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

464 F.Supp.3d 376

Barbara KOWAL, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civil Action No. 18-938 (TJK)

United States District Court, District of Columbia.

Signed June 1, 2020

Donald Todd Doss, Office of the Federal Defender, Orlando, FL, for Plaintiff.

Denise M. Clark, Kristin Brudy-Everett, U.S. Attorney's Office for the District of Columbia, Michelle D. Jackson, U.S. Attorney's Office Homicide Section, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida, filed this suit against the Department of Justice and the Drug Enforcement Administration under the Freedom of Information Act. Kowal requested all records from the DEA pertaining to Daniel Troya, a capital defendant that the Federal Defender represents in his post-conviction hearings, and to several of his codefendants. The DEA produced documents from its law enforcement records system but withheld some documents in whole or in part under several FOIA exemptions.

Defendants moved for summary judgment, arguing that they adequately searched for records, properly invoked certain FOIA exemptions to justify their withholdings, and met their duty to disclose all reasonably segregable portions of the records at issue. Kowal cross-moved for summary judgment, arguing that the DEA's search was deficient because it failed to use adequate search terms and check all relevant records systems, and that the DEA failed to adequately justify the FOIA exemptions at issue, improperly withheld information in the public domain, and failed to disclose all reasonably segregable information. The Court finds that the DEA conducted an adequate search, but that the record does not provide enough information to determine whether it properly applied FOIA's exemptions, withheld information in the public domain, or produced all segregable portions of the records at issue. The Court will therefore grant Defendants’ motion and deny Kowal's as to the adequacy of DEA's search, and otherwise deny the motions without prejudice.

I. Background

Kowal's office began representing Troya in capital post-conviction proceedings in April 2015. ECF No. 1 ("Compl.") ¶ 6. A few months later, she sent a request under the Freedom of Information Act (FOIA) and Privacy Act of 1974 (PA) to the Drug Enforcement Administration (DEA) seeking documents related to Troya's prosecution. Kowal requested "all documents, files, records, etc. pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of ... Daniel Troya (a/k/a "Homer"), DOB: 04/22/1983" and cited his federal criminal charges. Id. ¶ 11. Kowal also requested the same documents for five of Troya's codefendants. Id. One week later, Kowal sent an amended request, including a Certification of Identity signed by Troya that permitted Defendants to release Troya's records to Kowal's office. See ECF No. 1-2.

The DEA processed 418 pages in response to Kowal's request. See ECF No. 20-14; ECF No. 20-15. All responsive records were exempt from PA disclosure under PA exemption (j)(2). See ECF No. 20-1 ("Hertel Decl.") ¶ 34. Exemption (j)(2) permits heads of agencies to exempt from disclosure any system of records with a principal function of any activity pertaining to criminal law enforcement. 5 U.S.C. § 552a(j)(2). The DEA also invoked FOIA Exemptions (b)(6) and (b)(7)(C), (D), (E), and (F) to withhold some documents in whole or in part. See Hertel Decl. ¶ 28. Exemption (b)(6) protects information in personnel and medical files when disclosure would "constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In contrast, each (b)(7) exemption applies only to information compiled for law enforcement purposes: Exemption (b)(7)(C) protects against unwarranted invasions of personal privacy, Exemption (b)(7)(D) protects the identities of confidential sources or information furnished by confidential sources, Exemption (b)(7)(E) protects law enforcement techniques and procedures, and Exemption (b)(7)(F) protects against endangering the life or physical safety of any person. Id. §§ 552(b)(6), (b)(7)(C), (b)(7)(D), (b)(7)(E), (b)(7)(F).

The DEA supported its motion with the declaration of Angela D. Hertel, the DEA's acting FOIA and PA Unit Chief, which explains in detail the DEA's response to Kowal's request. See Hertel Decl. The DEA maintains all of its criminal law enforcement investigative records in the Investigative Reporting and Filing System (IRFS or JUSTICE/DEA-008). Id. ¶ 6. A second system, the Narcotics and Dangerous Drugs Information System (NADDIS), electronically indexes IRFS files, allowing the DEA to locate IRFS records from any DEA office worldwide. Id. ¶ 7. The DEA searched for files responsive to Kowal's request using Troya's name and date of birth, which are two of the three fields by which NADDIS indexes an individual's records. Id. ¶¶ 7, 30.

The DEA also provided two Vaughn indices¹ that assert exemptions for each page or range of pages in the responsive files. See ECF No. 20-14; ECF No. 20-15. The indices work in tandem with the Hertel Declaration, which describes the types of general information withheld under each exemption. See Hertel Decl. ¶¶ 32–58. Each entry in the indices provides the applicable page range in the responsive file and gives a short document description, a document date, whether the document was withheld in full or in part, and a list of exemptions claimed for the document. See ECF No. 20-14; ECF No. 20-15. The rationales for each redaction are limited. The DEA explains that some redactions are self-explanatory (e.g. , a redaction under the "Supervisor" field on the DEA-6 form protects the Supervisor's name). See ECF No. 20-14 at 2. Some entries describe redactions that are not self-evident, and all entries refer to the indices’ general exemption explanations, which in turn refer to the Hertel declaration. See id. at 1, 4.

II. Legal Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. Summary judgment is appropriate when, "viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. , 826 F.3d 492, 496 (D.C. Cir. 2016).

FOIA "requires federal agencies to disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Judicial Watch, Inc. v. FBI , 522 F.3d 364, 366 (D.C. Cir. 2008). It creates a "strong presumption of disclosure," and "places the burden on the agency to justify the withholding of any requested documents." U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). If information is already in the public domain, an agency cannot invoke an otherwise valid exemption to withhold it. Students Against Genocide v. Dep't of State , 257 F.3d 828, 836 (D.C. Cir. 2001). When an agency withholds portions of a record, it must still disclose "[a]ny reasonably segregable portion ... after deletion of the portions which are exempt." 5 U.S.C. § 552(b).

A court reviewing a FOIA action may grant summary judgment based on the agency's declarations "[i]f an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith." Am. Civil Liberties Union v. U.S. Dep't of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011). But the agency may not rely on "conclusory and generalized allegations of exemptions" in its affidavits. Vaughn v. Rosen , 484 F.2d 820, 826 (D.C. Cir. 1973).

III. Analysis

A. Whether the DEA's Search was Adequate

Kowal first challenges the DEA's search. An adequate FOIA search is one that is "reasonably calculated to uncover all relevant documents." Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir. 1990). A court judges a FOIA search "not by the fruits of the search, but by the appropriateness of the methods used to carry out the search" because "particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them." Iturralde v. Comptroller of Currency , 315 F.3d 311, 315 (D.C. Cir. 2003). The agency need not search all its records systems, but it "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). An agency that restricts its search to certain records systems must "explain in its affidavit that no other record system was likely to produce responsive documents." Id. Agencies do not need to use every possible search term, Canning v. U.S. Dep't of State , 346 F. Supp. 3d 1, 14 (D.D.C. 2018), and "there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request," Physicians for Human Rights v. U.S. Dep't of Def. , 675 F. Supp. 2d 149, 164 (D.D.C. 2009).

To show that it has conducted an adequate search, an agency must 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 , 920 F.2d at 68. Agency declarations to that effect are given "a presumption of good faith," and "[a]n adequate affidavit can be rebutted only ‘with evidence that the agency's search was not made in good faith.’ " Defs. of Wildlife v. U.S. Dep't of Interior , 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (quoting ...