UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHANELL JAMES, : : Plaintiff, : Civil Action No.: 08-0842 (RMU) : v. : Re Document Nos.: 13, 15 : DRUG ENFORCEMENT : ADMINISTRATION et al., : : Defendants. :
MEMORANDUM ORDER
GRANTING THE DRUG ENFORCEMENT AGENCY ’S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF’S MOTION FOR AN IN CAMERA INSPECTION
I. INTRODUCTION
Plaintiff Shanell James, a federal prisoner, brought this action pro se under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, id. § 552a, against the Drug
Enforcement Administration (“the DEA” or “the defendant”), a component of the United States
Department of Justice (“DOJ”), and the U.S. Immigration and Customs Enforcement (“ICE”), a
component of the Department of Homeland Security.1 The defendant now moves for summary
judgment. The plaintiff opposes the motion. Because the record establishes that there are no
material issues in genuine dispute with respect to the defendant’s compliance with the
requirements of the FOIA and the Privacy Act, the court grants the defendant’s motion for
summary judgment. In addition, the court denies the plaintiff’s motion for an in camera
inspection of the requested documents.
1 ICE has not yet been served with a summons and copy of the complaint. A summons has been reissued for ICE based on information provided by the plaintiff. II. FACTUAL & PROCEDURAL BACKGROUND
On May 25, 2003, a U.S. Customs Service agent arrested the plaintiff for attempting to
smuggle approximately 2.4 pounds of heroin pellets into the country. See Compl., Ex. 5 at 2; see
also James v. Customs & Border Prot., 549 F. Supp. 2d 1, 5 (D.D.C. 2008).2 The plaintiff had
arrived in Miami, Florida via Curacao with the drugs concealed inside his body. See id. The
incident resulted in the plaintiff’s conviction pursuant to a plea agreement, see Order, United
States v. James, Criminal Case No. 03-20452 (S.D. Fla. Oct. 21, 2003), and he was sentenced to
fourteen years in prison followed by five years of supervised release, see Judgment, United States
v. James (Jan. 27, 2004).
Following his conviction, the plaintiff sought records related to his criminal investigation
and prosecution, including a “Laboratory Analysis Report” of the heroin pellets seized from his
body. Compl. ¶¶ 3-5, 12 & Ex. 5. Toward that end, he directed a FOIA request to the DOJ in
November 2004. See Def.’s Mot. for Summ. J., Decl. of Leila I. Wassom (“Wassom Decl.”) ¶ 6
& Ex. A. The DOJ forwarded the request to the defendant, the Federal Bureau of Investigation
(“FBI”) and the Executive Office for United States Attorneys (“EOUSA”). Wassom Decl. ¶¶ 7-9
& Ex. F. The plaintiff also communicated directly with the defendant regarding his request. Id.
The defendant determined that the records most likely to be responsive to the plaintiff’s
request would be found in the defendant’s Investigative Reporting Filing System (“IRFS”), and
that lab analysis records were most likely to be found in the defendant’s Functional File System
2 Well into the litigation against Customs and Border Protection, another component of the Department of Homeland Security, the plaintiff attempted to amend his complaint to include the defendants in this action. His motion to amend was denied, but he was informed that he was “free . . . to file new actions against the DEA and ICE.” James v. Customs & Border Prot.,549 F. Supp. 2d 1, 13 (D.D.C. 2008). This action followed.
2 File No. 901 (“Laboratory Case Files”). Id. ¶¶ 21-22. The defendant concluded that no other
system of files was likely to contain responsive information. Id. ¶ 23. The defendant searched its
IRFS index by using the plaintiff’s name, social security number and date of birth as search
terms, but did not locate any files containing information relating to the plaintiff. Id. ¶¶ 24-26.
The defendant could not search its Laboratory Case Files because to do so, it needed to know the
file, exhibit or laboratory number of the drug analysis sought, and the plaintiff had not provided
that information. Id. ¶ 27. Accordingly, the defendant notified the plaintiff that it had found no
records responsive to his request. Id. ¶ 11. The plaintiff appealed to the DOJ’s Office of
Information and Privacy (“OIP”), which affirmed the defendant’s determination that it had no
responsive records. Id. ¶ 14 & Ex. H.
Subsequently, the EOUSA forwarded one page – a curriculum vitae of one of the
defendant’s forensic chemists – to the defendant. Id. ¶ 15. The defendant then notified the
plaintiff that it had received the curriculum vitae, but that the defendant was withholding the
document in full pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F), which relate to the
privacy or safety of third parties. Id. ¶¶ 16-17 & Ex. P. In December 2007, the plaintiff
submitted an appeal to the OIP challenging the defendant’s decision to withhold the curriculum
vitae. Along with his appeal, the plaintiff included new information indicating that the DEA’s
Southeast Laboratory had conducted the analysis of the heroin and providing the corresponding
laboratory number and file number. Id. ¶ 18 & Ex. L. The OIP denied the plaintiff’s appeal,
explaining that the curriculum vitae was unrelated to his request for a lab analysis report. Id. ¶
20. This lawsuit followed.
3 In the course of defending itself against this litigation, the defendant conducted an
additional search based on the new information the plaintiff had provided in his appeal and
forwarded the plaintiff’s request for the lab report to the Southeast Laboratory. Id. ¶¶ 29-30. The
search yielded seventeen pages of responsive records. Those records were released to the
defendant, but the names of DEA laboratory personnel and ICE Special Agents were redacted
from the documents pursuant to FOIA exemptions (b)(7)(C) and (b)(7)(F). Id. ¶¶ 30-31 &
Exs. O, P.
The defendant has filed a motion for summary judgment, supported by an agency
declaration averring that it has searched for responsive records in the only two systems of files
likely to contain information responsive to the plaintiff’s requests, and that portions of the
responsive documents were properly withheld under FOIA exemptions (b)(6), (b)(7)(C) and
(b)(7)(F). The plaintiff has filed an opposition to the motion, contending that the cited
exemptions are “in error.” Pl.’s Opp’n at 4-5.
III. ANALYSIS
A. Legal Standard for Summary Judgment in a FOIA Case
Under Federal Rule of Civil Procedure 56, a motion for summary judgment must be
granted if the pleadings and evidence on file show that there is no genuine issue of material fact,
and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). In considering whether there is a triable issue of fact, a court
must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party
opposing a motion for summary judgment, however, “may not rest upon the mere allegations or
4 denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue
for trial,” id. at 248, that would permit a reasonable jury to find in his favor, Laningham v. U.S.
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). The non-moving party must do more than simply
“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, “any factual assertions in the
movant’s affidavits will be accepted as being true unless [the opposing party] submits his own
affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d
453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).
In a FOIA suit, an agency is entitled to summary judgment once it demonstrates that no
material facts are in dispute and that it conducted a search of records in its custody or control,
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51 (1980), that was
reasonably calculated to uncover all relevant information, Weisberg v. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984), which either has been released to the requestor or is exempt from
disclosure, Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To
show that its search “us[ed] methods which can be reasonably expected to produce the
information requested,” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see
also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the agency may submit
affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the
scope and method of the search, Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the
absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an
agency’s compliance with the FOIA. Id. at 127. A search need not be exhaustive, Miller v. U.S.
Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and the adequacy of a search is not
5 determined by its results, but by the method of the search itself, Weisberg, 745 F.2d at 1485. An
agency’s failure to find a particular document does not necessarily indicate that its search was
inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).
An agency that withholds information responsive to the plaintiff’s request must justify its
decision in accordance with the FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300,
305 (D.C. Cir. 2001); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). In this case,
the defendant has asserted FOIA exemptions (b)(7)(C) and (b)(7)(F) for each of its
nondisclosures.3 FOIA exemption (b)(7)(C) applies to information “compiled for law
enforcement purposes” the disclosure of which “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). FOIA exemption (b)(7)(F)
also applies to information “compiled for law enforcement purposes” the disclosure of which
“could reasonably be expected to endanger the life or physical safety of any individual.” Id.
§ 552(b)(7)(F). Therefore, the defendant must “produce affidavits or declarations that describe
the documents involved and justify the non-disclosure in a clear, specific and reasonably detailed
manner, and that are not controverted by either contrary evidence in the record [or] evidence of
agency bad faith.” Voinche v. FBI, 412 F. Supp. 2d 60, 64-65 (D.D.C. 2006) (internal quotation
marks and citations omitted). “These affidavits or declarations are accorded a presumption of
good faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” Id. at 65 (internal quotation marks omitted). If “the agency
3 In addition, with respect to one document, the agency invokes FOIA exemption (b)(6).
6 affidavits are sufficiently detailed to permit meaningful review and adversarial testing of
exemption claims,” in camera review of documents is not necessary. Thompson v. Executive
Office for U.S. Attorneys, 587 F. Supp. 2d 202, 207 n.1 (D.D.C. 2008) (internal quotation marks,
alterations and citations omitted). An in camera review is properly viewed as a “secondary tool
of FOIA enforcement” to be undertaken only where the court, in its discretion, determines it to be
necessary. Ctr. for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 20-21 (D.C. Cir. 1984)
(internal quotation marks omitted).
B. The Court Grants the Defendant’s Motion for Summary Judgment
1. The Defendant’s Search was Adequate
The plaintiff does not contest the adequacy of the defendant’s search, but the court will
address this issue nonetheless because, on a motion for summary judgment, the defendant bears
the initial burden of showing that its search was adequate. Weisberg, 745 F.2d at 1485. The
defendant can meet this burden by supplying “reasonably detailed, nonconclusory affidavits in
good faith.” Id. In Steinberg v. U.S. Department of Justice, the court held that the FBI satisfied
this burden because it described “with particularity the files searched, the manner in which they
were searched, and the results of the search.” 23 F.3d 548, 552 (D.C. Cir. 1994). Like the FBI’s
declaration in Steinberg, the Wassom Declaration contains a sufficient degree of particularity. It
explains which of the defendant’s databases would be likely to contain information responsive to
the plaintiff’s requests and how files are generally retrieved from those databases. See Wassom
Decl. ¶¶ 21-24. In addition, it specifically details the offices, dates, methods, and results of the
searches conducted on the plaintiff’s behalf. Id. ¶¶ 25-31. In addition to being reasonably
detailed, the Wassom Declaration appears to have been made in good faith; the plaintiff does not
7 allege otherwise. See generally Compl.; Pl.’s Opp’n. Concluding that the defendant conducted
an adequate search for documents responsive to the plaintiff’s request, the court now turns to the
plaintiff’s principal arguments.
2. The Defendant’s Nondisclosures Were Proper
The Wassom Declaration, and its accompanying Vaughn index, describes the information
withheld in a clear, specific and reasonably detailed manner, and justifies the non-disclosures by
describing the general content of the undisclosed information and citing the applicable statutory
provisions. See Wassom Decl., Ex. P. Specifically, the declaration explains that the curriculum
vitae of the forensic chemist was withheld based on third-party privacy interests, see Wassom
Decl. ¶¶ 16-17, and that the documents from the Southeast Laboratory were released with only
names of law enforcement personnel redacted, id. ¶¶ 30-31 & Exs. O, P.
The plaintiff opposes the defendant’s invocation of the exemptions. See generally Pl.’s
Opp’n. The gist of the plaintiff’s opposition is (i) that the exemptions cited do not have anything
to do with the information he seeks in the laboratory analysis report, see id., and (ii) that his
personal interest in obtaining evidence that might invalidate his drug conviction or reduce the
length of his sentence outweighs the privacy interests protected by the FOIA, see id. at 7-9 (citing
constitutional rights and the Federal Rules of Evidence, and alluding to the existence of
exculpatory material).
The plaintiff’s opposition to the motion for summary judgment appears to rest, at least in
part, on his belief that a more complete lab analysis report exists and is being withheld. See
generally id. The plaintiff now has two copies of a document he refers to as a “lab analysis
report.” See Compl., Ex. 5; Wassom Decl., Ex. P at 2. The document is DEA Form-7 entitled
8 “Report of Drug Property Collected, Purchased, or Seized,” dated May 28, 2003, and it contains
an analysis of the heroin pellets seized from the plaintiff. Compl., Ex. 5. The plaintiff first
received a copy of DEA Form-7 from his court-appointed defense counsel in September 2003.
The first copy contains no information in Block 25, which is captioned “Analysis Summary and
Remarks.” See id. In connection with his FOIA request, the plaintiff referred to Block 25 of
DEA Form-7, alleging that “[t]he information on this form is in-complete [sic]. This is the
record sought pursuant to the FOIA in which this section discloses the Analysis of the referenced
seizure.” Wassom Decl., Ex. L at 6. In June 2008, the plaintiff obtained a second copy of DEA
Form-7 as one of the seventeen pages the defendant received from the Southeast Laboratory and
released to the plaintiff in the course of the instant suit. The second copy is identical to the first,
and demonstrates that the defendant did not redact any information from Block 25. See id.
(describing the document as the DEA Form-7 dated May 28, 2003, and noting that information
was redacted from Blocks 16, 17, 18, 20, 21, 23, 24, 34 and 37 only). Nonetheless, the plaintiff
appears to still believe that there is a copy of DEA Form-7 that contains information in Block 25.
See generally Pl.’s Opp’n.
Thus, the plaintiff’s primary focus is on the laboratory analysis he believes should be
summarized on DEA Form-7. See generally Compl.; Pl.’s Opp’n. It appears, however, that the
plaintiff has mistaken the withheld curriculum vitae for the lab report he seeks, just as he did in
his administrative appeal of the decision not to disclose the curriculum vitae. See Wassom Decl.,
Ex. L; Pl.’s Opp’n at 4 (stating that “[t]he record sought is not ‘personnel or medical records’
that belong to any of the federal employees . . . . [Rather, the] record sought [is the] Laboratory
Analysis Report”) (punctuation altered). The court does not doubt the sincerity of the plaintiff’s
9 persistent allegations. Nevertheless, while the record sought is a lab analysis report, the fact
remains that the record withheld is a curriculum vitae. Given that the curriculum vitae is a
personnel record and is not relevant to the information the plaintiff seeks, the court concludes
that the defendant properly withheld this document. See 5 U.S.C. § 552(b)(6) (exempting from
disclosure “personnel . . . files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy”); Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
26, 32 (D.C. Cir. 2002) (directing courts to weigh the privacy interest in nondisclosure against
the benefits of disclosure).
Next, in an argument that applies equally to the curriculum vitae that was withheld in full
and the names of DEA laboratory personnel and ICE Special Agents that were redacted from the
documents produced by the Southeast Laboratory, the plaintiff argues that his personal interest in
“changing the outcome of his criminal case significantly” outweighs any privacy interest that the
third parties may have in the withheld information. Pl.’s Opp’n at 6 (punctuation altered). The
court concludes, however, that the plaintiff’s argument is not supported by the law.
The FOIA exempts the production of law enforcement records to the extent that such
production “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). The Circuit has held that the “privacy interest at stake is
substantial” in cases involving the disclosure of information identifying individuals who have
taken part in law enforcement activities. SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926
F.2d 1197, 1205 (D.C. Cir. 1991); see also Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254
(D.C. Cir. 1981) (holding that, in light of the stigma potentially associated with law enforcement
investigations, exemption (b)(7)(C) affords broad privacy rights to suspects, witnesses and
10 investigators). Indeed, an agency may resort to a special type of non-response “if confirming or
denying the existence of the records would associate the individual named in the request with
criminal activity.” Nation Magazine, 71 F.3d at 893.
Given the significant individual privacy interest at issue, disclosure of material that could
constitute an invasion of privacy is warranted only when the individual’s privacy interest is
outweighed by the public’s interest in disclosure. U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 776 (1989) (requiring the court to “balance the public
interest in disclosure against the interest Congress intended [exemption (b)(7)(C)] to protect”);
Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). More specifically,
where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004).
The plaintiff does not contend, and the court does not conclude, that his goal of altering
the outcome of his prosecution constitutes a public interest. Pl.’s Opp’n at 7 (emphasizing the
plaintiff’s “greater personal constitutional right to the . . . material sought pursuant to FOIA”).
Nor has the plaintiff made the showing of official misconduct required to overcome the
substantial privacy interests that exemption (b)(7)(C) protects.4 In sum, the plaintiff has not
shown that there is any public interest at stake, let alone a public interest that outweighs the
4 The plaintiff’s claim that he already knows the names involved, see Pl.’s Opp’n at 4-5, 9, does not alter the court’s analysis.
11 individual privacy interests protected by the FOIA. See Beck, 997 F.2d at 1491. The court
therefore concludes that, under the FOIA, the defendant’s nondisclosures were justified.5
3. The Court Denies the Plaintiff’s Motion for an In Camera Inspection
Finally, the plaintiff seeks in camera review of the requested materials. In Allen v. CIA,
the Circuit set out several criteria for determining the need for an in camera review in FOIA
cases. 636 F.2d 1287, 1293 (D.C. Cir. 1980), abrogated on other grounds by Founding Church
of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828 (D.C. Cir. 1983). These criteria do not
limit the broad discretion of the trial courts to decide whether to conduct an in camera review,
but merely constitute a list of factors that trial courts should consider before exercising their
discretion. Id. at 1297. They include: (1) judicial economy; (2) the conclusory nature of the
agency affidavits; (3) possible bad faith on the part of the agency; (4) whether the agency
proposes in camera review; (5) disputes concerning the content of the document; and (6) strong
public interest in disclosure. Id. at 1297-99. In accordance with the preceding factors, and given
the reasonably detailed nature of the Wassom Declaration, see supra Part III.B, the absence of
any indication of bad faith by the defendant, see generally Compl.; Pl.’s Opp’n, and the absence
of a compelling public interest, see supra Part III.B, the court denies the plaintiff’s request for an
in camera review of the requested materials.
5 The defendant asserts that more than one FOIA exemption justifies its nondisclosures in this case. See generally Def.’s Mot. Because the court concludes that the nondisclosures were proper under exemption (b)(7)(C), the court need not address the other exemptions the defendant has cited in its motion.
12 IV. CONCLUSION
For the foregoing reasons, the court concludes that the plaintiff has presented no genuine
issue of material fact with respect to the defendant’s compliance with the FOIA as to either the
reasonableness of the search or the propriety of withholding the redacted information. Having
satisfied its disclosure obligations under the FOIA, the defendant is entitled to summary
judgment. Because this Memorandum Order disposes of issues related only to the DEA and not
to ICE, it is not a final, appealable order. Accordingly, it is this 28th day of September, 2009,
hereby
ORDERED that the defendant’s motion for summary judgment is GRANTED and the
defendant is awarded judgment and dismissed from this action; and it is
FURTHER ORDERED that the plaintiff’s motion for an in camera inspection
is DENIED.
SO ORDERED.
RICARDO M. URBINA United States District Judge