Jordan v. Drug Enforcement Administration

• Court: District Court, District of Columbia
• Decided: April 6, 2023
• Docket: Civil Action No. 2022-2195
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MONTA ORLANDO JORDAN,

Plaintiff, v. Civil Action No. 22-2195 (JEB)

U.S. DRUG ENFORCEMENT ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

Federal prisoner Monta Orlando Jordan submitted a Freedom of Information Act request

to Defendant Drug Enforcement Administration seeking information about a DEA investigation

of him. Specifically, he sought two names — the agent who opened the investigation and the

one who authorized a subpoena of his phone number — and the date the investigation was

opened. Defendant declined to produce any responsive documents, which prompted Jordan to

file this pro se suit. The parties have now cross-moved for summary judgment. The agency

contends that Plaintiff’s request was improper under FOIA for multiple reasons, including

because it requested specific information instead of agency records as the statute requires.

Agreeing with that proposition, the Court will grant Defendant’s Motion and deny Plaintiff’s

Cross-Motion.

I. Background

Following a DEA investigation that culminated in an indictment, a jury found Jordan

guilty of multiple drug offenses. See ECF No. 12-1 (Def. MSJ) at 2. In May 2021, he was

sentenced to twenty years in prison. Id. A few months later, in October, he sent DEA a letter

1 seeking the following information: “1) Name of the DEA agent and date the DEA investigation

was opened regarding Monta Orlando Jordan. 2) Name of the DEA agent who submitted and

signed to authorize the December 28, 2016 DEA administrative subpoena regarding phone

number (540) 632-8266.” ECF No. 12-4 (First FOIA Letter) at 1. Jordan sent a follow-up letter

in February 2022 requesting the same, though with slightly different phrasing: “1) The name of

the DEA officer/personnel who sought the December 28, 2016 DEA administrative subpoena

regarding phone number (540) 632-8266 of Monta Jordan directed to Cellco and/or Verizon or

any of its affiliate companies. 2) The name of the DEA agent and date the DEA investigation

was opened regarding Monta O. Jordan.” ECF No. 12-5 (Second FOIA Letter).

Plaintiff appends a third, undated FOIA-request letter to his Complaint, which is worded

slightly differently and asks specifically for “the December 28, 2016 administrative subpoena

and any related affidavits/documents.” ECF No. 1-1 (Compl. Exhs.) at 3. The record contains

no evidence, however, that DEA ever received that letter, nor does Jordan invoke that iteration of

the request in his Opposition. See ECF No. 12-3 (Decl. of Angela Hertel), ¶¶ 6–14

(acknowledging receipt of only the October 2021 and February 2022 letters); ECF No. 14

(Cross-MSJ and Pl. Opp.) at 1 (citing Hertel Decl. in describing nature of FOIA request). The

Court will therefore consider only the October and February letters in resolving the Cross-

Motions.

DEA treated those two letters as a single request and responded in March 2022. See ECF

No. 12-2 (Def. SOMF), ¶¶ 6–7. It declined to “confirm or deny the existence of such records

pursuant to [FOIA] Exemptions 6 & 7(C). . . . Even to acknowledge the existence of records and

reveal the identity of a Special Agent could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” Id., ¶ 8. Plaintiff appealed to the Department of Justice Office of

2 Information Policy, which affirmed the Agency’s response and then added that it was

“reasonably foreseeable that releasing any non-public records [that existed] would harm the

interests protected by these exemptions.” Id., ¶¶ 9–10.

Jordan filed this lawsuit in July 2022, and the parties have now cross-moved for summary

judgment. See Def. MSJ; Cross-MSJ and Pl. Opp.

II. Legal Standard

Summary judgment must be granted if “the movant shows 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);

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of

affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby,

Inc., 477 U.S. at 248. A dispute is “genuine” if the “evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248. “A party

asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to

particular parts of materials in the record” or “showing that the materials cited do not establish

the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a

FOIA case, a court may grant summary judgment based solely on information provided in an

agency’s affidavits or declarations when they “describe 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

3 evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(citation omitted). Such 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.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). “FOIA expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,

755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation omitted). The statute promotes these aims by providing that “each agency, upon any

[compliant] request for records[,] . . . shall make the records promptly available to any person.”

5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over records that fall into one

of nine statutorily created exemptions from FOIA’s broad directive. Id. § 552(b)(1)–(9).

In seeking summary judgment here, Defendant makes two arguments. First, it contends

that Plaintiff’s request is not proper because he requested discrete facts, not records, as is

required by FOIA. See id. § 552(a)(3)(A). Second, DEA submits that under Exemptions 6 and

7(C), it may categorically deny production of the information Jordan seeks as unduly invasive of

others’ personal privacy. Because the Court will grant judgment to Defendant on the first

ground, it need not consider the second.

4 A. Request for Records

“FOIA limits access to ‘agency records,’ but the statute does not define the term.”

ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016). The Supreme Court, in seeking to describe

“records” as used in FOIA, has referred to a separate Act that defines this term as including

“books, papers, maps, photographs, machine readable materials, or other documentary

materials.” Forsham v. Harris, 445 U.S. 169, 183 (1980). Courts have thus used the term

“records” synonymously with “documents”; in other words, the Government need not provide

information that is separate from documents themselves. See, e.g., Jud. Watch, Inc. v. U.S.

Secret Serv., 726 F.3d 208, 216 (D.C. Cir. 2013); Forsham, 445 U.S. at 177. For example, courts

in this district have held that FOIA does not “require[] an agency to answer questions disguised

as a FOIA request.” Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985), aff’d, 808 F.2d 137

(D.C. Cir. 1987). Nor does it obligate an agency to “create a document that does not exist in

order to satisfy a request.” Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982) (emphasis

added).

With those guideposts set, it is clear that Jordan’s FOIA request is not a valid request for

agency records. As he admits in his own brief, “Plaintiff requests three facts from the DEA.” Pl.

Opp. at 1 (emphasis added). In other words, he is effectively using his FOIA request to obtain

answers to discrete questions: what is the name of the DEA agent who opened the investigation?

What is the date the investigation was opened? And what is the name of the DEA agent who

signed the administrative subpoena of his phone number? See First FOIA Letter; Second FOIA

Letter. Whatever “agency records” may mean, this Court can comfortably conclude that

Jordan’s FOIA request, as submitted, does not request them.

5 B. Plaintiff’s Attempted Clarification of Request

Apparently acknowledging this, Plaintiff tries to use his Opposition to retroactively

clarify and modify the scope of what he sought. He explains that his FOIA request “obviously

would include the actual physical documentary December 28, 2016 administrative subpoena . . .

and any documentary records in defendant’s possession relevant to the name of the DEA agent

and date investigation was opened against” him. See Pl. Opp. at 1–2. Yet this explanation is less

a clarification than a substantial expansion of his original request. As DEA explains, Jordan’s

request for any records that are relevant to the date his investigation was opened and to the agent

responsible could conceivably extend to the agency’s “entire investigative file into [Plaintiff’s]

criminal activity.” ECF No. 16 (Reply) at 4. That would require the agency to cast a far wider

net than necessary to address Plaintiff’s original two questions about the investigation, which

sought nothing but a name and a date.

To be sure, plaintiffs have some leeway to clarify the scope of their FOIA requests in the

course of litigation, and that allowance seems particularly justified for a pro se plaintiff. People

for Am. Way Found. v. U.S. Dep’t of Just., 451 F. Supp. 2d 6, 12 (D.D.C. 2006) (“FOIA

requests are frequently clarified or modified even after a lawsuit is filed.”). But courts in this

district tend to apply that rule in cases where the plaintiff seeks to narrow her request, not expand

it. See, e.g., id.; Leopold v. U.S. Immigr. & Customs Enf’t, 560 F. Supp. 3d 189, 197 (D.D.C.

2021). The rationale is that in such contexts, “[i]t would be senseless and inefficient . . . to

ignore the advances made during [litigation] . . . only to have plaintiff file another FOIA request

for the narrowed number of files and return to precisely the same position in which the parties

now stand.” People for Am. Way Found, 451 F. Supp. 2d at 11–12.

6 This same rationale does not apply where, as here, a requester seeks to exponentially

expand the scope of his request during litigation. In such cases, the new search demanded of the

agency would almost certainly raise issues not yet briefed. Indeed, a court in this district has

stated that the suggestion that a FOIA requester can “broaden his request . . . after filing litigation

sits without any firm basis in the statutory text or associated case law.” Dillon v. U.S. Dep’t of

Just., 444 F. Supp. 3d 67, 86 (D.D.C. 2020); see also Gillin v. Internal Revenue Serv., 980 F.2d

819, 823 n.3 (1st Cir. 1992) (noting that plaintiff’s clarification of FOIA request “came too late

to be relevant, since it amounted to an impermissible attempt to expand a FOIA request after the

agency has responded and litigation has commenced”).

The Court will thus grant Defendant’s Motion because Jordan’s request improperly seeks

answers to certain questions, not agency records, as FOIA requires. To the extent he would like

access to records responsive to those questions, he may file a new FOIA request specifying

which records he seeks.

* * *

In the event that Jordan makes a compliant request and eventually returns here, the Court

notes that had it reached the merits, it would have been unconvinced by Defendant’s invocation

of a categorical approach. While the Supreme Court has held that some records may be

categorically withheld under Exemption 7(C) — that is, without engaging in the typical

balancing exercise that accompanies most FOIA inquiries — that holding specifically addressed

a subset of requests for records about private citizens. Reps. Comm. for Freedom of Press, 489

U.S. at 780 (holding that third party’s “request for law enforcement records . . . about a private

citizen can reasonably be expected to invade that citizen’s privacy, and that when the request

seeks no ‘official information’ about a Government agency[,] . . . the invasion of privacy is

7 ‘unwarranted’”) (emphasis added). It does not apply to a case where the withheld documents

would reveal information about law-enforcement agents.

This does not mean, however, that the merits would be a slam dunk for Plaintiff. The

D.C. Circuit has held that investigating agents, in addition to private citizens, also have a

substantial privacy interest in their participation in a given investigation, even if that interest may

not merit a categorical approach. Senate of the Commonwealth of P.R. on Behalf of Judiciary

Comm. v. U.S. Dep’t of Just., 823 F.2d 574, 588 (D.C. Cir. 1987). Plaintiff would thus do well

to keep that in mind if he files a renewed request.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment and deny Plaintiff’s Cross-Motion for the same. A separate Order so stating shall

issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: April 6, 2023