United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
(Docs. 19, 20) ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND MOTION
TO COMPEL PRODUCTION OF A VAUGHN INDEX (Docs. 15, 18)
SHEILA K. OBERTO, Magistrate Judge.
This is a Freedom of Information Act ("FOIA" or "Act") case brought by Plaintiff Leonard Brown ("Plaintiff") against the Department of Justice ("DOJ") for denying his requests for an unredacted copy of records relating to a DEA Report of Investigation ("ROI"). ( See generally, Doc. 2 (Complaint).) In response to Plaintiff's request, the agency searched for responsive records and determined that the request fell within one or more exemptions under FOIA. ( See Docs. 19-2; 19-3; 19-4.) The DOJ has moved for summary judgment in its favor, lodging with the Court the Declaration of Katherine L. Myrick, Chief of the Freedom of Information/Privacy Act Unit, Freedom of Information/Records Management Section, within the DEA (Doc. 19-1 ("Myrick Decl."), and the in camera, ex parte submission of a 2004 DEA ROI dated January 13, 2004 ("the 2004 DEA ROI"). Plaintiff has concurrently filed a cross-motion for summary judgment. ( See Doc. 20.)
The motions were submitted upon the record without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, the Court RECOMMENDS that Defendant DOJ's motion for summary judgment be GRANTED and Plaintiff's motion for summary judgment be DENIED.
A. The Investigation Leading to Plaintiff's Incarceration
Plaintiff is a federal inmate serving two 212-month concurrent sentences for conspiracy to manufacture PCP, to abet its manufacture, and to possess PCP with intent to distribute it. (Doc. 19-2, Exhs. 2, 3.) As part of the investigation that led to Plaintiff's indictment and ultimate incarceration, a TT7 wiretap was placed on his mobile phone to determine whether Plaintiff was the unknown individual "LEN LNU" suspected of involvement in a PCP precursor chemical distribution organization and a PCP and piperidine manufacturing organization the DEA was investigating. ( See Doc. 20, pp. 18-57.) Among the numerous individuals named during the course of the investigation and during Plaintiff's and his co-conspirators' trials, was Plaintiff's friend Hilliard Hughes. Hilliard Hughes proffered a statement to the agency (the "2004 DEA ROI") on January 13, 2004, at approximately 11:30 a.m., regarding the events of January 24, 2003. ( See Myrick Decl., Exh. C.) In the unredacted version of the 2004 DEA ROI, Hughes is asked questions regarding why he was present at a certain location on a certain date, whether he knows several individuals, and the methods of his production of PCP, among other questions. (Myrick Decl., Exh. C.) Most of his answers have been redacted. (Myrick Decl., Exh. C.)
Plaintiff alleges the reason that Hilliard Hughes' answers in the 2004 DEA ROI were redacted is because Hughes was a DEA informant at the time the report was written. ( See, e.g., Docs. 15, pp. 2-4; 20, pp. 7-11.) Plaintiff alleges the DEA "fraudulently concealed" the fact that Hilliard Hughes was an informant for the DEA during the 2002-2003 investigation of Plaintiff, ultimately resulting in an "illegal wiretap" that led to Plaintiff's conviction and incarceration. (Compl., pp. 6-7.) Plaintiff alleges that an unredacted copy of Hilliard Hughes' proffer will prove that Hughes was an informant, and prove that the wiretap on his mobile phone that ultimately led to his conviction and incarceration was "fraudulently" and "illegally" obtained. ( See Compl., pp. 6-7; Doc. 20, pp. 7-11.)
B. The FOIA Request and Denial
On December 27, 2012, Plaintiff requested "an unredacted copy [of] the Jan. 13, 2004, DEA-6 report prepared by SA Bradley Clemmer regarding the proffer of government witness Hilliard Hughes file no. R1-02-0104/file title: Aikens, Gerald[.] [T]his report contains pages 1 of 5." (Myrick Decl., Exh. A; see also Compl., 3.) Plaintiff acknowledged that the requested report might contain "sensitive" material and therefore be withheld, and asked that such material be redacted and a copy sent to him. (Myrick Decl., Exh. A.) Plaintiff's request did not contend there was any public interest in disclosure of an unredacted copy. (Myrick Decl., Exh. A.)
Any criminal investigative report responsive to Plaintiff's FOIA request would only be contained in a DEA investigative case file, maintained in the centralized DEA Investigative Reporting and Filing System ("IRFS") and indexed by individual information like name, Social Security number, and date of birth in the DEA Narcotics and Dangerous Drugs Information System ("NADDIS"). (Myrick Decl., ¶¶ 13-19, 28-49.) Therefore, in response to Plaintiff's request, a FOIA specialist performed a NADDIS query in July of 2012, and located the responsive report 2004 DEA ROI, DEA Investigative File No. R1-02-014. (Myrick Decl., ¶ 30.)
On January 28, 2013, Plaintiff received a letter from the DEA FOIA Records Management Section informing him of the DEA's denial of his FOIA request, Request No. 12-00260-F. (Myrick Decl., Exh. B; see also Compl., 3.) The denial erroneously confused Plaintiff's request for the 2004 DEA ROI with an earlier request for a report dated January 13, 2003. (Myrick Decl., ¶ 10.) On February 14, 2013, Plaintiff filed an appeal with the Office of Information Policy, mentioning FOIA Exemption 7D and Ninth Circuit case law. (Myrick Decl., Exh. C.) Plaintiff's written appeal did not argue that there was any public interest in disclosure of an unredacted copy of the 2004 DEA ROI. (Myrick Decl., Exh. C.)
On March 5, 2013, Plaintiff received a letter from the Office of Information Policy informing him of an appeal number. (Myrick Decl., Exh. D.) On June 26, 2013, Plaintiff received a letter from the Office of Information Policy affirming the DEA's denial of Plaintiff's FOIA request on "modified grounds, " pursuant to FOIA Exemption 7(C). (Myrick Decl., Exh. E; see also Compl., p. 3.) The affirmance noted that "without consent, proof of death, official acknowledgement of an investigation, or an overriding public interest, disclosure of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy" and determined that any responsive records were categorically exempt from disclosure under FOIA Exemption 7(C). (Myrick Decl., Exh. E.)
In January 2014, the DEA Investigative File No. R1-02-0104 was searched for any report mentioning Plaintiff and dated January 13, 2004. (Myrick Decl., ¶ 31.) As a result of the search, 2004 DEA ROI was located, and determined to contain information related to Plaintiff that had been provided by a confidential source. (Myrick Decl., ¶ 33; Exh. E.) The 2004 DEA ROI was therefore withheld in its entirety under FOIA Exemptions 7(C), (D), (E), and (F). (Id. )
C. Procedural Background
On August 6 and 25, 2014, Plaintiff filed motions to compel discovery and to compel production of a Vaughn Index. (Docs. 15; 18.) Because the motions to compel relate to the substantive issues in the case regarding disclosure of documents under the FOIA, Defendant sought an extension of time to respond to the motions to compel in the form of a summary judgment motion. (Doc. 17.) The DOJ filed oppositions to the motions to compel and filed a motion for summary judgment on September 8, 2014. ( See Doc. 19.) Plaintiff then filed a cross-motion for summary judgment on September 26, 2014. (Doc. 20.) As the motions to compel discovery and to produce a Vaughn Index are directly related to the substantive issue of production of documents under the FOIA, they were continued and consolidated with the parties' pending motions for summary judgment. (Doc. 26.)
III. LEGAL STANDARD
A. Summary Judgment under the FOIA
The Freedom of Information Act ("FOIA") gives individuals a judicially-enforceable right of access to government agency documents. 5 U.S.C. § 552.6; see also Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). The statute "mandates a policy of broad disclosure of government documents." Church of Scientology v. Dep't of the Army, 611 F.2d 738, 741 (9th Cir. 1979); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (noting FOIA was animated by a "philosophy of full agency disclosure"); Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) ("disclosure, not secrecy, is the dominant objective of the Act").
To prevent disclosure of a limited class of sensitive government documents, FOIA lists nine statutory exemptions. 5 U.S.C. § 552(b)(1)-(9); see Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997) (agencies may withhold a requested document "only if the material at issue falls within one of the nine statutory exemptions found in [5 U.S.C.] § 552(b)"). Unlike the disclosure provisions of FOIA, its statutory exemptions "must be narrowly construed." John Doe Agency, 493 U.S. at 152. Where the government withholds documents pursuant to one of the enumerated exemptions of FOIA, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B).
"Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." South Yuba River Citizens League v. National Marine Fisheries Service, No. CIV. S-06-2845-LKK/JFM, 2008 WL 2523819 at *4 (E.D. Cal. June 20, 2008) (citing Mace v. EEOC, 37 F.Supp.2d 1144, 1146 (E.D. Miss. 1999)). "Courts are permitted to rule on summary judgment in FOIA cases solely on the basis of government affidavits." Lion Raisins, Inc. v. United States Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004).
Where a citizen has made a request for information under FOIA, and the agency has refused in whole or in part to produce responsive materials, the Act authorizes the citizen to bring suit in federal court challenging the agency's refusal to disclose documents to the requester. 5 U.S.C. § 552(a)(4)(B). These lawsuits typically present a dispute over the agency's claim that the withheld documents fall within one of the statutorily authorized exemptions. These exemptions are "explicitly exclusive, and must be narrowly construed in light of FOIA's dominant objective of disclosure, not secrecy." Maricopa, 108 F.3d at 1085 (internal citations and quotation marks omitted).
The peculiar nature of a FOIA dispute poses unique problems. As the Ninth Circuit has observed:
In a typical FOIA case, the plaintiff must argue that a government agency has improperly withheld requested documents, even though only the agency knows their actual content. This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversarial process. To address this problem, courts have created methods to be sure the requesting party and the deciding judge have sufficient information upon which to determine whether the government agency properly withheld the requested documents. These methods include creation of a "Vaughn index"... and the submission of some other form of accounting for the withheld documents, such as an affidavit.
Schiffer v. Fed. Bureau of Investigation, 78 F.3d 1405, 1408-09 (9th Cir. 1996) (internal citations, quotation marks and brackets omitted).
The burden is on the agency to show that withheld materials are exempt from disclosure. 5 U.S.C. § 552(a)(4)(B); see also Minier, 88 F.3d at 800. In addition, the governmental agency has the burden of proving that it has "conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also Zemansky v. United States EPA, 767 F.2d 569, 571 (9th Cir. 1985). In order to prevail on summary judgment, the agency must prove "it has fully discharged [these burdens] under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Miller v. United States Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985) (citing Weisberg, ...