Dugan v. Dep't of Justice

82 F.Supp.3d 485

Kevin Dugan, Plaintiff

v.Department of Justice, et al., Defendants.

Civil Action No. 13–2003 RC

United States District Court, District of Columbia.

Signed March 12, 2015

Kevin Dugan, San Jose, CA, pro se.

Rafique Omar Anderson, Robert N. Englund, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

Plaintiff Kevin Dugan is the “[o]wner of [a] firearms business (D.B.A.) PTS,” who, at the time he filed this action, was “in federal custody.”¹ Compl. at 1. Plaintiff requested records under the Freedom of Information Act (“FOIA”) pertaining to him and his business located in Selma, Oregon, with a post office box mailing address in San Jose, California.Id. In this action, “Plaintiff seeks the release of records from the Department of Justice (“DOJ”), Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), Drug Enforcement Administration (“DEA”), and [the Department of] Homeland Security (“DHS”).” Id.

Pending is Defendants' Motion for Summary Judgment [Dkt. # 11], which plaintiff has opposed. See Reply to Gov't's Response to Pl.'s Compl. and Resp. to Judicial Order to Reply [Dkt. # 16]. Upon consideration of the parties' submissions and the entire record, and for reasons explained below, the Court will grant Defendants' motion in part and deny it in part.

I. BACKGROUND

On November 19, 2007, a jury in the United States District Court for the Northern District of California convicted plaintiff of multiple counts involving the manufacture and distribution of marijuana plants and of “being an unlawful user of a controlled substance in possession of a firearm.” Dugan v. United States, No. CR–03–20010–RMW, 2014 WL 6706056, at *1 (N.D.Cal. Nov. 26, 2014) ; see U.S. v. Dugan, 657 F.3d 998, 999 (9th Cir.2011) (“Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).”). Plaintiff was sentenced in December 2008 to a prison sentence of 96 months. Dugan, 2014 WL 6706056, at *1.

Requests for ATF Records

A. Request No. 09–670

In a request dated February 6, 2009, addressed to the Department of Justice (“DOJ”), Plaintiff requested records pertaining to himself, his spouse, his business, and his home between 1989 and 2009, and “all police reports generated on 9–2–02 regarding” an address in San Jose, California. Decl. of Stephanie M. Boucher [Dkt. # 11–2] ¶ 4, Ex. A. The Justice Management Division (“JMD”) referred the request to ATF, see id., Ex. B, which, by letter dated April 15, 2009, denied Plaintiff's request under FOIA exemption 7(A), set out at 5 U.S.C. § 552(b). ATF informed Plaintiff that “the release [of records] could interfere with enforcement proceedings,” and further informed him about his right to appeal that decision to the Office of Information Policy (“OIP”) within 60 days. Id., Ex. C.

B. Request No. 11–1083

In a letter dated February 8, 2011, addressed to ATF, Plaintiff requested “all documents, handwritten notes, computer files, audio and video surveillance tapes, CD's and flash drives pertaining to me and/or Federal Case No. CR–03–20010–RMW.” Id . Ex. D. By letter dated August 15, 2011, ATF informed Plaintiff that it had “contacted the responsible office, and [was] advised that the case is in open status.” Consequently, ATF denied this request as well under FOIA exemption 7(A), and informed Plaintiff about his right to appeal that decision to OIP within 60 days. Id . Ex. F.

C. Request No. 12–539

On March 2, 2012, ATF received what appears to be the same request dated February 8, 2011, but adding “including transcriptions of 9–5–02 meeting with [two named individuals].” Boucher Decl. ¶ 10 (citing illegible exhibits G and H). In what ATF treated as a supplemental request dated March 6, 2012, Plaintiff requested records pertaining to himself and his business. Id. ¶ 12 & Ex. I. By letter dated April 9, 2012, ATF denied this request also under FOIA exemption 7(A), and informed Plaintiff about his right to appeal the decision to OIP within 60 days. Id. ¶ 13 & Ex. J (illegible). As of April 2014, “OIP ha[d] not processed an appeal” for either of the foregoing requests.Id. ¶ 28.

Requests for DEA Records

A. Request No. 09–0724–P

JMD referred the above-mentioned February 6, 2009 request to DEA on March 17, 2009. Decl. of Katherine L. Myrick [Dkt. # 11–3], Exs. A, B. By letter dated August 25, 2009, DEA informed Plaintiff that a search of its Investigative Reporting and Filing System “using the information you provided as search criteria (i.e., complete name, date/place of birth, social security number, etc.) produced negative results[.]” Id., Ex. D. DEA invited Plaintiff to provide additional information that might “aide [sic] us in locating the records,” and informed him about his right to appeal the decision to OIP within 60 days. Id.

B. Request No. 11–00263–P

Plaintiff submitted the above-mentioned February 8, 2011 request to DEA seeking “all documents, handwritten notes, computer files, audio and video surveillance tapes, CD's and flash drives pertaining to me and/or Federal Case No. CR–03–20010–RMW.” Id . Ex. E. By letter dated February 25 2011, DEA informed Plaintiff that its search by the same terms utilized in the 2009 search did not locate responsive records, and further informed about his right to appeal the decision to OIP within 60 days. Id . Ex. F. DEA has no record of an appeal from Plaintiff “prior to bringing this action.” Myrick Decl. ¶¶ 10, 13.

Request No. 11–01031 to OIP

By letter dated March 30, 2011, addressed to DOJ headquarters, Plaintiff requested “a copy of the document that authorizes the Department of Justice to represent the United States of America[,] ... includ[ing] [in] either civil or criminal litigation.” Decl. of Vanessa R. Brinkmann [Dkt. # 11–1] ¶ 8 & Ex. A. In a response dated August 23, 2011, OIP described the files it maintains and informed Plaintiff that “the FOIA provides a right of access to federal agency records that exist and can be located in agency files. [It] does not require agencies to compile information, conduct research, answer questions, or create new documents in response to FOIA requests.” Id., Ex. B. The letter informed Plaintiff about his right to appeal that response to the Director of OIP within 60 days. Id. OIP “has no record of receiving an appeal from Plaintiff” with regard to this request. Id. ¶ 10.

Request for DHS Records

Neither party has placed the request to DHS in the record. It is undisputed that DHS' Office of Biometric Identity Management (formerly US–VISIT Program) received Plaintiff's request for his records on February 8, 2011, and informed Plaintiff by letter dated February 28, 2011, that “our office does not maintain any records regarding United States Citizens.”² Decl. of Michael T. Johnson [Dkt. # 11–4] ¶ 5 & Ex. A; see Compl. at 2 (quoting response letter as one of the letters “relat[ing] to this action”).

In response to this lawsuit commenced in December 2013, DHS conducted a search of its Arrival Departure Information System and located entries on “several Kevin Dugans.” Johnson Decl. ¶ 6. DHS could not continue to search without first verifying that the entries pertained to Plaintiff. Id. By letter dated February 18, 2014, DHS advised Plaintiff to provide additional identifying information, including his date of birth or passport numbers and an original fingerprint card, within 30 days or the request would be closed. Id. ¶ 7 & Ex. B. The letter further informed that “[t]his is not a denial of your request. Upon receipt of a perfected request, you will be advised as to the status of your request.” Id., Ex. B. Plaintiff did not respond; consequently, DHS closed his request on April 2, 2014. Johnson Decl. ¶ 8.

II. LEGAL STANDARD

The FOIA confers jurisdiction on the district court to enjoin an agency from improperly withholding records maintained or controlled by the agency. See 5 U.S.C. § 552(a)(4)(B) ; McGehee v. CIA, 697 F.2d 1095, 1105 (D.C.Cir.1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) ) An agency's disclosure obligation is triggered by its receipt of a request that “reasonably describes” the records sought and “is made in accordance with [the agency's] published rules stating the time, place, fees (if any), and procedures to follow.” 5 U.S.C. § 552(a)(3)(A) ; see Citizens for Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 185, n. 3 (D.C.Cir.2013) (“Of course, the duties that FOIA imposes on agencies ... apply only once an agency has received a proper FOIA request.”) (citation omitted).

“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) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007) ). A court may grant summary judgment when “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.P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

In a FOIA case, an agency is entitled to summary judgment when it demonstrates that there are no material facts in dispute as to the adequacy of its search for or production of responsive records. Nat'l Whistleblower Ctr. v. U.S. Dep't of Health & Human Servs., 849 F.Supp.2d 13, 21 (D.D.C.2012). An agency must show that any responsive information withheld is either exempt from disclosure under one of the exemptions enumerated...