Kendrick v. Drug Enf't Admin.

1

JAMES DEAN KENDRICK, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, Defendant.

No. 21-cv-01624 (TNM)

United States District Court, District of Columbia

August 25, 2022

MEMORANDUM OPINION

TREVORN. MCFADDEN, U.S.D.J.

James Dean Kendrick submitted multiple FOIA requests to the Drug Enforcement Administration for records pertaining to him. The agency conducted several searches and released 28 pages, with some material redacted. Dissatisfied with that response Kendrick filed this lawsuit.

Both parties now move for summary judgment. The Court holds that on this record, some of DEA's searches were inadequate. But the Court also concludes that for the material already disclosed, the agency has properly invoked various FOIA exemptions. The Court will therefore grant in part and deny in part both motions.

I.

This FOIA case begins with a criminal conviction. In 2016, a federal court sentenced Kendrick to “life imprisonment plus 30 years” for his involvement in a drug ring. ECF No. 937, United States v. Kendrick, et al., No. 6:10-cr-6096 (W.D.N.Y.). To substantiate alleged prosecutorial errors related to his conviction, Kendrick filed a FOIA request with the DEA. See Compl. at 2, ECF No. 1. He sought (1) his NADDIS report, which refers to “an electronic data index system” used by DEA to locate records, Decl. of Angela Hertel ¶ 6, ECF No. 14-5 (Hertel Decl.); (2) his DEA investigative file; (3) DEA forms pertaining “directly or indirectly” to him; and (4) correspondence the DEA sent him at a New York county jail about the seizure of money at the time of his arrest, see id. ¶ 8.

DEA conducted multiple searches. It first queried the NADDIS database and found one investigative file associated with Kendrick, the paper copy of which had been destroyed by a field office. See id. ¶ 9. But the agency located an electronic copy in an “electronic file room.” Id. ¶ 11. That file amounted to four pages. See id. ¶ 11. And because Kendrick had asked about a seizure, DEA sent a search request to its Asset Forfeiture Section (AFS), which located ten relevant pages. See id. ¶ 10. The agency released all 14 pages, with redactions on eight of them. See id. ¶ 12.

Kendrick appealed that response within the Department of Justice, DEA's parent agency. See id. ¶ 13. The Department remanded the request for more searches, and DEA sent a search request to its Office of Administration, Investigative Records Unit, to locate logs showing who had searched NADDIS for Kendrick's files. See id. ¶¶ 13-14. That Unit located two pages. See id. ¶ 15. DEA also located three pages comprising Kendrick's NADDIS report. See id. ¶ 16. The agency released those five pages with some redactions. See id. ¶¶ 15-16.

Kendrick then filed another FOIA request that largely duplicated his earlier one but also sought any documents about the destruction of his investigative file. See id. ¶ 17. DEA responded that “everything related to his NADDIS report, the investigative file, and any other investigative records” had been released previously. Id. ¶ 18. And as for the destruction of his file, DEA released both its search request to the field office and that office's response that it had destroyed the paper files. See id. ¶ 18. That release amounted to three pages, meaning the agency had released 22 pages in total, 14 with redactions. See id. ¶ 19. For those redactions, DEA invoked FOIA Exemptions 6, 7(C), 7(E), and 7(F). See id.

Dissatisfied with the agency's response, Kendrick filed this suit, pro se, arguing that the DEA's searches were inadequate and that the agency improperly relied on the exemptions. See generally Compl. DEA moved for summary judgment, see Def's. MSJ, ECF No. 14, and Kendrick cross-moved for the same, see Pl.'s MSJ, ECF No. 19-1. After the motions became ripe, however, DEA conducted another search of the AFS and found six more responsive pages. See Attach to Supp. Memo., ECF No. 25-1. The agency released those pages with some redactions under the same exemptions as before.

The cross-motions are now ripe for decision.^[1]

II.

To prevail on a motion for summary judgment, a party must show that “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). FOIA requires “disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions, which are listed at 5 U.S.C. § 552(b).” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S.Ct. 777, 785 (2021). To obtain summary judgment, the agency bears the burden to show the applicability of the claimed exemptions. See ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011). This burden does not shift even when the requester cross-moves for summary judgment. See Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017). Courts construe FOIA exemptions narrowly, see Milner v. Dep't of the Navy, 562 U.S. 562, 565 (2011), and review their applicability de novo, see King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987).

To meet its burden, an agency may rely on declarations describing the applicability of a FOIA exemption to information that the agency has withheld. See Shapiro v. DOJ, 893 F.3d 796, 799 (D.C. Cir. 2018).

Those declarations receive “a presumption of good faith.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary judgment based solely on the agency's declarations if they are unimpeached by contrary record evidence or by evidence of the agency's bad faith. See Aguiar v. DEA, 865 F.3d 730, 734-35 (D.C. Cir. 2017). Most FOIA cases resolve at this stage. See AARC v. CIA, 317 F.Supp.3d 394, 399 (D.D.C. 2018), aff'd, 781 Fed. App'x. 11 (D.C. Cir. 2019) (per curiam).

Kendrick proceeds pro se, so the Court “liberally construe[s]” his filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). That accommodation does not, however, allow him “to ignore the Federal Rules of Civil Procedure.” Oviedo v. WMATA, 948 F.3d 386, 397 (D.C. Cir. 2020); Raven v. Sajet, 334 F.Supp.3d 22, 28 (D.D.C. 2018) (noting that for pro se plaintiffs, “the ultimate standard remains the same”). He still must show that a genuine issue of material fact exists as to whether the agency has inappropriately withheld records. See Fed.R.Civ.P. 56(a).

III.

Kendrick challenges the adequacy of DEA's searches and its invocation of FOIA exemptions. See generally Pl.'s Stmt. of Undisputed Facts and Stmt. of Genuine Issues, ECF No. 19-3. The Court first analyzes the searches and then the exemptions.

A.

First, the searches. The adequacy of a search does not turn on “whether there might be” more uncovered documents. Kowalczyk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996). A search instead is adequate if the agency shows that its search method “was reasonably calculated to uncover all relevant documents.” Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency can carry its burden through affidavits “setting forth the search terms and the type of search performed[ ] and averring that all files likely to contain responsive materials . . . were searched[.]” Id. Any information about the agency's search must be “specific enough to enable [plaintiffs] to challenge the procedures utilized.” Weisberg v. DOJ, 627 F.2d 365, 371 (D.C. Cir. 1980).

Once the agency has provided the necessary detail, the plaintiff must produce “countervailing evidence” showing a genuine dispute of material fact about the search's adequacy. Iturralde v. Comptroller of Currency, 315 F.3d 311, 314-16 (D.C. Cir. 2003) (cleaned up). Above all, “[i]f the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Kowalczyk, 73 F.3d at 388 (cleaned up).

Across the two requests, DEA searched NADDIS, the Asset Forfeiture Section, the unnamed “electronic file room,” Hertel Decl. ¶ 11, and the agency's Office of Administration, Investigative Records Unit. Kendrick focuses most, however, on the destruction of his paper investigative file. DEA sent a search request for that file to the field office where the matter originated. See id. ¶ 9. Recall, however, that the office said it had destroyed the paper copies per the agency's Record Management Schedule. See id. Kendrick says otherwise. In his Complaint and his appeals within DOJ, he argued that DEA never destroys such files. See Compl. ¶ 25(6). But he includes no evidence supporting this assertion, relying instead on conclusory statements to rebut the agency's declaration on this point. Speculation is not enough to overcome the goodfaith presumption afforded that declaration. Accord Eddington v. DOD, 35 F.4th 833, 839 (D.C. Cir. 2022).

More, Kendrick has not refuted or otherwise questioned DEA's later search of the electronic file room that yielded “a complete electronic version” of the investigative file. Hertel Decl. ¶ 11. So even if DEA improperly destroyed the paper files, it has provided those files in electronic form, complying with its duty to “search for the [requested] records in electronic form or format.” 5 U.S.C. § 552(a)(3)(C). Because Kendrick does not refute that statement,^[2] the Court credits it and rejects his assertion that a genuine issue of material fact remains about the destruction of his paper file.

That leaves the other three searches. Kendrick never clearly states which of these he challenges, instead asserting broadly that the agency never met its “duty to search for and locate records and documents.” Pl.'s MSJ at 3, ECF No. 20; see also Pl.'s Reply at 7 (there is “a genuine issue of material fact . . . as to whether the DEA has conducted a reasonable search for responsive records”).^[3] Guided by the instruction to construe pro se filings broadly, see Erickson, 551 U.S. at 94, the Court assumes that Kendrick challenges the adequacy of all other...