Cooper v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ELWOOD J. COOPER, )
)
Plaintiff, )
)
v. ) Civil Action No. 99-2513 (RBW)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Elwood J. Cooper (“the plaintiff”), proceeding pro se, brings this action against several

federal agencies (“the defendants”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552 (2012). The plaintiff seeks “to obtain all records related to his arrest and prosecution, in the

hopes of uncovering documents that he believes will prove that . . . his conviction was illegal.”

Cooper v. DOJ, No. CIV.A. 99-2513 (RMU), 2005 WL 670296, at *1 (D.D.C. Mar. 22, 2005).

Five motions are currently pending before the Court: (1) the defendants’ Second Renewed

Motion for Summary Judgment (“Second Summary Judgment Motion”); (2) the plaintiff’s

Second Cross-Motion for Summary Judgment in Opposition to Defendants’ Second Renewed

Motion for Summary Judgment (“Second Cross-Motion for Summary Judgment”); (3) the

defendants’ Motion for Extension of Time to File Reply and Opposition to Plaintiff’s Second

Cross-Motion for Summary Judgment (“Motion for Extension of Time to File Reply Brief”); (4)

the plaintiff’s Motion for Entry of an Order Granting Cross-Judgment as Conceded or, in the

Alternative, Discovery as a Matter of Law and Cause (“Motion to Concede”); and (5) the

1
plaintiff’s Motion for Enlargement Out of Time Having Expired (“Motion to Enlarge Time”). 1

Upon careful consideration of the parties’ submissions and the entire record in this case, the

Court concludes that it must grant in part the defendants’ Second Summary Judgment Motion,

deny the plaintiff’s Second Cross-Motion for Summary Judgment, grant, nunc pro tunc, the

1
This footnote serves to shed light on why earlier rulings on these motions were not rendered. This case was
randomly assigned to the undersigned in April 2012. On June 25, 2012, the Court issued an order that
administratively closed the case pending further order of the Court. The record does not reflect why the case was
closed. Subsequently, the Court ruled on the parties’ original cross-motions for summary judgment. However,
while the Court’s decision largely granted summary judgment to the defendants, an issue remained for the parties to
brief.
To that end, the parties filed the pending Cross-Motions for Summary Judgment in July and September of 2013.
However, because the defendants did not receive the plaintiff’s Cross-Motion for Summary Judgment in a timely
manner, the defendants filed the pending Motion for Extension of Time to File Reply Brief. On September 27,
2013, oblivious to the fact that the defendants received his Cross-Motion for Summary Judgment late, the plaintiff
filed the pending Motion to Concede.
While these four motions were pending, and before the parties had finished briefing the motions, on October 2,
2013, the defendants filed their “Motion to Stay in Light of Lapse of Appropriations,” Defs.’ Mot. to Stay, which the
Court references as “Motion to Stay.” In their Motion to Stay, the defendants’ counsel represented that certain
defendants could not work on FOIA matters due to a lapse in government appropriations. Id. at 1–2. Therefore, the
defendants requested that “all current deadlines for the parties be extended commensurate with the duration of the
lapse in appropriations.” Id. at 2.
In an order entered on October 7, 2013, the Court granted the Motion to Stay. The October 7, 2013 order
provided that “all deadlines in this case shall be extended for a period commensurate with the duration of the lapse
in appropriations.”
The defendants thereafter filed their reply brief on October 27, 2013. However, the defendants did not notify the
Court that the lapse in appropriations had previously ended and that the stay should be lifted.
The Court became aware of this oversight and, in a minute order entered on May 14, 2015, promptly notified the
parties to provide status reports. In that minute order, the Court noted that the “case [had] been administratively
closed since June 25, 2012, without the parties, particularly the defendants, advising the Court that it should be
reopened.”
The history of events the Court has been able to reconstruct fails to elucidate why rulings were not rendered on
these four motions in a timelier fashion. It may be that, because the case was stayed and administratively closed in
June 2012, the four motions were never properly activated on the docket and, therefore, went unnoticed. However,
this theory does not explain how the Court was able to rule on other motions that the parties filed after June 2012.
An alternative explanation is that, when the Court stayed all deadlines in the case for a period commensurate with
the lapse in appropriations, these four motions were inadvertently deactivated. If this is the case, it is easier to see
(1) how they might have gone unnoticed by the Court; and (2) how this unfortunate occurrence could have been
avoided had the parties, particularly the defendants, notified the Court that the lapse in appropriations had ended and
that the stay could be lifted. In any event, the Court regrets the delay and has to take responsibility for it.

2
defendants’ Motion for Extension of Time to File Reply Brief, deny the plaintiff’s Motion to

Concede, and grant, nunc pro tunc, the plaintiff’s Motion to Enlarge Time. 2

I. BACKGROUND

Originally filed in September 1999, this case has a long and complicated procedural

history. In setting forth the relevant factual and procedural background, the Court draws heavily

on prior opinions and orders issued in this case.

The plaintiff is “currently incarcerated at the U.S. Penitentiary in Coleman, Florida,

where he is serving a life sentence after being convicted of drug trafficking offenses in the

United States District Court for the Southern District of Florida.” Cooper v. DOJ, 890 F. Supp.

2d 55, 58 (D.D.C. 2012) (citation omitted). On May 3, 1999, the plaintiff “submitted separate

FOIA requests to the Drug Enforcement Administration (“DEA”), the United States Customs

Service (“Customs”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and

the United States Marshals Service (“Marshals Service”).” Id. The plaintiff sought records

“concerning his arrest and prosecution.” Id. These agencies processed the plaintiff’s request and

2
In addition to the documents previously referenced, the Court considered the following submissions in reaching its
decision: (1) the defendants’ September 19, 2005 Letter (“Sept. 2005 Ltr.”); (2) the District of Columbia Circuit’s
Second Remand Order (“Second Remand Order”); (3) the Court’s September 11, 2012 Opinion (“Sept. 2012 Op.”);
(4) the Court’s June 20, 2013 Order (“June 2013 Order”); (5) the defendants’ Supplemental Declaration of William
E. Bordley (“First Supp. Bordley Decl.”); (6) the defendants’ Supplemental Declaration of Leila I. Wassom (“Supp.
Wassom Decl.”); (7) the defendants’ Second Supplemental Declaration of William E. Bordley (“Second Supp.
Bordley Decl.”); (8) the defendants’ Declaration of William C. Little, Jr. (“Little Decl.”); (9) the defendants’ Motion
to Stay in Light of Lapse of Appropriations (“Defs.’ Mot. to Stay”); (10) the defendants’ Status Report (“Defs.’
Stat. Rep.”); (11) the plaintiff’s Status Report (“Pl.’s Stat. Rep.”); (12) the defendants’ September 19, 2005 Letter,
Exhibit 1 (“Sept. 2005 Ltr., Ex. 1”); (13) the defendants’ Statement of Material Facts not in Genuine Dispute with
Respect to Second Renewed Motion for Summary Judgment (“Defs.’ State. of Mat. Facts”); (14) the plaintiff’s
Notice of Filing and Intent to Reply in Opposition to Defendants’ Renewed Motion for Summary Judgment and to
Permit Limited Discovery (“Pl.’s Mot. & Intent Reply Opp’n to Defs.’ First Mot. Summ J.”); (15) the plaintiff’s
Motion for Reconsideration and/or to Alter or Amend the Court’s September 11, 2012 Order and Memorandum
(“Pl.’s Mot. to Recon. Sept. 2012 Order & Mem.”); (16) the defendants’ Second Supplemental Declaration of
William E. Bordley, Exhibit A (“Second Supp. Bordley Decl., Ex. A”); (17) the defendants’ Supplemental
Declaration of Leila I. Wassom, Exhibit H (“Supp. Wassom Decl., Ex. H”); and (18) the defendants’ Reply in
Support of Second Renewed Motion for Summary Judgment and Oppositions to Plaintiff’s Cross-Motion for
Summary Judgment and for Discovery (“Defs.’ Reply to Pl.’s Second Cross-Mot. for Summ. J.”).

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released to him the documents that they deemed “not subject to various [FOIA] exemptions.” Id.

(alteration in original) (internal quotation marks omitted). However, the same agencies released

other documents “with redactions corresponding to applicable exemptions” under the FOIA. Id.

at 59 (internal quotation marks omitted).

On May 28, 2003, Judge Thomas Penfield Jackson, a former member of this Court, found

that the agencies had “fully compiled with their FOIA obligations in responding to [the

plaintiff’s] requests.” Id. (internal quotation marks omitted). Therefore, Judge Jackson “granted

[the defendants’] motions for summary judgment.” Id. The plaintiff appealed and, on April 23,

2004, “the District of Columbia Circuit vacated Judge Jackson’s order and remanded the case to

this Court.” Id. (citing Cooper v. DOJ, No. 03–5172, 2004 WL 895748, at *1 (D.C. Cir. Apr. 23,

2004) (per curiam)). The Circuit’s decision concerned only “the search for records conducted by

the Marshals Service.” Id. (citation omitted). The Circuit held that the Marshals Service did not

comply with the FOIA because it failed to conduct an adequate search for certain “cashier’s

checks” of whose existence the plaintiff “offer[ed] proof.” Id. (citation omitted).

On remand, “Judge Jackson scheduled a status conference for July 13, 2004.” Id.

(citation omitted). However, none of the parties appeared. Consequently, “Judge Jackson

dismissed the case from the bench because the cashier’s checks in dispute had been turned over

to [the plaintiff].” Id. (citation and internal quotation marks omitted). On October 28, 2004,

“this case was randomly reassigned to Judge Ricardo Urbina, another former member of this

Court,” following Judge Jackson’s retirement. Id. at 60. In March 2005, Judge Urbina denied

the plaintiff’s two motions “seeking reconsideration of Judge Jackson’s dismissal order.” Id.

(citing Cooper, 2005 WL 670296, at *1–3).

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 “Cooper again appealed the dismissal of his case to the Circuit on March 28, 2005.” Id.

at 60. In September 2005, while the plaintiff’s second appeal was pending, “the Marshals

Service and DEA made additional documents relating to the cashier’s checks available to [him].”

Id. (internal quotation marks omitted). “According to the defendants, this release of records

resulted from a search by the [Marshals Service] for three cashier’s checks [conducted] in

response to the Circuit’s first remand in April 2004.” Id. (alteration in original) (internal

quotation marks omitted). These documents, according to the defendants’ counsel, included

“eighty-four (84) pages from the [Marshals Service] plus 102 pages referred to the [DEA] for

processing.” 3 Sept. 2005 Ltr. at 1. The defendants’ counsel further stated that “[r]edactions

have been made to some of the other documents pursuant to [FOIA Exemptions 2 and 7].” Id.

On December 28, 2005, the Circuit “vacated Judge Jackson’s July 13, 2004 dismissal

order” and remanded the case for the second time. Cooper, 890 F. Supp. 2d at 60 (citing Second

Remand Order). The Circuit’s second remand order instructed that, “[o]n remand, the district

court shall reevaluate the adequacy of the United States Marshals Service’s . . . search for

records in general.” Second Remand Order at 1. In so ruling, the Circuit reasoned that the

United States Marshals Service’s production of “additional records responsive” to the plaintiff’s

FOIA request during the pendency of his second appeal “cast[ed] even more doubt on the

adequacy” of the Marshals Service’s initial search. Id. The Circuit further instructed this Court

to “address any challenges made by the [plaintiff] to the redactions associated with this

production.” Id.

3
There is some confusion in the record as to whether the number of pages is eighty-three or eighty-four. Compare
Sept. 2005 Ltr. at 1, with Supp. Bordley Decl. ¶ 10 (suggesting that the true number is eighty-three). The plaintiff
indicates that the correct number is eighty-four. Pl.’s Second Cross-Mot. for Summ. J. at 1 & ¶¶ 1, 3–4. Therefore,
the Court will assume that the number is eighty-four. In any event, whether the correct number is eighty-three or
eighty-four is immaterial to the Court’s analysis.

5
 Following the Circuit’s second remand, “the parties filed renewed cross-motions for

summary judgment.” Cooper, 890 F. Supp. 2d at 60. “On April 20, 2012, this case was

randomly reassigned to the undersigned member of the Court upon Judge Urbina’s retirement.”

Id.

On September 11, 2012, this Court issued an opinion granting in part the defendants’

renewed motion for summary judgment. Sept. 2012 Op. Regarding the adequacy of the

Marshals Service’s search, the Court held that the Marshals Service “demonstrated that its search

was reasonable.” Cooper, 890 F. Supp. 2d at 64. However, the Court decided to “defer

consideration” of the challenges that the plaintiff made to the defendants’ redactions of the

documents released during his second appeal. Id. at 65. The Court came to this conclusion

because, in part, the defendants justified these redactions on “[FOIA] Exemption 2 [grounds],

which protects matters related solely to the internal personnel rules and practices of an agency.”

Id. at 64 (internal quotation marks omitted) (citing 5 U.S.C. § 552(b)(2)). But, the defendants

stated that “all components have recently been instructed to review the previous withholdings

under Exemption 2” in light of the Supreme Court’s decision in Milner v. Dep’t of Navy, 562

U.S. 562, 569 (2011). Id. at 65. In Milner, “the Supreme Court abrogated and narrowed the

expansive interpretation of FOIA Exemption 2 advanced by the District of Columbia Circuit in

Crooker v. ATF, 670 F.2d 1051, 1073 (D.C. Cir. 1981).” Id. at 64. Therefore, the defendants

stated that they would “file supplemental information regarding Exemption 2 as it [became]

available.” Id. at 65 (internal quotation marks omitted). In view of these developments, the

Court deemed it “inappropriate at [that] time to assess the propriety of the Marshals Service’s

invocation of Exemption 2.” Id. Additionally, because the Marshals Service invoked both

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Exemptions 2 and 7 for several documents, “the Court . . . [deferred] consideration of the

Marshals Service’s invocation of both exemptions.” Id.

Subsequently, the Court issued a briefing schedule concerning the sole remaining issue,

i.e., the “redactions made to the additional documents produced to the plaintiff in September

2005.” June 2013 Order at 10. According to the briefing schedule, the defendants were required

to submit their Second Summary Judgment Motion “on or before July 22, 2013,” id., the plaintiff

had to file his Second Cross-Motion for Summary Judgment “on or before August 22, 2013,” id.,

and the defendants had to file their reply brief “on or before September 5, 2013,” id.

On July 22, 2013, the defendants filed their Second Summary Judgment Motion. Defs.’

Second Summ. J. Mot. In this filing, in light of Milner, the defendants expressly abandoned

Exemption 2 as a justification for their redactions and “[relied] on only Exemptions 7(C), 7(D),

7(E)[,] and 7(F).” Id. at 3. As a general matter, Exemption 7 protects certain categories of

“records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7) (2012).

To support their Second Summary Judgment Motion, the defendants rely on the

following declarations: “[1] [the] Supplemental Declaration of William E. Bordley, [hereinafter,

“the first supplemental Bordley declaration”], [2] the Supplemental Declaration of Leila I.

Wassom [hereinafter, “the supplemental Wassom declaration”] . . . , [3] the Second

Supplemental Declaration of William E. Bordley [hereinafter, “the second supplemental Bordley

declaration”], and [4] the Declaration of William C. Little, Jr. [hereinafter, “the Little

declaration”] . . . .” Defs.’ Second Summ. J. Mot. at 1. These declarations provide necessary

background information regarding the plaintiff’s FOIA requests and the defendants’ responses to

them.

7
 Bordley is the Marshals Service’s “Associate General Counsel and Freedom of

Information/Privacy Act Officer.” First Supp. Bordley Decl. ¶ 1. His first supplemental

declaration discusses, inter alia, the eighty-four documents that the Marshals Service produced to

the plaintiff in September 2005. See id. ¶ 10. According to the declaration, the Marshals Service

applied Exemption 2 to these documents to redact “case numbers used by investigative agencies

to link particular asset records with ongoing investigation or litigation.” Id. ¶ 11. Additionally,

regarding the same documents, the declaration states that the Marshals Service relied on

Exemption 7(C) “to withhold the names and telephone numbers [of] law enforcement officers

and other government employees and third-party individuals.” Id. ¶ 12. However, the second

supplemental Bordley declaration states that, on August 28, 2012, the Marshals Service “made a

supplemental release of . . . [documents] consisting of the administrative markings and internal

case numbers that were previously withheld pursuant to Exemption 2.” Second Supp. Bordley

Decl. ¶ 3. According to Bordley, the Marshals Service took this action “in light of the Supreme

Court decision in Milner.” Id. ¶ 2.

Wassom is a DEA “Paralegal Specialist” who reviews FOIA “requests received by [the]

DEA.” Supp. Wassom Decl. ¶¶ 1–2. The supplemental Wassom declaration discusses, inter

alia, the 102 documents made available to the plaintiff while his second appeal to the Circuit was

pending. Id. ¶¶ 7–8. Wassom states that several of these documents “contain ‘violator

identifiers’ consisting of G-DEP (Geographical Drug Enforcement Program) codes.” 4 Id. ¶ 38.

She further states that G violator codes “are assigned to all DEA cases at the time the case file is

opened and indicate the classification of the violator, the types and amount of suspected drugs

involved, the priority of the investigation and the suspected location and scope of criminal

4
The Court will refer to the G-DEP codes as “G violator codes.”

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activity.” Id. ¶ 39. Wassom adds that, pursuant to Exemption 2, the DEA “withheld” the G

violator codes on “a few” of these documents. Id. ¶¶ 38, 40. Beyond that, the declaration cites

Exemption 7 to justify the redaction of the “identities of DEA Special Agents, other Federal,

state/local law enforcement officers, and attorneys.” Id. ¶ 46; see also ¶¶ 43–45, 47–49, 55–58.

In the same declaration, Wassom also relies on Exemption 7 to support the decision to withhold

“in their entirety” a handful of documents containing “information about a confidential source

and his/her drug-related interaction with third parties.” Id. ¶¶ 53–54.

The last declarant, Little, is a DEA “attorney whose primary responsibilities are matters

involving [FOIA] . . . litigation in which [the] DEA is an interested party.” Little Decl. ¶ 3.

Little states that, in its September 11, 2012 Order, the Court directed “the review of withholding

in this case pursuant to FOIA Exemption [2].” Id. ¶ 10. In response to the order, Little declares

that the “DEA is no longer asserting FOIA Exemption [2] and is asserting FOIA Exemption [7]

to withhold violator codes,” id. ¶ 11, which the Little declaration states includes “NADDIS

numbers,” 5 id. ¶ 15. According to Little, “[N violator codes] are multi-digit numbers assigned

to drug violators and suspected drug violators known to [the] DEA and entities that are of

investigative interest.” Id. ¶ 19. Little further declares that the violator codes 6 “are part of [the]

DEA’s internal system of identifying information and individuals in furtherance of [the] DEA’s

enforcement responsibilities,” and that “[t]hese numbers and codes reflect procedures prescribed

by the DEA Agents Manual.” Id. ¶ 16. Little then generally asserts that the violator codes fall

under Exemption 7 because releasing them would “thwart the DEA’s investigative and law

enforcement efforts.” Id. ¶ 20. More specifically, Little declares that:

5
The Court will refer to the NADDIS numbers hereafter as “N violator codes.”
6
Unless otherwise noted, the term “violator codes” refers to G violator codes and N violator codes collectively.

9
 The release of [G violator codes] would help identify priority given to narcotic
investigations, types of criminal activities involved, and violator ratings. Suspects
could decode this information and change their pattern of drug trafficking in an
effort to respond to what they determined [the] DEA knows about them or avoid
detection and apprehension and create excuses for suspected activities. . . .

[N violator codes] . . . are unique and personal to the individual to whom the
number applies. Because of the manner in which [N violator codes] are assigned
and methods for which they are used, release of the information could allow
violators to avoid apprehension, and could place law enforcement personnel or
informants in danger, since many details of a DEA investigation would be
disclosed. If these details of DEA investigations were known, violators would be
aware of how to respond in different situations where detection and/or
apprehension are eminent. They would be able to respond in a manner that would
help them avoid detection and arrest.

Id. ¶¶ 20–21.

On August 22, 2013, the plaintiff submitted his Second Cross-Motion for Summary

Judgment by mailing it through the prison mail system. Pl.’s Second Cross-Mot. for Summ. J.;

see also Defs.’ Mot. Ext. Time to File Reply Br. (“Defs.’ Mot. Ext. Time Reply”) at 1; Pl.’s Mot.

to Concede at 3. However, the defendants did not receive the plaintiff’s Second Cross-Motion

for Summary Judgment until sometime around September 13, 2013, Defs.’ Mot. Ext. Time

Reply at 1; Pl.’s Mot. to Concede at 3, which was after the filing deadline of September 5, 2013

by which the defendants had to oppose the plaintiff’s Second Cross-Motion for Summary

Judgment and reply in support of their own Second Summary Judgment Motion. The defendants

then sought an extension of time to file their reply brief, Defs.’ Mot. Ext. Time Reply,

requesting that the Court extend the deadline for filing their reply brief to “October 7, 2013,” so

that they would have “a reasonable amount of time to prepare an appropriate reply,” id. at 1.

On September 27, 2013, the plaintiff filed his Motion to Concede. Pl.’s Motion Concede.

In this motion, the plaintiff sought the entry of an order granting his Second Cross-Motion for

Summary Judgment “as conceded” under Local Civil Rule 7(b). As support for this request, the

10
plaintiff asserted that the defendants “failed to file a timely reply” to his Second Cross-Motion

for Summary Judgment. Id. at 1.

On October 2, 2013, the defendants filed their Motion to Stay, Defs.’ Mot. Stay, in which

their counsel represented that “Department of Justice attorneys and employees of the [Marshals

Service] and the [DEA]” were “prohibited from working” on FOIA matters due to the lapse of

government appropriations. Id. at 1–2. Therefore, the defendants requested that “all current

deadlines for the parties be extended commensurate with the duration of the lapse in

appropriations.” Id. at 2. The defendants further asked the Court to refrain from “setting any

automatic deadlines” so that they could “make sure that necessary coordination and review

[could] be accomplished in the wake of the current [government] shutdown.” Id. at 2–3. In an

order entered on October 7, 2013, the Court granted the Motion to Stay, Oct. 7, 2013 Order, 7

ordering that “all deadlines in this case shall be extended for a period commensurate with the

duration of the lapse in appropriations,” id. Without notifying the Court that the lapse in

appropriations had ended, the defendants filed their reply brief on October 27, 2013.

After the defendants filed the reply brief, no action was taken in the case for

approximately 1.5 years. 8 Then, on May 15, 2015, the Court issued a minute order directing the

parties to file a status report “advising the Court as to whether the case should be reopened and

whether the pending motions are still valid or have been resolved and thus are moot.” May 2015

Minute Order. The defendants responded to the Court’s minute order on May 29, 2015, stating

7
The October 7, 2013 Order was entered as a minute order, whose content appears as text on the docket, as opposed
to a separate document, and is not associated with a specific docket number.
8
As explained in footnote 1, the record does not fully reflect why action was not taken to resolve the motions
earlier. However, the Court is ultimately responsible for the delay.

11
that they were “unaware of any developments in this case . . . that would render the pending

motions moot.” Defs.’ Stat. Rep. at 1.

On June 4, 2015, the plaintiff filed his Motion to Enlarge Time, Pl.’s Mot. to Enlarge

Time, asking that the Court extend the deadline to file “his status report as to whether this case

should be reopened” to June 15, 2015, id. at 1. Approximately one month later, while his

Motion to Enlarge Time was pending, the plaintiff filed his status report. Pl.’s Stat. Rep.

II. STANDARD OF REVIEW

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations

omitted). Courts will grant summary judgment to an agency as the movant if it shows that there

is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of

agency records, the agency “is entitled to summary judgment if no material facts are in dispute

and if it demonstrates ‘that each document that falls within the class requested either has been

produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.’” Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA,

607 F.2d 339, 352 (D.C. Cir. 1978)).

Summary judgment in a FOIA case may be based solely on information provided in an

agency’s supporting affidavits or declarations if they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and

internal quotation marks omitted), and when they “[d]escribe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

12
evidence in the record [or] by evidence of agency bad faith,” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge an agency’s showing that it

compiled with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that

there is a genuine issue with respect to whether the agency has improperly withheld extant

agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting DOJ v. Tax

Analysts, 492 U.S. 136, 142 (1989)).

III. ANALYSIS

A. Cross-Motions for Summary Judgment

1. The parties’ arguments

The only remaining issue for the Court to resolve in this case is the propriety of the

“redactions made to the additional documents produced to the plaintiff in September 2005.”

June 2013 Order at 10. The Court deferred consideration of this issue so that the defendants

could review their previous withholdings under Exemption 2 in light of Milner. According to the

defendants, the Marshals Service later “released all the information over which it had previously

asserted Exemption 2.” Defs.’ Second Summ. J. Mot. at 2. Likewise, although the DEA had

asserted Exemption 2 over “a few” violator codes, Supp. Wassom Decl. ¶ 38, the Little

declaration states that the “DEA is no longer asserting [Exemption 2] . . . to withhold violator

codes,” Little Decl. ¶ 11. Therefore, the narrower issue for the Court to address is whether

Exemption 7 justifies the defendants’ redactions to the subject documents.

The redactions fall into three general categories of information. The first category

includes documents revealing the “names and telephone numbers” and “identities” of “law

enforcement officers,” “government employees,” “attorneys,” and “third-party individuals.”

First Supp. Bordley Decl. ¶ 12; Supp. Wassom Decl. ¶¶ 43–49. The second category pertains to

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the violator codes. See supra at pp. 8–10 (describing G and N violator codes). The final

category encompasses documents containing “information about a confidential source and

his/her drug-related interaction with third parties.” Supp. Wassom Decl. ¶¶ 53–54.

The defendants argue that Exemption 7 applies to all three categories of redactions,

asserting generally that the documents at issue were “compiled for law enforcement purposes.”

5 U.S.C. § 552(b)(7) (2012). Then, as to category one, the defendants argue that Exemption 7(C)

“was appropriately applied in this case to protect names and personal identifying information of

individuals,” Defs.’ Second Summ. J. Mot. at 7, and that the DEA properly applied Exemption

7(F) “to further ensure protection of the identifying information and safety of individuals

associated with its investigation of [the] plaintiff’s violent activities,” id. at 9. As for category

two, the defendants assert that Exemption 7(E) applies to the violator codes. Id. at 10. In

regards to the third category, the defendants argue that Exemptions 7(D) and (F) justify the

withholding of documents that “would reveal the identify and information provided by a

confidential source.” Id. at 9. The defendants complete their argument by asserting that they

disclosed “all reasonably segregable” information based on their “limited and careful excision of

[exempt] material.” Id. at 12.

The plaintiff’s Second Cross-Motion for Summary Judgment “stray[s] well outside the

limited issue on which the Court requested briefing,” Defs.’ Reply to Pl.’s Second Cross-Mot.

for Summ. J. at 1, and rehashes arguments that the Court has already rejected. The Court distills

the plaintiff’s voluminous and unfocused arguments into four core contentions. The first is that

the defendants have failed to produce various allegedly responsive documents. See generally

Pl.’s Second Cross-Mot. for Summ. J. ¶¶ 2–15. For instance, the plaintiff asserts that the

Marshals Service “has not rebutted evidence presented by [him] of its withholding of additional

14
U.S. Treasury checks.” Id. ¶ 2; see also id. ¶ 11. The plaintiff also asserts that the DEA’s search

was insufficient because it did “not [account] for 8 pages of documents[s] referred to it by [the]

ATF . . . or the 39 page[s] from Customs . . . .” Id. ¶ 7. Further, the plaintiff asserts that he “did

not [receive] 10 photographs sent to him by [the] DEA.” Id. ¶ 15. Additionally, the plaintiff

asserts that he “is entitled to full disclosure” of the DOJ’s purportedly “belated processing of

10,500 . . . documents subsequent to [the] second remand of this case.” Id. ¶ 10.

The plaintiff’s second core contention is that the Court erred in its September 11, 2012

opinion. Specifically, the plaintiff contends that the Court improperly “focus[ed] exclusively on

the adequacy” of the Marshals Service’s search for responsive records in response to the

Circuit’s second remand order. Id. at 4. But the second remand order instructed the Court to

“reevaluate the adequacy of the . . . Marshals Service’s . . . search for records,” Second Remand

Order at 1, and “did not instruct this Court to separately examine the adequacy of the DEA’s

search for records,” June 2013 Order at 5. The plaintiff appears to dispute this characterization

of the second remand order, asserting that it directed “all defendants to re-review their prior

withholding[s] in this case under . . . Exemption 2.” Pl.’s Second Cross-Mot. for Summ. J. at 11.

The third core contention is that the defendants have not produced certain documents that

they purportedly produced. For instance, the plaintiff suggests that the Marshals Service

provided him with only “65 pages” of the eighty-four documents that it concluded were

appropriate to release while his second appeal was pending. Id. ¶ 3. However, the plaintiff also

states in his Second Cross-Motion for Summary Judgment that counsel for the defendants “made

additional documents available to [him] (84 pages on behalf of [the Marshals Service] . . .) while

the second appeal . . . was pending.” Id. ¶ 1. Similarly, the plaintiff asserts that he has yet to

receive thirty-nine “pages of documents [that the Marshals Service allegedly] . . . sent to him on

15
August 28, 2012.” Id. ¶ 5. Therefore, the plaintiff concludes that he lacks “sufficient

information to justify the sufficiency” of the Marshals Service’s “Exemption 2 re-review of these

documents.” Id.

The plaintiff’s fourth, and final, core contention is the only one that addresses the subject

of redaction. However, instead of discussing the defendants’ redactions of the documents

released in September 2005, he asserts that the “DEA has not yet . . . provided justification for

redactions made to 13 pages of documents it released . . . on January 3, 2000.” Id. ¶ 7.

By and large, the Court agrees with the defendants that they properly redacted the

September 2005 documents. Furthermore, the plaintiff’s core contentions clearly lack merit.

Therefore, as explained more fully below, the Court grants in part the defendants’ Second

Summary Judgment Motion and denies the plaintiff’s Second Cross-Motion for Summary

Judgment.

2. Legal analysis

When Congress enacted the FOIA, “it set[ ] forth a policy of broad disclosure of

Government documents in order to ensure an informed citizenry, vital to the functioning of a

democratic society.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d

871, 872 (D.C. Cir. 1992) (internal quotation marks omitted) (citing FBI v. Abramson, 456 U.S.

615, 621 (1982)). “At the same time, however, Congress realized that legitimate governmental

and private interests could be harmed by release of certain types of information.” Id. (internal

quotation marks omitted) (citing Abramson, 456 U.S. at 621). “Balancing these private and

public interests, Congress enacted nine exemptions to [the] FOIA.” Id.

“The agency bears the burden of establishing that a claimed exemption applies.” Citizens

for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (citations

16
omitted). “The agency may carry that burden by submitting affidavits that describe the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Id. (citation and internal quotation

marks omitted). “Agency affidavits sometimes take the form of a ‘Vaughn index,’ but there is

no fixed rule establishing what such an affidavit must look like[.]” Id. (citations and some

internal quotation marks omitted).

“At times, the FOIA litigation process threatens to reveal the very information the agency

hopes to protect and therefore it may be necessary for the agency affidavit to contain only brief

or categorical descriptions of the withheld information.” Id. (citations and internal quotation

marks omitted). “In such circumstances, the government need not justify its withholdings

document-by-document; it may instead do so category-of-document by category-of-document, so

long as its definitions of relevant categories are sufficiently distinct to allow a court to determine

whether the specific claimed exemptions are properly applied.” Id. (citations and internal

quotation marks omitted). However, categorical designations may be employed “[o]nly when

the range of circumstances included in the category ‘characteristically support[s] an inference’

that the statutory requirements for exemption are satisfied.” Nation Magazine, Wash. Bureau v.

U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995) (quoting United States v. Landano, 508

U.S. 165, 176–80 (1993)).

The applicability of Exemption 7 is at issue here, which protects from disclosure “records

or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7) (2012). However,

Exemption 7 “exempts such documents from disclosure only to the extent that production of the

information might be expected to produce one of six specified harms.” Keys v. DOJ, 830 F.2d

17
337, 340 (D.C. Cir. 1987) (citing 5 U.S.C. § 552(b)(7)(A)–(F)). “Thus, in order to prevail on an

[E]xemption 7 claim, the government must bear its burden of demonstrating both the threshold

law enforcement purpose and the danger that at least one of the specified harms would flow from

disclosure.” Id. (citing Abramson, 456 U.S. at 622). Furthermore, “if a requested record

contains information that is exempt from disclosure under one of the FOIA exemptions, ‘[a]ny

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt.’” Trans-Pac. Policing Agreement v. U.S.

Customs Serv., 177 F.3d 1022, 1026–27 (D.C. Cir. 1999) (quoting 5 U.S.C. § 552(b)).

In this case, the Court’s Exemption 7 analysis proceeds as follows. First, the Court

addresses the threshold requirement that the information be compiled for law enforcement

purposes. Second, the Court assesses the applicability of specific Exemptions (e.g., 7(C), 7(D))

to the redactions challenged by the plaintiff. Third, the Court addresses the issue of

segregability. Lastly, the Court considers the plaintiff’s core contentions.

a. The defendants’ compiled their records for law enforcement purposes

Exemption 7 applies only to “records or information compiled for law enforcement

purposes.” 5 U.S.C. § 552(b)(7) (2012). “[T]he term ‘compiled’ in Exemption 7 requires that a

document be created, gathered, or used by an agency for law enforcement purposes at some time

before the agency invokes the exemption.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland

Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (alteration in original) (citation and some internal

quotation marks omitted), cert. denied, No. 15-196, 2016 WL 100369 (U.S. Jan. 11, 2016).

Records or information are compiled for law enforcement purposes where “the investigatory

activity that gave rise to the documents is related to the enforcement of federal laws, and there is

a rational nexus between the investigation at issue and the agency’s law enforcement duties.”

18
Jefferson v. DOJ, 284 F.3d 172, 177 (D.C. Cir. 2002) (citation and internal quotation marks

omitted). A “criminal law enforcement agency[’s] invocation of law enforcement purposes

warrants greater deference than do like claims by other agencies. Keys, 830 F.2d at 340

(alteration in original) (citation and internal quotation marks omitted); see also Campbell v. DOJ,

164 F.3d 20, 32 (D.C. Cir. 1998) (citation omitted) (stating that the decision of an agency that

“specializes in law enforcement . . . to invoke [E]xemption 7 is entitled to deference”).

Moreover, the records or information need not have been “compiled in the course of a specific

investigation.” Tax Analysts, 294 F.3d at 79 (citation omitted). And “an agency may seek to

block the disclosure of internal agency materials relating to guidelines, techniques, sources, and

procedures for law enforcement investigations and prosecutions, even when the materials have

not been compiled in the course of a specific investigation.” Id. (citation omitted).

Here, the defendants compiled the documents released in September 2005 for law

enforcement purposes. The documents were initially created, gathered, and used by the

government in the 1997–1999 period, which comes well before the defendants’ September 2005

invocation of the FOIA to justify their redactions. See generally Sept. 2005 Ltr., Ex. 1.

Furthermore, the plaintiff brought this case to obtain records “concerning his arrest and

prosecution,” Cooper, 890 F. Supp. 2d at 58, and the documents in question are directly related

to those events, see generally Sept. 2005 Ltr., Ex. 1. Additionally, all the agencies from which

the plaintiff seeks to obtain documents are law enforcement agencies for purposes of the FOIA. 9

Therefore, the defendants’ decision to invoke Exemption 7 is entitled to a measure of deference.

9
See Karantsalis v. DOJ, 635 F.3d 497, 502 (11th Cir. 2011) (stating that “the Marshals Service is a law
enforcement agency”); Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 n.3 (D.C. Cir. 1996)
(characterizing the ATF and DEA as “enforcement agencies”); Nation Magazine, 71 F.3d at 894 (referring to
Customs’ “law enforcement duties”).

19
Accordingly, there is no genuine dispute of material fact regarding whether the defendants

compiled the September 2005 documents for law enforcement purposes.

b. Category 1 Redactions

The defendants’ category one redactions include documents revealing the “names and

telephone numbers” and “identities” of “law enforcement officers,” “government employees,”

“attorneys,” and “third-party individuals.” See First Supp. Bordley Decl. ¶ 12; Supp. Wassom

Decl. ¶¶ 43–49. The defendants argue that Exemptions 7(C) and (F) protect this category of

information. The Court agrees that Exemption 7(C) protects this category of information and,

therefore, the Court need not consider the applicability of Exemption 7(F).

Exemption 7(C) protects “records or information compiled for law enforcement

purposes” from disclosure where disclosure “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (2012). Under Exemption

7(C), courts must “balance the privacy interests that would be compromised by disclosure

against the public interest in release of the requested information.” Davis v. DOJ, 968 F.2d

1276, 1281 (D.C. Cir. 1992) (citations omitted).

In terms of privacy, Exemption 7(C) confers broad privacy rights to people involved in

law enforcement investigations. “There is little question that disclosing the identity of targets of

law-enforcement investigations can subject those identified to embarrassment and potentially

more serious reputational harm.” Senate of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574,

588 (D.C. Cir. 1987) (citations omitted). Moreover, given its breadth, Exemption 7(C) also

applies to “[o]ther persons involved in the investigation.” Id. (citations omitted). These other

persons are not limited to private citizens such as witnesses, informants, and third-party

20
individuals. 10 Rather, Exemption 7(C) typically applies to all persons that “have a substantial

interest in seeing that their participation [in a law enforcement investigation] remains a secret,”

including “investigating agents.” Senate of P.R., 823 F.2d at 588 (citations omitted). And

“while it is true that Government officials may have a somewhat diminished privacy interest,

they do not surrender all rights to personal privacy when they accept a public appointment.”

Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996) (citation and internal quotation marks

omitted). Thus, although the Circuit has declined to “to imply a blanket exemption for the names

of all [law enforcement] personnel in all documents,” Lesar v. DOJ, 636 F.2d 472, 487 (D.C. Cir.

1980), it repeatedly has endorsed the application of Exemption 7(C) “to withhold names,

addresses, telephone numbers, . . . and other such private information regarding law enforcement

officials, . . . [and] other government employees,” Sussman v. U.S. Marshals Serv., 494 F.3d

1106, 1115 (D.C. Cir. 2007). 11

Where “‘the privacy concerns addressed by Exemption 7(C) are present, the exemption

requires the person requesting the information to establish a sufficient reason for the

disclosure.’” Rimmer v. Holder, 700 F.3d 246, 257 (6th Cir. 2012) (quoting Nat’l Archives &

10
See Hodge v. FBI, 703 F.3d 575, 580–81 (D.C. Cir. 2013) (citation omitted) (recognizing that “private citizens—
such as witnesses, informants, and suspects—have particularly strong privacy interests”); Sussman v. U.S. Marshals
Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (internal quotation marks omitted) (affirming government’s application
of Exemption 7(C) to withhold private information of “third party individuals”); SafeCard, 926 F.2d at 1205
(alteration in original) (citation and internal quotation marks omitted) (“Exemption 7(C) affords broad[ ] privacy
rights to . . . witnesses . . . .”); Senate of P.R., 823 F.2d at 588 (citation omitted) (“Other persons involved in the
investigation-witnesses [and] informants . . .-also have a substantial interest in seeing that their participation remains
secret.”).
11
See also Hodge, 703 F.3d at 580–81 (affirming the application of Exemption 7(C) “to protect private information
of various investigators”); Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (citing cases) (stating that the
Circuit has “consistently supported nondisclosure of names or other information identifying individuals appearing in
law enforcement records, including investigators, suspects, witnesses, and informants”); Davis, 968 F.2d at 1281
(recognizing that “undercover agents” have “cognizable privacy interests” under Exemption 7(C)); SafeCard, 926
F.2d at 1205 (alteration in original) (emphasis added) (citation and internal quotation marks omitted) (“Exemption
7(C) affords broad[ ] privacy rights to suspects, witnesses, and investigators.”); Baez v. DOJ, 647 F.2d 1328, 1339
(D.C. Cir. 1980) (affirming the application of Exemption 7(C) “to the names of lower and middle-level FBI
personnel”).

21
Records Admin. v. Favish, 541 U.S. 157, 172 (2004)). “‘First, the citizen must 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.’” Id. (quoting Favish, 541 U.S. at 172). “‘Second, the citizen

must show the information is likely to advance that interest.’” Id. (quoting Favish, 541 U.S. at

172). “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 (internal quotation marks omitted) (citing DOJ v. Reporters Comm.

for Freedom of Press, 489 U.S. 749, 773 (1989)). By contrast, Exemption 7(C) broadly “protects

the privacy interests of all persons mentioned in law enforcement records, whether they be

investigators, suspects, witnesses, or informants.” Sussman, 494 F.3d at 1115 (citation omitted).

Because the privacy interests are generally weightier, the Circuit has held that “unless

access to the names and addresses of private individuals appearing in files within the ambit of

Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is

engaged in illegal activity, such information is exempt from disclosure.” SafeCard, 926 F.2d at

1206. Ordinarily, to satisfy this standard, “‘the requester must produce evidence that would

warrant a belief by a reasonable person that the alleged [g]overnment impropriety might have

occurred.’” See Sussman, 494 F.3d at 1115 (quoting Favish, 541 U.S. at 174). The requester

also must seek information that is “probative of an agency’s behavior or performance.” See

SafeCard, 926 F.2d at 1205 (citations omitted); see also Davis, 968 F.2d at 1282. Accordingly,

even where the requester alleges misconduct, “bare and undeveloped allegations [do] not warrant

22
a belief by a reasonable person that impropriety might have occurred.” Sussman, 494 F.3d at

1115 (citing Favish, 541 U.S. at 174). 12

In this case, Exemption 7(C) covers the information contained in the category one

redactions. As expounded above, the Circuit has consistently held that Exemption 7(C) protects

the private information of all persons involved in criminal investigations, including their names

or identities, addresses, and telephone numbers. And, while the plaintiff alleges that he seeks the

information to investigate potential prosecutorial impropriety, his bare and undeveloped

allegations do not support a reasonable belief that the alleged misconduct might have occurred.

Nor has the plaintiff adequately explained how the disclosure of the information in the category

one redactions would be probative of the prosecutor’s alleged misconduct. After all, the plaintiff

already knows the names of the government agents whom he accuses of conspiring to entrap

him. Pl.’s Second Cross-Mot. for Summ. J. at 13. Accordingly, the defendants properly relied

on Exemption 7(C) to redact the information in the category one redactions. 13

c. Category 2 Redactions

The second category of redactions are the violator codes. The defendants argue that

Exemption 7(E) justifies the redaction of these codes and the Court agrees.

Exemption 7(E) protects records or information compiled for law enforcement purposes

from production where the release: (i) “would disclose techniques and procedures for law

enforcement investigations or prosecutions . . . or . . . guidelines for law enforcement

investigations or prosecutions . . . .”; and (ii) “could reasonably be expected to risk

12
See also Citizens for Responsibility, 746 F.3d at 1094 (stating that “in cases where ‘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.’” (quoting Favish, 541
U.S. at 174))).
13
The defendants invoke Exemption 7(C) also to justify the redaction of one document in its entirety. The Court
discusses the propriety of this decision in further detail in Part III.A.2.e, infra.

23
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E) (2012). The Circuit has construed

Exemption 7(E) to set “a relatively low bar for the agency to justify withholding.” Blackwell v.

FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a highly specific burden of

showing how the law will be circumvented, [E]xemption 7(E) only requires that the [agency]

demonstrate logically how the release of the requested information might create a risk of

circumvention of the law.” Id. (second alteration in original) (citation and internal quotation

marks omitted). This is because Exemption 7(E), by its plain terms,

looks not just for circumvention of the law, but for a risk of circumvention; not
just for an actual or certain risk of circumvention, but for an expected risk; not
just for an undeniably or universally expected risk, but for a reasonably expected
risk; and not just for certitude of a reasonably expected risk, but for the chance of
a reasonably expected risk.

Id. (citation omitted).

Judges in this District have consistently applied Exemption 7(E) to the violator codes at

issue. 14 Collectively, these cases support the proposition that affidavits that describe the

government’s reasons for withholding violator codes in reasonably specific and logical detail

may support summary judgment, particularly where the “plaintiff does not seriously challenge

the DEA’s assertion that further disclosure of the codes would disclose techniques[,] procedures .

. . [and] guidelines for law enforcement investigations or prosecutions that could reasonably be

14
See, e.g., Dorsey v. Exec. Office for U.S. Attorneys, 83 F. Supp. 3d 347, 357 (D.D.C. 2015) (citations omitted)
(“The Court concludes that the DEA properly has withheld [violator codes] under Exemption 7(E).”); McKneely v.
DOJ, ____ F. Supp. 3d ____, ____, No. CV 13-1097, 2015 WL 5675515, at *6 (D.D.C. Sept. 25, 2015) (citations
omitted) (“[The] DEA’s redaction of [violator codes] from records responsive to FOIA requests has been routinely
upheld . . . .”); Smith v. Exec. Office for U.S. Attorneys, 83 F. Supp. 3d 289, 296 (D.D.C. 2015) (citations omitted)
(“The Court concludes that the DEA properly withholds these G-DEP codes under Exemption 7(E).”); Fowlkes v.
ATF, 67 F. Supp. 3d 290, 307 (D.D.C. 2014) (citations omitted) (holding that the DEA’s position that Exemption
7(E) protects violator codes “is entirely supported by relevant case law”); Ortiz v. DOJ, 67 F. Supp. 3d 109, 123
(D.D.C. 2014) (citations omitted) (“The Court concludes that [violator codes are] properly . . . withheld under FOIA
Exemption 7(E).”); Higgins v. DOJ, 919 F. Supp. 2d 131, 151 (D.D.C. 2013) (citations omitted) (holding that the
DEA’s decision to withhold violator codes “[was] appropriate in light of the Milner decision”).

24
expected to risk circumvention of the law.” Cf. Adionser v. DOJ, 33 F. Supp. 3d 23, 26 (D.D.C.

2014) (alterations in original) (citations and internal quotation marks omitted); note 14, supra.

Consistent with the position of other members of this Court, the Court concludes that

Exemption 7(E) applies to the violator codes in this case also. The Little declaration and

supplemental Wassom declaration explain how the disclosure of the violator codes might create

a risk of circumvention of the law in reasonably specific and logical detail. See supra pp. 8–10.

Moreover, the plaintiff does not even attempt to challenge the defendants’ explanation.

Accordingly, the Court holds that Exemption 7(E) protects the violator codes from disclosure.

d. Category 3 Redactions

The category three redactions involve documents containing “information about a

confidential source and his/her drug-related interaction with third parties.” Supp. Wassom Decl.

¶¶ 53–54. The defendants invoked Exemption 7(D) to withhold three such documents in their

entirety. The Court agrees that Exemption 7(D) justifies the withholding of the confidential

information in these documents, including the identity of the source.

“FOIA Exemption 7(D) protects records or information compiled by criminal law

enforcement authorities in the course of criminal investigations if their release could reasonably

be expected to disclose the identity of, as well as information provided by, a confidential

source.” Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 905 (D.C.

Cir. 1996) (citing 5 U.S.C. § 552(b)(7)(D)). In other words, “[w]here, as here, the records at

issue were compiled by criminal law enforcement authorit[ies] in the course of a criminal

investigation, they are covered by Exemption 7(D) if producing the records could reasonably be

expected to disclose the identity of a confidential source or information furnished by such a

source. Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011) (internal quotation marks omitted)

25
(citing 5 U.S.C. § 552(b)(7)(D)). “The applicability of . . . [Exemption 7(D)] in each case

depends upon whether the particular source who furnished the information at issue was granted

confidentiality, either expressly or by implication.” Mays v. Drug Enf’t Admin., 234 F.3d 1324,

1328 (D.C. Cir. 2000) (citing Landano, 508 U.S. at 172). Regarding implied confidentiality,

although a source is not confidential under Exemption 7(D) merely because the source provides

information to the government during a criminal investigation, “often the [g]overnment [will] be

able to point to more narrowly defined circumstances that will support the inference.” Id. at

1329 (internal quotation marks omitted) (citing Landano, 508 U.S. at 179). That is, “[t]here may

well be other generic circumstances in which an implied assurance of confidentiality fairly can

be inferred.” Id. (alteration in original) (internal quotation marks omitted) (citing Landano, 508

U.S. at 179). “For example, when circumstances such as the nature of the crime investigated and

[the informant’s] relation to it support an inference of confidentiality, the [g]overnment is

entitled to a presumption.” Id. (internal quotation marks omitted) (citing Landano, 508 U.S. at

181). One such situation is when “the cooperating individual supplied information about a

conspiracy to distribute crack and powder cocaine.” Id. This result is the acknowledgement of

“the violence and risk of retaliation that attend this type of crime.” Id. The government may

also show that an informant supplied confidential information about a conspiracy to distribute

cocaine “by providing a sufficiently detailed explanation of the basis for the agency’s

conclusion.” Campbell, 164 F.3d at 34.

In this case, Exemption 7(D) applies to the information that the category three redactions

embody. It is a matter of record that the plaintiff is currently serving a life sentence for drug

trafficking offenses. Specifically, the defendants’ Statement of Material Facts not in Genuine

Dispute with Respect to Second Renewed Motion for Summary Judgment states, and the plaintiff

26
does not dispute, that the plaintiff “is currently serving a life sentence [after being convicted of]

conspiracy to import and distribute cocaine.” Defs.’ State. of Mat. Facts ¶ 1. Additionally, the

supplemental Wassom declaration states, and the plaintiff does not dispute, that he “was

convicted [specifically] of conspiracy and possession with intent to distribute cocaine.” Supp.

Wassom Decl. ¶ 52. Wassom further states that “individuals who provided information about the

plaintiff would fear for their safety, since violence is inherent in the trade in . . . cocaine, if their

identities or the information they provided was revealed.” Id. These representations more than

adequately establish that the source of the redacted information is protected by Exemption 7(D),

as it is reasonable to infer that the information provided was in connection with the DEA’s drug

importation and distribution investigation of the plaintiff. 15

e. Segregability

The FOIA provides that, if a record contains information that is exempt from disclosure,

“[a]ny reasonably segregable portion of a record shall be provided to any person requesting such

record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b) (2012). In other

words, “[i]t has long been a rule in the D.C. Circuit that non-exempt portions of a document must

be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent.,

Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). And it is the government’s

burden to show with “reasonable specificity why the documents cannot be further segregated.”

Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996) (citations and

internal quotation marks omitted). Therefore, “conclusory statements” that a document cannot

be further segregated are insufficient to support summary judgment. See Mead, 566 F.2d at 261.

15
The DEA also cited Exemptions 7(C) and (F) to justify the withholding of the names of the law enforcement
officers identified in the documents in the category three redactions. The Court agrees that Exemption 7(C) would
protect this information from disclosure for the reasons stated in Part III.A.2.a–b, supra. Having concluded that
Exemptions 7(C) and (D) protect this information, the Court need not consider the applicability of Exemption 7(F).

27
 The segregability, or lack thereof, of information withheld under Exemption 7(D) raises

special considerations. The Circuit has stated that “Exemption 7(D) differs from other FOIA

exemptions in that its applicability depends not on the specific factual contents of a particular

document; instead, the pertinent question is whether the information at issue was furnished by a

confidential source during the course of a legitimate criminal law investigation.” Lesar, 636

F.2d at 492. According to Lesar, “[o]nce that question is answered in the affirmative, all such

information obtained from the confidential source receives protection.” Id. Thus, the

government may not be able to “say anything further in the Vaughn index about the requested

document without also revealing information protected from disclosure by Exemption 7(D).”

Simon v. DOJ, 980 F.2d 782, 784 (D.C. Cir. 1992). Consequently, in some cases, affidavits that

“make[] clear for which documents [Exemption 7(D)] was invoked” may suffice to show that the

documents contain no reasonably segregable information. Cf. Simon, 980 F.2d at 784 (emphasis

added) (“[W]here the agency cannot describe the document fully enough to show that it is

exempt from disclosure without in the course of doing so disclosing the very information that

warrants exemption, the solution is for the court to review the document in camera.”); Lesar,

636 F.2d at 492. Affidavits are more likely to suffice to show that the documents contain no

reasonably segregable information where, as here, “the record indicates that [the government]

did segregate non-exempt information in documents withheld under other FOIA exemptions.”

Boyd v. DOJ, 475 F.3d 381, 391 (D.C. Cir. 2007).

In this case, with one minor exception, the defendants have adequately shown that they

disclosed all non-exempt portions of the documents at issue. The Court has carefully reviewed

the redacted documents and agrees with the defendants’ assessment that they contain “limited

and careful excision of material and corresponding markings with the [allegedly] applicable

28
FOIA Exemptions.” Defs.’ Second Summ. J. Mot. at 12. Take for example a document included

in the September 2005 documents titled “Application for Transfer of Federally Forfeited

Property” (hereinafter, “the application”). Sept. 2005 Ltr., Ex. 1 at 16–17. The application

contains numerous items of information, such as general instructions, the asset number, its

seizure date, the judicial district of the seizure, the case type, the requesting agency name and

address, a description of the asset, the specific intended law enforcement use, answers to various

questions related to the seizure, and the titles of the officials who executed the document. Id.

The application’s only redactions are for the name and telephone number of the contact person,

the names of the officials who executed the document, and approximately two out of eight lines

of text in a section for adding details to previous answers. See id. The other documents

disclosed in September 2005 contain similarly minimal redactions. See generally Sep. 2005 Ltr.,

Ex. 1. Accordingly, the defendants have shown that they disclosed all of the reasonably

segregable information from the redacted documents.

Moreover, the DEA has shown that it has released all the reasonably segregable material

from at least four of the five documents withheld in full. These documents are identified in

exhibit 1 to the September 19, 2005 letter as numbers “35,” “37,” “42,” “106,” and “107.” See

id., Ex. 1 at 36, 38, 43, 105, 106. 16 The Court addresses documents 42, 106, and 107 collectively

because the DEA invoked Exemption 7(D) to justify withholding them in full. The Court will

independently consider documents 37 and 35. Discussing these two documents independently

promotes clarity because the DEA invoked only Exemption 7(C) to withhold document 37.

Moreover, the basis on which the DEA withheld document 35 is not entirely clear.

16
The numbers in this citation correspond to the page numbers that the Court’s electronic filing system generates
and that appear on the top, right-hand side of the documents. The Court did not use the original page numbers on
the documents because their numbering is inconsistent.

29
 The DEA has adequately shown that it released all reasonably segregable information

from documents 42, 106, and 107. The Wassom declaration states that the DEA withheld these

documents pursuant to Exemption 7(D). Supp. Wassom Decl. ¶ 53. Wassom further states that

these documents are “page five of three . . . five-page Seizure Forms,” and that the “pages

contain information about a confidential source and his/her drug-related interaction with third

parties.” Id. ¶ 54. The declaration adds that the “pages were withheld in their entirety pursuant

to [Exemptions 7(C) and (D)] since the release of the information would disclose the identity of

and information provided by a confidential source.” Id. While Wassom’s statements are not

overly specific, they indicate that the DEA cannot say anything more about these documents

without revealing protected information.

The DEA’s Vaughn index supports this conclusion. Supp. Wassom Decl., Ex. H.

Regarding documents 106 and 107, the Vaughn index states that the information withheld in full

pertains to a “probable cause section.” Id., Ex. H at 102. 17 As probable cause is a fact-intensive

inquiry, cf. Illinois v. Gates, 462 U.S. 213, 232 (1983), this statement, together with Wassom’s

declarations, indicates that the DEA could not further discuss documents 106 and 107 without

revealing protected information. As for document 42, the DEA’s Vaughn index states that

“paragraphs 1–3” were deleted because they contained the “identity of a confidential source,”

“information about a confidential source,” and a third-party’s “name & investigative details.”

Supp. Wassom Decl., Ex. H at 53. Coupled with Wassom’s other declarations, the statement that

all of this information is contained in three paragraphs indicates that it is fact-intensive and, as a

consequence, inextricably intertwined with any exempt portions of the document.

17
The page numbers in citations for exhibit H correspond to the page numbers that the Court’s electronic filing
system generates and that appear on the top, right-hand side of the documents. The Court did not use the original
page numbers that appear on the documents because their numbering is inconsistent.

30
 The DEA has also sufficiently shown that it released all reasonably segregable

information from document 37. The DEA invoked Exemption 7(C) to completely withhold this

document because it contained “names of individuals” and their “personal information.” Id., Ex.

H at 50. Although the DEA redacted similar information from other documents without

withholding them in full, the Court nonetheless concludes that the DEA released all reasonably

segregable information from this single document. As support for this conclusion, it is

noteworthy that the DEA made minimal redactions to virtually every other document.

Therefore, the fact that the DEA totally withheld only this one document is telling. The plaintiff

might respond that the DEA had something to hide, but if such a supposition is being advanced

based on the plaintiff’s vague allegations of a government conspiracy to entrap him, it would fail

as purely speculative. Moreover, the DEA declares, and the record reflects, that document 37 “is

page two of a five[-]page [asset] seizure form.” Supp. Wassom Decl. ¶ 63. It is unclear how one

would reasonably expect this document to contain relevant information, especially since the

plaintiff received the lion’s share of the information from the other portions of the same form.

Accordingly, the DEA has adequately shown that document 37 is not further segregable.

However, the DEA has yet to show why document 35 contains no reasonably segregable

information. The record indicates that the DEA withheld five documents in full, see Sept. 2005

Ltr., Ex. 1 at 36, 38, 43, 105, 106, and the supplemental Wassom declaration states as much,

Supp. Wassom Decl. ¶ 7 (stating that “five (5) pages were withheld in their entirety”). Yet, in an

apparent contradiction, Wassom states in the following paragraph that “four (4) pages were

withheld in their entirety.” Id. ¶ 8 (emphasis added). Then, Wassom inconsistently refers to the

“four (5) pages.” Id. ¶ 53 (emphasis added). Hence, it is unclear whether there is a fifth fully

redacted document and, if so, on what basis the DEA withheld it. On this uncertain record, the

31
Court must reserve judgment on whether document 35 contains any reasonably segregable

information and require the defendants to submit supplemental briefing on this issue.

The plaintiff’s counterarguments to the withholdings being upheld by the Court are

devoid of merit. The brevity of the Court’s analysis that follows reflects its prior admonition that

“[a]ny irrelevant arguments or further motions for reconsideration are strongly discouraged and,

absent an exceptional showing, will be summarily denied.” June 2013 Order at 11.

The plaintiff’s first core contention is that the defendants failed to produce certain

documents (e.g., treasury checks, and various documents from the DEA, ATF, and DOJ). This

contention is unsound. The plaintiff has already raised the same arguments, Pl.’s Mot. & Intent

Reply Opp’n to Defs.’ First Mot. Summ J. ¶¶ 3, 5–6, 9; Pl.’s Mot. to Recon. Sep. 2012 Order &

Mem. at 7–8, 13, and the Court rejected them in its September 11, 2012 opinion and June 20,

2013 order, see generally Sept. 2012 Op.; June 2013 Order Moreover, the plaintiff’s first core

contention is well outside of the sole issue remaining for resolution in this case, namely, the

propriety of the defendants’ redactions of the September 2005 documents. Therefore, the

plaintiff’s first core contention fails.

The plaintiff’s second core contention is also meritless. The plaintiff contends that the

Court erred by considering the adequacy of only the Marshals Service’s search in its September

11, 2012 opinion. However, the court rejected the same argument in the June 20, 2013 order.

June 2013 Order at 5. Moreover, the Court stated in a footnote in the order that it would

conclude that the DEA’s search was reasonable if it reached the question. Id. n.5 (“Even if the

Court were to independently evaluate the adequacy of the DEA’s search, it would conclude that

the supplemental declaration from the DEA explaining its search efforts suffices to carry the

32
agency’s burden at the summary judgment stage . . . .”). Thus, the plaintiff’s second core

contention is unconvincing.

With the exception of one minor unresolved issue, the plaintiff’s third core contention is

likewise unsound. The plaintiff suggests in his Second Cross-Motion for Summary Judgment

that the Marshals Service has produced only sixty-five of the eighty-four documents that it

purports to have produced in September 2005. But the record indicates that counsel for the

defendants sent the plaintiff all of these documents, in part because all the documents are in the

record. See Sept. 2005 Ltr., Ex. 1; see also Supp. Bordley Decl. ¶ 10. Given the defendants’

representation that they have produced all of these documents, the presence of all the documents

in the record, the voluminous amount of documents that the defendants have already produced,

the plaintiff’s acknowledgment that he received at least the majority of the documents, and the

plaintiff’s history of overzealously litigating this case, the plaintiff has failed to create a genuine

dispute about whether the defendants withheld nineteen of the eighty-four documents. 18 In

similar fashion, the plaintiff asserts that he “still have [sic] yet to received [sic] thir-nine [sic] . . .

pages” that the Marshals Service allegedly sent him on August 28, 2012.” Pl.’s Second Cross-

Mot. for Summ. J. ¶ 5. However, the second supplemental Bordley declaration states that these

documents were produced, Second Supp. Bordley Decl. ¶ 3, and Bordley attached a letter to this

declaration stating that the Marshals Service made the supplemental disclosure of these

documents, id., Ex. A. Yet, unlike the eighty-four documents discussed above, the Marshals

Service did not attach the actual documents to the record. Therefore, exercising caution, the

18
Out of an abundance of caution, the Court will provide the plaintiff with exhibit 1 to the defendants’ Cross-
Motion for Summary Judgment, which includes the nineteen documents that the plaintiff references, as they are now
part of the Court record.

33
Court will order the Marshals Service to resend to the plaintiff the thirty-nine documents

referenced in paragraph 3 of the second Bordley declaration.

The plaintiff’s last core contention also lacks merit. The plaintiff contends, without

elaboration, that the DEA has yet to justify the redactions that it made to thirteen pages of

documents released in January 2000. The Court summarily denies this argument, as the Court

has already rejected it and it lies far afield from the sole remaining issue in the case.

In summary, the defendants properly invoked Exemptions (7)(C), (D), and (E) to justify

their redactions of the information contained in categories one, two, and three. However, the

DEA has yet to sufficiently show that it has released all the reasonably segregable material from

document 35. Therefore, the Court will reserve judgment on whether the DEA has released all

reasonably segregable information from document 35 and require the defendants to submit

supplemental briefing on this issue. Furthermore, while the plaintiff’s core contentions are

meritless, the Court will nonetheless order the Marshals Service to resend to the plaintiff the

thirty-nine documents referenced in paragraph 3 of the second Bordley declaration.

Accordingly, for the foregoing reasons, the Court grants in part the defendants’ Second

Summary Judgment Motion and denies the plaintiff’s Second Cross-Motion for Summary

Judgment.

B. The Remaining Motions

Three additional motions require the Court’s attention. The first is the defendants’

Motion for Extension of Time to File Reply Brief. Defs.’ Mot. Ext. Time to Reply. The second

is the plaintiff’s Motion to Concede, in which he seeks an order granting his Second Cross-

Motion for Summary Judgment based on the defendants’ alleged failure to timely respond to his

Second Cross-Motion for Summary Judgment. Pl.’s Mot. to Concede. The third is the plaintiff’s

34
Motion to Enlarge Time, whereby he seeks an extension to the deadline set by the Court’s May

14, 2015 minute order requiring status reports. Pl.’s Mot. to Enlarge Time. The Court addresses

the defendants’ Motion for Extension of Time to File Reply Brief and the plaintiff’s Motion to

Concede collectively because they present overlapping issues. The Court then considers the

plaintiff’s Motion to Enlarge Time.

1. Motion for extension of time and motion to concede

As explained in more detail above, see supra p. 7, the Court issued a briefing schedule

regarding the sole remaining issue contemporaneously with its June 20, 2013 order. The

defendants had to submit their Second Summary Judgment Motion on or before July 22, 2013,

the plaintiff had to file his Second Cross-Motion for Summary Judgment on or before August 22,

2013, and the defendants’ reply brief was due no later than September 5, 2013. June 2013 Order

at 10–11. But the defendants did not receive the plaintiff’s Second Cross-Motion for Summary

Judgment until around September 13, 2013. Subsequently, on September 19, 2013, the

defendants filed the Motion for Extension of Time to File Reply Brief, asking the Court to

extend the deadline for filing a reply brief to October 7, 2013. On September 27, 2013, the

plaintiff filed the Motion to Concede based on the defendants’ failure to timely file the reply

brief.

Things grew more complicated when, on October 2, 2013, the defendants filed their

Motion to Stay. In the Motion to Stay, the defendants asked the Court to extend all deadlines for

a period commensurate with the duration of the lapse in appropriations, which lasted for sixteen

days. See Leonard v. U.S. Dep’t of Def., 598 F. App’x 9 (D.C. Cir. 2015) (per curiam) (stating

that the shutdown “began on October 1, 2013” and ended on “October 17, 2013”), cert. denied,

35
____ U.S. ____, 136 S. Ct. 261 (2015). Ultimately, the defendants filed the reply brief on

October 25, 2013.

Local Civil Rule 7 governs the service and filing of motions. Under Local Rule 7(b),

“[w]ithin . . . such other time as the Court may direct, . . . an opposing party shall serve and file a

memorandum of points and authorities in opposition to [a] motion.” LCvR 7(b). “If such a

memorandum is not filed within [14 days], the Court may treat the motion as conceded.” See id.

(emphasis added). “The discretion to enforce Rule 7(b) ‘lies wholly with the district court.’”

Harrison v. Snow, No. 04-5248, 2004 WL 2915335, at *1 (D.C. Cir. Dec. 16, 2004) (quoting

Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)); see also Malik v. District

of Columbia, 574 F.3d 781, 786 (D.C. Cir. 2009) (citations omitted) (stating that the Circuit

“review[s] the district court’s application of Rule 7(b) for abuse of discretion”).

“If an opposing party requests an enlargement of time before the [14-day] period

expires,” Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003) (citations omitted), the district

court may enlarge the time period “for good cause,” Fed. R. Civ. P. 6(b)(1). Rule 6(b)(1)’s

“good cause” standard is subject to the district court’s discretion and does not require a showing

of “excusable neglect” if the opposing party requests the enlargement of time “before the original

time or its extension expires.” Compare Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 895–96

(1990) (stating that Rule 6(b)’s “for cause shown” standard is discretionary), and Andrews v.

Daughtry, 994 F. Supp. 2d 728, 735 (M.D.N.C. 2014) (citation and internal quotation marks

omitted) (noting that the change in Rule 6(b)’s language from “for cause shown” to “for good

cause” was “intended to be stylistic only”), with Fed. R. Civ. P. 6(b)(1)(A)–(B). In other words,

the Court “has discretion to grant timely requests for extensions [under Rule 6(b)(1)].”

Woodruff v. McPhie, 593 F. Supp. 2d 272, 276 (D.D.C. 2009) aff’d, 383 F. App’x 5 (D.C. Cir.

36
2010); see also Smith v. District of Columbia, 430 F.3d 450, 456 (D.C. Cir. 2005) (citation

omitted) (stating that the Circuit reviews “the district court’s decisions under Rule 6(b) for abuse

of discretion” and has been “quite deferential” in so doing).

Here, the defendants have shown good cause to extend the deadline to reply to the

plaintiff’s Second Cross-Motion for Summary Judgment. Having represented that they received

this motion late, the defendants legitimately needed additional time to respond to it. Then,

before the Court had a chance to rule on the Motion for Extension of Time to File Reply Brief,

the Court stayed the case for a period commensurate with the lapse in appropriations. The

defendants originally requested until October 7, 2013 to file their reply, and the lapse in

appropriations lasted for sixteen days. Therefore, one might argue that October 23, 2013 would

be the appropriate extended deadline. However, such reasoning is overly mechanistic, in part

because the defendants specifically asked the Court in the Motion to Stay to refrain from “setting

any automatic deadlines” so that they could “make sure that necessary coordination and review

[could] be accomplished in the wake of the current shutdown.” Defs.’ Mot. Ext. Time Reply ¶ 4;

see also Fernandez v. Centerplate/NBSE, Inc., No. CIV.A. 04-0809RBW, 2005 WL 3273370, at

*6 n.2 (D.D.C. Aug. 1, 2005) (citations omitted) (declining to treat an opposition as conceded

where it was filed “only three days” after Local Rule 7(b)’s deadline for responding), aff’d on

other grounds, 441 F.3d 1006 (D.C. Cir. 2006). Accordingly, the court grants, nunc pro tunc, the

defendants’ Motion for Extension of Time to File Reply Brief, and denies the plaintiff’s request

that his Second-Cross Motion for Summary Judgment be ordered conceded based on the

purported late filing of the defendants’ reply to that motion.

37
 2. The plaintiff’s motion to enlarge time

The Court summarily grants, nunc pro tunc, the plaintiff’s Motion to Enlarge Time. The

plaintiff ultimately filed his response to the May 14, 2015 minute order requiring status reports

while his Motion to Enlarge Time was pending. Furthermore, the defendants have not opposed

this motion, and no prejudice would result from granting it.

IV. CONCLUSION

For the foregoing reasons, the Court: (1) grants in part the defendants’ Second Summary

Judgment Motion; (2) denies the plaintiff’s Second Cross-Motion for Summary Judgment; (3)

grants, nunc pro tunc, the defendants’ Motion for Extension of Time to File Reply Brief; (4)

denies the plaintiff’s Motion to Concede; and (5) grants, nunc pro tunc, the plaintiff’s Motion to

Enlarge Time.

SO ORDERED this 14th day of March, 2016. 19

REGGIE B. WALTON
United States District Judge

19
An Order consistent with this Memorandum Opinion shall be issued contemporaneously.

38