Kowal v. United States Department of Justice

• Court: District Court, District of Columbia
• Decided: June 1, 2020
• Docket: Civil Action No. 2018-0938
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BARBARA KOWAL,

Plaintiff,

v. Civil Action No. 18-938 (TJK) UNITED STATES DEPARTMENT OF JUSTICE et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

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.

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

2 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

1 The first Vaughn index covers 342 pages that the DEA originally processed in response to Kowal’s request. The second index covers the additional 76 pages that the DEA processed after Kowal provided a Certification of Identity that enabled the DEA to release information about one of Troya’s codefendants.

3 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.

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 (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

4 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).

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

5 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 Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001)).

“[P]ositive indications of overlooked materials” may suggest that a search was inadequate,

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999), but the search is

judged by whether it was “reasonably calculated to discover the requested documents, not

whether it actually uncovered every document extant,” SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1201 (D.C. Cir. 1991). If the agency meets the standard of reasonableness, “a court need

not quibble over every perceived inadequacy in an agency’s response.” Physicians for Human

Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009).

As explained below, the Court finds that DEA’s search was adequate; none of Kowal’s

arguments show otherwise.

First, Kowal argues that the DEA has failed to explain why it only searched IRFS, see

ECF No. 23 at 19–20, when it maintains additional records systems like DEA Planning and

Inspection Records (JUSTICE/DEA-010) and DEA Operation Files (JUSTICE/DEA-011). See

ECF No. 32 at 5. But the DEA explained that IRFS houses “[a]ll DEA criminal law enforcement

investigative records,” and that “[r]ecords from other DEA record systems that are related to an

individual’s involvement in, or association with, a DEA intelligence operation or civil, criminal

or regulatory investigation are also retained in IRFS.” Hertel Decl. ¶ 6. Given that Kowal’s

request was for documents “pertaining to any investigation, arrest, indictment, conviction,

sentencing, incarceration, and/or parole of” Troya,” which would all appear to be housed in

IRFS, and further, that that DEA has asserted that its query of IRFS was reasonably calculated

6 to return all responsive records, see ECF No. 28 at 4, 6, the Court finds its search adequate on

this score.

Second, Kowal contends that the DEA’s search was deficient because it only searched

NADDIS for Troya’s name and birth date, and not for his alias, “Homer,” despite Troya’s

indictment specifically referencing the alias. ECF No. 23 at 18. But NADDIS only indexes

individuals by name, Social Security Number, or date of birth, Hertel Decl. ¶ 7, so a search by

name and birth date is “reasonably calculated to uncover all relevant documents.” Weisberg v.

U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). While including the alias—if that

was even technically feasible—might have made the search even more thorough, omitting the

alias did not make the search unreasonable, especially considering the “unique, identifying terms

already used.” Ahanmisi v. U.S. Dep’t of Labor, 859 F. Supp. 2d 7, 12 (D.D.C. 2012).2

Third, Kowal argues that the search was inadequate because it did not produce any of the

over two hundred items that she possesses and that she alleges would have been responsive to

her request. See ECF No. 23 at 20; ECF No. 23-14. That Kowal identifies specific items makes

her argument stronger than if she merely suspected that more records exist. See ECF No. 23-14.

But critically, “the adequacy of a FOIA search is not judged on results, but rather on the good

faith search itself.” Carter, Fullerton & Hayes, LLC v. FTC, 637 F. Supp. 2d 1, 7 (D.D.C. 2009).

2 Kowal cites Canning v. U.S. Dep’t of Justice, 919 F. Supp. 451 (D.D.C. 1994) to support the proposition that omitting Troya’s alias from the search made it inadequate. ECF No. 31 at 2. But Canning is distinguishable. In Canning, the agency’s search for records using the subject’s name, Charles Zimmerman, returned no results. See Canning, 919 F. Supp. at 460. Because the FBI knew that Zimmerman was also known by Charles Cunningham, its refusal to search again using that alternate name made its search inadequate. See id. at 460–61. Whereas the Canning search risked overlooking records filed exclusively under the subject’s alternate last name, the search here of Troya’s name and birth date but not his alias was still reasonably likely to uncover all responsive records in the database.

7 And while “positive indications of overlooked materials” may show that a search was

inadequate, that standard typically applies when the requester can show that the agency itself

ignored those indications when it conducted its search. Valencia-Lucena, 180 F.3d at 327.

Kowal says she possesses two hundred or so items that pertain to Troya and his codefendants.

See ECF No. 23-14. But she has not explained why, merely because she has them, DEA must

also still have them such that it could produce them in response to a FOIA request. 3 See ECF

No. 23 at 20. Thus, the items themselves do not show that the search was inadequate. The DEA

may simply not have them, or, even it does, “a reasonable and thorough search may have missed

them” for whatever reason. Iturralde, 315 F.3d at 315.

B. Whether the DEA Provided a Sufficient Vaughn Index

Next, Kowal argues that the DEA’s Vaughn indices do not explain claimed exemptions

with enough particularity to evaluate their merits. See ECF No. 23 at 21–22. 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.

U.S. Dep’t of Justice, 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 “specify[ing] in detail

which portions of the document are disclosable and which are allegedly exempt.” Vaughn, 484

F.2d at 827.

3 Kowal cites Valencia-Lucena to support her argument that the DEA’s search was inadequate, but she has not shown that the DEA overlooked records here in the way that the Coast Guard did in that case. See Valencia-Lucena, 180 F.3d at 327. There, the Coast Guard identified a National Archives center that was likely to have responsive records but declined to search it. See id. The issue was not that the Coast Guard’s search missed certain documents, but that the design of the search ignored a location likely to contain them. See id.

8 A court evaluates a Vaughn index on its function, not its form. Keys v. U.S. Dep’t of

Justice, 830 F.2d 337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part by

enabling the reviewing court to determine if the agency properly invoked FOIA’s exemptions.

Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984). It enables the court in that

regard 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 Central, Inc. v. U.S. Dep’t of Air Force,

566 F.2d 242, 251 (D.C. Cir.1977). Therefore, 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 Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).

The Court agrees with Kowal that the DEA’s Vaughn index is deficient. To begin with,

the indices claim exemptions for each document, but they do not adequately “correlat[e] those

claims with the particular part of a withheld document to which they apply.” Mead Data, 566

F.2d at 251. Therefore, the Court has no basis to tell which exemption or exemptions are

claimed for each portion of the documents withheld either in full or in part. See Founding

Church of Scientology, 603 F.2d at 949. For example, the second Vaughn index reflects that

pages 17–22 of File No. 1, a “DEA-6 Regarding Debrief of Third Party Related to Third Party

Co-Defendant” was withheld on the basis of all the exemptions at issue here: (b)(6), (b)(7)(C),

(b)(7)(D), (b)(7)(E), and (b)(7)(F). See ECF No. 20-15 at 5. But on this record, the Court has no

way to tell which portions of the document DEA asserts are subject to which exemption or

combination of exemptions. The Court must be able to understand with more particularity which

portions the DEA seeks to withhold under the various exemptions claimed. See Vaughn, 484

F.2d at 827–28.

9 Furthermore, the Court has no way of knowing on this record the factual basis for why

the DEA asserts that each portion of the document is subject to a particular exemption. For

example, the index provides a general explanation of why Exemption (b)(7)(E), which protects

law enforcement techniques and procedures in material compiled for law enforcement purposes,

applies wherever the DEA has asserted it. See ECF No. 20-15 at 2. But that explanation does

not explain why the DEA applied Exemption (b)(7)(E) to pages 17–22 of File No. 1 in particular.

True, the explanation in the index associates (b)(7)(E) with redactions for “Special Agent

Names, initials, related files, G-DEP identifiers, file numbers, NADDIS numbers, and other

identifying information.” Id. at 2. And the Hertel Declaration represents how these pieces of

information—as well as some others that do not appear to be referenced in the Vaughn index—

generally fit within (b)(7)(E)’s scope. See Hertel Decl. ¶¶ 44–49. But the Court is left to guess

which of these pieces of information appear somewhere on this particular document, justifying a

given exemption or exemptions.

Therefore, the Court finds on this record that it cannot tell whether the DEA has properly

invoked the asserted FOIA exemptions. The DEA will be provided the opportunity to submit a

revised Vaughn index, and, if necessary, to submit redacted versions of the documents withheld

in full or in part that help explain which portions of the documents have been withheld under

which exemptions, and the factual basis for each portion of the documents withheld. 4

Conclusion and Order

For all the above reasons, it is hereby ORDERED that as to the adequacy of the DEA’s

search, Defendants’ Motion for Summary Judgment, ECF No. 20, is GRANTED and Plaintiff’s

4 Because the Court finds the Vaughn indices inadequate, it does not reach the questions of whether the DEA improperly withheld information already in the public domain or any segregable, non-exempt information.

10 Cross-Motion for Summary Judgment, ECF No. 23, is DENIED. In all other respects, the

Motions are DENIED WITHOUT PREJUDICE. It is further ORDERED that the parties shall

meet, confer, and submit a joint schedule for briefing renewed motions for summary judgment

by June 15, 2020.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: June 1, 2020