Wright v. U.S. Dep't of Justice, Civil Action No. 14-558 (ESH)

MARTY LORENZO WRIGHT, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 14-558 (ESH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 16, 2015

MEMORANDUM OPINION

Plaintiff Marty Lorenzo Wright brings this action against the United States Department of Justice, alleging that the Executive Office for United States Attorneys ("EOUSA") violated the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), by failing to conduct a search for documents responsive to his FOIA request. (Compl. [ECF No. 2] ("Compl.") ¶ 9.) Before this Court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment. (Mem. of P. & A. in Supp. of Mot. for Summ. J. [ECF No. 10] ("Def.'s Mot."); Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. for Summ. J., and in Supp. of Pl.'s Cross-Mot. for Summ. J. [ECF No. 12-1] ("Pl.'s Opp.").) For the reasons stated herein, defendant's motion will be denied and plaintiff's motion will be denied without prejudice.

BACKGROUND

I. PLAINTIFF'S CONVICTION

In March 1997, plaintiff was found guilty on numerous charges related to a drug trafficking conspiracy, including operating a continuing criminal enterprise. See United States v. Wright, 155 F.3d 564 (4th Cir. 1998) (per curiam). Sixty-three witnesses testified for thegovernment at trial, many of whom testified about their own criminal activities. (See Def.'s Mot. at 1-3.) Defendant explains that "at least five individuals who testified against [plaintiff] did so by agreement with the government."¹ (Id. at 3.)

II. PLAINTIFF'S FIRST FOIA REQUEST

On May 30, 2013, plaintiff made a FOIA request to the United States Attorney's Office in Virginia for the following information:

1. Names of all individuals granted Immunity in the case of United States v. Marty Lorenzo Wright . . . .

2. Copies of Immunity letters issued in . . . United States v. Marty Lorenzo Wright.

3. Names of Agents, Prosecutor, and/or Judge who issued and signed the Immunity Agreements in the case of United States v. Marty Lorenzo Wright. . . .

(Def.'s Mot, Ex. A [ECF No. 10-2].) The EOUSA, responding on behalf of the United States Attorney's Office, denied plaintiff's request, stating:

It is the policy of the Execute Office neither to confirm nor deny that records concerning living third parties exist. Further, any release to you of such records, if they do exist, would be in violation of the Privacy Act. 5 U.S.C. § 552a. The requested material would also be exempt from release pursuant to 5 U.S.C. § 552(b)(6) and/or (b)(7)(C) which pertain to records whose disclosure would result in an unwarranted invasion of personal privacy.

(Def.'s Mot., Ex. B [ECF No. 10-2].) The Office of Information Policy denied plaintiff's subsequent appeal, explaining:

To the extent that responsive records exist, without consent, proof of death, official acknowledgment of an investigation, 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. Because any records responsive to your request would be categorically exempt from disclosure, EOUSA properly asserted Exemption 7(C) and was not required to conduct a search for the requested records.

(Def.'s Mot., Ex. D [ECF No. 10-2] (citation omitted).)

III. PLAINTIFF'S SECOND FOIA REQUEST

On November 30, 2013, Jeremy Gordon, an attorney, submitted the following FOIA request to the EOUSA on plaintiff's behalf:

I request that I be provided with copies of any and all documents, notes, and other records reflecting a grant of immunity or non prosecution to individuals who testified or cooperated in any fashion in United States v. Marty Lorenzo Wright. To the extent responsive records may be subject to redaction, I request all reasonably segregable portions of all responsive records.

(Def.'s Mot., Ex. E [ECF No. 10-2] (citation omitted).) Defendant explains that the "EOUSA interpreted this request as a duplicate of the first request" and therefore "did not respond to plaintiff's second request." (Def.'s Mot., Decl. of David Luczynski [ECF No. 10-1] ("Luczynski Decl.") ¶ 14.)

On April 3, 2014, plaintiff filed suit, seeking to compel defendant to produce the records described in his second FOIA request. (Compl. ¶ 11.) Both parties have now moved for summary judgment.

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). On "summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorableto the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (alteration in original) (internal quotation marks omitted); Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013).

"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); see also Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). A court may grant summary judgment based solely on an agency's affidavits "if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

II. LEGAL FRAMEWORK

"[FOIA] was enacted to facilitate public access to Government documents." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). "An agency must disclose agency records to any person under § 552(a), unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b)." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989) (internal quotation marks omitted).

Defendant asserts that two exemptions are applicable to plaintiff's request. (See Def.'s Mot. at 7-9.) The first is Exemption 6, which protects "personnel and medical files and similarfiles the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The second is Exemption 7(C), which protects "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). In applying both Exemptions 6 and 7(C),² courts "balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992).

III. THE EOUSA'S CATEGORICAL DENIAL

Defendant concedes that the "EOUSA has neither conducted a search for responsive records, nor conducted a segregability review of any responsive records that may exist." (Def.'s Mot. at 14.) Defendant justifies this so-called "categorical denial" on the grounds that plaintiff's "request is for third party information," for which the EOUSA "requires that the requester provide either a written authorization from the third party . . ., proof that the subject of the request is deceased, or a meaningful evidentiary showing that the public interest in disclosure sufficiently outweighs the privacy interests of the third party." (Luczynski Decl. ¶¶ 16-17 (citing 28 C.F.R. § 16.3(a)).) Defendant argues that "records . . . about individuals' immunity and immunity agreements are clearly records compiled for law enforcement purposes, the disclosure of which would constitute both an unwarranted invasion of personal privacy and a clearly unwarranted invasion of personal privacy under exemption 6 or 7(c)."³ (Id. ¶ 26.)

The Supreme Court has explained that "categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989). In Reporters Committee, plaintiff "sought disclosure of any arrests, indictments, acquittals, convictions, and sentences" of four individuals with organized-crime associations. Id. at 757. The Court held that such "rap sheet" information was categorically protected by Exemption 7(C). See id. at 780 ("[W]e hold as a categorical matter that a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy . . . .").

The D.C. Circuit clarified the scope of the third-party categorical exemption in SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991). The plaintiff in SafeCard sought documents related to an SEC investigation, and, pursuant to Exemption 7(C), the agency "deleted the names and addresses of third parties mentioned in witness interviews, of customers listed in stock transaction records . . ., and of persons in correspondence with the SEC." Id. at 1205. The Circuit affirmed these redactions, holding "categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is...