Jurdi v. United States, Civil Action No. 18-1892 (RC)

485 F.Supp.3d 83

Jay JURDI, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 18-1892 (RC)

United States District Court, District of Columbia.

Signed September 2, 2020

Jay Jurdi, Beaumont, TX, pro se.

William J. Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, Joshua L. Rogers, U.S. Attorney's Office, Raleigh, NC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT , DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT , AND DENYING PLAINTIFF'S MOTION TO TREAT ALLEGATIONS AS ADMITTED

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this case, brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, pro se Plaintiff Jay Jurdi seeks to obtain records from the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Agency ("DEA") relating to Anthony Grasso, a man who testified at Jurdi's criminal trial. Defendant, the United States, has now moved for summary judgment on behalf of both agencies, arguing that the FBI properly refused to disclose the existence or non-existence of responsive records (a so-called "Glomar response") due to certain privacy and law enforcement-related FOIA exemptions, and that the DEA properly asserted a categorical denial of the request based on similar exemptions. Jurdi also cross-moves for summary judgment. Ultimately, because the Court finds that the FBI's Glomar response and the DEA's categorical denial were justified, the Court will grant the government's motion for summary judgment and deny Jurdi's cross-motion for summary judgment.

Also pending before the Court is a related motion by Jurdi, which requests that the Court either (1) treat certain allegations advanced in his complaint as admitted or (2) strike some of the government's responses to the statement of undisputed material facts accompanying his cross-motion for summary judgment. For the reasons explained below, the Court will deny the motion.

II. BACKGROUND

According to the complaint, in 2012, Jay Jurdi, along with various other co-conspirators, was charged with "conspiracy to possess with intent to manufacture and distribute methamphetamine." Compl. at 1, ECF No. 1. One of the other defendants charged was Anthony Grasso. Id. at 1–2. Pursuant to a plea agreement, Grasso testified against Jurdi at a trial on October 14, 2014. Id. at 2. At trial, Grasso testified that he had been cooperating with the government and had arranged a drug deal to facilitate the arrest of some individuals. Id. ; see also Compl. Ex. 1 at 69, ECF No. 1-1 (trial transcript).¹ Public records indicate that Jurdi was subsequently convicted. See Jury Verdict, United States v. Grasso et al. , No. 4:12-cr-180 (E.D. Tex.), ECF No. 432.²

On March 22, 2018, Jurdi sent the DEA a FOIA request for (1) "[a]ny DEA Form 6's³ created by any DEA Agents in relation to Anthony Grasso," (2) "[a]ny Other File Number of a DEA File containing the name of Anthony Grasso," and (3) "[a]ny other investigative reports filed by any other agent referencing the name Anthony Grasso." Compl. Ex. 1 at 93 (DEA request). On March 25, 2018, Jurdi sent a nearly identical request to the DEA and FBI, this time seeking "[a]ny FBI Form 302's⁴ created by any FBI agents in relation to Anthony Grasso," as well as any file numbers and investigative reports referencing Mr. Grasso. Id. at 94 (FBI request). On April 10 and 11, 2018, the agencies each responded separately to Jurdi's requests, both stating that they could "neither confirm nor deny the existence of such records pursuant to Exceptions 6 & 7(C) of FOIA." Id. at 95 (DEA denial); id. at 97 (FBI denial). On April 17, 2018, Jurdi appealed both decisions to the Department of Justice's Office of Information Policy. Id. at 99 (FBI appeal); id. at 102 (DEA appeal). On May 31, 2018, both appeals were denied, with OIP upholding use of both agencies’ Glomar responses under Exceptions 6 & 7(C). See id. at 105 ("Confirming or denying the existence of such records, including law enforcement records, concerning a third-party individual would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy."); see also id. at 107 (same as to DEA).⁵

On July 8, Jurdi filed this action, seeking to compel release of the records. Compl. at 9. That filing provoked a response from one of the agencies: after reviewing the complaint and Grasso's trial testimony, the DEA "abandoned its former application of Glomar in a letter to Plaintiff." Def.’s Mot. for Summ. J. Ex. B ("Hertel Decl.") ¶ 12, ECF No. 13-4. In the letter, the DEA "confirm[ed] that records exist," but determined that "without consent, proof of death or an overriding public interest, disclosure of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy. Id. (quoting Hertel Decl. Ex. 1 ("DEA Letter"), ECF No. 13-5). Therefore, the DEA concluded, it was "not required to conduct a search for the required records." Id. (quoting DEA Letter).

Relatively soon thereafter, the government filed a motion for summary judgment,⁶ arguing that the FBI had properly asserted a Glomar response and the DEA properly relied on a categorical denial. See Mem. in Supp. Def.’s Mot. for Summ. J. ("MSJ") at 1, ECF No. 13-1. Jurdi responded with a combined memorandum in opposition and cross-motion for summary judgment, largely arguing that, because at least some of the information regarding Mr. Grasso was already in the public realm, neither agency could rely on broad denials. See Pl.’s Opp'n to Def.’s MSJ & Pl.’s Cross-Mot. for Summ. J. ("XMSJ") at 1–2, ECF No. 17.⁷ The summary judgment motions are now fully briefed and ripe for the Court's consideration. See Def.’s Reply in Supp. of MSJ & Opp'n to XMSJ, ECF No. 21; Pl.’s Reply in Supp. of XMSJ, ECF No. 23.⁸

Separately, in the midst of this briefing, Jurdi filed a related procedural motion. See Pl.’s Mot. to Treat his Allegations as Admitted and/or to Strike Def.’s Responses to Pl.’s Statement of Undisputed Material Facts ("Allegations Mot."), ECF No. 22. In this motion, Jurdi argues (1) that certain allegations made in his complaint and repeated in his cross-motion's statement of material facts should be treated as admitted by the government because they were not properly contested or (2) alternatively, that certain responses be stricken from the government's statement of facts because the government did not admit or deny the corresponding allegations as required. Allegations Mot. at 1–3. The government opposes, see Def.’s Opp'n to Allegations Mot. at 1, ECF No. 24, and Jurdi has not filed a reply.

III. LEGAL STANDARD

The Freedom of Information Act "sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic society.’ " FBI v. Abramson , 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ). "[D]isclosure, not secrecy, is the dominant objective of the Act." Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). FOIA accordingly " ‘mandates release of properly requested federal agency records, unless the materials fall squarely within one of nine statutory exemptions.’ " Hunton & Williams LLP v. EPA , 346 F. Supp. 3d 61, 72 (D.D.C. 2018) (citing Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) ). And "even if some materials from the requested record are exempt from disclosure, any reasonably segregable information from those documents must be disclosed after redaction of the exempt information," unless the non-exempt portions are "inextricably intertwined with exempt portions." Id. (internal quotation marks omitted) (quoting Johnson v. EOUSA , 310 F.3d 771, 776 (D.C. Cir. 2002) ).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. 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) ). An agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates "that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information." Competitive Enter. Inst. v. EPA , 232 F. Supp. 3d 172, 181 (D.D.C. 2017). "This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’ " Hardy v. ATF , 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA , 185 F.3d 898, 904–05 (D.C. Cir. 1999) ). To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply." Elec. Privacy Info. Ctr. v. DEA , 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 251 (D.C. Cir. 1977) ).

In this case, the DEA is asserting a so-called categorical denial. The Supreme Court and D.C. Circuit have "made it clear that rules exempting whole groups of records from disclosure are not only permitted, but should be encouraged as a means of enabling agencies to meet their formidable FOIA obligations in a timely fashion." Graff v. FBI , 822 F. Supp. 2d 23, 31...