                           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
                                          (June 24, 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.” 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



       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. 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’ 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]. Shortly after filing his Cross-Motion for Summary Judgment and his Opposition to
legal authorities, and the record as a whole, the Court finds that the parties have not provided

sufficient information from which the Court can evaluate whether the information requested by

Plaintiff is already in the public domain and whether Defendants have properly refused to

conduct a search pursuant to FOIA Exemption (7)(C). Accordingly, Defendants’ [22] Motion to

Dismiss or, in the alternative, for Summary Judgment and Plaintiff’s [29] Cross-Motion for

Summary Judgment are HELD IN ABEYANCE pending supplemental briefing from

Defendants.

                                        I.      DISCUSSION

       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).2 See ECF No. [22]. Plaintiff

cross-moves the Court to enter summary judgment in his favor, arguing that (1) no FOIA

exemption can be invoked in this case 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

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
          As Plaintiff does not dispute the fact that the records at issue 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. U.S. Dep’t
of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).

                                                 2
limited discovery “in order to properly present certain arguments.”

       The Court finds that it cannot resolve the parties’ cross-motions on the present briefing

for two reasons. First, Defendants have not responded to Plaintiff’s public domain argument.

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 Case

Committee during the death penalty certification process.” Pl.’s Opp. at 12-13. 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. Defendants have failed to offer any

response to this argument precluding the Court from fully evaluating Plaintiff’s argument.

Accordingly, the Court shall HOLD IN ABEYANCE the parties’ cross-motions and order

Defendant to file supplemental briefing addressing whether Plaintiff has 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.

       Second, Defendants do not provide any information as to whether the third parties in

Plaintiff’s FOIA request are alive or dead and do not explain any efforts Defendants have

undertaken to ascertain that information. Without this information, the Court is precluded from

evaluating Defendants’ balancing of privacy interests versus public interests and, thus,

Defendant’s invocation of Exemption 7(C). See Schrecker v. DOJ, 349 F.3d 657, 662 (D.C. Cir.

2003) (in evaluating the Government’s invocation of Exemption 7(C), “a court must assure itself

that the Government has made a reasonable effort to ascertain life status”); Schoenman v. FBI,

575 F.Supp.2d 166, 177 (D.D.C. 2008) (same). If Ms. Prendushi is alive, then she has a privacy

                                                 3
interest protected by Exemption 7(C) and there is no need for the Court to consider the other

third parties named in Plaintiff’s FOIA request since all of the documents and recordings sought

by Plaintiff necessarily reference Ms. Prendushi. If Ms. Prendushi is not alive, then her privacy

interest is likely extinguished and the life status and privacy interest of the other third parties

referenced in Plaintiff’s FOIA request (John Beason, Waad Murad, Joey Murad, David White,

Joe Hermosillo, undercover agents, and Reginald Coleman) must be weighed by the Court.

Accordingly, the Court hereby HOLDS IN ABEYANCE the parties’ cross-motions as to the

propriety of Defendants’ invocation of FOIA Exemption 7(C) until Defendants 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.

       As the Court cannot properly address whether Defendants have correctly refused to

conduct a search pursuant to Exemption 7(C) without further information from Defendants, the

Court also declines to address any of the parties’ remaining arguments about the propriety of

invoking Exemption 7(C) or the need for a Vaughn index or discovery in this case.

                                       II.     CONCLUSION

       For the foregoing reasons, the Court HOLDS IN ABEYANCE the parties’ cross-motions

for summary judgment until Defendants have provided supplemental briefing addressing the

public-domain doctrine as applied to this case and the life status of the third parties named in

Plaintiff’s FOIA request.

       An appropriate Order accompanies this Memorandum Opinion.


                                                              /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      UNITED STATES DISTRICT JUDGE


                                                 4
