conduct a search for

the requested records finding that “any responsive request would be categorically exempt from

disclosure” pursuant to Exemption 7(C). Def.s’ Ex. E, ECF No. [22-4].

        On August 2, 2013, Plaintiff filed suit in this Court against the U.S. Department of

Justice and the EOUSA. Defendants moved the Court to dismiss this case or, alternatively, to

enter summary judgment in Defendants’ favor on December 17, 2013. On February 26, 2014,

Plaintiff filed a Cross-Motion for Summary Judgment.

        Defendants move the Court to dismiss this case or, alternatively, to enter summary

judgment in Defendants’ favor, arguing that Defendants properly refused to conduct a search for

responsive documents pursuant to FOIA Exemptions 6 and 7(C). Plaintiff cross-moves the Court

to enter summary judgment in his favor, arguing that Defendants improperly invoked Exemption

7(C).


        2
          The Luczynski Declaration which was submitted with Defendants’ Motion to Dismiss
or, in the alternative, for Summary Judgment gives a justification for the non-disclosure of
Plaintiff’s requested records under the Privacy Act, in addition to a justification under FOIA.
However, in their Motion, Defendants only rely on FOIA Exemptions 6 and 7(C) to withhold the
documents requested by Plaintiff, they do not rely on the Privacy Act. Nor does Plaintiff
challenge the Luczynski Declaration’s invocation of the Privacy Act in his briefing.
Accordingly, the Court shall focus its analysis on the applicability of FOIA Exemptions 6 and
7(C).

                                                3
       On June 24, 2014, the Court issued a Memorandum Opinion and Order holding in

abeyance the parties’ motions because the Court found it could not resolve the cross-motions

without further briefing. See ECF No. [39]. As Defendants did not respond to Plaintiff’s

argument that the records he requested must be disclosed because they are in the public domain,

the Court ordered Defendants to file supplemental briefing addressing whether Plaintiff had

made a sufficient argument for applying the public domain doctrine to his FOIA request and

whether all or any portion of the information requested by Plaintiff is actually in the public

domain. In addition, since Defendants did not provide any information as to whether the third

parties in Plaintiff’s FOIA request are alive or dead and did not explain any efforts Defendants

had undertaken to ascertain that information, the Court ordered Defendants to provide

supplemental briefing addressing the efforts they have made to ascertain the third parties’ life

status and any information they have regarding the third parties’ life status. The Court received

Defendants’ Supplemental Memorandum on August 29, 2014.              Plaintiff was afforded an

opportunity to respond to Defendants’ argument about Plaintiff’s invocation of the public

domain doctrine. Plaintiff filed a response on September 12, 2014. As the Court finds that both

motions are now fully briefed, this matter is ripe for review.

                                    II.     LEGAL STANDARD

       Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation and internal quotation marks omitted). Congress remained sensitive to the need to

achieve balance between these objectives and the potential that “legitimate governmental and

private interests could be harmed by release of certain types of information.” Critical Mass

Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)

                                                 4
(citation omitted) (internal quotation marks omitted), cert. denied, 507 U.S. 984 (1993). To that

end, FOIA “requires federal agencies to make Government records available to the public,

subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, 131

S.Ct. 1259, 1261-62 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of

the Act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusive,

and must be narrowly construed.” Milner, 131 S.Ct. at 1262 (citations and internal quotation

marks omitted).

       When presented with a motion for summary judgment in this context,3 the district court

must conduct a “de novo” review of the record, which requires the court to “ascertain whether

the agency has sustained its burden of demonstrating that the documents requested . . . are

exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep't of Agriculture, 515

F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its

response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden

by means of affidavits, but only if they contain reasonable specificity of detail rather than merely

conclusory statements, and if they are not called into question by contradictory evidence in the

record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).

“If an agency’s affidavit describes the justifications for withholding the information with specific

       3
         Defendants style their Motion as a motion to dismiss or, in the alternative, for summary
judgment. As both parties’ briefs rely on documents outside the Complaint, notably declarations
from David Luczynski, Attorney Advisor with the EOUSA, and several transcripts and letters
from a criminal proceeding, the Court will treat Defendants’ motion as a Motion for Summary
Judgment. See Highland Renovation Corp. v. Hanover Ins. Group, 620 F.Supp.2d 79, 82
(D.D.C. 2009) (“When ‘matters outside the pleadings are presented to and not excluded by the
court’ on a motion to dismiss under Rule 12(b)(6), ‘the motion must be treated as one for
summary judgment[.]’ ”). The Court also finds that neither party will be prejudiced by the
Court’s treatment of Defendants’ Motion as a motion for summary judgment as both parties have
treated Defendants’ Motion as a motion for summary judgment, providing the Court a statement
of material facts and an opposing statement of material facts. See Pl.’s Opp’n. at 20.
                                                5
detail, demonstrates that the information withheld logically falls within the claimed exemption,

and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil

Liberties Union v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).

“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the

exemption are likely to prevail.” Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504,

509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the

discovery materials on file, and any affidavits or declarations “show[] that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). With these principles in mind, the Court turns to the merits of the parties’

motions.

                                        III.   DISCUSSION

       Defendants seek summary judgment on the grounds that the agencies properly refused to

conduct a search for responsive documents pursuant to FOIA Exemptions 6 and 7(C). FOIA

Exemption 6 provides that an agency may withhold “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(6). Similarly, Exemption 7(C), in relevant part, permits an agency to withhold

“records or information compiled for law enforcement purposes, but only to the extent that the

production of such law enforcement records or information . . . could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). “The courts have

construed this provision as permitting exemption if the privacy interest at stake outweighs the

public’s interest in disclosure.” Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71

F.3d 885, 893 (D.C. Cir. 1995). As the Plaintiff does not dispute the fact that the records at issue

                                                 6
in this case were compiled for law enforcement purposes as required for Exemption 7(C), the

Court has “no need to consider Exemption 6 separately because all information that would fall

within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C).”

Roth v. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).

       Defendants provide a declaration from David Luczynski, Attorney Advisor with the

EOUSA, explaining that Defendants properly refused to search for the records requested by

Plaintiff because Plaintiff’s request exclusively concerns third-party information and Plaintiff did

not provide third-party authorization of the release of the requested records, proof that the third

party is deceased, or otherwise show that the public interest in disclosure outweighs the personal

privacy interest of the third party. Luczynski Decl. ¶¶ 5, 12. Specifically, Defendants contend

that they did not need to conduct a search because “all the tape and wire recordings of third party

witnesses were compiled for law enforcement purposes concerning the prosecution of the

Plaintiff” and the release of the identities and personal information about these third party

individuals could subject such persons to an unwarranted invasion of their personal privacy,

especially in light of the underlying conviction of narcotics distribution, “which is a serious

crime that often encompasses acts of violence and harm to those involved.” Def.s’ Mot. at 15;

Luczynski Decl. ¶ 11. Defendants further explain that they “also applied this exemption to

withhold the identities of individuals such as special federal agents, other government

employees, and local law enforcement personnel all of whom participated in the investigation

and prosecution of this case” because the “release of this information would seriously jeopardize

future investigations as their voices and other personal information would be known to the

public.” Def.s’ Mot. at 15.

       In response, Plaintiff argues that (1) no FOIA exemption can be invoked in this case

                                                 7
because the records sought were previously publicly disclosed; (2) Defendants have not

conducted a reasonable search because they have not made a determination as to whether the

putative beneficiaries of the 7(C) exemption are alive or dead; (3) Exemption 7(C) was not

properly invoked because the public interest in disclosure of these documents outweighs any

privacy interests; and (4) Defendants’ invocation of Exemptions 6 and 7(C) cannot be upheld

without Defendant first producing a Vaughn index. Plaintiff also requests limited discovery “in

order to properly present certain arguments.” Pl.’s Mot. at 4. As Defendants indicate in their

supplemental briefing that they were able to determine that Aisha Prendushi is alive, Plaintiff’s

second argument is now moot.4 The Court shall address each of Plaintiff’s remaining arguments

in turn.

           A. Previous Public Disclosure

           Plaintiff contends that Defendants cannot properly withhold any documents responsive to

Plaintiff’s request because the information he seeks is already in the public domain. Specifically,

Plaintiff alleges that the records he seeks were previously publicly disclosed “both in open court

and as a formal pleading for mitigating purposes via a supplement to the Capitol [sic] Case

           4
          Despite the Court’s clear instruction to Plaintiff to exclusively respond to Defendants’
public domain argument in his Supplemental Reply, Plaintiff also used the reply to challenge the
manner Defendants went about determining that Aida Prendushi is alive. In light of Plaintiff’s
pro se status, the Court will consider Plaintiff’s additional argument. Plaintiff argues that
Defendants should have used the Social Security Death Index or applied the 100-year-rule
(presuming individuals born more than 100 years ago are deceased) to Ms. Prendushi’s date of
birth to determine her life status. Pl.’s Supp. Reply at 9-10. The government was required to
conduct a reasonable search to determine Ms. Prendushi’s life status. See Schrecker v. Dep’t of
Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (“In undertaking [the balancing of public and private
interests], a court must assure itself that the Government has made a reasonable effort to
ascertain life status.”). The Court finds that Defendants conducted a reasonable search by
contacting the probation officer to whom Ms. Prendushi reported and, upon learning that Ms.
Prendushi had been deported, confirming her life status with one of her regular associates in the
United States whose contact information was provided by the probation office. See Supp.
Luczynski Decl. ¶ 1-2.
                                                 8
Committee during the death penalty certification process.” Pl.’s Opp’n. at 13-14. Plaintiff

focuses on an audio/video tape recording from October 12, 2004, which he claims was entered

into the public record and was responsive to his FOIA request. Id.

       “Under our public-domain doctrine, materials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”

Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). “A plaintiff asserting a claim of prior

disclosure” has the burden of production, and it “must bear the initial burden of pointing to

specific information in the public domain that appears to duplicate that being withheld.” Afshar

v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). “[T]o obtain portions of tapes alleged to

be in the public domain, [the FOIA applicant] has the burden of showing that there is a

permanent public record of the exact portions he wishes.” Davis v. Dep't of Justice, 968 F.2d

1276, 1280 (D.C. Cir. 1992).       “This is so because the task of proving the negative—that

information has not been revealed—might require the government to undertake an exhaustive,

potentially limitless search.” Davis, 968 F.2d at 1279. The Court will not invoke the public

domain doctrine, where a plaintiff fails to meet his burden. Muslim Advocates v. Dep’t of

Justice, 833 F. Supp. 2d 92, 102 (D.D.C. 2011). The ultimate burden of persuasion, however,

remains with the government. See Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 342 (D.C.

Cir. 1989); see also Cottone, 193 F.3d at 552 (holding that “unless the government can rebut

such a specific showing by demonstrating that the recordings have since been destroyed or

otherwise removed from the public record, they must be released under FOIA”); Davis, 968 F.2d

at 1280 (holding that should a requester be unable to “establish that the material he seeks is in the

public domain, the government, to continue withholding the information, still must prove that it

falls within a statutory exemption.”).

                                                 9
       Defendants contend that Plaintiff has failed to meet his burden of production in order to

invoke the public domain doctrine. Defendants argue that Plaintiff’s vague allegations that some

of the tapes were previously played in court do not suffice to shift the burden to the government.

Instead, Defendants argue, Plaintiff needs to show that there is a permanent public record of the

exact portions of the tape that Plaintiff requests.

       The Court agrees that Plaintiff has failed to meet his burden of production and thus

cannot invoke the public domain doctrine.             Plaintiff alleges that the requested tape/video

recordings were publicly disclosed in another criminal case “both in open court and as a formal

pleading for mitigating purposes via a supplement to the Capitol [sic] Case Committee” and has

attached to his Opposition and his Supplemental Reply court transcripts and a letter to support

this allegation. However, Plaintiff ultimately fails to point to specific information identical to

that being withheld that has been placed in the permanent public record. Afshar, 702 F.2d at

1130. Apparently as evidence that the tape/video recordings were publicly disclosed in open

court, Plaintiff attaches transcripts from the plea and sentencing hearings of Christopher Perez.

Pl.’s Opp’n. Ex. F (Plea and Sentencing Transcript), ECF No. [31-1]. In the transcript, the

attorneys arguing before the court reference the October 12, 2004, recordings and present their

respective characterizations of the content of the recordings. However, at no point does the

transcript—which documents the entire plea and sentencing hearings—reflect that any portion of

the recordings were played in court or that the actual content of the recordings were otherwise

entered into the public record. In addition, Plaintiff attaches a letter written by Christopher

Perez’s attorney to the prosecutors in Perez’s case in which Perez’s attorney references having

received and listened to the recordings himself and then characterizes the contents of the

recordings. Pl.’s Opp’n. Ex. G (Goltzer Letter), ECF No. [31-1]. In addition to there being no

                                                  10
evidence that this letter was ever entered into the public record, the simple reference to the

recordings and characterization of the recordings’ content do not suffice to show that “specific

information” “that appears to duplicate that being withheld” has been placed in the permanent

public record. Afshar, 702 F.2d at 1130 (emphasis added). Plaintiff is seeking disclosure of the

actual content of the recordings and none of the documents he attaches show that the actual

content of the recordings was ever entered into the public record.5 In his Supplemental Reply,

Plaintiff also attaches a press release about Perez’s case from the U.S. Attorney’s Office for the

Southern District of New York and several news reports repeating the language of the press

release. See Pl.’s Supp. Reply at 27-32. Plaintiff also attaches an affidavit recently submitted in

the United States District Court for the Eastern District of Michigan by one of his attorneys in his

criminal trial. Id. at 33-35. Although these documents show that the existence of the requested

tapes has been referenced in the public domain, they in no way indicate that any portion of the

content of the tapes themselves has been entered into the public record. Accordingly, Plaintiff

has failed to meet his burden for invoking the public domain doctrine. See Davis, 968 F.2d at

1280 (holding that Davis had the burden of showing that the exact portions of the recordings he




       5
          In Plaintiff’s Reply in support of his Cross-Motion for Summary Judgment, Plaintiff
alleges that he found additional evidence that a “complete portion” of the October 12, 2004,
audio/video tape recordings entered the public records which he claims to attach to his Reply as
“Exhibit A.” Pl.’s Reply at 13. “Exhibit A” consists of two letters between Perez’s attorneys
and prosecutors, two affidavits by Christopher Perez, an addendum to Plaintiff Black’s
presentence report, and several discovery-related motions from Plaintiff Black’s criminal
proceedings. Id. at 22-43. The Court has reviewed these documents and finds that none of them
contain a “complete portion” of the October 12, 2004, recording or any recording. At most,
these documents contain references to the October 12, 2004, recording and other recordings and
a characterization of the contents of the recordings, which the Court has already established is
insufficient for Plaintiff to meet his burden of production to be able to invoke the public domain
doctrine.

                                                11
requested had previously been played in court).6

         B. Exemption 7(C)

         Under Exemption 7(C) of the FOIA, the government may withhold “records or

information compiled for law enforcement purposes, but only to the extent that the production of

such law enforcement records or information . . . could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The exemption protects

several classes of individuals, including third parties mentioned in law enforcement records who

have provided information to law enforcement authorities. See Nation Magazine, Wash. Bureau,

71 F.3d at 896 (explaining that “subjects, witnesses, or informants in law enforcement

investigations” are protected under 7(C) (citing SafeCard Services, Inc. v. SEC, 926 F.2d 1197

(D.C. Cir. 1991))). However, when the FOIA requester demonstrates a public interest that is

sufficient to overcome the privacy interest at stake, the government may be required to disclose

the information. See Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 776 (1989). “[C]ourts in this Circuit have consistently held that where an individual seeks

law enforcement records that implicate the privacy interests of a third party, the requester bears

the burden of asserting the public interest at play.” Graff v. FBI, 822 F. Supp. 2d 23, 33 (D.D.C.

2011).       The requester must (1) “show that the public interest sought to be advanced is a

significant one, an interest more specific than having the information for its own sake,” and (2)


         6
          To the extent that Plaintiff is invoking the public domain doctrine based on the
disclosure of the recordings to Perez’s attorney—a fact reflected in the letters Plaintiff attaches to
his Opposition—this limited “public” review is insufficient to satisfy the requirements of the
public domain doctrine because there is still no “permanent public record” of the content of the
recordings. See Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001)
(finding that there was no “permanent public record” of photographs which were not released to
the general public but only displayed to the Security Council delegates and did not leave the
U.N. chamber).

                                                 12
must show the information is likely to advance that interest.” Nat’l Archives & Records Admin.

v. Favish, 541 U.S. 157, 172 (2004). “It is well established that the only public interest relevant

for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about

what their government is up to.’ ” Davis, 968 F.2d at 1282 (quoting Reporters Comm., 489 U.S.

at 773). When the requester advances revealing government misconduct as the relevant public

interest, the requester must “produce evidence that would warrant a belief by a reasonable person

that the alleged Government impropriety might have occurred.” Favish, 541 U.S. at 174. For

the public interest to prevail, the requester must provide “compelling evidence that the agency is

engaged in illegal activity.” SafeCard Services, Inc., 926 F.2d at 1205-06 (emphasis added).

       Defendants contend that the requested records are exempt from disclosure because

disclosure would result in the unwarranted invasion of third parties’ privacy, specifically Aida

Prendushi’s privacy. Defendants claim that because Ms. Prendushi’s testimony was used in

convicting Plaintiff of narcotics distribution, and because narcotics distribution is a serious crime

often involving violence, disclosure of the requested records could result in significant harm to

Ms. Prendushi. Def.s’ Mot. at 15. Since death can diminish one’s privacy interest, the Court

requested that Defendants provide proof of Ms. Prendushi’s life status. On August 29, 2014,

Defendants provided the Court with a declaration confirming that Ms. Prendushi is alive. Supp.

Luczynski Decl. at 1-2.      Accordingly, the Court finds that Defendants have established a

compelling privacy interest.7



       7
          In his Supplemental Reply, Plaintiff argues for the first time that Defendants have failed
to prove that Ms. Prendushi has a protected privacy interest because they have not provided the
Court with Ms. Prendushi’s nationality. Pl.’s Supp. Reply at 11. Plaintiff contends that “only
United States citizens enjoy the privacy protections of the Privacy Act.” Id. Despite the Court’s
clear instruction to Plaintiff to exclusively respond to Defendants’ public domain argument in his
Supplemental Reply, the Court will consider Plaintiff’s additional argument in light of Plaintiff’s
                                                  13
       Plaintiff argues, however, that this privacy interest is outweighed by the public interest in

disclosure of the requested documents and that, accordingly, the government is improperly

invoking Exemption 7(C). Plaintiff alleges that the requested records are relevant to the public’s

interest in understanding government operations and discovering prosecutorial misconduct.

Specifically, Plaintiff contends that the records will show that the United States Attorney’s

Office for the Eastern District of Michigan, Detroit Division (“Michigan USAO”) withheld

“favorable exculpatory material in its possession, even after being reprimanded by the U.S.

Attorney General for said type of illegal, unethical and unprofessional conduct.” Pl.’s Reply at

3-4.   Plaintiff points to two cases which reference prior investigations into prosecutorial

misconduct in the Eastern District of Michigan and a Senate report detailing prosecutorial

misconduct in the prosecution of former Senator Ted Stevens. Plaintiff argues that the public has

an interest in knowing that the Michigan USAO continued to engage in prosecutorial misconduct

by committing a Brady violation in the prosecution of his own case. The Court finds that

Plaintiff has failed to present “compelling evidence that the agency is engaged in illegal activity”

or activity with which the public would be concerned. SafeCard Services, 926 F.2d at 1205-06.

       Even assuming Plaintiff has presented sufficient evidence to “warrant a belief by a

pro se status. Regardless of the application of the Privacy Act to non-citizens, it is undisputed
that the records Plaintiff requested pertain to criminal investigations and are materials that were
compiled for law enforcement purposes. United States Attorney’s Office criminal case files are
exempt from the Privacy Act’s access provisions pursuant to 28 C.F.R. § 16.81(a)(1).
Defendants set forth the applicability of this Privacy Act exemption in the Luczynski
Declaration, see Luczynski Decl. at 3-4, and Plaintiff does not challenge this exemption
anywhere in his briefing.
        Even if the Court were to generously read Plaintiff’s new argument as applying to FOIA
7(C) privacy protections, “courts have determined that foreign nationals are entitled to the
privacy protections embodied in FOIA.” Graff, 822 F.Supp.2d at 33-34 (applying Exemption
7(C) to protect the privacy interests of a foreign national and citing cases applying FOIA to
protect privacy interests of foreign nationals). Accordingly, the Court rejects Plaintiff’s
additional argument.

                                                14
reasonable person that the alleged Government impropriety might have occurred,”8 Favish, 541

U.S. at 159, case law in this Circuit is clear that simply seeking to expose a single Brady

violation “would not serve the FOIA’s purpose of showing ‘what the Government is up to.’ ”

Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 2002) (quoting Reporters Comm., 489

U.S. at 780), vacated & remanded, 541 U.S. 970, on remand, 378 F.3d 1115 (D.C. Cir. 2004)

(reaffirming prior decision); see also Boyd v. Criminal Div. of Dep’t of Justice, 475 F.3d 381,

388 (D.C. Cir. 2007) (“[A] single instance of a Brady violation in Boyd’s case would not suffice

to show a pattern of government wrongdoing as could overcome the significant privacy interest

at stake.”); Lewis v. Dep’t of Justice, 609 F.Supp.2d. 80, 85 (D.D.C. 2009) (“It is established,

however, that the public interest in disclosure, ‘does not include helping an individual obtain

information for his personal use’ to overturn a conviction” (quoting Oguaju, 288 F.3d at 450)).

       Plaintiff appears to attempt to circumvent this well-established case law by arguing that

the public has an interest in the alleged Brady violation in his case because it will establish that

the Michigan USAO continued to engage in prosecutorial misconduct even after previously

being investigated and reprimanded for misconduct. Pl.’s Reply at 3-4. In other words, Plaintiff

appears to argue that the requested records will reveal a systemic pattern of misconduct within

the Michigan USAO. Id. at 4. Apparently as evidence of this previously established pattern of

prosecutorial misconduct, Plaintiff points to the Schuelke Report, a report regarding the

investigation into prosecutorial misconduct in former Senator Ted Stevens’ case. Pl.’s Reply. at



       8
         It is unclear to the Court whether the withheld recordings would have constituted Brady
evidence. In his briefing, Plaintiff makes little more than a bald assertion of a Brady violation;
however, in Plaintiff’s most recent filing, Plaintiff attached an affidavit from his former attorney
submitted in the United States District Court for the Eastern District of Michigan which appears
to allege that the non-disclosure of these recordings was a Brady violation. See Pl.’s Supp.
Reply, at 34, ¶ 6.
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5. The Court fails to see how this Report about a prosecution conducted in an entirely different

USAO and an entirely different state—Alaska—has any relevance to the alleged pattern of

misconduct in the Michigan USAO that Plaintiff claims the public has an interest in establishing.

       Plaintiff also points to two cases that discuss past prosecutorial misconduct in the

Michigan USAO, United States v. Koubriti, 336 F.Supp.2d 676 (E.D. Mich. 2004) and Jefferson

v. United States, 730 F.3d 537 (6th Cir. 2013). In Koubriti, the court discusses in detail how,

around 2003, the prosecution repeatedly failed in its obligation to turn over many documents and

information which were clearly and materially exculpatory.         The court concludes that this

conduct rose to the level of a pattern of misconduct in that case. 336 F.Supp.2d at 680-81. In

Jefferson, the Court discusses how, in March 2004, Assistant U.S. Attorney Richard Convertino,

one of the prosecutors investigated in the Koubriti case, and also the prosecutor in Jefferson and

several of Jefferson’s co-defendants’ cases, was investigated by the Michigan USAO and

determined to have failed to disclose pertinent information to the defense, among other

violations. 730 F.3d at 542.

       While Plaintiff is correct that Jefferson and Koubriti show that there have been past

instances of prosecutorial misconduct within the Michigan USAO, Plaintiff fails to show or even

allege a link between this prior misconduct and his own case such as would establish a pattern of

misconduct. Plaintiff indicates in his Opposition that Daniel Lemisch and Michael J. Buckley

were the two prosecutors from the Michigan USAO who tried the case against Plaintiff. Pl.’s

Opp’n. at 4. Plaintiff does not allege that Convertino or any of the prosecutors involved in either

Koubriti or Jefferson were directly involved in Plaintiff’s case such that a reasonable person

could infer a pattern of misconduct. Furthermore, the investigations into the Michigan USAO

were conducted in 2003 and 2004, while Plaintiff’s case was prosecuted from 2007 to 2009. See

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id. These investigations were also specific as to prosecutorial misconduct in those cases. Thus,

Plaintiff’s attempt to associate his case with this prior misconduct by relying on temporal

proximity also fails.   Simply citing Jefferson and Koubriti does not establish a pattern of

misconduct within the Michigan USAO that would be revealed by these recordings and in which

the public would have a significant interest. The Court finds that Plaintiff has failed to establish

that any alleged Brady violation in his criminal case would be more than an isolated incident if

such a Brady violation had occurred.

       Accordingly, the Court finds that Plaintiff has failed to meet his burden of producing

evidence of a significant public interest. Favish, 541 U.S. at 175 (holding that a nexus is

required between the requested documents and the purported public interest served by

disclosure). In the absence of any public interest in disclosure, the countervailing interest in

privacy defeats Plaintiff’s FOIA request. See Martin v. Dep’t of Justice, 488 F.3d 446, 457

(D.C. Cir. 2007) (“[P]rivacy interests are particularly difficult to overcome when law

enforcement information regarding third parties is implicated.” (citing Reporters Comm., 489

U.S. at 780)).

       C. Vaughn Index and Plaintiff’s Discovery Request

       Plaintiff’s final argument is that Defendants’ invocation of Exemption 7(C) cannot be

upheld without Defendants first justifying their application of Exemption 7(C) for each withheld

document in a Vaughn index, and releasing all reasonably segregable materials. Pl.’s Opp’n. at

11, 17. Plaintiff further argues that because Defendants have not produced a Vaughn index, he is

entitled to discovery and requests the EOUSA “to provide him with the dates of each of the

withheld audiotapes as this may help in establishing whether or not the tapes contain exculpatory

evidence.” Pl.’s Cross-Mot. at 4-5.

                                                17
       Plaintiff is incorrect that Defendants needed to produce a Vaughn index justifying their

withholding of specific documents or specific parts of documents because, as the Court has

found, Defendants did not even need to conduct a search in response to Plaintiff’s FOIA request.

All of the records Plaintiff requested only contained information implicating third parties in law

enforcement investigations and were thus exempt from disclosure under Exemption 7(C). See

Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (“Because a search for records pertaining to

specific individuals . . . would have added only information that we have concluded is protected

by Exemption 7(C), it follows that the FBI was correct in declining to search for such

documents.”); SafeCard Services, 926 F.2d at 1206 (holding that agency may determine that

disclosure of the identity of individuals mentioned in law enforcement files is categorically

exempt as an unwarranted invasion of privacy); cf. Burke v. Dep’t of Justice, No. 96-1739, 1999

WL 1032814, *5 (D.D.C. Sept. 30, 1999) (explaining that “[a]s to the portion of the request

seeking investigative law-enforcement files, the agency may simply assert a categorical Glomar

response,” i.e. “refuse to confirm or deny whether such files exist as to the third party.”). Since

Defendants provided a declaration explaining in detail why the records Plaintiff requested are

categorically exempt from disclosure pursuant to Exemption 7(C), the Court is satisfied that

Defendants met their burden under FOIA. Likewise, the Court also finds that Defendants were

not required to release all reasonably segregable material because the records requested

contained only conversations between third parties and such records are exempt under

Exemption 7(C).

       As for Plaintiff’s request for discovery, “discovery is not favored in lawsuits under the

FOIA.” Judicial Watch, Inc. v. Dep’t of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (citing

Nation Magazine, Wash. Bureau, 71 F.3d at 892); see also Canning v. Dep’t of Justice, No. 11-

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1295, 2013 WL 1333422, *1 (D.D.C. April 2, 2013) (“discovery in general is unavailable in

[FOIA] actions.” (citing Wheeler v. CIA, 271 F.Supp.2d 132, 139 (D.D.C. 2003)); Justice v. IRS,

798 F. Supp. 2d 43, 47 (D.D.C. 2011), aff’d 485 Fed.Appx. 439 (D.C. Cir. 2013) (noting that

discovery in FOIA cases is “the exception and not the rule.”). “Discovery in FOIA is rare and

should be denied where an agency’s declarations are reasonably detailed, submitted in good faith

and the court is satisfied that no factual dispute remains.” Schrecker v. Dep’t of Justice, 217 F.

Supp. 2d 29, 35 (D.D.C. 2002), aff’d 349 F.3d 657 (D.C. Cir. 2003).

       Here, the Court has already established that there was no need for Defendants to submit a

more detailed Vaughn index along with their declaration, and Plaintiff has not alleged that the

Luczynski Declaration was submitted in bad faith. As to remaining factual disputes, the Court

fails to see how any discovery Plaintiff may obtain, and in particular, the specific discovery

Plaintiff has requested regarding the dates of the withheld recordings, would change the outcome

of the Court’s decision. The fact remains that Plaintiff is requesting third-party records exempt

from disclosure under Exemption 7(C). Moreover, the Court has already explained that seeking

to expose a single Brady violation does not constitute a significant public interest sufficient to

outweigh the privacy interests at stake. Thus, to the extent that Plaintiff seeks discovery to

establish the exculpatory nature of the recordings, this discovery pertains to facts that would not

alter the Court’s decision. Accordingly, the Court denies Plaintiff’s request for discovery.

                                       IV.    CONCLUSION

       For the foregoing reasons, the Court finds that Defendants have properly invoked

Exemption 7(C) to justify their refusal to conduct a search in response to Plaintiff’s FOIA

request. The Court also finds that neither discovery nor a Vaughn index are necessary or

appropriate in this case. Accordingly, Defendants’ [22] Motion to Dismiss or, in the alternative,

                                                19
for Summary Judgment is GRANTED and Plaintiff’s [29] Cross-Motion for Summary Judgment

is DENIED.

      An appropriate Order accompanies this Memorandum Opinion.


                                                      /s/
                                              COLLEEN KOLLAR-KOTELLY
                                              UNITED STATES DISTRICT JUDGE




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