UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL PENNY, :
:
Plaintiff, : Civil Action No.: 08-1666 (RMU)
:
v. : Re Document No.: 9
:
U.S. DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
I. INTRODUCTION
In this civil action brought pro se under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, the plaintiff challenges the Drug Enforcement Administration’s (“DEA”) response
to his requests for records pertaining to himself, other individuals and certain real property. The
defendant moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil
Procedure 56.
Upon consideration of the parties’ submissions and the entire record, the court dismisses
without prejudice the plaintiff’s claims premised on his request for third-party records because
he failed to exhaust his administrative remedies with respect to those requests prior to
commencing suit. With respect to his remaining requests, however, the court denies the
defendant’s motion without prejudice because the defendant has not submitted a competent
affidavit demonstrating the reasonableness of its search efforts.
II. FACTUAL & PROCEDURAL BACKGROUND
In September 2006, the plaintiff requested DEA records pertaining to himself, a search
warrant issued against him in August 1990, DEA agents who executed the search warrant and a
retired case agent who allegedly made a statement about the plaintiff. Def.’s Mot., Decl. of Leila
I. Wassom (“Wassom Decl.”), Ex. A. In addition, he also requested records pertaining to the
occupants at 4901 W. Congress, Chicago, Illinois, including himself and an individual named
Tammie Brown. Id. By letter dated June 1, 2007, the DEA informed the plaintiff that it could
not process his request for records pertaining to third parties without a notarized privacy waiver
or proof of death for each third party. Id., Ex. F. Subsequently, by letter dated June 6, 2007, the
DEA informed the plaintiff that its search for records pertaining to himself and the
aforementioned address returned no responsive records. Id., Ex. G. The DEA’s June 6 letter
invited the plaintiff to offer additional search criteria that he felt would assist in conducting a
more in-depth search and advised him of his right to appeal its determination to the Department
of Justice’s Office of Information and Privacy (“OIP”). Id.
The plaintiff appealed to the OIP, which, by letter dated July 26, 2007, affirmed the
DEA’s determinations. Id., Exs. H, J. The plaintiff initiated this civil action on September 30,
2008. See generally Compl.
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III. ANALYSIS
A. The Court Dismisses Without Prejudice the Plaintiff’s Claims Predicated on his
Requests for Third-Party Records for Failure to Exhaust His Administrative Remedies
The defendant contends that because the plaintiff failed to exhaust his administrative
remedies with respect to his requests for records pertaining to third parties, the claims predicated
on those requests should be dismissed. Def.’s Mot. at 10-12. The plaintiff does not specifically
address this argument. See generally Pl.’s Opp’n. The plaintiff concedes, however, that he did
not provide the required third-party privacy waivers until several months after his administrative
appeal to the OIP was denied. Pl.’s Opp’n, Pl.’s Decl. ¶¶ 7-8, 15; Def.’s Mot. at 2.
“Exhaustion of administrative remedies is generally required before seeking judicial
review ‘so that the agency has an opportunity to exercise its discretion and expertise on the
matter and to make a factual record to support its decision.’” Wilbur v. CIA, 355 F.3d 675, 676
(D.C. Cir. 2004) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). In
the FOIA context, the exhaustion requirement is a prudential consideration, not a jurisdictional
prerequisite, and therefore a plaintiff’s failure to exhaust does not deprive the court of subject-
matter jurisdiction. Id. But as a prudential consideration, the exhaustion requirement may still
bar judicial review if both (1) the administrative scheme at issue and (2) the purposes of
exhaustion support such a bar. Id. (citing Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.
2003)). With regard to the first factor, the D.C. Circuit has concluded that the FOIA’s
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administrative scheme supports barring judicial review.1 Id. (citing Hidalgo, 344 F.3d at 1259).
As for the second factor, courts look to see whether barring judicial review would “prevent[]
premature interference with agency processes, so that the agency may function efficiently and so
that it may have an opportunity to correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record which is adequate for judicial
review.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975); see also Hidalgo, 344 F.3d at 1259
(applying the Weinberger description of the purpose of exhaustion in the FOIA context).
In the instant case, the plaintiff has offered nothing to indicate that the defendant
withheld any third-party records after the plaintiff submitted the required privacy waivers. See
generally Compl.; Pl.’s Opp’n. To the contrary, it appears that the defendant has yet to formally
respond to the plaintiff’s requests for third-party records, as the defendant represents that it needs
time to “authenticate the privacy waivers and begin its search for the third-party information.”
Def.’s Mot. at 11. As a result, it would be premature at this juncture for the court to interfere
with the agency’s efforts to respond to the plaintiff’s requests. The court therefore dismisses
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Specifically, the court has stated that
[t]he FOIA expressly requires that an agency receiving a request for information (i)
determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after
the receipt of any such request whether to comply with such request and shall
immediately notify the person making such request of such determination and the reasons
therefor, and of the right of such person to appeal to the head of the agency any adverse
determination; and (ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such
appeal . . . . If the denial of the request is upheld on appeal, the agency must notify the
person making such request of the provisions for judicial review of that determination
. . . . As we have previously concluded, this statutory scheme requires each requestor to
exhaust administrative remedies.
Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003) (internal quotations and citations omitted).
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without prejudice the plaintiff’s claims predicated on his requests for third-party records based
on his failure to exhaust administrative remedies.
B. The Defendant Is Not Entitled to Summary Judgment on Claims
Predicated on the Plaintiff’s Request for Non-Third Party Records
1. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a
genuine issue of material fact, the court is to view the record in the light most favorable to the
party opposing the motion, giving the non-movant the benefit of all favorable inferences that can
reasonably be drawn from the record and the benefit of any doubt as to the existence of any
genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To
determine which facts are “material,” a court must look to the substantive law on which each
claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is
one whose resolution could establish an element of a claim or defense and, therefore, affect the
outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
The FOIA affords the public access to virtually any federal government record that FOIA
itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d
820, 823 (D.C. Cir. 1973). The FOIA confers jurisdiction on the federal district courts to order
the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a
judicial review of an agency’s response to a FOIA request, the defendant agency has the burden
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of justifying nondisclosure, and the court must ascertain whether the agency has sustained its
burden of demonstrating that the documents requested are exempt from disclosure under the
FOIA and that the agency has adequately segregated exempt from non-exempt materials. 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. Dep’t of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977). An agency may meet its burden by providing the requester
with a Vaughn index, adequately describing each withheld document and explaining the reason
for the withholding. Summers, 140 F.3d at 1080; King v. Dep’t of Justice, 830 F.2d 210, 224
(D.C. Cir. 1987); Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a
“Vaughn index”).
The court may award summary judgment solely on the information provided in affidavits
or declarations that describe “the justifications for nondisclosure with reasonably specific detail
. . . 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); see also Vaughn
v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). When, as here,
responsive records are not located, an agency is entitled to summary judgment if it establishes
“beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant
documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For
purposes of this showing, the agency “may rely upon affidavits . . . , as long as they are relatively
detailed and nonconclusory and . . . submitted in good faith.” Id. (citations and quotations
omitted). The required level of detail “set[s] forth the search terms and the type of search
performed, and aver[s] that all files likely to contain responsive materials (if such records exist)
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were searched . . . .” Oglesby, 920 F.2d at 68; accord Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 326 (D.C. Cir. 1999). “If the requester produces countervailing evidence placing the
sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is
inappropriate.” Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of
Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). In determining the
adequacy of a FOIA search, the court is guided by principles of reasonableness. See Campbell v.
U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). An agency is required to produce only
those records in its custody and control at the time of the FOIA request. McGehee, 697 F.2d at
1110.
2. The Defendant Has Not Established the Reasonableness of its Search
The defendant contends that summary judgment is warranted because the evidence
demonstrates that it conducted a reasonable search for records responsive to the plaintiff’s
requests. See Def.’s Mot. at 9-10. To demonstrate the reasonableness of its search efforts, the
defendant proffers the declaration of Leila I. Wassom, a DEA Paralegal Specialist assigned to the
Administrative Law Section of the Office of Chief Counsel. Wassom Decl. ¶ 1. Wassom
reviews FOIA requests made to the DEA for purposes of litigation. Id. ¶ 2. Her declaration is
based on her review of the complaint “and the records maintained by the DEA Freedom of
Information Operations Unit (SARO),” which is responsible for processing FOIA requests
submitted to the agency. Id. ¶¶ 4-5. In short, Wassom states that the DEA conducted a
comprehensive search in response to the plaintiff’s request but recovered no responsive
documents. Id. ¶¶ 16-22.
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“A declarant in a FOIA case satisfies the personal knowledge requirement in Rule 56(e)
if in [her] declaration, [she] attests to [her] personal knowledge of the procedures used in
handling [a FOIA ] request and [her] familiarity with the documents in question.” Barnard v.
Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations and internal
quotation marks omitted); compare SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
1991) (noting that the individual in charge of a search is “the most appropriate person to provide
a comprehensive affidavit” and may rely on information provided by third-parties with personal
knowledge of the search efforts) (citing Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir.1986))
with Weisberg v. Dep’t of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980) (vacating summary
judgment because the district court improperly relied upon a statement provided by an individual
with no personal knowledge of the object of the search and who did not rely on information
provided by someone with actual knowledge).
Although Wassom’s review of the DEA’s official records qualifies her to testify about
the procedures employed in processing the plaintiff’s request, she neither attests to having
personal knowledge about the search conducted, Wassom Decl. ¶ 19, nor states that she relied on
information provided to her by individuals who actually performed the search, see id. ¶¶ 16-22.
The court therefore denies the defendant’s summary judgment motion with respect to his request
for non-third party records without prejudice to reconsideration of a properly supported motion.
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IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion to dismiss the claims
predicated on the plaintiff’s requests for third-party records and denies the defendant’s motion
for summary judgment with respect to the plaintiff’s remaining claims. An Order consistent with
this Memorandum Opinion is separately and contemporaneously issued this 21st day of
September, 2009.
RICARDO M. URBINA
United States District Judge
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