                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

SHANELL JAMES,                               :
                                             :
                       Plaintiff,            :       Civil Action No.:      08-0842 (RMU)
                                             :
               v.                            :       Re Document Nos.:      13, 15
                                             :
DRUG ENFORCEMENT                             :
ADMINISTRATION et al.,                       :
                                             :
                       Defendants.           :

                                    MEMORANDUM ORDER

    GRANTING THE DRUG ENFORCEMENT AGENCY ’S MOTION FOR SUMMARY JUDGMENT AND
             DENYING THE PLAINTIFF’S MOTION FOR AN IN CAMERA INSPECTION

                                      I. INTRODUCTION

        Plaintiff Shanell James, a federal prisoner, brought this action pro se under the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, id. § 552a, against the Drug

Enforcement Administration (“the DEA” or “the defendant”), a component of the United States

Department of Justice (“DOJ”), and the U.S. Immigration and Customs Enforcement (“ICE”), a

component of the Department of Homeland Security.1 The defendant now moves for summary

judgment. The plaintiff opposes the motion. Because the record establishes that there are no

material issues in genuine dispute with respect to the defendant’s compliance with the

requirements of the FOIA and the Privacy Act, the court grants the defendant’s motion for

summary judgment. In addition, the court denies the plaintiff’s motion for an in camera

inspection of the requested documents.




1
        ICE has not yet been served with a summons and copy of the complaint. A summons has been
        reissued for ICE based on information provided by the plaintiff.
                     II. FACTUAL & PROCEDURAL BACKGROUND

       On May 25, 2003, a U.S. Customs Service agent arrested the plaintiff for attempting to

smuggle approximately 2.4 pounds of heroin pellets into the country. See Compl., Ex. 5 at 2; see

also James v. Customs & Border Prot., 549 F. Supp. 2d 1, 5 (D.D.C. 2008).2 The plaintiff had

arrived in Miami, Florida via Curacao with the drugs concealed inside his body. See id. The

incident resulted in the plaintiff’s conviction pursuant to a plea agreement, see Order, United

States v. James, Criminal Case No. 03-20452 (S.D. Fla. Oct. 21, 2003), and he was sentenced to

fourteen years in prison followed by five years of supervised release, see Judgment, United States

v. James (Jan. 27, 2004).

       Following his conviction, the plaintiff sought records related to his criminal investigation

and prosecution, including a “Laboratory Analysis Report” of the heroin pellets seized from his

body. Compl. ¶¶ 3-5, 12 & Ex. 5. Toward that end, he directed a FOIA request to the DOJ in

November 2004. See Def.’s Mot. for Summ. J., Decl. of Leila I. Wassom (“Wassom Decl.”) ¶ 6

& Ex. A. The DOJ forwarded the request to the defendant, the Federal Bureau of Investigation

(“FBI”) and the Executive Office for United States Attorneys (“EOUSA”). Wassom Decl. ¶¶ 7-9

& Ex. F. The plaintiff also communicated directly with the defendant regarding his request. Id.

       The defendant determined that the records most likely to be responsive to the plaintiff’s

request would be found in the defendant’s Investigative Reporting Filing System (“IRFS”), and

that lab analysis records were most likely to be found in the defendant’s Functional File System


2
       Well into the litigation against Customs and Border Protection, another component of the
       Department of Homeland Security, the plaintiff attempted to amend his complaint to include the
       defendants in this action. His motion to amend was denied, but he was informed that he was
       “free . . . to file new actions against the DEA and ICE.” James v. Customs & Border Prot.,549 F.
       Supp. 2d 1, 13 (D.D.C. 2008). This action followed.

                                                  2
File No. 901 (“Laboratory Case Files”). Id. ¶¶ 21-22. The defendant concluded that no other

system of files was likely to contain responsive information. Id. ¶ 23. The defendant searched its

IRFS index by using the plaintiff’s name, social security number and date of birth as search

terms, but did not locate any files containing information relating to the plaintiff. Id. ¶¶ 24-26.

The defendant could not search its Laboratory Case Files because to do so, it needed to know the

file, exhibit or laboratory number of the drug analysis sought, and the plaintiff had not provided

that information. Id. ¶ 27. Accordingly, the defendant notified the plaintiff that it had found no

records responsive to his request. Id. ¶ 11. The plaintiff appealed to the DOJ’s Office of

Information and Privacy (“OIP”), which affirmed the defendant’s determination that it had no

responsive records. Id. ¶ 14 & Ex. H.

       Subsequently, the EOUSA forwarded one page – a curriculum vitae of one of the

defendant’s forensic chemists – to the defendant. Id. ¶ 15. The defendant then notified the

plaintiff that it had received the curriculum vitae, but that the defendant was withholding the

document in full pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F), which relate to the

privacy or safety of third parties. Id. ¶¶ 16-17 & Ex. P. In December 2007, the plaintiff

submitted an appeal to the OIP challenging the defendant’s decision to withhold the curriculum

vitae. Along with his appeal, the plaintiff included new information indicating that the DEA’s

Southeast Laboratory had conducted the analysis of the heroin and providing the corresponding

laboratory number and file number. Id. ¶ 18 & Ex. L. The OIP denied the plaintiff’s appeal,

explaining that the curriculum vitae was unrelated to his request for a lab analysis report. Id. ¶

20. This lawsuit followed.




                                                  3
       In the course of defending itself against this litigation, the defendant conducted an

additional search based on the new information the plaintiff had provided in his appeal and

forwarded the plaintiff’s request for the lab report to the Southeast Laboratory. Id. ¶¶ 29-30. The

search yielded seventeen pages of responsive records. Those records were released to the

defendant, but the names of DEA laboratory personnel and ICE Special Agents were redacted

from the documents pursuant to FOIA exemptions (b)(7)(C) and (b)(7)(F). Id. ¶¶ 30-31 &

Exs. O, P.

       The defendant has filed a motion for summary judgment, supported by an agency

declaration averring that it has searched for responsive records in the only two systems of files

likely to contain information responsive to the plaintiff’s requests, and that portions of the

responsive documents were properly withheld under FOIA exemptions (b)(6), (b)(7)(C) and

(b)(7)(F). The plaintiff has filed an opposition to the motion, contending that the cited

exemptions are “in error.” Pl.’s Opp’n at 4-5.



                                         III. ANALYSIS

                 A. Legal Standard for Summary Judgment in a FOIA Case

       Under Federal Rule of Civil Procedure 56, a motion for summary judgment must be

granted if the pleadings and evidence on file show that there is no genuine issue of material fact,

and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). In considering whether there is a triable issue of fact, a court

must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party

opposing a motion for summary judgment, however, “may not rest upon the mere allegations or


                                                  4
denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue

for trial,” id. at 248, that would permit a reasonable jury to find in his favor, Laningham v. U.S.

Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). The non-moving party must do more than simply

“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, “any factual assertions in the

movant’s affidavits will be accepted as being true unless [the opposing party] submits his own

affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d

453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

       In a FOIA suit, an agency is entitled to summary judgment once it demonstrates that no

material facts are in dispute and that it conducted a search of records in its custody or control,

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51 (1980), that was

reasonably calculated to uncover all relevant information, Weisberg v. Dep’t of Justice, 745 F.2d

1476, 1485 (D.C. Cir. 1984), which either has been released to the requestor or is exempt from

disclosure, Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To

show that its search “us[ed] methods which can be reasonably expected to produce the

information requested,” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see

also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the agency may submit

affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the

scope and method of the search, Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the

absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an

agency’s compliance with the FOIA. Id. at 127. A search need not be exhaustive, Miller v. U.S.

Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and the adequacy of a search is not


                                                   5
determined by its results, but by the method of the search itself, Weisberg, 745 F.2d at 1485. An

agency’s failure to find a particular document does not necessarily indicate that its search was

inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, Wash. Bureau

v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).

       An agency that withholds information responsive to the plaintiff’s request must justify its

decision in accordance with the FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300,

305 (D.C. Cir. 2001); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead

Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). In this case,

the defendant has asserted FOIA exemptions (b)(7)(C) and (b)(7)(F) for each of its

nondisclosures.3 FOIA exemption (b)(7)(C) applies to information “compiled for law

enforcement purposes” the disclosure of which “could reasonably be expected to constitute an

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

also applies to information “compiled for law enforcement purposes” the disclosure of which

“could reasonably be expected to endanger the life or physical safety of any individual.” Id.

§ 552(b)(7)(F). Therefore, the defendant must “produce affidavits or declarations that describe

the documents involved and justify the non-disclosure in a clear, specific and reasonably detailed

manner, and that are not controverted by either contrary evidence in the record [or] evidence of

agency bad faith.” Voinche v. FBI, 412 F. Supp. 2d 60, 64-65 (D.D.C. 2006) (internal quotation

marks and citations omitted). “These 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.” Id. at 65 (internal quotation marks omitted). If “the agency


3
       In addition, with respect to one document, the agency invokes FOIA exemption (b)(6).

                                                 6
affidavits are sufficiently detailed to permit meaningful review and adversarial testing of

exemption claims,” in camera review of documents is not necessary. Thompson v. Executive

Office for U.S. Attorneys, 587 F. Supp. 2d 202, 207 n.1 (D.D.C. 2008) (internal quotation marks,

alterations and citations omitted). An in camera review is properly viewed as a “secondary tool

of FOIA enforcement” to be undertaken only where the court, in its discretion, determines it to be

necessary. Ctr. for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 20-21 (D.C. Cir. 1984)

(internal quotation marks omitted).

           B. The Court Grants the Defendant’s Motion for Summary Judgment

                            1. The Defendant’s Search was Adequate

       The plaintiff does not contest the adequacy of the defendant’s search, but the court will

address this issue nonetheless because, on a motion for summary judgment, the defendant bears

the initial burden of showing that its search was adequate. Weisberg, 745 F.2d at 1485. The

defendant can meet this burden by supplying “reasonably detailed, nonconclusory affidavits in

good faith.” Id. In Steinberg v. U.S. Department of Justice, the court held that the FBI satisfied

this burden because it described “with particularity the files searched, the manner in which they

were searched, and the results of the search.” 23 F.3d 548, 552 (D.C. Cir. 1994). Like the FBI’s

declaration in Steinberg, the Wassom Declaration contains a sufficient degree of particularity. It

explains which of the defendant’s databases would be likely to contain information responsive to

the plaintiff’s requests and how files are generally retrieved from those databases. See Wassom

Decl. ¶¶ 21-24. In addition, it specifically details the offices, dates, methods, and results of the

searches conducted on the plaintiff’s behalf. Id. ¶¶ 25-31. In addition to being reasonably

detailed, the Wassom Declaration appears to have been made in good faith; the plaintiff does not


                                                  7
allege otherwise. See generally Compl.; Pl.’s Opp’n. Concluding that the defendant conducted

an adequate search for documents responsive to the plaintiff’s request, the court now turns to the

plaintiff’s principal arguments.

                         2. The Defendant’s Nondisclosures Were Proper

       The Wassom Declaration, and its accompanying Vaughn index, describes the information

withheld in a clear, specific and reasonably detailed manner, and justifies the non-disclosures by

describing the general content of the undisclosed information and citing the applicable statutory

provisions. See Wassom Decl., Ex. P. Specifically, the declaration explains that the curriculum

vitae of the forensic chemist was withheld based on third-party privacy interests, see Wassom

Decl. ¶¶ 16-17, and that the documents from the Southeast Laboratory were released with only

names of law enforcement personnel redacted, id. ¶¶ 30-31 & Exs. O, P.

       The plaintiff opposes the defendant’s invocation of the exemptions. See generally Pl.’s

Opp’n. The gist of the plaintiff’s opposition is (i) that the exemptions cited do not have anything

to do with the information he seeks in the laboratory analysis report, see id., and (ii) that his

personal interest in obtaining evidence that might invalidate his drug conviction or reduce the

length of his sentence outweighs the privacy interests protected by the FOIA, see id. at 7-9 (citing

constitutional rights and the Federal Rules of Evidence, and alluding to the existence of

exculpatory material).

       The plaintiff’s opposition to the motion for summary judgment appears to rest, at least in

part, on his belief that a more complete lab analysis report exists and is being withheld. See

generally id. The plaintiff now has two copies of a document he refers to as a “lab analysis

report.” See Compl., Ex. 5; Wassom Decl., Ex. P at 2. The document is DEA Form-7 entitled


                                                  8
“Report of Drug Property Collected, Purchased, or Seized,” dated May 28, 2003, and it contains

an analysis of the heroin pellets seized from the plaintiff. Compl., Ex. 5. The plaintiff first

received a copy of DEA Form-7 from his court-appointed defense counsel in September 2003.

The first copy contains no information in Block 25, which is captioned “Analysis Summary and

Remarks.” See id. In connection with his FOIA request, the plaintiff referred to Block 25 of

DEA Form-7, alleging that “[t]he information on this form is in-complete [sic]. This is the

record sought pursuant to the FOIA in which this section discloses the Analysis of the referenced

seizure.” Wassom Decl., Ex. L at 6. In June 2008, the plaintiff obtained a second copy of DEA

Form-7 as one of the seventeen pages the defendant received from the Southeast Laboratory and

released to the plaintiff in the course of the instant suit. The second copy is identical to the first,

and demonstrates that the defendant did not redact any information from Block 25. See id.

(describing the document as the DEA Form-7 dated May 28, 2003, and noting that information

was redacted from Blocks 16, 17, 18, 20, 21, 23, 24, 34 and 37 only). Nonetheless, the plaintiff

appears to still believe that there is a copy of DEA Form-7 that contains information in Block 25.

See generally Pl.’s Opp’n.

        Thus, the plaintiff’s primary focus is on the laboratory analysis he believes should be

summarized on DEA Form-7. See generally Compl.; Pl.’s Opp’n. It appears, however, that the

plaintiff has mistaken the withheld curriculum vitae for the lab report he seeks, just as he did in

his administrative appeal of the decision not to disclose the curriculum vitae. See Wassom Decl.,

Ex. L; Pl.’s Opp’n at 4 (stating that “[t]he record sought is not ‘personnel or medical records’

that belong to any of the federal employees . . . . [Rather, the] record sought [is the] Laboratory

Analysis Report”) (punctuation altered). The court does not doubt the sincerity of the plaintiff’s


                                                   9
persistent allegations. Nevertheless, while the record sought is a lab analysis report, the fact

remains that the record withheld is a curriculum vitae. Given that the curriculum vitae is a

personnel record and is not relevant to the information the plaintiff seeks, the court concludes

that the defendant properly withheld this document. See 5 U.S.C. § 552(b)(6) (exempting from

disclosure “personnel . . . files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy”); Nat’l Ass’n of Home Builders v. Norton, 309 F.3d

26, 32 (D.C. Cir. 2002) (directing courts to weigh the privacy interest in nondisclosure against

the benefits of disclosure).

       Next, in an argument that applies equally to the curriculum vitae that was withheld in full

and the names of DEA laboratory personnel and ICE Special Agents that were redacted from the

documents produced by the Southeast Laboratory, the plaintiff argues that his personal interest in

“changing the outcome of his criminal case significantly” outweighs any privacy interest that the

third parties may have in the withheld information. Pl.’s Opp’n at 6 (punctuation altered). The

court concludes, however, that the plaintiff’s argument is not supported by the law.

       The FOIA exempts the production of law enforcement records to the extent that such

production “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). The Circuit has held that the “privacy interest at stake is

substantial” in cases involving the disclosure of information identifying individuals who have

taken part in law enforcement activities. SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926

F.2d 1197, 1205 (D.C. Cir. 1991); see also Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254

(D.C. Cir. 1981) (holding that, in light of the stigma potentially associated with law enforcement

investigations, exemption (b)(7)(C) affords broad privacy rights to suspects, witnesses and


                                                 10
investigators). Indeed, an agency may resort to a special type of non-response “if confirming or

denying the existence of the records would associate the individual named in the request with

criminal activity.” Nation Magazine, 71 F.3d at 893.

       Given the significant individual privacy interest at issue, disclosure of material that could

constitute an invasion of privacy is warranted only when the individual’s privacy interest is

outweighed by the public’s interest in disclosure. U.S. Dep’t of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 776 (1989) (requiring the court to “balance the public

interest in disclosure against the interest Congress intended [exemption (b)(7)(C)] to protect”);

Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). More specifically,

       where there is a privacy interest protected by Exemption 7(C) and the public interest
       being asserted is to show that responsible officials acted negligently or otherwise
       improperly in the performance of their duties, the requester must establish more than
       a bare suspicion in order to obtain disclosure. Rather, the requester must produce
       evidence that would warrant a belief by a reasonable person that the alleged
       Government impropriety might have occurred.

Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004).

       The plaintiff does not contend, and the court does not conclude, that his goal of altering

the outcome of his prosecution constitutes a public interest. Pl.’s Opp’n at 7 (emphasizing the

plaintiff’s “greater personal constitutional right to the . . . material sought pursuant to FOIA”).

Nor has the plaintiff made the showing of official misconduct required to overcome the

substantial privacy interests that exemption (b)(7)(C) protects.4 In sum, the plaintiff has not

shown that there is any public interest at stake, let alone a public interest that outweighs the




4
       The plaintiff’s claim that he already knows the names involved, see Pl.’s Opp’n at 4-5, 9, does
       not alter the court’s analysis.

                                                  11
individual privacy interests protected by the FOIA. See Beck, 997 F.2d at 1491. The court

therefore concludes that, under the FOIA, the defendant’s nondisclosures were justified.5

           3. The Court Denies the Plaintiff’s Motion for an In Camera Inspection

       Finally, the plaintiff seeks in camera review of the requested materials. In Allen v. CIA,

the Circuit set out several criteria for determining the need for an in camera review in FOIA

cases. 636 F.2d 1287, 1293 (D.C. Cir. 1980), abrogated on other grounds by Founding Church

of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828 (D.C. Cir. 1983). These criteria do not

limit the broad discretion of the trial courts to decide whether to conduct an in camera review,

but merely constitute a list of factors that trial courts should consider before exercising their

discretion. Id. at 1297. They include: (1) judicial economy; (2) the conclusory nature of the

agency affidavits; (3) possible bad faith on the part of the agency; (4) whether the agency

proposes in camera review; (5) disputes concerning the content of the document; and (6) strong

public interest in disclosure. Id. at 1297-99. In accordance with the preceding factors, and given

the reasonably detailed nature of the Wassom Declaration, see supra Part III.B, the absence of

any indication of bad faith by the defendant, see generally Compl.; Pl.’s Opp’n, and the absence

of a compelling public interest, see supra Part III.B, the court denies the plaintiff’s request for an

in camera review of the requested materials.




5
       The defendant asserts that more than one FOIA exemption justifies its nondisclosures in this
       case. See generally Def.’s Mot. Because the court concludes that the nondisclosures were
       proper under exemption (b)(7)(C), the court need not address the other exemptions the defendant
       has cited in its motion.

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                                       IV. CONCLUSION

         For the foregoing reasons, the court concludes that the plaintiff has presented no genuine

issue of material fact with respect to the defendant’s compliance with the FOIA as to either the

reasonableness of the search or the propriety of withholding the redacted information. Having

satisfied its disclosure obligations under the FOIA, the defendant is entitled to summary

judgment. Because this Memorandum Order disposes of issues related only to the DEA and not

to ICE, it is not a final, appealable order. Accordingly, it is this 28th day of September, 2009,

hereby

         ORDERED that the defendant’s motion for summary judgment is GRANTED and the

defendant is awarded judgment and dismissed from this action; and it is

         FURTHER ORDERED that the plaintiff’s motion for an in camera inspection

is DENIED.

         SO ORDERED.



                                                               RICARDO M. URBINA
                                                              United States District Judge




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