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Richard Wayne Parker v. United States Department of Justice

March 13, 2012

RICHARD WAYNE PARKER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, AT AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This action, in which plaintiff is proceeding pro se and in forma pauperis, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). The United States Department of Justice ("DOJ") moves (1) to dismiss defendants the Office of Information Policy ("OIP"), the Federal Bureau of Investigation ("FBI"), and the Drug Enforcement Administration ("DEA") as improper defendants pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1); (2) to dismiss any claims for DEA Laboratory records for failure to exhaust administrative remedies; and (3) for summary judgment pursuant to Rule 56. Def.'s Mot. for Summ. J. ("MSJ"), Dckt. No. 31. Plaintiff opposes the motion and moves to strike portions of the motion and supporting papers. Pl.'s Opp'n to MSJ ("Opp'n"), Dckt. No. 37. For the reasons stated below, the motions to dismiss and for summary judgment must be granted and plaintiff's motion to strike should be denied as moot.

I. Background

In January 2010, plaintiff filed a complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the DOJ, OIP, FBI, and DEA. Compl., Dckt. No. 1. He seeks the release of certain lab testing results that he requested from the FBI and the DEA. Id. It is undisputed that the FBI has found and processed a total of 41 pages of FBI records responsive to plaintiff's request dated April 16, 2007, and has received and processed 279 pages of referred DEA records. Def.'s Stmt. of Undisp. Facts, Dckt. No. 31-1 ("SUF"), ¶ 1; Pl.'s Am. Resp. to SUF ("Am. RSUF"), Dckt. No. 37, ¶ 1. However, plaintiff contends that not all documents have been produced and that there are documents that are "glaringly missing" from the production. Opp'n at 3.

A. Facts Relating to Request for FBI Records*fn1

The FBI began its investigation into the activities of plaintiff as a result of his July 2, 1998 arrest following a controlled purchase of cocaine, for which plaintiff was indicted on July 16, 1998. SUF ¶ 2*fn2 ; Am. RSUF ¶ 2.*fn3 Plaintiff was subsequently convicted of conspiracy to possess with intent to distribute cocaine and in January 2000 was sentenced to life in prison. SUF ¶ 4; Am. RSUF ¶ 4.

1. Correspondence on the Request to the FBI

On April 16, 2007, plaintiff sent via letter addressed to FBI headquarters a FOIA/Privacy Act request for "copies of all testing results/written finding [sic] from the tests performed on cocaine kilos submitted to the DEA Southwest Lab on April 1, 1999 by SA FRANK JESTER on a DEA Form 7." SUF ¶ 5; Am. RSUF ¶ 5. After three status reports, by letter dated March 28, 2008, the FBI released 30 pages to plaintiff from file 245-LA-215211, indicated that it had withheld information under FOIA Exemptions (b)(2), (b)(6), (b)(7)(C), and (b)(7)(E), and advised plaintiff of his right to file an administrative appeal to OIP. SUF ¶ 6; Am. RSUF ¶ 6. On May 2, 2008, plaintiff appealed the FBI's March 28, 2008 action to OIP, claiming that "the FBI response provided 30 pages of miscellaneous documents which [he] did not ask for." SUF ¶ 7; Am. RSUF ¶ 7. On July 22, 2009, OIP affirmed the FBI's withholding of information in the 30 pages received by plaintiff, under the Privacy Act and certain FOIA exemptions and advised plaintiff of his right to seek judicial review, which plaintiff did on January 8, 2010 when he filed this action. SUF ¶¶ 8, 9; Am. RSUF ¶¶ 8, 9.

On January 5, 2011, the FBI released four pages that were responsive to plaintiff's April 16, 2007 request, and that were located during a hand search of file 245-LA-215211. SUF ¶ 10; Am. RSUF ¶ 10. The FBI advised plaintiff that it had reviewed 11 pages of material and that four pages were not included in the release because they were duplicative of DEA documents plaintiff had already received and another three pages were referred to the DEA for direct response to plaintiff. Id. The FBI also advised plaintiff of his right to appeal the denials in the release to OIP. Id.

2. First Referral from DEA

On September 10, 2010, the DEA referred approximately 242 pages of documents to the FBI for direct response to plaintiff, and on September 15, 2010, the FBI sent all 242 of those pages to plaintiff. SUF ¶ 11; Am. RSUF ¶ 11. The FBI informed plaintiff that it had withheld information under Exemption (j)(2) of the Privacy Act and FOIA Exemptions (b)(6) and (b)(7)(c), and that the DEA had withheld information under FOIA Exemptions (b)(2), (b)(7)(C), and (b)(7)(F). Id. The FBI also advised plaintiff of his right to appeal to OIP any withholdings in the release. Id.

3. Second Referral from DEA

On November 16, 2010, the DEA referred several additional documents consisting of approximately 37 pages to the FBI for direct response to plaintiff, and the FBI released those pages to plaintiff on December 21, 2010. SUF ¶ 12; Am. RSUF ¶ 12. The FBI stated that it had withheld information under Exemption (j)(2) of the Privacy Act and FOIA Exemptions (b)(6) and (b)(7)(c), and that the DEA had withheld information under FOIA Exemptions (b)(7)(C) and (b)(7)(F). Id. The FBI also advised plaintiff of his right to appeal any withholdings in the release. Id.

4. The FBI's Central Records System

The Central Records System ("CRS") enables the FBI to maintain information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities. SUF ¶ 13; Am. RSUF ¶ 13. The records maintained in the CRS consist of administrative, applicant, criminal, personnel and other files compiled for law enforcement purposes. Id. This system consists of a numerical sequence of files, called FBI "classifications," which are broken down according to subject matter. Id. The subject matter of a file may relate to an individual, organization, company, publication, activity or foreign intelligence matter (or program). Id. Certain records in the CRS are maintained at FBI headquarters, whereas records that are pertinent to specific field offices of the FBI are maintained in those field offices. Id. Although the CRS is primarily designed to serve as an investigative tool, the FBI searches the CRS for documents that are potentially responsive to FOIA/Privacy Act requests. Id. The mechanism that the FBI uses to search the CRS is the Automated Case Support System ("ACS"). Id.

On or about October 16, 1995, the ACS system was implemented for all Field Offices, Legal Attaches ("Legats"), and FBI headquarters, to consolidate portions of the CRS that were previously automated. SUF ¶ 14; Am. RSUF ¶ 14. ACS can be described as an internal computerized subsystem of the CRS. Id. Because the CRS cannot electronically query the case files for data, such as an individual's name or social security number, the required information is duplicated and moved to the ACS so that it can be searched. Id. Over 105 million records from the CRS were converted from automated systems previously utilized by the FBI. Id. Automation did not change the CRS; instead, automation has facilitated more economic and expeditious access to records maintained in the CRS. Id.

The retrieval of data from the CRS is made possible through the ACS using the General Indices, which are arranged in alphabetical order. SUF ¶ 15; Am. RSUF ¶ 15. The General Indices consist of index cards on various subject matters that are searched either manually or through the automated indices. Id. The entries in the General Indices fall into two categories:

(a) A "main" entry -- A "main" entry, or "main" file, carries the name corresponding with a subject of a file contained in the CRS.

(b) A "reference" entry -- A "reference" entry, sometimes called "cross-references," generally is a mere mention or reference to an individual, organization, or other subject matter, contained in a document located in another "main" file on a different subject matter.

Id. To locate records concerning a particular subject, such as Richard Parker, one can use the name as a search term in a query to the General Indices. Id. A "serial" is defined as a document within a file, numbered consecutively at the bottom of the page by a serial number. SUF ¶ 16; Am. RSUF ¶ 16. A serial number is added to the end of a file number to arrange the documents in sequential order. Id.

The ACS consists of three integrated, yet separately functional, automated applications that support case management functions for all FBI investigative and administrative cases:

(a) Investigative Case Management ("ICM") -- ICM provides the ability to open, assign, and close investigative and administrative cases as well as set, assign, and track leads. The Office of Origin ("OO"), which sets leads for itself and other field offices, as needed, opens a case. The field offices that receive leads from the OO are referred to as Lead Offices ("LOs"), formerly known as Auxiliary Offices. When a case is opened, it is assigned a Universal Case File Number ("UCFN"), which is used by all FBI headquarters, as well as all FBI field offices and Legats that are conducting or assisting in the investigation. Using the file number "157-SF-12345" as an example, an explanation of the UCFN is as follows: "157" indicates the classification for the specific type of investigation, in this case "Civil Unrest (Disorders and Demonstrators)"; "SF" is the abbreviated form used for the OO of the investigation, in this case San Francisco Field Office; and "12345" denotes the individual case file number for the particular investigation.

(b) Electronic Case File ("ECF") -- ECF serves as the central electronic repository for the FBI's official text-based documents. ECF supports the universal serial concept in that only the creator of a document serializes it into a file. This provides a singlesource entry of serials into the computerized ECF system. All original serials are maintained in the OO case file.

(c) Universal Index ("UNI") -- UNI continues the universal concepts of ACS by providing a complete subject/case index to all investigative and administrative cases. Only the OO is required to index; however, the LOs may index additional information as needed. UNI, an index of approximately 110.7 million records, functions to index names to cases, and to search names and cases for use in FBI investigations. Names of individuals or organizations are recorded with identifying applicable information such as date or place of birth, race, sex, locality, Social Security number, address, and/or date of event.

SUF ¶ 18; Am. RSUF ¶ 18.

The FBI does not index every name in its files; rather, it indexes only that information considered to be pertinent, relevant, or essential for future retrieval. SUF ¶ 19; Am. RSUF ¶ 19. The FBI Special Agent ("SA") -- and on occasion, support employees -- assigned to work on the investigation, the Supervisory SA ("SSA") in the field office conducting the investigation, and the SSA at FBI headquarters, may, in their discretion, decide to index names other than subjects, suspects, and victims. Id.

Without a "key" (index) to this enormous amount of data, information essential to ongoing investigations could not be readily retrieved. SUF ¶ 20; Am. RSUF ¶ 20. The FBI files would thus be merely archival in nature and could not be effectively used to serve the mandated mission of the FBI, which is to investigate violations of federal criminal and national security statutes. Id.

The General Indices to the CRS files are the means by which the FBI can determine what retrievable information, if any, the FBI may have in its CRS files on a particular subject matter or individual, such ...


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