Kowal v. United States Dep't of Justice

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

August 3, 2021

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY United States District Judge.

Barbara Kowal, a paralegal with 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 relating to Daniel Troya, a capital defendant that the Federal Defender represents in his post-conviction hearings, to several of his co-defendants as well. The DEA produced documents from its law enforcement records system but withheld some documents in whole or in part under several FOIA exemptions. The DEA also produced two Vaughn indices. After cross-motions for summary judgment, the Court held that the DEA's Vaughn indices were inadequate. Since then, the DEA has updated its Vaughn indices and the parties have cross-moved again for summary judgment.

Defendants move for summary judgment, arguing that their updated Vaughn indices are sufficient, they properly invoked certain FOIA exemptions to justify their withholdings, and met their duty to disclose all reasonably segregable portions of the records at issue. In response, Kowal argues that the DEA's Vaughn indices are still inadequate, that the DEA failed to adequately justify the claimed FOIA exemptions, improperly withheld information in the public domain, and failed to disclose all reasonably segregable information. The Court finds that the DEA's Vaughn indices are sufficient and that the DEA properly invoked Exemptions 6, 7(C), 7(D), 7(F) and, in some contexts, 7(E). But the Court also finds that the DEA did not provide enough information for the Court to determine whether it properly invoked Exemption (7)(E) for materials relating to the DEA Agents' Manual. The Court also finds that the DEA met its duty to disclose all reasonably segregable portions of the records at issue. The Court will therefore grant Defendants' motion except as to the materials referencing the DEA Agents' Manual and deny Kowal's motion along the same lines. Otherwise, the Court will deny both 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”), 5 U.S.C. § 552, and Privacy Act of 1974 (“PA”), 5 U.S.C. § 552a, to the Drug Enforcement Administration (“DEA”) seeking documents related to Troya's prosecution. Id. ¶ 11. 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. Kowal also requested the same documents for five of Troya's co-defendants. Id. One week later, Kowal sent an amended request, including a certification signed by Troya that permitted Defendants to release Troya's records to Kowal's office. See ECF No. 1-2.

The DEA's search identified 418 pages responsive to Kowal's request. See ECF No. 201 (“First Hertel Decl.”) ¶ 27. The DEA invoked FOIA Exemptions 6, 7(C), 7(D), 7(E), and 7(F) to withhold some documents in whole or in part. See First Hertel Decl. ¶ 15. Exemption 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 § 552(b)(7) exemption applies only to information compiled for law enforcement purposes: Exemption 7(C) protects against unwarranted invasions of personal privacy, Exemption 7(D) protects the identities of confidential sources or information furnished by confidential sources, Exemption 7(E) protects law enforcement techniques and procedures, and Exemption 7(F) protects against endangering the life or physical safety of any individual. Id. §§ 552(b)(6), (b)(7)(C), (b)(7)(D), (b)(7)(E), (b)(7)(F).

In June 2019, the DEA moved for summary judgment and a few months later, Kowal cross-moved for summary judgment. ECF Nos. 20 & 23. The DEA supported its motion with the declaration of Angela D. Hertel, the DEA's acting FOIA and PA Unit Chief, which explained in detail the DEA's response to Kowal's request. See First Hertel Decl. The DEA also provided two Vaughn indices that assert exemptions for each page or range of pages in the responsive files.^[1] 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 First Hertel Decl. ¶¶ 35-59. Each entry in the indices provides the applicable page range in the responsive file and includes a short document description, document date, whether the document was withheld in full or in part, a list of exemptions claimed for the document, and explanations for why each exemption applies.

In ruling on the parties' cross-motions, the Court found that “the DEA conducted an adequate search, but that the record [did] 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.” Kowal v. United States Dep't of Just., 464 F.Supp.3d 376, 379 (D.D.C. 2020). As a result, the Court granted Defendants' motion and denied Kowal's as to the adequacy of DEA's search, and otherwise denied the motions without prejudice. Since that decision, the DEA has updated its Vaughn Indices and the Hertel Declaration and once again, the parties cross-moved for summary judgment.

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 Rels. 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 in favor 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 (1991). If information is already in the public domain, an agency cannot invoke an otherwise valid exemption to withhold it. Students Against Genocide v. U.S. 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. Sufficiency of DEA's Vaughn Indices

Kowal again challenges the sufficiency of the Vaughn indices provided by the DEA. Because FOIA requesters face information asymmetry that favors the agency, courts evaluating claimed FOIA exemptions must rely on the agency's representation of the materials it withholds. See King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). A sufficiently detailed Vaughn index enables that evaluation. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). An agency must use a Vaughn Index to explain withheld information by “specifying] in detail which portions of the document are disclosable and which are allegedly exempt.” Vaughn, 484 F.2d at 827.

A court evaluates a Vaughn index on its function, not its form. Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part to enable the reviewing court to determine whether the agency properly invoked FOIA exemptions. Lykins v. DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984). It does so if it “provide[s] a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). Thus, an index must “state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).

Kowal argues that the DEA has not cured the deficiencies in its Vaughn indices and “merely repeat[s] boilerplate language about the claimed exemptions” rather than providing “a factual basis for why exemptions were properly invoked.” ECF No. 40 at 18. Previously, the Court noted that the DEA's Vaughn indices claimed exemptions for each document, but did not adequately “correlat[e] those claims with the particular part of a withheld...