Woods v. Electronic Surveillance Unit

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAMMIE LEE WOODS,

Plaintiff,

v. Case No. 14-cv-01713 (CRC)

ELECTRONIC SURVEILLANCE UNIT,

Defendant.

MEMORANDUM OPINION

Plaintiff Sammie Lee Woods, a federal prisoner, challenges the government’s response to

his Freedom of Information Act (“FOIA”) request for electronic surveillance records authorized

by Title III of the Omnibus Crime Control and Safe Streets Act (Title III), 18 U.S.C. §§ 2510 et

seq. The Criminal Division of the Department of Justice (“DOJ”), of which the Electronic

Surveillance Unit (“ESU”) is a part, has withheld all responsive records under FOIA exemptions

3, 5, 6, and 7(C) and Privacy Act exemption (j)(2). Before the Court is DOJ’s motion for

summary judgment. Upon consideration of the parties’ submissions and the entire record, the

Court will grant DOJ’s motion for the reasons explained below.

I. Background

In November 2003, a jury in the U.S. District Court for the District of Colorado convicted

Woods of conspiracy to distribute 50 grams or more of crack cocaine, possession with intent to

distribute crack cocaine, and use of a communication facility to further a drug-trafficking

scheme. United States v. Woods, 469 Fed. App’x 683, 684 (10th Cir. 2012) (unpublished). In a

FOIA request to ESU dated September 26, 2012, Woods sought “a certified copy of the action

memorandum: In Re Case: 01-cr-00214-WYD-19.10Th Cir. WESTERN DISTRICT OF

COLORADO.” Def.’s Mot. Summ. J., Ex. A, ECF No. 17-2. He also sought

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 the authorization document which is a memorandum with the proper
designated official to the Director of OEO, authorizing the Application for
Title III surveillance, and a copy of the Attorney’s General delegation Order
from 2000, 2001, 2002, which identifies those individuals to whom the
Attorney General had delegated authority to authorize Title III Applications,
and if they were duly appointed by the President of the United States and
confirmed by the Senate.

Id. In a letter dated January 22, 2013, the Criminal Division informed Woods that a search had

located no responsive records. Def.’s Mot. Summ. J., Ex. C. He resubmitted his request in

March 2014. Id. Ex. D. In a letter dated May 19, 2014, the Criminal Division informed him that

no search was conducted because any responsive records would be exempt from disclosure under

FOIA Exemption 3. 1 Id. Ex. E.

Woods appealed the May 19 determination to DOJ’s Office of Information Policy

(“OIP”). Id. Ex. F. In a letter dated July 16, 2014, OIP affirmed the determination “on partly

modified grounds.” Id. Ex. G. Although OIP upheld the Exemption 3 determination, it offered

to reconsider the appeal if Woods “provide[d] evidence that any electronic surveillance records

have been unsealed by a court.” Id. OIP cited FOIA Exemption 5 as an additional basis for

withholding any responsive records. Id. On October 14, 2014, Woods filed a complaint in this

Court challenging ESU’s withholdings. 2

II. Standard of Review

Congress passed “FOIA . . . ‘to pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny.’” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5

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See 5 U.S.C. § 552(b) (listing FOIA exemptions).
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While Woods also alleges in general terms that the government “continue[s] to violate
[his] due process rights,” Pl.’s Sur-Reply, ECF No. 27, the sole basis for the relief sought is
DOJ’s withholding of documents in response to a FOIA request, see Pl.’s Mot. Under Vaughn,
ECF No. 20 (“[T]his action is SOLELY about . . . being denied access to [Plaintiff’s] FOIA
request.”). Accordingly, the Court construes Woods’s suit as a FOIA action.

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(D.C. Cir. 2011) (quoting U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The

statute imposes a general obligation on the government to provide records to the public. See 5

U.S.C. § 552(a). Although FOIA provides exemptions to this general obligation to disclose, see

5 U.S.C. § 552(b), “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). Thus, FOIA “exemptions are ‘explicitly made exclusive,’” Milner v. U.S. Dep’t of

Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)), and they “must

be ‘narrowly construed,’” id. (quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)).

FOIA cases are appropriately decided on motions for summary judgment. See Brayton v.

Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In deciding a summary-

judgment motion, the Court assumes the truth of the non-movant’s evidence and draws all

reasonable inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). The government bears the burden of establishing that its claimed exemptions

apply to each document for which it invokes an exemption. ACLU v. U.S. Dep’t of Def., 628

F.3d 612, 619 (D.C. Cir. 2011). The government cannot satisfy this burden with affidavits that

are vague or conclusory, or that merely parrot the statutory standard. Consumer Fed’n of Am. v.

U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). The declarations should describe the

justifications for withholding in “specific detail, demonstrat[ing] that the information withheld

logically falls within the claimed exemption.” ACLU, 628 F.3d at 619. When demonstrating

that a FOIA exemption applies to some portion of a document withheld, “the agency must [also]

provide a ‘detailed justification’ for its non-segregability,” Johnson v. Exec. Office for U.S.

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of

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Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)), and the agency should “describe what portion of

the information in a document is non-exempt and how that material is dispersed throughout the

document,” Mead Data Cent., 566 F.2d at 261.

An “agency’s task is not herculean”; a justification suffices “if it ‘appears logical or

plausible.’” Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 209 (D.C. Cir. 2015)

(quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). An agency “may

invoke [FOIA] exemptions independently and courts may uphold agency action under one

exemption without considering the applicability of the other.” Larson, 565 F.3d at 862–63.

III. Analysis

Although Woods’s FOIA request is imprecise, it is undisputed that he seeks records

created in accordance with Title III. 3 “The purpose of [that] statute is to control the conditions

under which interception will be permitted in order to safeguard the privacy of wire and oral

communications.” Lam Lek Chong v. DEA, 929 F.2d 729, 732 (D.C. Cir. 1991). To that end,

“Title III safeguards privacy in the first instance by significantly restricting the initiation of

electronic surveillance . . . . All surveillance is subject to prior judicial approval, issued in

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The Court has liberally construed Woods’s untitled document, ECF No. 23, and his
Reply to Defendant’s Motion, ECF No. 27, together as his Opposition to Defendant’s motion. In
the untitled document, Plaintiff states that he “simply requested who was the person that was
authorized to sign wire-taps applications from 1999-2000 and was this person appointed by the
President of the United States and confirmed by the Senate.” Pl.’s Opp’n Def.’s Mot. Summ. J.,
ECF No. 27, at 2. This restatement of the request indicates a basic misunderstanding about
FOIA. FOIA’s purpose is to provide access to existing documents in an agency’s control “at the
time the FOIA request [is] made.” Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 216
(D.C. Cir. 2013) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 145 (1989)).
FOIA does not “require[] an agency to answer questions disguised as a FOIA request, . . . or to
create documents or opinions in response to an individual’s request for information.” Hudgins v.
IRS, 620 F. Supp. 19, 21 (D.D.C. 1985), aff’d, 808 F.2d 137 (D.C. Cir. 1987); see also Maydak
v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 46 (D.D.C. 2003) (finding a request consisting of “a
series of questions or requests for information . . . beyond the scope of the FOIA”).

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accordance with detailed application procedures and on a showing and finding of probable

cause.” Id.

To apply for a wiretap order, a federal prosecutor “must first obtain permission from the

appropriate DOJ official, which includes the Assistant Attorney General for the Criminal

Division (‘AAG’) and his/her deputies.” Decl. of John E. Cunningham III ¶ 14, ECF No. 17-1.

DOJ’s internal process requires the prosecutor to submit the request to the Office of Enforcement

Operations (“OEO”) and consult with that office’s ESU attorney. Upon finalizing the request,

the ESU attorney drafts an action memorandum and recommendation to the AAG. If the AAG

finds the request compliant with Title III, the AAG sends an approval memorandum to OEO, and

that memorandum “together with the Attorney General’s delegation order, is provided to the

prosecutor, who files it under seal with the Court, together with the Title III application, special

agent’s affidavit, and proposed Court orders.” Id.

The Court finds that the government has justified withholding documents Woods appears

to request—that is, an action memorandum and several AAG memoranda—under FOIA

exemptions 3 and 5. The Court will therefore not address Defendant’s valid justifications for

withholding the third-party information contained in those documents under FOIA exemptions 6

and 7(C).

A. Exemption 3

FOIA Exemption 3 permits agencies to withhold documents pursuant to nondisclosure

provisions contained in other federal statutes. 5 U.S.C. § 552(b)(3). The statute must either

“leave no discretion” on withholding the document or establish “particular criteria for

withholding or refer[] to particular types of matters to be withheld.” Id. § 552(b)(3)(A)(i)-(ii).

In this regard, Exemption 3 “‘differs from other FOIA exemptions in that its applicability

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depends less on the detailed factual contents of specific documents; the sole issue for decision is

the existence of a relevant statute and the inclusion of withheld material within that statute’s

coverage.’” ACLU v. CIA, 892 F. Supp. 2d 234, 242 (D.D.C. 2012) (quoting Goland v. CIA,

607 F.2d 339, 350 (D.C. Cir. 1978)). “Title III falls squarely within the scope of [Exemption 3],

as a statute referring to ‘particular types of matters to be withheld.’” Lam Lek Chong, 929 F.2d

at 733.

In accordance with 18 U.S.C. § 2517 and § 2518(8)(b), the government withheld the

following categories of responsive records: (1) the prosecutors’ requests for permission to apply

for court authorization (including applications) supporting law-enforcement affidavits, and

proposed orders; (2) the OEO’s action memoranda to the AAG recommending approval of the

requests, and (3) the AAG’s memoranda to the OEO advising about the approval of the request,

including a copy of the AG’s delegation of authority to the AAG. Cunningham Decl. ¶ 19.

Section 2518(8)(b) requires wiretap “applications made and orders granted” to be sealed

by the judge and “disclosed only upon a showing of good cause before a judge of competent

jurisdiction.” Section 2517 restricts the use and disclosure of wiretap communications to

“investigative or law enforcement officer[s] . . . to the extent that such disclosure is appropriate

to the proper performance of the official duties of the officer making or receiving the disclosure.”

See Lam Lek Chong, 929 F.2d at 734 (noting that § 2517 “permits just three types of disclosure,”

two by law-enforcement officers for specified purposes and the third “by any person while

giving testimony under oath”) (citing § 2517(3)).

The declaration and Vaughn index submitted by DOJ provide detailed descriptions of the

withheld records, and they sufficiently explain why the documents are exempt from disclosure

under Exemption 3. The judges of this Court have consistently approved the government’s

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withholding of the requested memoranda because their release would “‘necessarily disclose[]

information that must be protected under Title III[.]’” Wright v. U.S. Dep’t of Justice, 2015 WL

4910502, at *6 (D.D.C. Aug. 17, 2015) (quoting Dorsey v. DEA, 85 F. Supp. 3d 211, 217

(D.D.C. 2015)); Sinito v. U.S. Dep’t of Justice, No. 87-0814 TFH, 2000 WL 36691372 (D.D.C.

Jul. 12, 2000), aff’d, 22 Fed. App’x 1 (D.C. Cir. 2001)); Butler v. U.S. Dep’t of Justice, No. 86-

2255, 1994 WL 55621 (D.D.C. Feb. 3, 1994). Woods has not come forward with any evidence

that any of the Title III documents he seeks have been unsealed or were the subject of sworn

testimony. Hence, Defendant is entitled to summary judgment on the Exemption 3 claim.

B. Exemption 5

FOIA Exemption 5 covers “inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). This means, in effect, privileged documents that originated with the agency.

U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

“Exemption 5 incorporates the work-product doctrine and protects against the disclosure of

attorney work product,” i.e., “materials ‘prepared in anticipation of litigation or for trial by or for

another party or by or for that other party’s representative (including the other party’s attorney,

consultant, surety, indemnitor, insurer, or agent).’” Judicial Watch, Inc. v. U.S. Dep’t of Justice,

432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(3); Tax Analysts v. IRS, 117

F.3d 607, 620 (D.C. Cir. 1997)).

In addition to the Title III records properly withheld under Exemption 3, the government

withheld OEO Title III System Logging Notes, other memoranda, and letters under Exemption 5

as attorney work-product and deliberative-process material. See Def.’s Mot. Summ. J., Ex. H

(Vaughn Index). The logging notes record OEO’s receipt of a prosecutor’s request “for

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permission to apply for a Title III order with respect to specified telephone numbers.”

Cunningham Decl. ¶ 24b. They include the target’s name, the name and address of the telephone

subscriber, the name of the ESU reviewer, and the user name of the ESU employee who created

the note. Id.

Defendant’s declarant avers that each document listed as Exemption 5 material was

prepared by an attorney (or at the attorney’s direction) “as part of the wiretap application

process” and “in anticipation of . . . a criminal prosecution of the individuals allegedly involved

in the criminal activity that was evidenced by the Court-ordered interceptions.” Id. ¶ 26.

“Courts in this district have routinely found similar records to be properly withheld under the

attorney work-product privilege of Exemption (b)(5).” Wright, 2015 WL 4910502, at *10 (citing

cases); see also Campbell v. U.S. Dep’t of Justice, No. CV 14-1350 (RJL), 2015 WL 5695208, at

*6 (D.D.C. Sept. 28, 2015) (approving similar withholdings). Although the logging notes

“possess a partially administrative character,” the fact that they were compiled in anticipation of

a specific criminal prosecution qualifies them as attorney work product. Thompson v. U.S.

Dep’t of Justice, 2015 WL 7303519, at *9 (D.D.C. Nov. 19, 2015) (citing “other courts in this

district, faced with virtually identical facts,” that have “reached the same conclusion”). And “[i]f

a document is fully protected as work product, then segregability is not required.” Judicial

Watch, Inc., 432 F.3d at 371. Hence, Defendant is entitled to summary judgment on the

Exemption 5 claim.

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IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment. An Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER
United States District Judge

Date: February 22, 2016

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