Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

)

SEAN DARNELL FOWLKES, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-0122 (RC)

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BUREAU OF ALCOHOL, TOBACCO, )

FIREARMS AND EXPLOSIVES, et al., )

)

Defendants. )

___________________________________ )

MEMORANDUM OPINION

This matter is before the Court on Defendant’s Second Renewed Motion for Summary

Judgment. 1 For the reasons discussed below, the motion will be granted in part and denied in

part.

I. BACKGROUND

Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C.

§ 552, seeking records maintained by three components of the United States Department of

Justice: the Executive Office for United States Attorneys (“EOUSA”), the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“BATFE”), and the Drug Enforcement Administration

(“DEA”). See generally Am. Compl. for Declaratory and Injunctive Relief (“Am. Compl.”) at 2-

8. The Court granted in part and denied in part Defendant’s Renewed Motion for Summary

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The Court construes plaintiff’s Memorandum of [P]oints and [A]uthorities in Support of Plaintiff’s [C]ross-

motion for [S]ummary [J]udgment and/or [O]pposition to [D]efendants[’][M]otion for [S]ummary [J]udgment [ECF

Nos. 61-62] as his opposition to Defendant’s Second Renewed Motion for Summary Judgment, and will deny

plaintiff’s cross-motion [ECF No. 62], except with respect to the judge’s name. See infra page 9.

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Judgment, 2 and remaining for resolution are five issues: (1) whether EOUSA conducted a

reasonable search for records responsive to Request No. 12-1689; (2) whether BATFE justified

its decision to withhold firearms trace information under Exemption 3; (3) whether EOUSA

justified its decision to withhold the name of a judge; (4) whether BATFE justified its decision to

withhold information under Exemption 7(E); and (5) whether defendants have released all

reasonably segregable information. See Fowlkes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 67 F. Supp. 3d 290, 307 (D.D.C. 2014).

II. DISCUSSION

A. Summary Judgment in a FOIA Case

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

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citation

omitted). Courts will grant summary judgment to an agency as the movant if it shows that there

is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of

agency records, the agency “is entitled to summary judgment if no material facts are in dispute

and if it demonstrates ‘that each document that falls within the class requested either has been

produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.’” Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA,

607 F.2d 339, 352 (D.C. Cir. 1978)).

B. The EOUSA’s Search for Records Responsive to FOIA No. 12-1689

“The adequacy of an agency’s search is measured by a standard of reasonableness and

is dependent upon the circumstances of the case.” Weisberg v. Dep’t of Justice, 705 F.2d 1344,

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Defendants’ Motion for Summary Judgment [ECF No. 9] was withdrawn [ECF No. 27].

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1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted). An agency “fulfills its

obligations under FOIA if it can demonstrate beyond material doubt that its search was

reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S.

Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks and citations

omitted). A search need not be exhaustive. See Miller v. U.S. Dep’t of State, 779 F.2d 1378,

1383 (8th Cir. 1995). As long as the agency conducts a reasonable search, it fulfills its

obligations under the FOIA even if the search yields no responsive records. See Iturralde v.

Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (stating that “the failure of an

agency to turn up one specific document in its search does not alone render a search

inadequate”).

To meet its burden, the agency may submit affidavits or declarations that explain in

reasonable detail the scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C.

Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to

demonstrate an agency’s compliance with the FOIA. Id. at 127. If, on the other hand, the record

“leaves substantial doubt as to the sufficiency of the search, [then] summary judgment for the

agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).

In relevant part, Request No. 12-1689 stated:

I’m requesting a copy of the indictment and or complaint and arrest

warrant with attached affidavits filed on May 5, 2009 as to case

1:09-CR-00244-CCB in the United States District Court for the

District of Maryland[,] Northern Division[, including] but not

limited to those items. Please confirm or deny the existence of those

items named.

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Mem. of P. & A. in Support of Defs.’ Mot. for Summ. J., (“Defs.’ First Mem.”), Decl. of David

Luczynski (“First Luczynski Decl.”), Ex. A (Freedom of Information and Privacy Act Request

dated March 30, 2012).

EOUSA’s declarant explains that a Paralegal Specialist at the United States Attorney’s

Office for the District of Maryland (“USAO/DMD”) searched the office’s files “for the

indictment and/or complaint and arrest warrant with attachments in Criminal No. CCB-09-

0244[.]” Mem. of P. & A. in Support of Defs.’ Second Renewed Mot. for Summ. J. (“Defs’ 2d

Renewed Mem.”), Ex. 1 (Decl. of David Luczynski Addressing Issues Raised in Court’s

Memorandum Opinion) (“4th Luczynski Decl.”), Attach. A (“Hart Decl.”) ¶ 4. She used “[t]he

LIONS system, . . . the computer system used by United States Attorney’s Offices to track cases

and retrieve files pertaining to cases and investigations.” Hart Decl. ¶ 6. Through LIONS, she

explains, the user accesses databases from which to “retrieve information based on a defendant’s

name, the USAO number (United States Attorney’s Office’s internal administrative number), the

Assistant United States Attorney assigned to the case, and the district court case number.” Id.

Once the assigned Assistant United States Attorney (“AUSA”) is identified, the request is

forwarded to him, and the results of his search are forwarded to the EOUSA for further

processing. Id.

With respect to FOIA No. 12-1689, the LIONS search conducted in June 2012 using

plaintiff’s name as a search term identified Michael C. Hanlon as the AUSA assigned to

plaintiff’s criminal case. Id. ¶¶ 7-8. The declarant forwarded plaintiff’s FOIA request to AUSA

Hanson who “checked the case file for the CCB-09-0244 case (the case referenced in FOIA

Request No. 2012-1689) for documents responsive to the request.” Id. ¶ 9. Although AUSA

Hanlon’s search did not locate a complaint, id., he did find the Warrant for Arrest, Indictment,

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Search Warrant and Affidavit, id. ¶ 10. On June 7, 2014, the declarant sent these records “along

with the associated FOIA forms to EOUSA[.]” Id.

Plaintiff argues that EOUSA’s supporting declaration fails to “address[] the fact the

records requested were never filed in the United States District Court for the District of

Maryland and are and always have been in the possession of AUSA Michael Hanlon.” Mem. of

P. & A. in Support of Pl.’s Cross-Mot. for Summ. J. and/or Opp’n to Defs.’ Mot. for Summ. J.

(“Pl.’s Opp’n”) at 2 (page numbers designated by ECF). In support of this assertion plaintiff

points to correspondence explaining the practice of “prepar[ing] a copy of indictment, with the

foreperson’s signature redacted, [having] that redacted version placed on [the court’s electronic

docket],” and returning the “original indictment . . . to the AUSA for retention.” Am. Compl.,

Ex. B-9 (Letter to The Hon. Catherine C. Blake, United States District Judge, from Michael C.

Hanlon, Assistant United States Attorney, dated September 17, 2010).

Even if AUSA Hanlon had received the original unredacted indictment from the court in

2010, plaintiff offers no support for the proposition that the document was in the case file when

ASUSA Hanson conducted his search in 2012. Nor does plaintiff rebut the presumption of good

faith accorded to an agency’s supporting declaration. Here, the agency’s supporting declaration

describes “what records were searched, by whom, and through what processes,” Steinberg v.

Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994), and the search is not inadequate solely

because it does not yield a document of particular interest to the requester, Meeropol v. Meese,

790 F.2d 942, 952-53 (D.C. Cir. 1986) (finding that “a search is not unreasonable simply

because it fails to produce all relevant material”). The Court concludes that the search for records

responsive to FOIA Request No. 12-1689 was reasonable under the circumstances of this case.

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C. Firearms Trace Reports

From BATFE plaintiff sought records pertaining not only to his criminal case in the

District of Maryland, but also to a particular firearm identified as a “357 Magnum revolver,

model GP-100, serial no. 170-50376.” Am. Compl., Ex. A-1 (Freedom of Information and

Privacy Act Request dated March 29, 2012). According to BATFE, responsive records included

“a firearms Trace Report wholly derived from the contents of the Firearms Trace System

Database,” Defs.’ First Mem., Decl. of Stephanie M. Boucher (“Boucher Decl.”) ¶ 13, and

BATFE withholds the report in full under Exemption 3, Boucher Decl. ¶ 11.

Exemption 3 protects records that are “specifically exempted from disclosure by statute”

if the statute either “(A)(i) requires [withholding] from the public in such a manner as to leave no

discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular

types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA

Act of 2009, specifically cites to this paragraph.” 5 U.S.C. § 552(b)(3). The statute on which

BATFE relied is the Consolidated Appropriations Act of 2012, Pub. L. No. 112-55, 125 Stat. 552

(2011), which in relevant part states:

[N]o funds appropriated under this or any other Act may be used to

disclose part or all of the contents of the Firearms Trace System

database maintained by the National Trace Center of the [BATFE]

or any information required to be kept by licensees pursuant to [18

U.S.C. § 923(g)], or required to be reported pursuant to paragraphs

(3) and (7) of such [§] 923(g), except to: (1) a Federal, State, local,

or tribal law enforcement agency or a prosecutor solely in

connection with and for use in a criminal investigation or

prosecution . . . . [A]ll such data shall be immune from legal process,

shall not be subject to subpoena or other discovery, shall be

inadmissible in evidence, and shall not be used, relied on, or

disclosed in any manner, nor shall testimony or other evidence be

permitted based on the data, in a civil action in a State (including the

District of Columbia) or Federal court or in an administrative

proceeding other than a proceeding commenced by the [BATFE] . .

..

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Boucher Decl. ¶ 12. BATFE’s position is that “Trace Reports are based [on] and derived from

information required to be kept by a Federal Firearms Licensee (FFL) pursuant to 18 U.S.C. §

923(g),” and for this reason, “and through the language of P.L. 112-55, Congress has expressly

prohibited ATF from releasing such documents to the public and made them ultimately immune

from legal process.” Id. ¶ 13. There remains a question as to the application of Exemption 3 in

conjunction with Pub. L. No. 112-55. See Fowlkes, 67 F. Supp. 3d at 301. BATFE’s

second declaration explains in detail the history of Congressionally-imposed “funding

restrictions and conditions on [BATFE’s] ability to disclose trace information.” Defs.’ 2d

Renewed Mem., Second Decl. of Stephanie M. Boucher (“2d Boucher Decl.”) ¶ 7. Since 2003,

the declarant states, Congress has barred BATFE from expending funds to produce firearms trace

information in response to a subpoena or for use in civil litigation. See 2d Boucher Decl. ¶¶ 7-9.

Language included in appropriations bills has evolved over the years, see id. ¶¶ 9-10, and

relevant to this case is language imposing the funding restriction on firearms trace data “in

perpetuity until specifically repealed,” id. ¶ 10. 3 The declarant explains that appropriations bills

continue to include the funding restriction, see id. ¶¶ 11-16, albeit with minor changes, see id. ¶¶

11, 15, while continuing to “reflect Congress’ . . . intent to prohibit the disclosure of [t]race

information to the public,” id. ¶ 17. In short, BATFE maintains that the funding restrictions

“remain active and enforceable [and] are subject to [Exemption 3].” Id. ¶ 18. The Court

concurs. See Abdeljabbar v. BATFE, 74 F. Supp. 3d 158, 174-75 (D.D.C. 2014); Smith v.

BATFE, No. 13-13079, 2014 WL 3565634, at *5 n.2 (E.D. Mich. July 18, 2014); Higgins v. U.S.

Dep’t of Justice, 919 F. Supp. 2d 131, 145 (D.D.C. 2013). BATFE’s decision to withhold the

Trace Report in full is proper.

3

See Defs.’ 2d Renewed Mem., Ex. 5 (excerpts of firearm trace data appropriation restriction language).

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D. Name of the Judge who Convened the Grand Jury

Plaintiff requests the name of the judge who convened Grand Jury Number 2010R00518

with regard to Criminal Case No. 1:10-CR-00332-CCB and Grand Jury Number 2010R00536

with regard to Criminal Case No. 1:09-CR-00244-CCB. See Defs.’ Renewed Mot. for Summ. J.,

Second Decl. of David Luczynski (“2d Luczynski Decl.”), Exs. A and G (respectively, Freedom

of Information and Privacy Act Requests dated February 4, 2013 and March 12, 2013). EOUSA

abandons its prior reliance on Exemption 3, see 2d Luczynski Decl. ¶¶ 22-23, and instead

withholds the judge’s name under Exemption 7(C), see 4th Luczynski Decl. ¶¶ 8-10.

FOIA Exemption 7(C) protects from disclosure information in law enforcement records

that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,

the Court must balance the privacy interest of individuals mentioned in the records against the

public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy

interest at stake belongs to the individual, not the government agency, see DOJ v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989), and “individuals have a strong

interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737

F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an individual’s privacy interest against the

public interest in disclosure, “the only public interest relevant for purposes of Exemption 7(C) is

one that focuses on ‘the citizens’ right to be informed about what their government is up to.’”

Davis v. DOJ, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at

773).

EOUSA refuses to disclose the judge’s name for the following reasons:

The declarant acknowledges that a judge is at times viewed

as a public figure, but the work performed, the decisions made,

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while on the bench, may also be seen as controversial, and

especially, adversarial to the individuals involved. Releasing the

name may subject the [judge] to harassment and possible reprisal by

the individuals who may believe they have been wronged. Taking

into account the way information is disseminated, electronically as

well as among those who are incarcerated, their allies outside of the

prison system, as well as co-conspirators, it is easy to see how [the]

name of [the judge] may allow others to gain more information

about [him or her] or [his or her] family. While in court, a judge

benefits from the protection provided by the United States Marshalls

[sic] Service, but that does not extend to the private residence. To

prevent additional harassment and possible harm, the name of the

[judge] should remain redacted.

4th Luczynski Decl. ¶ 10. The declarant merely acknowledges the public nature of a federal

judge’s work. The Court does not discount the potential risk and exposure a judge faces, yet

finds the protection afforded under Exemption 7(C) is not so broad as to protect his or her name.

Even the declarant acknowledges that a judge’s name “is frequently published in the media,” or

is “posted in the courthouse lobby,” or is otherwise “widely distributed.” Id. ¶ 11. As the

declarant states, this information is a matter of “public record” that plaintiff could “obtain from

the clerk of court instead of EOUSA,” id. ¶ 12. Furthermore, EOUSA cites to no case in which

the name of a judge who convened a grand jury has been withheld on this basis.

The Court concludes that EOUSA does not justify its decision to withhold the name of

the judge who convened the grand jury proceedings identified in plaintiff’s FOIA requests, and

in this respect, defendants’ motion for summary judgment will be denied and plaintiff’s cross-

motion for summary judgment is granted.

E. Computer Codes and File Numbers

Exemption 7(E) applies to law enforcement information that “would disclose techniques

and procedures for law enforcement investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such disclosure could reasonably be

expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E). “Exemption 7(E) sets a

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relatively low bar for the agency to justify withholding: Rather than requiring a highly specific

burden of showing how the law will be circumvented, this exemption only requires that the

agency demonstrate logically how the release of the requested information might create a risk of

circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562

F.3d 1190, 1194 (D.C. Cir. 2009)) (internal quotation marks omitted). “[I]nternal agency

materials relating to guidelines, techniques, sources, and procedures for law enforcement

investigations and prosecutions, even when the materials have not been compiled in the course of

a specific investigation” may be protected under Exemption (E). Tax Analysts v. IRS, 294 F.3d

71, 79 (D.C. Cir. 2002) (citation omitted), and even if the documents “are not ‘how-to’ manuals

for law-breakers,” Mayer Brown, 562 F.3d at 1193. BATFE relies on Exemption 7(E) to

withhold two types of information.

“Category A [includes] codes and file numbers contained in TECS printouts.” 2d

Boucher Decl. ¶ 22. “TECS is a text-based . . . computerized information system designed to

identify individuals and businesses suspected of or involved in violation of Federal law.” Id.

TECS serves additional functions:

TECS is . . . a communications system permitting message

transmittal between Federal law enforcement offices and other

international, state and local law enforcement agencies. TECS

provides access to the FBI’s National Crime Information Center

(NCIC) and the National Law Enforcement Telecommunication

System (NLETS) with the capability of communicating directly

with state and local law enforcement agencies. TECS is also a

comprehensive [BATFE] law enforcement database that contains

[BATFE] investigative records[, such as] wanted persons and

fugitives; known and suspected violators of laws falling within the

jurisdiction of [BATFE]; felons and dishonorably discharged

veterans who have requested relief to own firearms and/or

explosives pursuant to statutes; violent felons; and gangs and

terrorists.

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Id. BATFE withholds TECS codes and file numbers “used to store and retrieve law

enforcement information” on the ground that their disclosure “could allow individuals outside

the agency to circumvent agency functions and gain access to sensitive investigative

information.” Id. ¶ 23.

“Category B [includes] Codes, file information, and specific agency and law enforcement

entity codes . . . in criminal history printouts” which “identify the users of the database, the

location . . . where the information was ‘printed,’ case file numbers, and agency and law

enforcement entity identification numbers.” Id. ¶ 24. The declarant explains that release of this

information would allow subjects of law enforcement proceedings “access to sensitive

investigative information that could be used to circumvent valid law enforcement

investigations.” Id. And, she states, “[t]hese internal codes if disclosed could provide insight

into how agencies share information and the codes used to identify agency information.” Id.

Plaintiff raises no objection to BATFE’s application of Exemption 7(E), and the Court

therefore treats this matter as conceded. See, e.g., Augustus v. McHugh, 870 F. Supp. 2d 167,

172 (D.D.C. 2012) (where plaintiff's “opposition did not challenge the Secretary’s proffered

justifications under FOIA for having redacted [information,]” the arguments were “deemed

conceded, and summary judgment [was] entered in favor of the Secretary”). And if the Court

were to consider the merits of BATFE’s arguments, the Court finds that TECS codes and other

file information is properly withheld under Exemption 7(E). See, e.g., Skinner v. U.S. Dep’t of

Justice, 893 F. Supp. 2d 109, 112-14 (D.D.C. 2012).

F. Segregability

If a record contains some information that is exempt from disclosure, any reasonably

segregable information not exempt from disclosure must be released after deleting the exempt

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portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5

U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,

1027 (D.C. Cir. 1999). The Court errs if it “simply approve[s] the withholding of an entire

document without entering a finding on segregability, or the lack thereof.” Powell v. U.S.

Bureau of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of

Cal. v. U.S. Dep’t of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).

The Court has reviewed all the defendants’ supporting declarations and, with the

exception of the name of the judge who convened the grand juries identified in plaintiff’s FOIA

requests, finds that defendants have released all reasonably segregable information.

III. CONCLUSION

EOUSA has demonstrated that its search for records responsive to plaintiff’s FOIA

Request No. 12-1689 was reasonable, and BATFE has demonstrated that its decisions to

withhold information under Exemptions 3 and 7(E) are proper. In these respects defendants’

motion for summary judgment will be granted. However, because EOUSA has not shown that

its decision to withhold a judge’s name under Exemption 7(C) is appropriate, defendants’ motion

will be denied in part and plaintiff’s cross-motion for summary judgment is granted on this issue.

An Order is issued separately.

DATE: September 21, 2015 /s/

RUDOLPH CONTRERAS

United States District Judge

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