Lasko v. United States Department of Justice

684 F. Supp. 2d 120, 2010 U.S. Dist. LEXIS 14134, 2010 WL 537551
District Court, District of Columbia·Decided February 17, 2010·No. Civil Action 08-1850 (PLF)·Published·Cited by 25 cases

Opinion

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on defendant’s motion for summary judgment. Having considered defendant’s motion, plaintiffs opposition, and the entire record in this case, the Court will grant summary judgment for the defendant.

I. BACKGROUND

Plaintiff was convicted “(1) following a jury trial, of conspiring to manufacture 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, *125 and (2) following his plea of guilty, of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). [He] was sentenced ... to 210 months’ and 120 months’ imprisonment, respectively, to run concurrently.” United States v. Lasko, 146 Fed.Appx. 530, 531 (2d Cir.2005) (affirming criminal judgment in part and remanding in part), cert. denied, 546 U.S. 1155, 126 S.Ct. 1179, 163 L.Ed.2d 1137 (2006). On remand for reconsideration of the sentence, the trial court “considered all the relevant sentencing factors and determined that the original sentence was appropriate and reasonable.” United States v. Lasko, No. 3:03-CR-0210, 2008 WL 189930, at *1 (N.D.N.Y. Jan. 18, 2008).

Plaintiff brings this action against the United States Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 1 Generally, plaintiff alleges that the Federal Bureau of Investigation (“FBI”) and the Drug Enforcement Administration (“DEA”), both components of DOJ, failed to release the records he requested. 2

A. Request to the Federal Bureau of Investigation

In February 2008, plaintiff submitted a FOIA request to the FBI’s Philadelphia Field Office (“PHFO”) for agency records about himself, a business identified as the Quick Lunch Diner in Newark Valley, New York, and about seven individuals, covering the period from January 2001 through January 2003. Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Def.’s Mem.”), Declaration of David M. Hardy (“Hardy Decl.”) ¶ 12; see id., Ex. G (February 8, 2008 FOIA/PA Request) at 1-2. 3 Plaintiff asked that the FBI search both its general indices and electronic surveillance (“ELSUR”) indices. Id., Ex. G at 2. PHFO staff forwarded the request to the FBI’s Washington, D.C. headquarters (“FBIHQ”), and its staff divided the request into three parts and assigned each part a reference number. See id. ¶¶ 13-15.

FBI staff returned to plaintiff the portion of the request, assigned FOIA No. 1112960, for information about the eight individuals, because he had submitted neither a privacy waiver from each individual nor proof of each individual’s death. Hardy Decl. ¶ 13; see id., Ex. H (March 4, 2008 letter from D.M. Hardy, Section Chief, Records Information and Dissemination Section, Records Management Division, FBIHQ). Next, agency staff notified *126 plaintiff that the PHFO maintained no records pertaining to the Quick Lunch Diner or to plaintiff himself. Hardy Decl. ¶¶ 14-15; see id., Ex. I-J (respectively, March 5, 2008 and March 10, 2008 letters from D.M. Hardy regarding FOIA Nos. 1111045 and 1111044). On administrative appeal to the DOJ’s Office of Information and Privacy (“OIP”), the FBI’s initial determinations were affirmed. See Hardy Decl. ¶¶ 16-18; see id., Ex. O (April 21, 2008 letter from J.G. McLeod, Associate Director, Office of Information and Privacy, regarding Appeal Nos. 08-1404 through 08-1406).

B. Requests to the Drug Enforcement Administration

Plaintiffs first request to the DEA sought only information about himself. Def.’s Mem., Declaration of Leila Wassom (“Wassom Decl.”), Ex. A (April 28, 2008 FOIA Request) at 1. Because the DEA did not respond promptly, plaintiff submitted a separate four-page request about two months later. Compl. ¶ 8; Wassom Decl., Ex. B (June 12, 2008 FOIA Request). In addition to records about himself, plaintiff sought information pertaining to fourteen individuals (seven of whom were listed in his prior request to the PHFO), and to the Quick Lunch Diner. Id., Ex. B at 2. Plaintiff requested a waiver of fees associated with the processing of his request. Id. at 2-3. DEA staff combined the two requests and assigned a single tracking number, DEA FOIA No. 08-0996-P. See id., Ex. D (October 27, 2008 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA) at 1.

The DEA neither confirmed nor denied the existence of records pertaining to the fourteen individuals, explaining that “[i]n order to receive information about a third-party[J it would be necessary for him to submit a release authorization from each third[ ] party.” Wassom Decl. ¶ 9. Further, the DEA rejected a portion of his request because it did not constitute a proper request. Specifically, the agency found that “his request for a search of all records maintained by the DEA was not specific enough, and that his request for records between the dates of January 2001 through January 2003 was tantamount to research.” Id. ¶ 10. The DEA denied plaintiffs request for a fee waiver. Id. Lastly, the agency conducted a preliminary search for records pertaining to plaintiff, and that search yielded DEA Investigative Case File No. CO-03-0048. Id. Plaintiff was instructed to notify the DEA in writing if he wanted its staff to conduct a search for records maintained in this investigative file. Id., Ex. D at 2. Plaintiff responded that he was “interested in ... reports prior to January 29, 2003” pertaining to himself, as well as “a full and compleat [sic] color copy of all photos taken[.]” Id., Ex. H (December 30, 2008 letter to W.C. Little, Jr.).

Even though plaintiff filed an administrative appeal to the OIP, see Wassom Decl., Ex. E (November 3, 2008 FOIA Appeal), the DEA began to process Investigative Case File No. CO-03-0048 and ultimately released 42 pages of records in full, released 124 pages in part, and withheld 14 pages in full. See Wassom Decl. ¶¶ 13,15,17.

II. DISCUSSION

A. Summary Judgment in FOIA Case

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Lasko v. United States Department of Justice, 684 F. Supp. 2d 120, 2010 U.S. Dist. LEXIS 14134, 2010 WL 537551 (D.D.C. 2010).

684 F. Supp. 2d 120 (Lasko v. United States Department of Justice) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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