Barouch v. U.S. Dep't of Justice

962 F.Supp.2d 30

David Jack BAROUCH, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 12–0129 (ABJ).

United States District Court, District of Columbia.

Aug. 23, 2013.

David Jack Barouch, Seagoville, TX, pro se.

Nina Bafundo Crimm, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff David Jack Barouch brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552a (2006). Plaintiff's complaint challenges the responses to written requests that he made to defendants, the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”), the United States Marshals Service (“USMS”), the Executive Office for United States Attorneys (“EOUSA”), the Federal Bureau of Prisons (“BOP”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and the Department of Treasury (“Treasury”).¹ In each of his requests, plaintiff sought all records related to himself. All of the defendant agencies except for Treasury responded to plaintiff's requests by conducting searches. Many have disclosed some responsive records, and all have provided reasons for withholding at least some information.

Defendants have filed two partial motions for summary judgment and dismissal, which together seek to dispose of this action in its entirety. Fed. Defs.' Partial Mot. for Summ. J. and Dismissal [Dkt. # 15] (“Defs.' 1st Mot.”); Fed. Defs.' Supp. Mot. for Summ. J. and Dismissal [Dkt. # 22] (“Defs.' 2d Mot.”). Plaintiff opposes both motions, challenging the adequacy of the agencies' searches and their withholdings. Resp. and Objection to Fed. Defs.' Partial Mot. for Summ. J. and Dismissal [Dkt. # 16] (“Pl.'s 1st Resp.”); Pl.'s Verified Mem. Resp. to Fed. Defs.' Supplemental Mot. for Summ. J. and Dismissal [Dkt. # 25] (“Pl.'s 2d Resp.”). Plaintiff also challenges Treasury's failure to undertake a search. The Court finds that plaintiff has failed to exhaust his administrative remedies as to some of his claims. As to the others, the Court finds, based on affidavits and Vaughn indices submitted by the government, that the agencies conducted adequate searches for responsive documents, but they have not provided adequate explanations for all of their withholdings. Accordingly, the Court will grant in part and deny in part defendants' motions for summary judgment. The Court will direct EOUSA to disclose parts of four documents that it has withheld in full and will remand to BOP to review the documents it received from EOUSA after the commencement of this action.

BACKGROUND

Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas. Pl.'s 1st Compl. [Dkt. # 1] (“Compl.”) ¶ 1. In July 2010, he pled guilty to one count of possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Minute Order, United States v. David Barouch, No. 4:10–CR00099–A(01) (N.D.Tex. July 9, 2010) [Dkt. # 27]. In November 2010, he was sentenced in the United States District Court for the District of Northern Texas to 120 months in prison. Judgment, United States v. David Barouch, No. 4:10–CR–00099–A(01) (N.D.Tex. Nov. 1, 2010) [Dkt. # 41].

By letters dated April and May 2011,² plaintiff submitted written requests to CRM, USMS, EOUSA, BOP, and ATF. Ex. 1 to Decl. of John E. Cunningham III (“Cunningham Decl.”) [Dkt. # 15–3] at 1(CRM); Attach. 2 to Decl. of Violet Mack (“Mack Decl.”) [Dkt. # 22–1] at 1(BOP); Ex. A to Decl. of David Luczynski (“Luczynski Decl.”) [Dkt. # 22–2] at 1 (EOUSA); Ex. A to Decl. of Stephanie M. Boucher (“1st Boucher Decl.”) [Dkt. # 22–3] at 1(ATF); Ex. A to Decl. of William E. Bordley (“Bordley Decl.”) [Dkt. # 22–4] at 1 (USMS). All of the documents sought “full disclosure and release of all files, records, data and/or information maintained by” each agency under plaintiff's name. Id. His request included his birthdate, place of birth, social security number, case numbers for his conviction and appeal, and the district in which he was convicted. Id. In addition, plaintiff maintains that he submitted an identical FOIA request to Treasury.³ Compl. ¶ 12; see also Aff. of Jack Barouch (“Barouch Aff.”), Ex. A to [Dkt. # 16], ¶ 1.

I. Request to Treasury

Plaintiff claims that Treasury possesses but has withheld documents responsive to his request. Compl. ¶¶ 5, 22, 25. Defendants claim that Treasury never received a request from plaintiff. Mem. in Support of Fed. Defs.' Mot. for Partial Summ. J. and Dismissal [Dkt. # 15–2] (“Defs.' 1st Mem.”) at 4. In support of this contention, Treasury has submitted a declaration from Hugh Gilmore, a supervisory program analyst in Disclosure Services, part of Treasury's Departmental Offices, which oversees FOIA compliance for the bureaus of Treasury except for the Internal Revenue Service. Declaration of Hugh Gilmore [Dkt. # 15–4] (“Gilmore Decl.”) ¶ 2. He states that Treasury has conducted a search of its FOIA tracking system to find any requests submitted under plaintiff's name, but none were located. Id. ¶ 5.

The declaration also notes that although plaintiff alleges that ATF is an agency within Treasury, ATF became part of DOJ in 2003. Id. ¶¶ 6–7; see also Homeland Security Act of 2002, Pub.L. No. 107–206, 116 Stat. 2135; Compl. ¶¶ 5, 6, 22, 25 (referring to ATF as a division of Treasury).

II. Request to CRM

CRM acknowledged receipt of plaintiff's request by letter dated May 6, 2011. Cunningham Decl. ¶ 4; see also Ex. 1 to Cunningham Decl. On May 23, 2011, it responded to the request. Cunningham Decl. ¶ 7; Ex. 2 to Cunningham Decl. The response directed plaintiff to send another letter to CRM indicating which section of the agency he wanted to be searched, and specifying the location and dates of his conviction, arrests, and the federal offenses, and any other applicable timeframes involved. Ex. 2 to Cunningham Decl. By letter dated June 6, 2011, plaintiff asked that CRM search the “FOIA/PA Unit,” and he responded to CRM's other requests. Cunningham Decl. ¶ 8; Ex. 3 to Cunningham Decl. On July 6, 2011, CRM sent plaintiff a letter informing him that no responsive documents had been found. Cunningham Decl. ¶ 11; Ex. 5 to Cunningham Decl. The letter also explained plaintiff's right to appeal CRM's determination to DOJ's Office of Information Policy (“OIP”). Ex. 5 to Cunningham Decl. On July 12, 2011, plaintiff sent a letter to OIP appealing CRM's decision. Cunningham Decl. ¶ 13; Ex. 6 to Cunningham Decl. OIP confirmed receipt of plaintiff's appeal by letter dated July 27, 2011, and informed plaintiff by letter dated October 11, 2011 that it had determined that CRM's search was adequate. Cunningham Decl. ¶¶ 14–15; Exs. 7–8 to Cunningham Decl.

On April 3, 2012, after plaintiff had filed the instant lawsuit, CRM received one potentially responsive document from EOUSA because EOUSA had determined that the document originated with CRM. CunninghamDecl. ¶ 17; Exs. 9–10 to Cunningham Decl. The document was a July 15, 2005, memorandum (“Richter Memorandum”) from Acting Assistant Attorney General of CRM, John C. Richter, concerning “[c]harging under 18 U.S.C. 924(c) where the underlying crime of violence is the possession of the same weapon.” Cunningham Decl. ¶ 19 (internal quotation marks omitted); Ex. 11 to Cunningham Decl. On April 18, CRM informed plaintiff by letter that it was withholding the document in part pursuant to 5 U.S.C. § 552(b)(5), which permits agencies to withhold from production inter- or intra-agency documents that would not be available in litigation. Cunningham Decl. ¶ 19; Ex. 11 to Cunningham Decl. This letter also informed plaintiff that he could appeal the decision to OIP.Ex. 11 to Cunningham Decl.

III. Request to USMS

On May 17, 2011, USMS's Office of General Counsel (“OGC”) received plaintiff's request. Bordley Decl. ¶ 2; Ex. A to Bordley Decl. By letter dated May 20, OGC acknowledged receipt of plaintiff's letter and informed him that the office had begun its search. Bordley Decl. ¶ 3; Ex. B to Bordley Decl. According to William E. Bordley, who is the Associate General Counsel and Freedom of Information/Privacy Act Officer for USMS, OGC searched the Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS), JUSTICE/USM–005 and the Warrant Information Network (WIN), JUSTICE/USM–007. Bordley Decl. ¶¶ 1, 5. These resources comprise the electronic and paper records concerning USMS prisoners and others investigated by USMS pursuant to an arrest warrant or other judicial process. Id. ¶ 5. Following a search of these records, OGC identified 28 pages of material indexed to plaintiff's name, located in the Northern District of Texas—the relevant location identified by plaintiff in his request. Id.; Ex. A to Bordley Decl.

By letter dated June 21, 2011, OGC informed plaintiff that it was releasing twenty-eight pages of documents to him. Bordley Decl. ¶ 6; Ex. C to Bordley Decl. Of these pages, fifteen were released in their entirety, and thirteen were released with redactions pursuant to 5 U.S.C. § 552(b)(7)(C) ( “Exemption (b)(7)(C)”) and 5 U.S.C. § 552(b)(7)(E) (“Exemption (b)(7)(E)”). Bordley Decl. ¶ 6; see also5 U.S.C. §§ 552(b)(7)(C), (b)(7)(E) (2012). The letter also informed plaintiff that he could appeal USMS's determination to OIP.Ex. C to Bordley Decl. Plaintiff filed an appeal by letter dated July 1, 2011. Bordley Decl. ¶ 7; Ex. D to Bordley Decl. By letter dated September 21, 2011, OIP informed plaintiff that it was affirming the decision. Ex. E to Bordley Decl.

USMS's Vaughn index describes the information withheld and lists the basis for the withholdings. Bordley Decl. ¶¶ 11–12. USMS relied on Exemption (b)(7)(C) to withhold information from twelve pages of the responsive documents. Id. ¶ 12. In each instance, it was invoked to excise the name, address, prison identification number, and/or registration...