Reep v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RODNEY REEP,/7W se^

Plaintiff,

V. Case No: 16-cv-1275-RCL

UNITED STATES DEPARTMENT
OF JUSTICE,

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

This case concerns a March 2009 request by pro se plaintiff Rodney Reep under the

Freedom of Information Act (FOIA), 5 U.S.C. § 552, for records held by defendants Executive

Office for United States Attorneys ("EOUSA"), Federal Bureau of Investigation ("FBTO, United

States Drug Enforcement Agency ("DEA"), and Bureau of Alcohol, Tobacco, Firearms, and

Explosives ("ATF"). The plaintiffrequested records regarding himselfand records relating to two
criminal cases prosecuted in the United States District Court for the Eastern District ofVirginia.
On June 23, 2016, Mr. Reep brought suit against the defendant agencies under FOIA, the
Privacy Act of 1974, 5U.S.C. §552a, and the Administrative Procedure Act. The gravamen of
plaintiffs complaint is that the agencies failed to uphold their obligations under FOIA. The
government moved to dismiss the suit as against defendants EOUSA, FBI, and DEA, arguing that
the Court lacks subject-matter jurisdiction overclaims barred by the statute of limitations. In the

same filing, defendant ATF moved for summary judgment in its favor, arguing that it fulfilled all
of its obligations under FOIA as it relates to Mr. Reep's requests. Mr. Keep filed an opposition

brief and the defendants chose not to reply.

Upon consideration of the defendants motion, the plaintiff's opposition, the entire record,

and the applicable law, the Court GRANTS dismissal of the suit as to defendants EOUSA, FBI,

and DBA, and GRANTS defendant ATF's motion for summary judgement. ECF No. 12.

11. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Rule 12(b)(1)

To survive a motion to dismiss under Federal Rule ofCivil Procedure 12(b)(1), the plaintiff

bears the burden of proving that the Court has subject-matter jurisdiction to hear the claim. See

Lujan V. Defenders of Wildlife, 504 U.S. 555 (1992). Unlike when addressing a motion to dismiss

under Rule 12(b)(6), the Court "may consider materials outside thepleadings indeciding whether

to grant a motion to dismiss for lack ofjurisdiction." Jerome Stevens Pharm., Inc. v. Food&Drug

Admin., 402 F.3d 1249,1253 (D.C. Cir. 2005).

B. Summary Judgment in FOIA Cases

Summary judgment is appropriate where "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw." Fed. R.
Civ. Pro. 56(a). As applied in a FOIA case, an agency defendant may be entitled to summary

judgment ifitdemonstrates that 1) no material facts are in dispute, 2) ithas conducted an adequate
search for responsive records, and 3) each responsive record that it has located has either been

produced to the plaintiffor is exempt fi-om disclosure. Miller v. U.S. Dep't ofJustice, 872 F. Supp.
2d 12, 18 (D.D.C. 2012) {citing Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)).

When an agency receives a FOIA request it is obligated to "conduct a search reasonably
calculated to uncover all relevant documents." Truitt v. Dep't ofState, 897 F.2d 540, 541 (D.C.
 Cir. 1990) (internal quotation marks omitted). The adequacy ofasearch, therefore, depends not
on 'Vhether any further documents might conceivably exist," id., but on the search's design and
scope. An agencymustaccordinglyshowthatitmade"agood faith effort to conductaset^ch for
therequestedrecords, usingmethods[that]can be reasonablyexpected to producetheinfonnation
requested." Oglesbyv. U.S. Dep't ofArmy, 920 P.2d 57,68 (D.C. Cii. 1990).
The agency bears the burden ofshowing that it complied with FOIA and it may meet this
bmk. > proving.. ^
of ^ p««>n»d. mi ..™.e that .11 «!., in,„ „
/W&, 3,5 FJd311, 3,3-14(D.C. Cl,. 2003), The
plainairm.,to -piprtd, 'Co™.™!,tag..ddence-.. to ft, .d.,«„,offt, .g™,.,
U«314. If. ,rt».otft, tort CM by ft„, ,flld,W0 d<»ba-„ ».
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Nat'l. Sec. Agency, 610 F.2d 824,837 (D.C. Cir. 1979)).
An .tooy cltonilog an totompiio. »FOIA Itoa ft, tort™ of tobliaMog ft,, ft,
«»,.ion appa„, « Op,, ooto „/«. ^

for(1079). A. aganto,.ift ft. btode, byaobtolaliig
n..di.,l».„ rtBdatoto a«-daaodb,ft.
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ft. ft, tof,„„g„„
logicallyfill, mftinft„to,„,g ^ ^ ^ o»ttoM,dby.ft.„,toy,v|g,„c
in ft. tort by .,|d„c..,.g„y ^^ ^
(D.C. Cir. 2009) (internal quotation marks omitted).
 "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by

'purely speculative claims about the existence and discoverability ofother documents.'" SafeCard

Services, Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.D.C. 1991). They may, however, be rebutted by

evidence of bad faith. Id.

III. DISCUSSION

A. Motion to Dismiss Complaint against FBI, DEA, and EOUSA

The government moves to dismiss the complaint against the FBI, DEA, and EOUSA,

arguing that it is barred by the statute of limitations and that the Court lacks subject-matter

jurisdiction over the claims.

The statute of limitations period for FOIA actions is six years, as set forth in 28 U.S.C. §

2401(a). Spannaus v. U.S. Dep't ofJustice, 824 F.2d 52,55 (D.C. Cir. 1987). The statute provides

that "every civil action commenced against the United States shall be barred unless the complaint

is filed within six years after the right of action first accrues." The six-year statute of limitation

period "must be strictly construed" because § 2401(a) "is a jurisdictional condition attached to the

government's waiver of sovereign immunity." Id. A FOIA claim "accrues" when "a party has

[actually or constructively] exhausted all administrative remedies," at which point "the person

challenging theagency action caninstitute andmaintain a suitin court." Id. at 56-57. Constructive

exhaustion occurs "when the time limits by which an agency must reply to a FOIA claimant's

request or appeal (if there is an appeal) expire." Aftergood v. CIA, 225 F.Supp.2d 27, 29

(D.D.C.2002).

The D.C. Circuit explained that "there are 'two time limit' provisions that trigger
constructive exhaustion." Spannus, 824 F.2d at 58. "First, the agency has 'ten days (excepting

Saturdays, Sundays, and legal public holidays) after the receipt of any [FOIA] request' within
 which to 'detennine ... whether to comply with such request..."' Id. (citing 5U.S.C. §
552(a)(6)(A)(i)). "Second, the agencyhas 'twentydays (excepting Saturdays, Sundays, and legal
public holidays) after receipt of ... [an administrative] appeal' within which to 'make a
determination' on that appeal. Id. (citing 5U.S.C. §552(a)(6)(A)(ii)). In other words, when a
FOIA requestorappeals the initial agencydeteimination, his claim accrues-and thesix-yearclock
begins to run ^twenty days after the agency receives the appeal.
Plaintiff filed this action on June 23, 2016. The government proffers that the DEA
informed the plaintiffthat his appeal was received on December 30, 2009, meaning that his right
of action accrued twenty days later on January 29, 2010. ECF No. 17-1, Myrick Decl. K10.
Therefore, he only had until January 29, 2016, to bring this action against the DEA. His suit was
filed almost 5 months too late.

The FBI received the plaintiffsadministrative appeal on May 11, 2009. ECF No. 12-7,
Hardy Decl. | 17. After his request was remanded to the FBI for further review and the FBI
produced additional responsive documents, the plaintiff subsequently filed asecond appeal on
May 17,2010. Id. 118. Despite filing asecond appeal, the plaintiffconstructively exhausted his
administrative remedies twenty days after his first appeal because at that point he could have
brought suit mthis Court. Therefore, his nght ofaction accrued on June 8,2009, and his window
to bring suit against the FBI closed on June 8, 2015, more than one year before he actually filed
this action.

Finally, the Office ofInformation Policy ("DIP") acknowledged receiving the plaintiffs
appeal from the EOUSA decisionon January 8,2010. DIP subsequentlyinformed the plaintiffon
April 9, 2010, that it agreed with the EOUSA's decision to withhold records in response to his
FOIA request. ECF No. 12-8, Francis Decl. If 13. The plaintiffs right of action against the
EOUSA accrued on around February 11, 2010. Therefore, the statute of limitations precluded

plaintiff from filing suit after February 11,2016, a few months before he actually filed this action.

Plaintiff does not dispute the specific dates proffered by the government in a way that

would materially alter the outcome of this case.' Rather, the plaintiff points to his last

correspondences with each agency to demonstrate that his lawsuit was in fact filed within the six-

year statute of limitations window. Plaintiffs argument fails because the relevant factor is when

the plaintiff has constructively exhausted his remedies, not when the administrative appeal has

been adjudicated or when the agency last corresponds with the plaintiff. See Spannus, 824 F.2d at

57-59. Since the plaintiff failed to file suit against the FBI, DEA, and EOUSA within the six-year

window after he constructively exhausted his administrative remedies, the Court must dismiss the

claims as to those defendants.

B. Motion for Summary Judgement as to Claims against ATF

The government argues that it is entitled to summary judgment on plaintiffs remaining

claims because ATF "fully discharged its obligations under FOIA," ECF No. 12 at 5, by

conducting a reasonable search and properly withholding documents under the applicable

exemptions.

1. Reasonableness ofthe Search

The government puts forth a declaration byStephanie M. Boucher, Chiefofthe Disclosure

Division at ATF, outlining ATF's handling of the FOIA request, including how the search was

conducted. According to Ms. Boucher, in response to the plaintiffs initial FOIA request inMarch
2009—requesting all records pertaining to himself—^the Disclosure Division of ATF searched

' Plaintiff represents that the FBI informed him in a letter that his appeal was received on June 16, 2009 and
not onMay 11, 2009 asproffered bythe FBI. See ECF No, 15 at 18. However, even if the Court accepts that date as
correct, theplaintiffs suitagainst theFBI would stillbe barred by thestatute of limitations.

6
though "N-Force" and the Treasury Enforcement Communications System ("TECS")—the two

systems of records which would most likely contain the documents pertaining to the plaintiffs

request. ECFNo. 12-2,BoucherDecl.^ 28. TECS is a database—^maintained by the U.S. Customs

and Border Protection, U.S. Department of Homeland Security—^which functions as a

"comprehensive ATF law enforcement database that contains ATF investigative records." Id. ^

30. N-Fore is a case-management system and is "ATF's official case file of record for

documenting investigative activity and information, creating reports, tracking investigative leads

andlinking data." M K31. The Disclosure Division searched those two systems by inputting the

plaintiffs first and last name, date of birth, and Social Security Number, /fif. f 33. The search

uncovered a single investigative case file numbered 768025-02-0042 involving the plaintiff. Id.

In June 2010 in response to plaintiffs second FOIA request for all records related to case

files 768025-02-0042 and 768025-03-0042, TECS and N-Force databases were again searched for

responsive documents. Id. ^ 35. Again, case file numbered 768025-02-0042 was identified. Id.

ATF determined case filed numbered 768025-03-0042 to be unrelated to theplaintiff

In July 2016, a Specialist in ATF's Disclosure Division searched TECS and N-Force for a

third time for any documents pertaining to the plaintiffbyinputting his first and last name, date of

birth, and Social Security Number. Id. ^ 36. No additional documents were identified beyond
what had already been identified and released to the plaintiffin 2009. Id. 137. Moreover, "ATF's

Washington Field Division and the Norfolk Field Office (within the Washington Field Division)
performed a search ofeach respective office and confirmed that no additionaldocuments had been

placed in Plaintiffs case file since theoriginal search for records was conducted in March 2009."

/f/.1I38.
 The Court finds that ATF met its burden to demonstrate that it conducted a reasonable

search. In 2009, 2010, and 2016, ATF searched the systems that would contain the information

soughtby the plaintiffand came up with the same case file each time. As such, in order to avoid

summary judgment on this issue, the plaintiff must "provide countervailing evidence as to the

adequacy of the agency's search." Iturralde, 315 F.3d at 314. The plaintiff seems to allege that

the search was not adequate because he "did not receive the requested date in which the Grand

Jury convene (sic) for original indictment anddatethe Grand Juryissued that superceded (sic) the

indictment." EOF No. 15-1 at 4. "But it is long settled that the failure of an agency to turn up one

specific document in its search does not alonerendera search inadequate." Iturralde, 315 F.3d at

314(intemal citations omitted). Instead, "the adequacy of a FOIAsearchis generally determined

not by the fhiits of the search, but by the appropriateness of the methods used to carry out the

search." Id. (intemal citations omitted). Here, ATF conducted a thorough search onthree separate

occasions. Even it failed to tum up the date that the Grand Jury was convened, it would not call

into question the adequacy of the overall search. The plaintiff fails to "offer evidence of

circumstances sufficient to overcome an adequate agency affidavit" and the Court finds that the

search was adequate. Id.

2. Application ofFOIA Exemptions

ATF withheld certain documents from the plaintiff based on FOIA Exemptions 3, 5, 6,
7(C), and 7(E). In order for the withholding to be proper, an agency must demonstrate that

invoking an exception is "logical" or "plausible." Wolfv. C.I.A., 473 F.3d 370,374-375 (D.C. Cir.
2007) (citations omitted). Here, ATF submitted Ms. Boucher's declaration and a Vaughn index
to justify its withholding determinations.

a) Withholding under FOIA Exemption 3
 Pursuant to this exemption, ATF "withheld aweapon's trace summary that was generated
out of the ATF Firearms Trace System database." ECF No. 12-2, Boucher Decl. | 51. FOIA
Exemption 3exempts from disclosure records when they are:
specifically exempted from disclosure by statute ... if that statute (A)(i) requires
ErSfo ® as to leave no
refer!tn rt t types ofmattersestablishes
refers t^articute particular
to be withheld; andcriteria from withholding
(B) ifenacted after the dateor
ofenactment ofthe Open FOIA Act of2009, specifically cites to this paragraph.
5U.S.C. §552(b)(3). Congress expressly prohibited ATF from disclosing firearm trace
informationincircumstances suchas this caseunderthe ConsolidatedAppropriationsActof2012,
Pub. L. No. 112-55,125 Stat. 552 (2011). The statute provides:
[DJuring the ciment fiscal year and in each fiscal year thereafter no funds
Snt" disclose part or aU Xl
Center of the Bureau of Alcohol,
r Tobacco, Firearms
database and Explosivrr
maintained by the Nationaland^o
Trace

Slta
In «. k
SlsS'? V I , a n d publicly disclose
all such data shall be rmmune from legal process, shall not be subiect
^ed reh^ on, or disclosed rn any manner, nor shall testimony or other evidence
of LZEl
Colmbia) ^F^d
or Federal?court or® •"
in an administrative (includingother
proceeding the District
than a
SS.."""* Tobacco, a
112 Pub. L. 55, 4. The appropriations bill leaves the ATF with no discretion. And courts have
previously held that Exemption 3protects ATF firearms trace data. e.g. Fowfe v. BATFB,
138 F. Supp. 3d 287, 291-92 (D.D.C. 2015); AMe/JaSiar v. BATFF, 74 F.Supp.3d 158, 17^75
(D.D.C. 2014); Smfr/i v. BAFFF, No. 13-13079, 2014 WL 3565634, at *5 n. 2(E.D. Mich. July
18.2014);mgg,„s V. l/.S. DepVofJustice. 919 F.Supp.2d 131,145 (D.D.C. 2013). Plaintiffdoes
not appear to articulate any reasons why it should not apply. The Court finds that ATF properly
wrthheld the weapon's trace summary under this exemption.
 Under this exception, the Disclosure Division also withheld documents related to agrand
jury subpoena for records and the identity ofindividuals scheduled to testify in front ofthe grand
juiy. ECF No. 12-2, Boucher Decl. 145. Federal Rule ofCriminal Procedure 6(e) is the relevant
statute that prohibits disclosure of matters before the grand jury. See Fundfor Const. GoVt v.
Nat'l Archives &Records Serv., 656 F.2d 856, 867^8 (1981). Asubpoena for records and the
identity of individuals testifying before the grand jury would certainly be prohibited under that
Statute. Id. at 869.

The plaintiffdoes not appear to contest the withholding ofthose documents. But rather he
appears to be arguing that ATF also improperly redacted the meeting date of the grand jury—
informationthatshouldnot be exempted becauseit does notreveal theinnerworkingsofthegrand
jury investigation. ECF No. 15-1 at 5. The Court finds no evidence in the ATF declaration, the
Vaughn index, or anywhere else in the record that the date was redacted. But even ifit had been,
the Court finds the redaction proper. The touchstone ofthe inquiry is whether disclosure ofthe
date would "reveal some secret aspect ofthe grandjury's investigation." Lopez v. Departmentof
Justice, 393 F.3d 1345, 1349. The D.C. Circuit has previously held that revealing the date and
time that agrand jury meets is protected from disclosure by Rule 6(e) because it 'Vould tend to
eal the complexifyand scope, focus and direction ofthe grandjuryinvestigations." Murphy v.
Executive Officefor U.S. Attorneys, 789 F.3d 204,211. Accordingly, even ifATF had redacted
those dates, it would be appropriate under FOU Exemption 3.
b) Withholding under FOIA Exemption 5
Pursuant to Exemption 5, ATF withheld 28 pages ofdraft legal filings, arguing that they
wereprotected from disclosure under thedeliberativeprocessprivilege, the attorney work product
privilege, and theattomeyclientprivilege. ECF No. 12-2, BoucherDecl. H53. ATF also withheld

10
two draft documents prepared by the Assistant U.S. Attorney (AUSA) in response to the plaintiffs

motions in his underlying criminal case (they were forwarded to ATF for review and comment)

because they "contain the thoughts and initial legal strategy and arguments employed in

preparation of filing a response to Plaintiffs motions." Id. ^55.

FOIA exemption 5 exempts from disclosure "inter-agency or intra-agency memorandums

or letters that would notbe available by law to a party otherthan an agency in litigation with the

agency." 5 U.S.C. § 552(b)(5). The Supreme Court has explained that the exemption authorizes

withholding of documents that would normally be privileged in the context of civil discovery.

NLRB V. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Therefore, "to justify nondisclosure

under Exemption 5, an agency must show thatthetypeof material it seeks to withhold is generally

protected in civil discovery for reasons similar to those asserted by the agency in the FOIA

context." Burka v. U.S. Dept. ofHealth and Human Services, 87 F.3d 508, 517 (D.C. Cir. 1996).

"[Cjourts have incorporated three traditional civil discovery privileges into Exemption 5: (1) the

deliberative process privilege; (2)the attorney-client privilege; and (3) the attorney work-product

privilege." Cuban v. S.E.C., 744 F. Supp. 2d 60, 75 (D.D.C. 2010) (citations omitted).

The plaintiff does not appear to contest any withholding under this exemption. Even so,

the Court finds that the two draft documents prepared by the AUSA and shared with ATF for

review were properly withheld under the deliberative process privilege. The documents were

"predecisional" in that no final agency action had been taken and were deliberative in that they
were shared as part ofa consultative process. Mapother v. Dep't ofJustice, 3 F.3d 1533, 1537
(D.C. Cir. 1993). They were also properly withheld under attorney-client privilege and attorney
work product privilege. The documents contained legal analysis bytheAUSA, in this case counsel

for ATF, and were prepared in anticipation oflitigation. The Court also finds that the 28 pages of

11
draft legal filings were properly withheld under the attorney-client privilege. Ms. Boucher's

declaration notes that the documents contained the legal advice of the AUSA handling the

underlying criminal prosecution of the plaintiff and contained analysis of facts and law. ECF No.

12-2, Boucher Decl. f 57-58.

c) Withholdingunder FOIA Exemptions 6 and 7(C)

FOIA Exemption 6 protects against the disclosure of "personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy." 5 U.S.C. § 552(b)(6). Under FOIA Exemption 7(C), an agency can withhold "records

or information compiled for law enforcement purposes ... that could reasonably be expected to

constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

Exemption 7(C), which requires the government to prove only that disclosure "could

reasonably be expected to constitute an unwarranted invasion of personal privacy, is somewhat

broader than Exemption 6, which requires proofof a clearly unwarranted invasion of personal

privacy." Roth v. United States DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (internal citations

omitted). Accordingly, "[i]f the information withheld here was *compiled for law enforcement

purposes,' thus implicating Exemption 7(C), then we would have no need to consider Exemption
6 separately because all information that would fall within the scope of Exemption 6 would also

be immune fi*om disclosure under Exemption 7(C)." Id.

To assess whether disclosure would constitute a "clearly imwarranted invasion ofpersonal

privacy" under Exemption 7(c), the Court must "balance the privacy interests that would be

compromised by disclosure against the public interest in release of the requested information."
Davis V. U.S. Dep t ofJustice^ 968 F.2d 1276, 1281 (D.C. Cir. 1992). Courts take very seriously
the privacy interests ofthird-parties. See e.g., Neely v. FBI, 208 F.3d 461,464-65 (4th Cir. 2000)

12
("FBI agents, government employees, third-party suspects, and other third-party suspects, and

other third parties mentioned or interviewed inthecourse of the investigation havewell-recognized

and substantial privacy interests in the withheld information. Among other things, those

individuals have a substantial interest in the nondisclosure of their identities and their connection

with particular investigations because of the potential for future harassment, annoyance, or

embarrassment.")

If privacy interests are identified, the burden shifts to the FOIA requestor to "establish a

sufficientreason for the disclosure. First, the citizen must show that the public interest sought to

be advanced is a significant one, an interest more specific than havingthe information for its own

sake. Second, the citizen must show the information is likely to advance that interest. Otherwise,

the invasion ofprivacy is unwarranted." NationalArchives & RecordsAdmin, v. Favish, 541 U.S.

157,172 (2004). If the FOIA requestor argues that the publicinterest in disclosure is to showthat

"responsible officials acted negligently orotherwise improperly in the performance oftheir duties,

the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the

requester must produce evidence that would warrant abeliefbya reasonable person that the alleged

Government impropriety might have occurred." Id. at 174.

In this matter, ATF withheld the names and other identifying information of federal law
enforcement agents, non-law enforcement third parties, state and local law enforcement personnel,
and information relating to criminal enforcement cases ofnon-law enforcement third parties. ECF
No. 12-2, Boucher Decl. ^ 68. ATF aimed to protect their identities "because disclosure might
seriously prejudice their effectiveness in conducting investigations to which they are assigned and
subject them to embarrassment andxmwarranted harassment in the conduct of theirofficial duties

13
and personal affairs." Id.H68. TheCourt agrees thatwithholding thethird-party names implicates

an important privacy interest.

The plaintiff has not demonstrated why the public interest in the disclosure of that

information outweighs the privacy concerns. Plaintiffalleges that the informationmust be released

for the purpose of "exposing improper conduct by agency officials," specifically the fact that a

government prosecutorimproperlywithheld informationin violation ofhis Brady rights. ECF 15-

1 at 10-11. But the plaintifffails to sufficiently substantiate the wrongdoing necessary to overcome

the Favish standard. Additionally, the plaintiff appears to be justifying disclosure based on a

private, not a public, interest. Namely that the government failed to release to him exculpatory

information which would be helpful in challenging his own conviction. See Taylor v. United States

Dep 't ofJustice,257F. Supp. 2d 101,110 (D.D.C. 2003). Therefore, the Court finds that the privacy

interests of the third-parties, whose names were withheld from disclosure, outweigh any public

interest that exists. ATF properly applied Exemptions 6 and 7(C).

d) Withholding under FOIA Exemption 7(E)

The Court concurs that ATF properly applied Exemption 7(E) to withhold the law

enforcement codes found on TECS and NCIC computer file numbers. ECF No. 12-2, Boucher

Decl. K75-76. An agency can withhold records, pursuant to Exemption 7, that "would disclose

techmques and procedures for law enforcement investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law." 5 U.S.C. § 552 (b)(7)(E). To satisfy its burden
under this exemption, the agency must only "demonstrate[ ] logically how the release of [the
requested] information might create a risk of circumvention of the law." PHE, Inc. v. DOJ, 983

F.2d248,251 (D.C.Cir. 1993).

14
 ATF makes a logical argument for why disclosure of the codes could allow individuals to

circumvent the law. Disclosing the codes would allow individuals to gain access to sensitive

investigative information and/or alter or create false records. ECF No. 12-2, BoucherDecl. %76.

The plaintiff does not appear to contest this rationale. Accordingly, the Court finds that the ATF

properly withheld information under this FOIA exemption.

3. Segregability

FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to

anyperson requesting such record after deletionof the portions which are exempt." 5 U.S.C.A. §

552(b). District Courts have a dutyto consider theissueof segregability, evenif not raised by the

parties. Trans-Pac. PolicingAgreement v. U.S. Customs Serv., Ill F.3d 1022, 1028 (D.C. Cir.

1999).

Here, ATF's declaration indicates that each page of the responsive documents were

reviewed to ensure thatno additional information could be released. ECFNo. 12-2, Boucher Decl.

H 77. Ms. Boucher further declares that "[a]11 releasable information has been provided to

Plaintiff." Id. The agency is entitled to a presumption that it properly segregated the information.

Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117 (D.C. Cir. 2007). The plaintiff has not

provided any evidence to rebut that presumption in this case. The Court finds that ATF properly
released any "reasonablysegregableportion of the record."

4. Document Referrals

The plaintiff also appears to call into question the referral of documents between the

defendant agencies. See Complaint, ECF No. 1 at 9; see also ECF No. 15-1 at 6. It is unclear if

the plaintiffalleges that ATF improperly withheld documents byreferring toother agencies, as his
claim appears to center on EOUSA's alleged improper referral of documents. However, even if

15
he did intend to allege improper conduct by ATF, he has not provided evidence, nor has the Court

found evidence, indicating that the referral led to improper withholding of records. See Siissman,

494 F.3datlll8.

rv, CONCLUSION

For the foregoing reasons, the Court GRANTS dismissal of the suit as to defendants

EOUSA, FBI, and DEA, and GRANTS defendant ATF's motion for summary judgement. ECF

No. 12. The case is hereby dismissed. A separate Order accompanies this Memorandum Opinion.

Date: March 2018
RoWe C. Lamberth
United States District Judge

16