Djenasevic v. Executive Office for the United States Attorney

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
KABIL A. DJENASEVIC, pro se, )
)
)
Plaintiff, )
)
v. ) Case No: 16-cv-208S-RCL
)
EXECUTIVE OFFlCE OF UNITED )
STATES ATTORNEYS, et al., )
)
Defendants. )
)
MEMORANDUM OPINION

This case_arising under tlie Freedom of Information Act (FOIA), 5 U.S.C. § §§2, and the
Privacy Act, 5 U.S.C. § 552a-concems access and amendment requests by pro se plaintiff Kabil
Anton Djenasevic for records maintained by the Executive Offlce of United States Attorneys
(“EOUSA”), Drug Enforcement Administration (“DEA”),` and F ederal Bureau of Prisons
(“BOP”). Defendants EOUSA and BOP move for dismissal of the plaintiffs Privacy Act claims

l Upon

and defendants EOUSA and DEA move for summary judgment on the FOIA claims.
consideration of the pleadings, the entire record, and the applicable laW, the Court GRANTS the
defendants’ motion to dismiss the Privacy Act claims and GRANTS the defendants’ motion for

summary judgment on the FOIA claims. ECF No. 46. Conversely, the Court DENIES the

plaintiff s cross-motion for summary judgment. ECF No. 5().

l Defendant DEA did not receive any Privacy Act amendment requests related to the
plaintiffs amended complaint and therefore did not move to dismiss Privacy Act claims.
Moreover, the plaintiffs FOIA claims against the EOUSA and DEA are encompassed in the First
Cause of Action in his amended complaint. ECF No. 30 at 7-9. The plaintiff did not appear to
request documents under FOIA from BOP, nor flle a FOIA claim against BOP. Id. Accordingly,
BOP did not move for summary judgment under FOIA.

I. BACKGROUND

In 2007, the United States Court of Appeals for the Eleventh Circuit affirmed the
conviction and sentencing of Mr. Dj enasevic for conspiracy to possess with intent to distribute one
kilogram or more of heroin, in violation of 21 U.S.C. §§ 846 and 841 (a)(l), distribution of heroin,
in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(l)(C), possession with intent to distribute 100
grams or more of heroin, in violation of 21 U.S.C. §§ 84l(a)(1) and 841(b)(1)(B)(i), and illegal
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). U.S. v. Djenasevic,
248 Fed.Appx. 135, 136 (1 lth Cir. 2007). Mr. Djenasevic subsequently filed a 28 U.S.C. §
2255 motion in 2009, which the district court denied. The Eleventh Circuit reversed, finding that
his counsel was ineffective in not moving to withdraw his guilty plea based on impermissible
judicial interference in plea negotiations Djenasevic v. United States, 425 Fed.Apr. 834 (11th
Cir. 2011). On remand, the district court vacated Mr. Djenasevic's guilty plea. Following a jury
trial, he was found guilty and his appeal was denied in 2013.

Since as early as 2011, Mr. Dj enasevic has directed numerous Privacy Act amendment and
FOIA requests to EOUSA, DEA, and BOP. ECF No. 46 at 3-9. The Court incorporates by
reference the Defendant’s Statement of Material Facts insofar as they outline the procedural history
regarding the handling of the plaintiffs various Privacy Act and FOIA requests. Ia'.2 In addition
to denying the plaintiffs request to amend his pre-sentence report, the defendants released a set of

documents and withheld others pursuant to various FOIA and Privacy Act exemptions

2 Plaintiff, in his opposition, failed to counter-file a statement of facts in dispute. In his sur-
reply, he notes that he “only has one set of facts, and that is the truth stated in his verified amended
complaint and Judicial Notice [sic] showing the falsity in violation of the Privacy Act.” ECF No.
64 at 1. Despite this claim, the Court in its review of the plaintiffs filings has not found any
dispute as to the procedural history of the FOIA and Privacy Act requests. As such, the Court will
consider them defendant’s statement of the procedural history to be true for purposes of this
Opinion.

In his Amended Complaint, then plaintiff, among other things, contends that “despite [his]
numerous demands to the defendant’s [sic] to release all records and to make corrections to the
same records, that plaintiff also requires access to, [n]o valid documents were sent, and/or
corrections made by the defendant’s [sic].” ECF No. 30 at 8. The plaintiff seeks relief pursuant
to the Privacy Act and FOIA. The defendants moved to dismiss all Privacy Act claims and moved
for summary judgment on the FOIA claims. The plaintiff responded and cross-moved for
summary judgment The Court now considers those motions.

II. MOTION TO DISMISS PRIVACY ACT CLAIMS

A. L'egal Standard

To survive a motion to dismiss pursuant to F ederal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.”’ Ashcroji‘ v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss under Rule 12(b)(6),
“the court must assume ‘all the allegations in the complaint are true (even if doubtful in fact),’ and
the court must give the plaintiff the benefit of all reasonable inferences derived from the facts
alleged.”’ Aktieselskabet AF 21. N0v. 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)
(intemal citations omitted).

A claim is facially plausible when “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While the factual allegations in the complaint
need not be “detailed,” the Federal Rules require more than “an unadomed, the-defendant-

unlawfully-harmed-me accusation.” Ia'. (citing Twombly, 550 U.S. at 555). The facts alleged in

the complaint “must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555.

B. Discussion
Defendants EOUSA and BOP allege various independent reasons as to why the Privacy
Act claims must be dismissed. The Court finds that for at least two independent reasons, the

Privacy Act claims must be dismissed.

1 . Statute of Limitations

First, defendants assert that the claims are barred by the statute of limitations Actions to
enforce rights under the Privacy Act must be brought “with_in two years from the date on which
the cause of action arises ....” 5 U.S.C. § 552a(g)(5); see also Blazy v. Ten_et, 979 F.Supp. 10, 22
n‘. 6 (D.D.c. 1997) (citing Tijerina v. Wal¢ers, 821' F.zd 789, 798 (D.C. cir. 1987). For the
purposes of determining when the cause arose, “the statute of limitation does not begin to run until
the ‘plaintiff knows or should know of the alleged violation.”’ Kursar v. TSA, 751 F.Supp.2d 154,
165 (D.D.C.2010) (quoting Tijerina, 821 F.2d at 798).

Here, the plaintiff s Privacy Act amendment claims all relate to information from his
criminal case which he believed was incorrect And plaintiff knew about the alleged violation as
early as 2010 when he addressed letters to EOUSA seeking amendments to his records ECF No.
46-2 at 12. Similarly, he sent a form to BOP on February 9, 2011 requesting amendments to
“inaccurate/incorrect” records ECF 46-4 at 40. The plaintiff did not file the present lawsuit until
September 28, 2016, ECF No. 1 at 1'4, well beyond the two-year statute of limitations period. The
plaintiff appears to be arguing that he thought his records were amended by the Eleventh Circuit’s
reversing the district court’s denial of his 2255 motion in 2011. However, the record reflects that

on July 21, 2011, EOUSA sent the plaintiff a letter informing him that his request to amend his

records was denied. ECF No. 46 at 4. Moreover, the plaintiff filed an administrative remedy
request on July 16, 2013, to BOP, again asserting that his pre-sentence report was incorrect Id.
The plaintiff cannot credibly argue that he thought his records were amended in 2011. Therefore,
Court must dismiss the Privacy Act amendment claims on statute of limitations grounds alone.
2. Records Exempt from Amendment and Disclosure under the Privacy Act

Defendants are also correct that the plaintiff has failed to state a claim because the records
he sought to amend are exempt from amendment under the Privacy Act. The Privacy Act
“safeguards the public from unwarranted collection, maintenance, use and dissemination of
personal information contained in agency records by allowing an individual `to participate in
ensuring that his records are accurate and properly used, and by imposing responsibilities on
' federal agencies to maintain their records accurately.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C.
Cir. 1984). “[L]ike FOIA, the Privacy Act carves out exemptions from disclosure when a system
of records meets certain criteria.” Mobley v. C.I.A., 806 F.3d 568, 586 (D.C. Cir. 2015). Privacy
Act Exemption (j)(2) permits an agency head to promulgate rules exempting certain records from
amendment and disclosure requirements See 5 U.S.C. § 552a(j). Pursuant to that authority, BOP
has exempted inmate central records, 28 C.F.R. § 16.97(j), as well as “[p]resentence records that
originated with the courts,” 28 C.F.R. § 16.46(f)(3). Similarly, the Department of Justice exempts
criminal case files maintained by the U.S. Attorney’s Offlces from access and amendment See 28
C.F.R. §16.81(a).

Here, the plaintiffs amendment requests fall squarely within those exemptions He

requested amendment of his pre-sentence report3 and his underlying criminal case files See e.g.,

3 It is unclear exactly what the plaintiff is referring to in requesting amendment to his pre-

sentence report To the extent he seeks amendment to his Presentence Investigation Report
(“PSI”), the Court notes that BOP would not have any authority to amend the report The PSI is a

5

ECF No. 46-2 at 12; ECF No.46-4 at 32. Because BOP and EOUSA have exempted those
categories of records from access and amendment the plaintiffs Privacy Act claims must be
dismissed. See, e.g. Martz`nez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per
curiam) (upholding dismissal of Privacy Act claims against BOP which had “exempted its Inmate
Central Record System from the accuracy provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5)”).4

The records at issue in this case are also exempt from disclosure under the Privacy Act
Under Exemption (j)(2) of the Privacy Act, records may be exempted from disclosure when they
are “maintained by an agency or component thereof which performs as its principal fianction any
activity pertaining to the enforcement of criminal law`s, including police efforts to prevent, control,
or reduce crime or to apprehend criminals.. .” 5 U.S._C. § 552a_(j)(2). By regulation, the
Department of Justice has exempted criminal case files maintained by the'U.S. Attorney’s Offices '
from access See 28 C.F.R. §16.81(a). Similarly, DEA has exempted pursuant to Exemption 6)(2)
investigative case files maintained in its Investigative Reporting and Filing System from access
See 28 C.F.R. § 16.98(i). As already discussed, the plaintiffs request for access under the Privacy
Act pertain to the criminal investigations in his case. The Court agrees, therefore, that the
documents were compiled for law enforcement purposes and are exempt from disclosure under the

Privacy Act

document of the sentencing court prepared by the probation office. BOP is unable to provide the
remedy he seeks. However, to the extent the plaintiff seeks amendment to other BOP files, the
Court’s analysis above applies

4 Plaintiffs reference to Doe v. Um'l‘ea' States, 821 F.2d 694 (D.C. Cir. 1987) for the
proposition that an “agency must take reasonable steps to maintain the accuracy of the information
to assure fairness to the individual” is unavailing in this context ECF No. 50 at 4. The case says
nothing about an agency’s requirement to amend records that it has exempted from amendment by
regulation

The plaintiff also argues that the records in question are subject to amendment and access
pursuant to the public domain exemption ECF No. 50 at 2; ECF No. 64 at 5. The plaintiff appears
to assert that because the government identified certain confidential informants in court filings, thc
government is obligated to release and amend the records relating to the “false testimony” at his
trial. ECF No. 64 at 5. However, the public domain exception only applies to information “in the
public domain by official disclosure.” Wolfv. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). And the
requester bears the “burden of pointing to specific information in the public domain that appears
to duplicate that being withheld.” Id. (internal citations and quotation marks omitted). The
plaintiff has failed to meet his burden here. He has not pointed to any information in the public
domain via official disclosure that duplicates information he alleges is being withheld.

The plaintiff also argues that regardless of whether the records in question are exempted,
he may still pursue his claims because the defendants intentionally and willfully violated the
Privacy Act. ECF No. 50 at 4. Among other claims, the plaintiff alleges that “[i]t is clear that the
reports were falsely written by the DEA [agents] after [he] did not show at the sting entrapment
location Amoco filling station on January 3, 2001.” Id. at 5. He continues, “[t]hese records were
known to the defendant’s agents to be false.” Id. However, the plaintiff does not provide evidence
sufficient to support a violation of the statute. The D.C. Circuit has held that “a violation of the
statute must be so patently egregious and unlawful that anyone undertaking the conduct should
have known it unlawful.” Maydak v. United States, 630 F.3d 166, 179 (D.C. Cir. 2010). Despite
the plaintiff s conclusory allegation, the Court is unable to ascertain from the plaintiff s filings any
facts supporting an intentional and willful violation of the Privacy Act.

F or the reasons stated herein, the Court finds that the plaintiff has failed to state a claim for

relief under the Privacy Act and such claims are hereby dismissed.

III. MOTION FOR SUMMARY JUDGMENT ON FOIA CLAIMS

A. Legal Standard

Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. PRO. 56(a). As applied in a FOIA case, an agency defendant may be entitled to summary
judgment if it demonstrates that 1) no material facts are in dispute, 2) it has conducted an adequate
search for responsive records, and 3) each responsive record that it has located has either been
produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep ’t of Justice, 872 F. Supp.
2d 12, 18 (D.D.C. 201`2) (citing Weisberg v. Do`J, 627 F.2d 365, 368 (D.C. Cir. 1980)).

When an agency receives a FOlA request it is obligated to “conduct a search reasonably
calculated to uncover all relevant documents.” Truz`tt v. Dep ’t of St'ate, 897 F.2d 540, 541 (D.C.
Cir. 1990) (internal quotation marks omitted). The adequacy of a search, therefore, depends not
on “whether any further documents might conceivably exist,” id., but on the search’s design and
scope. An agency must accordingly show that it made “a good faith effort to conduct a search for
the requested records, using methods [that] can be reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep ’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

The agency bears the burden of showing that it complied with FOIA and it may meet this
burden “by providing ‘a reasonably detailed affidavit setting forth the search terms and the type
of search performed, and averring that all files likely to contain responsive materials . . . were
searched.”’ Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). The
plaintiff may then “provide ‘countervailing evidence’ as to the adequacy of the agency’s search.”
Ia'. at 314. lf a review of the record created by these affidavits “raises substantial doubt,” as to a

search’s adequacy, “particularly in view of ‘well defined requests and positive indications of

539

l overlooked materials summary judgment would not be appropriate. Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding Church of Scientology v.
Nat’l. Sec. Agency? 610 F.2d 824, 837 (D.C. Cir. 1979)).

An agency claiming an exemption to FOIA bears the burden of establishing that the
exemption applies Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352
(1979). An agency satisfies 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.” Larson v. D_ep ’l‘ ofState, 565 F.3d 857, 862
(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 of other 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.

B. Discussion

Defendants EOUSA and DEA move for summary judgment on the plaintiff s FOIA claims,
arguing that there is no genuine of material fact and that they are entitled to judgment as a matter
of law. They contend that they have adequately fulfilled their disclosure obligations under FOIA.
In support of their motion, EOUSA relies on the declaration of David Luczynski, an Attorney
Advisor with EOUSA, and the DEA relies on the declaration of Katherine L. Myrick, Chief of the
Information Privacy Unit of DEA. For the following reasons, the Court will grant the defendants
motion for summary judgment

]. Reasonableness of the Search

The Luczynski and Myrick Declarations indicate that the EOUSA and DEA both
conducted searches “reasonably calculated to uncover all relevant documents.” Truitt, 897 F.2d
at 541. The Luczynski Declaration provides that upon receiving the plaintiffs various FOIA
requests for access to all records related to his criminal case following remand to the district court
in-2011, EOUSA forwarded the requests to the FOIA contact for the United States Attomey’s
Office for the Middle District of Florida, the district from which the plaintiff requested his criminal
records ECF No. 46-2, 11 8. The FOIA contact began a systematic search using “LIONS,” the
computer system used by U.S. Attorney’s offices to track cases and retrieve files Id. The contact
searched for all records on “Kabil Anton Dj enasevic” and searched for records from the case files
in case number 8:02-cr-424-T-27 MAP JDW, the case that the plaintiff identified in his request
Id. The Declaration concludes that there “are no other records systems or locations within EOUSA
in which other files pertaining to Plaintiff were maintained.” Id.

The Myrick Declaration outlines the steps the DEA took to locate records responsive to the
plaintiffs requests The DEA construed the plaintiffs requests as seeking investigative records
maintained by the DEA pertaining to the plaintiff ECF No. 46-3, 1[ 12. The DEA searched for
those records in the Investigative Reporting and Filing System (“IRFS”)_a DEA Privacy Act
System of Records that contain all administrative, general, and investigative files compiled by
DEA for law enforcement purposes Id. The declaration further noted that no other record system
maintained by the DEA “is reasonably likely to contain the records responsive to the request.” Id.
The DEA searched IRFS using the plaintiffs identifying information and conducted queries using
the DEA Narcotics and Dangerous Drugs Information System (“NADDIS”)-which is the method
the DEA uses to retrieve information from the IRFS. Id. The DEA obtained the responsive files

using that search and provided the plaintiff with the non-exempt records

10

The Court finds that EOUSA and DEA met their burden to demonstrate that they conducted
reasonable searches The agencies searched the record systems likely to contain responsive
records The plaintiff has not provided any “countervailing evidence as to the adequacy of the
agency’s search.” Iturralde, 315 F.3d at 314. The plaintiff appears to contest the adequacy of the
search by noting that the defendants are “withholding the ‘recordings,’ ‘pre and post’ claimed
recorded ‘marked money,’ and claimed drug evidence.” ECF No. 64 at 1. He attaches a document
which he contends offers proof of the govemment’s foul play. ECF No. 64 at 8-10. But the
document_which appears to be notes from a detective in the Pinellas County Sherriffs Office_
offers no such proof and the Court is unable to ascertain any facts supporting the plaintiffs
allegations A`nd even if there are records that pertain to his FOIA requests which have not been
produced, that in itself does not render the search unreasonable under FOIA. “[I]t is l'ong settled
that the failure of an agency to turn up one specific document in its search does not alone render a
search inadequate.” Iturralde, 315 F.3d at 314 (internal citations omitted). Instead, “the adequacy
of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search.” Id. (internal citations omitted). The plaintiff provides
the Court with no evidence calling into question the methods used to carry out the searches

_ 2. Applicatl'on of F OIA Exemptions

EOUSA and DEA withheld certain records from the plaintiff pursuant to FOIA Exemptions
3, 5, 6, 7(C), 7(D), 7(E), and 7(F). In order for withholdings to be proper under a FOIA exemption,
an agency must demonstrate that invoking an exemption is “logical” or “plausible.” Wolfv. C.I.A. ,
473 F.3d 370, 374-375 (D.C. Cir. 2007) (citations omitted). EOUSA and DEA rely upon their
declarations and Vaughn indices to demonstrate that applying the various exemptions was proper.

The Court will consider the application of each exemption in turn.

ll

a) Withholding by EOUSA under FOIA Exemption 3
Pursuant to this exemption, EOUSA withheld two drafts of a superseding indictment,

which are identified as grand jury material. ECF No. 46-2 at 23. FOIA Exemption 3 exempts
from disclosure records when they are:

specifically exempted from disclosure by statute . . . if that statute (A)(i)

requires that the matter be withheld from the public in such a manner as to

leave no discretion on the issue ; or (A)(ii) establishes particular criteria from

withholding or refers to particular types of matters to be withheld; and (B)

if enacted after the date of enactment of the Open FOIA Act of 2009,

specifically cites to this paragraph
5 U.S.C. § .552(b)(3). Federal Rule of Criminal Procedure .6(e) is a statue Which prohibits
disclosure of matters before the grand jury. See F una' for Const. Gov ’t v. Nat'l Archives & Re'cora's
Serv., 656 F.2d 856, 867-68 (1981). “Any disclosure [of grand jury information] to persons
outside of the government may only be made pursuant to a court order.” F and for Constitutional
Government v. National Archives and Records Service, 656 F.2d 856, 868 (D.C. Cir. 1981). Since
there is no evidence that the plaintiff has obtained a court order entitling him to the records, the
Court finds that EOUSA’s invocation of Exemption 3 is appropriate

b) Withholding by EOUSA under FOIA Exemption 5
Pursuant to Exemption 5_, EOUSA withheld drafts of a plea agreement and the drafts of the

superseding indictment already discussed above. ECF No. 46-2 at 23-24. FOIA Exemption 5
exempts from disclosure “inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). 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 that the type of material it seeks to withhold is generally protected in civil

12

discovery for reasons similar to those asserted by the agency in the FOIA context.” Burka v. U.S.
Dept. of Health and Human Services, 87 F.3d 508, 517 (D.C. Cir. 1996). “[C]ourts 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 EOUSA properly withheld the draft plea agreement and superseding
indictment under both the deliberative process privilege and the attorney work-product privilege.
The documents were “predecisional” in that no final agency action had been taken and were
deliberative in that they were shared as part of a consultative process Mapother v. Dep ’t of Justice,
3 F.3d 1533, 1537 (D.C. Cir. 1993). As such, the deliberative process privilege applies Moreover,
the attorney work-product privilege applies because the documents were prepared by, or at the
request of an attorney, and made in anticipation of litigation.

c) Withholding under 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 proof of a clearly unwarranted invasion` of personal

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

13

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 from disclosure under Exemption 7(C).” Id.

To assess whether disclosure would constitute a “clearly unwarranted invasion of personal
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 of third-parties See e.g., Neely v. FBI, 208 F.3d 461, 464-65 (4`th Cir. 2000)
(“FBI agents, government employees, third-party suspects, and other third-party suspects, and
other third parties mentioned or interviewed in the cou'rse of the investigation have well-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
sufficient reason 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 having the information for its own
sake. Second, the citizen must show the information is likely to advance that interest Otherwise,
the invasion of privacy is unwarranted.” National Archives & Records Admin. v. Favish, 541 U.S.
157, 172 (2004). If the FOIA requestor argues that the public interest in disclosure is to show that
“responsible officials acted negligently or otherwise improperly in the performance of their duties,

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

14

requester must produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Id. at 174.

In this matter, EOUSA withheld, under Exemptions 6 and 7(C), the identifying information
of law enforcement officials, witnesses, and medical personnel who were mentioned in Plaintiffs
case file. And DEA withheld the identifying information of third parties, such as law enforcement
personnel, witnesses, suspects, codefendants, and confidential sources under Exemption 7(C). See
ECF No. 46 at 33. The Court agrees with the agencies that withholding information pertaining to
third-parties implicates an important privacy interest And there is no conceivable public interest,
let alone a significant one, that warrants overriding the` third-parties’ privacy interest in having
their identities protected. The Court is unable to identify from the plaintiffs pleadings any

` evidence that rises above' “bare suspicion” that ‘~‘Government impropriety might have occurred.”
Favish, 541 U.S. at 174. Therefore, both EOUSA and DEA properly applied Exemption 7(C) and
EOUSA properly applied Exemption 6.

d) Withholding by DEA under FOIA Exemption 7(D)

Pursuant to Exemption 7(D) the DEA withheld information that was provided by a
confidential source. ECF No. 46-3 at 10-11. Exemption 7(D) protects from disclosure those
records or information compiled for law enforcement purposes that

could reasonably be expected to disclose the identity of a confidential
source [who] furnished information on a confidential basis, and, in the
case of a record or information compiled by a criminal law enforcement
authority i_n the course of a criminal investigation ..., information furnished
by a confidential source.
5 U.S.C. § 552(b)(7)(D). There is no assumption that a source is confidential for purposes

of Exemption 7(D) whenever a source provides information to a law enforcement agency in the

course of a criminal investigation. See U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 181

15

(1993). Rather, a source's confidentiality is determined on a case-by-case basis Id. at 179-80. “A
source is confidential within the meaning of 7(D) if the source provided information under an
express assurance of confidentiality or in circumstances from which such an assurance could
reasonably be inferred.” Williarns v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995).

Confidentiality can be established expressly or impliedly. Regardless of which type of
confidentiality is asserted, the focus should always be on whether the source of the information
spoke with the understanding of confidentiality, not whether the document is generally thought to
be confidential Landano, 508 U.S. at 172. “The nature of the crime investigated and informant's
relation to it are the mostl important factors in determining whether implied confidentiality
exists.” Amuso v. DOJ, 600 F.Supp.2d 78, 100 (D.D.C. 2009). The “violence and risk of
retaliation attendant to'drug trafficking warrant a'n implied grant of confidentiality to a source who
provides information to investigators.” Lasko v. DOJ, 684 F.Supp.2d 120, 134 (D.D.C. 2010).

In its declaration, the DEA notes that the confidential source was “involved and maintained
a close relationship with several individuals who trafficked in cocaine and engaged in other violent
and illegal activities.” ECF No. 46-3 at 10. The Court is convinced that under these circumstances
confidentiality was implied and that any information that could identify the informant could
subject them to serious harm. The DEA properly applied Exemption 7(D).

e) Withholding by DEA under FOIA Exemption 7(E)

An agency can withhold records, pursuant to Exemption 7(E), that “would disclose
techniques 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

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requested] information might create a risk of circumvention of the law.” PHE, lnc. v. DOJ, 983
F.2d 248, 251 (D.C. Cir. 1993).

Here, the DEA invoked Exemption 7(E) to withhold information related to the plaintiffs
investigations including “filing numbers and specific times and locations of meetings with
confidential sources.” ECF No. 46-3 at 1 1. The DEA also withheld “sensitive non-public portions
of its Agents' Manual regarding the modus operandi for numerous of its law enforcement
objectives, including segments of the sections on operational travel, undercover operations, and
the use of confidential informants.” Id. In its declaration, the DEA compellingly argues that
releasing that information would allow criminals to restructure their activities to circumvent the
law.

The DEA also withheld sensitive case numbers pursuant to this exemption. The Court also`
finds that decision proper for the reason described in the DEA’s declaration: “[a]pplying a mosaic
analysis, suspects could use these numbers in conjunction with other information known about
other individuals and techniques to change their pattern of activity to avoid detection,
apprehension, or create alibis for suspected activities.” Id.

f) Withholding by DEA under FOIA Exemption 7(F)

Exemption 7(F) protects “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information could
reasonably be expected to endanger the life or physical safety of any individual” 5 U.S.C. §
552(b)(7)(F). The DEA invoked this exemption in conjunction with Exemption 7(C) to protect
the names of DEA Special Agents and individuals involved in criminal investigations The DEA
asserts that releasing the names of its Special Agents would endanger their lives and physical

safety. As with previous exemptions, the plaintiff does not appear to offer any argument as to this

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why the names should notl be exemption. Accordingly, the Court finds that the DEA properly
applied Exemption 7(F).
3. Segregabilily

FOIA requires that “[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.A. §
552(b). Courts have a duty to consider the issue of segregability, even if not raised by the parties
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

With respect to all documents responsive to the plaintiffs requests the agencies aver that
they conducted a page-by-page segregability' analysis and determined that no reasonably
segregable, non-exempt information was withheld from the plaintiff See ECF No. 46-2 _at 10;
ECF NO. 46-3 at 13. 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). After
reviewing the declarations and the Vaaghn indices and seeing no evidence of bad faith, the Court
finds that EOUSA and DEA properly released any reasonably segregable information.
IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the defendants’ motion to dismiss the
Privacy Act claims and GRANTS the defendants’ motion for summary judgment on the FOIA
claims ECF No. 46. Conversely, the Court DENIES the plaintiffs cross-motion for summary
judgment ECF No. 50. The case is hereby dismissed. A separate Order accompanies this

Memorandum Opinion.

Date:Augustl ,2018 ZQ.G M

l(oy`ee C. Lamberth
United States District Judge

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