Coleman v. Drug Enforcement Admin.

134 F.Supp.3d 294

John J. Coleman, Plaintiff,

v.Drug Enforcement Administration, Defendant.

Civil No. 1:14–cv–00315 (APM)

United States District Court, District of Columbia.

Signed September 29, 2015

Daniel J. Stotter, Stotter & Associates LLC, Corvallis, OR, for Plaintiff.

Rhonda Lisa Campbell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

In this Freedom of Information Act ("FOIA") case, Defendant Drug Enforcement Administration ("DEA") produced over 1,900 pages of documents to Plaintiff John J. Coleman. Plaintiff filed this suit to challenge two aspects of the DEA's response. First, he contends that the DEA's search was deficient in multiple respects and thus not reasonably calculated to produce all responsive records. He asks the court to compel the DEA to broaden its search and to look for more responsive records. Second, he asserts that the DEA wrongfully denied him a statutory fee waiver. Although the agency ultimately decided not to charge him a fee for the records that it produced, Plaintiff nevertheless seeks a declaration from the court that the DEA's decision to deny him a fee waiver was unlawful under FOIA.

Both parties have moved for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth below, the court holds that the DEA did not conduct an adequate search in response to Plaintiff's request because it failed to search the office of the Deputy Assistant Administrator of the Office of Diversion Control, an office likely to contain responsive records. In all other respects, the DEA's search was reasonable. In addition, because Plaintiff has not established that the DEA's decision to deny him a fee waiver is likely to cause him future injury, the court denies Plaintiff's request for declaratory relief on the ground that Plaintiff lacks standing. The parties' cross motions for summary judgment thus are both granted in part and denied in part.

II. BACKGROUND

Plaintiff John J. Coleman is the president of Drug Watch International, an organization dedicated to drug abuse prevention and education. Pl.'s Mot. for Summ. J., ECF No. 19, at 1 [hereinafter Pl.'s Mot.]. Plaintiff previously worked at the DEA for 33 years, rising to the level of Assistant Administrator for Operations before he retired. Decl. of John Coleman, ECF No. 19–2, ¶¶ 3, 5 [hereinafter Coleman Decl.].

On October 25, 2012, Plaintiff submitted a FOIA request to the DEA seeking the disclosure of nine categories of documents relating to the proposed reclassification of carisoprodol¹ as a Schedule IV drug, as well as the rescheduling of hydrocodone.² Def.'s Mot. for Summ. J. [hereinafter Def.'s Mot.], Ex. A, ECF No. 17–4, at 2–3 [hereinafter FOIA Request]. He also sought a public-interest fee waiver. See FOIA Request.³ Plaintiff argued that disclosure was in the public interest because he intended "to write about how the government drug regulatory agencies schedule controlled substances and how petitions for doing so are handled by the respective federal agencies[.]" Id. at 2.

The DEA acknowledged receipt of Plaintiff's FOIA request on November 29, 2012. However, it determined that Plaintiff's request was for commercial rather than public-interest use and denied his fee waiver request. Decl. of Katherine Myrick, ECF No. 17–3, ¶ 8 [hereinafter Myrick Decl.]. On February 5, 2013, Plaintiff filed an appeal to the Department of Justice's Office of Information Policy ("OIP") contesting the DEA's fee decision. He also complained that the fee determination was rendered more than 20 working days after its receipt, in violation of the statutory 20–working day limit for responding to such requests. Id. ¶ 9. On September 11, 2013, the OIP remanded the decision to the DEA for reconsideration of the fee waiver request, id. ¶ 11, whereupon the DEA again denied Plaintiff's fee waiver, id. ¶ 12. Plaintiff again appealed the fee waiver denial, but no formal decision issued before Plaintiff filed this suit on February 26, 2014. Id. ¶¶ 13–15.

As to Plaintiff's records request, the DEA initially did not process any documents because of the pending fee waiver dispute. Id. ¶ 18. Although the DEA never answered Plaintiff's second appeal, the agency decided that it could not deny Plaintiff a fee waiver because it had not responded to his fee request in a timely manner. Id. Thereafter, the DEA commenced a search for responsive records. Id. The DEA's FOIA Unit reviewed records found in two offices: the Office of Diversion Control and the Office of Chief Counsel. Id. ¶¶ 17–20. On October 17, 2014, eight months after Plaintiff filed suit, the DEA released 1,906 pages of responsive records without assessing a fee. Id. ¶ 16. It also released another 79 pages on November 3, 2014, again without assessing a fee. Id.⁴

III. DISCUSSION

A. Legal Standard

Most FOIA cases are appropriately resolved on a motion for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). "To prevail on summary judgment ... the defending ‘agency must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.’ " Morley v. CIA, 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983) ). To carry its burden, the agency may submit 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 (if such records exist) were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). Production of such an affidavit allows a requester to challenge, and a court to assess, the adequacy of the search performed by the agency. Id."Agency affidavits enjoy a presumption of good faith, which will withstand purely speculative claims about the existence and discoverability of other documents." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). Summary judgment based on affidavits is not warranted, however, if the affidavits are "controverted by either contrary 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) (citations omitted).

B. Adequacy of the Search

The first issue before the court is whether the DEA performed an adequate search. The DEA contends that it conducted an adequate search reasonably designed to locate responsive records and that it adequately described that search in the agency's affidavits. Plaintiff disagrees, arguing that: (1) the search was unreasonably restricted to only two offices when other offices were likely to contain responsive records; (2) the failure of the search to disclose any email correspondence is itself proof of inadequacy; and (3) the agency failed to adequately describe the search in the affidavits it submitted to the court.

1. Whether the DEA's Search Was Unreasonably Restricted

a. The DEA's description of the search conducted

In response to Plaintiff's FOIA request, the DEA identified two offices—the Office of Diversion Control and the Office of Chief Counsel—as most likely to contain responsive records. Myrick Decl. ¶ 17. The DEA then tasked each with conducting a search for records. Id.

The Office of Diversion Control was selected based on its involvement in the scheduling of prescription drugs such as hydrocodone and carisoprodol. Id. Based upon consultation with the Executive Assistant to the Office of Diversion Control—the individual most knowledgeable about scheduling actions—the agency limited its search only to one component of the Office of Diversion Control, the Drug and Chemical Evaluation Section ("ODE"), which was deemed most likely to possess responsive materials. Id. ¶ 19. Within the ODE, the Section Chief performed an electronic search of both his files and the ODE share drive. Supp. Decl. of Katherine Myrick, ECF No. 22–1, ¶ 4 [hereinafter Myrick Supp. Decl.]. The search was conducted using the key words "carisoprodol" and "hydrocodone," as well as the specific information contained in Plaintiff's October 25, 2012, request, namely, dates and agency names. Id. He also searched hard copy files for responsive records. Id. All responsive records were then turned over to the FOIA Unit. Id. After the complaint was filed in this case, a second search was conducted, but no new information was uncovered. Myrick Decl. ¶ 19.

The DEA also searched a second office, the Office of Chief Counsel ("OCC"), which is the office within the DEA responsible for representing the agency in administrative litigation. The DEA searched the OCC because Plaintiff's FOIA request sought copies of discovery materials either produced by the DEA or introduced as evidence during the course of a DEA administrative hearing on carisoprodol. Id. ¶ 17. Within the OCC, the DEA identified a single attorney as most likely to have knowledge about the location of responsive records based on her involvement in the scheduling of carisoprodol. Id. ¶ 20. That attorney determined that responsive documents would most likely be held in electronic form in her email, personal storage drive, or a shared office database. Id. The attorney searched these locations for responsive records using the term "carisoprodol" and also performed a visual search of all locations. Id. All responsive records were turned over to the FOIA Unit. Id.

In addition, 79 pages of responsive records were released to Plaintiff based on consultations with other agencies such as the Department of Health and Human Services ("HHS") and the Substance Abuse and Mental Health Services Administration. Id. ¶ 21.

b. Plaintiff's argument that the DEA should have searched additional offices

Plaintiff first argues that the DEA failed to conduct an adequate search for responsive records because it unreasonably restricted its search to only two offices. As proof of the search's inadequacy, Plaintiff points...