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granting summary judgment for failure to exhaust administrative remedies where plaintiff mailed his request and appeal, but U.S. Secret Service had no record of having received these documents
Summary of this case from Arnold v. United States Secret ServiceOpinion
Civil Action No. 03-1658 (RMC).
August 12, 2004
MEMORANDUM OPINION
Milton E. Carbe is a federal prisoner currently incarcerated at the United States Penitentiary at Beaumont, Texas. He has brought suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a, et seq., alleging that numerous federal agencies and departments have failed to respond properly to his FOIA requests for documents. Mr. Carbe is proceeding pro se. Defendants include the Federal Bureau of Investigation ("FBI"), the United States Customs Service ("Customs"), the Internal Revenue Service ("IRS"), the Drug Enforcement Administration ("DEA"), the United States Postal Service ("USPS"), the Executive Office for United States Attorneys ("EOUSA"), the Federal Bureau of Prisons ("BOP"), the United States Marshals Service ("USMS"), and the Bureau of Alcohol Tobacco and Firearms ("ATF"). The defendants have filed motions for summary judgment, which Mr. Carbe opposes. For the reasons detailed below, the motions will be granted and the complaint dismissed as to all agencies except the FBI. Mr. Carbe will have until September 10, 2004 to respond to the FBI's Motion for Summary Judgment.
I.
The facts will be described separately for each agency. With the exception of Customs, each agency has filed a Vaughn index and corresponding declarations.A. Customs Service
Mr. Carbe asserts that he mailed a letter dated October 6, 2002, to Customs seeking documents that contained his name. Receiving no response, he filed an appeal on January 7, 2003. These letters are attached to his motion for summary judgment. Customs responds that it has checked in all of the appropriate places and it has no record of receiving either Mr. Carbe's initial request or his appeal. See Declaration of Joanne Stump ("Stump Decl."), ¶¶ 9, 11. Mr. Carbe challenges this response as a "farce" because he mailed his letters. He argues that summary judgment is premature. See Response to Customs Motion for Summary Judgement [sic].
B. Internal Revenue Service
The IRS acknowledges receiving Mr. Carbe's FOIA request, which asked for "any and all documents, records and information . . . that is [sic] in [any] way connected to, related to, or even remotely in reference to my name." See Statement of Material Facts in Support of [IRS] Motion for Summary Judgment ¶ 1. More particularly, Mr. Carbe asked for a search of IRS criminal investigatory records between 1990 and 2001, limited to the Houston, Texas, district. Id. Although the IRS asked for additional proof of Mr. Carbe's identity, a request he appealed, it nonetheless searched the Treasury Enforcement Communication System ("TECS") and the Criminal Investigation Management Information System ("CMIS") for responsive records. Id. at ¶¶ 4,5. No responsive documents were identified or located.
Mr. Carbe argues that the IRS failed to comply with the time limits set by FOIA but does not otherwise challenge its response to his request.
C. Federal Bureau of Investigation
Mr. Carbe sent an October 6, 2002, request to FBI Headquarters seeking all records concerning him maintained at FBI Headquarters, the FBI's Houston Field Office ("HOFO"), and the FBI office in Shreveport, LA. See FBI Statement of Material Facts as to Which There is No Genuine Issue ¶ 1. On November 12, 2002, FBI Headquarters notified Mr. Carbe that it had found no pertinent records through a search of the automated indices at Headquarters. Mr. Carbe appealed the "no record" response of FBI Headquarters on November 19, 2002, to the Office of Information and Privacy, U.S. Department of Justice ("OIP/DOJ"). Id. ¶ 3. He also appealed the failure to search at HOFO or Shreveport. By letter dated March 2003, OIP/DOJ advised Mr. Carbe that FBI Headquarters had properly handled his request. Id. ¶ 4. It also provided addresses for HOFO and the New Orleans Field Office ("NOFO"), which has jurisdiction over Shreveport, for direct requests to those locations.
Mr. Carbe sent a March 24, 2003, request to HOFO for all records concerning him. HOFO informed Mr. Carbe on May 1, 2003, that two main files had been located and had been forwarded to FBI Headquarters for processing. Id. ¶ 5. On February 25, 2004, FBI Headquarters released 291 of 404 pages from the HOFO file; ultimately, 297 of the 404 pages were released. Id. ¶ 8. FBI Headquarters relied on FOIA Exemptions 2, 7(C), and 7(D) and Privacy Act Exemption (j)(2) for withholdings and redactions. Id. ¶ 8. While Mr. Carbe appealed the denial of all records, he filed this suit prior to the appeal being resolved by OIP/DOJ. Id. ¶ 9.
Also on March 24, 2003, Mr. Carbe sent a letter to NOFO for all records concerning him. By letter dated April 1, 2003, FBI Headquarters responded that no records pertinent to his request were located by a search of NOFO's automated indices. Id. ¶ 6. Mr. Carbe appealed this "no record" response to OIP/DOJ, but his appeal was denied on May 19, 2003. Id. ¶ 7.
Mr. Carbe has filed no response to the FBI motion for summary judgment. The Court would normally grant the motion as conceded. However, because Mr. Carbe is proceeding pro se, the Court will order Mr. Carbe to file a response, should he choose to do so, by September 10, 2004.
Plaintiff, who is proceeding pro se, is advised of the following:
In Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), the D.C. Circuit held that a district court must take pains to advise a pro se party of the consequences of failing to respond to a dispositive motion. "That notice . . . should include an explanation that the failure to respond . . . may result in the district court granting the motion and dismissing the case." Id. at 509. The Local Civil Rules state that "[w]ithin 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion [or] the court may treat the motion as conceded." LCvR 7(b).
In Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), the D.C. Circuit stated that the district court must inform pro se litigants that, on a motion for summary judgment, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Id. at 456 (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). The Court of Appeals specified that the "text of Rule 56(e) should be part of the notice" issued to the pro se litigant. Id. Under Rule 56(e) of the Federal Rules of Civil Procedure:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in the adverse party's response, but the adverse party's response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). Thus, a party, such as Mr. Carbe, who is adverse to a motion for summary judgment, must rebut the moving party's affidavits with other affidavits or sworn statements; simple allegations that the moving party's affidavits are inaccurate or incorrect are not sufficient. For these purposes, a verified complaint shall serve as an affidavit. See Neal, 963 F.2d at 457-58.
D. Drug Enforcement Agency
Mr. Carbe's October 6, 2002, FOIA request to DEA mimicked his request to the FBI: he asked for all records in the DEA central office and field offices in Houston and Shreveport, but he neglected to specify the subject matter of his request. See DEA Statement of Material Facts as to Which There Is No Genuine Issue ¶ 1. DEA responded on October 23, 2002, that it needed a better explanation of what records were sought. Id. Mr. Carbe sent a second request on October 29, 2002, stating that he sought all records in connection with his name. Id. ¶ 2. Thus better informed, DEA released portions of 22 pages to Mr. Carbe on January 8, 2002, but withheld thirty-one pages in their entirety, pursuant to FOIA Exemptions 2, 7(C), 7(D) and 7(F), as well as Privacy Act exemption (j)(2). Id. ¶ 3. In later releases, DEA sent Mr. Carbe pages 4-5, 14, 18, 30, 32-35, which were previously withheld in their entirety. Pages 3, 15, 27, 28, 31, 41, 43, 45, 48, and 52, previously released with redactions, were re-processed and further information on those pages was released. Pages 54-65, previously withheld in their entirety, were released with redactions; and a single page of DEA Report of Investigation DEA-6 was released with redactions. Id. ¶ 5.
Mr. Carbe appealed DEA's response on January 17, 2003. By letter dated May 19, 2003, OIP/DOJ affirmed DEA's decisions. Id. ¶ 4. In this Court, Mr. Carbe argues that there is a question as to whether DEA is properly withholding documents from him. See Plaintiff's Opposition to Motion for Summary Judgment for Defendant Drug Enforcement Administration.
E. Other Federal Defendants
1. USPS
Mr. Carbe sent a FOIA request dated October 6, 2002, requesting information about himself, to the USPS Programs' Office. See Federal Defendants Statement of Material Facts Not in Genuine Dispute ¶ 1. His request was forwarded to the Postal Inspection Service and he was informed that there would be a delay. Id. ¶¶ 1, 2. Mr. Carbe appealed the failure to respond to his request by letter dated January 21, 2003. Thereafter, the Postal Inspection Service asked Mr. Carbe for additional information and, in response, he clarified that he was asking for records of any "mail watch" on four (4) mailing addresses in Houston.
USPS searched the Inspection Service Database Information System, which is the national, integrated database containing investigatory information from Inspection Service investigations. Id. ¶ 7. This search disclosed no investigations regarding Mr. Carbe. Id.
Record searches were also conducted at USPS National Headquarters and the Security Investigations Service Center, the only other offices likely to have mail cover records concerning Mr. Carbe. Id. ¶ 8. These searches likewise turned up no records. By letter sent on October 23, 2003, and misdated September 23, 2003, the USPS informed Mr. Carbe that a search had uncovered no mail cover records concerning him. Id. ¶ 9.
In this Court, Mr. Carbe assails the "gross violations of the statutory time limits" between the dates of his requests and the response by USPS that there were no records. See Response to Motion for Summary Judgment.
2. Bureau of Alcohol Tobacco and Firearms
Mr. Carbe's October 6, 2002, FOIA letter to ATF sought all records maintained by ATF relative to him. Id. ¶ 10. ATF responded that he must reach a firm agreement to pay fees prior to processing his request, and he agreed. Id. ¶¶ 11, 12.
ATF denied his request on November 13, 2002, under FOIA Exemption (b)(7)(A), because the requested investigative file was still open. Id. ¶ 13. Mr. Carbe appealed this denial of records on November 20, 2002. Id. ¶ 14. In response to his appeal, ATF asked if Mr. Carbe were interested in only the 2001 investigative file associated with his name and as to which its initial response was directed, or whether he were also interested in a 1995 investigative file which had not earlier been processed. Id. ¶ 15. Mr. Carbe told ATF that he was interested in both files. Id. After consultations with DEA, ATF released portions of Mr. Carbe's 1995 investigative file by letter dated February 24, 2003. Id. ¶ 16. ATF relied on FOIA Exemptions 2, 6, and 7(C), for those portions of the file not released. ATF relied on FOIA Exemption 7(A) to withhold release of the 2001 investigative file, which remained open. Id.
Mr. Carbe appealed this response on March 20, 2003, but OIP/DOJ denied his appeal on August 12, 2003. Id. ¶¶ 17, 19.
By cover letter dated October 8, 2003, ATF released an additional 267 pages to Mr. Carbe and invoked FOIA Exemptions 2, 6, 7(C), 7(D), and 7(E) to justify its withholdings. Id. ¶ 21. Two additional pages were referred to BOP for disclosure determinations and direct response to Mr. Carbe. Id.
In this Court, Mr. Carbe argues that ATF violated FOIA time limits and that its "various withholdings, excisions, blanket denials of records and information" were arbitrary and capricious. Response to [Other Federal Defendants'] Motion for Summary Judgement [sic] at 1.
3. Executive Office for United States Attorneys
As he had to the other agencies, Mr. Carbe submitted to EOUSA an October 6, 2002, FOIA request seeking records maintained for Houston or anywhere in Texas or Louisiana connected to Case 4:01CR00337-001 and his criminal prosecution. Federal Defendants Statement of Material Facts Not in Genuine Dispute ¶ 23. Mr. Carbe clarified his request on November 16, 2002, by limiting it to the U.S. Attorney's Office in Houston and Shreveport. Id. ¶ 25.
These two letters from Mr. Carbe were treated as different FOIA requests by EOUSA and given different FOIA numbers. This caused confusion and appeals, which are covered in the Statement of Facts as to Which There Is No Genuine Dispute, but it is irrelevant to the Court's disposition of the case. See id. ¶¶ 26, 27, 28, 29, 31.
On August 20, 2003, EOUSA released 130 pages in full from records maintained in its Office in the Southern District of Texas. Id. ¶ 30. By letter dated August 25, 2003, EOUSA notified Mr. Carbe that it had located no responsive records in Louisiana when it searched the LIONS computer case tracking system and contacted all assistant United States attorneys in the Western District of Louisiana. Id. ¶ 32. Mr. Carbe did not file an appeal of this August 25, 2003, determination. Id. ¶ 34.
Mr. Carbe alleges that EOUSA was in gross violation of the time limits under FOIA and has withheld records for no just cause or reason. Response to [Other Federal Defendants'] Motion for Summary Judgment at 2.
4. Federal Bureau of Prisons
The BOP received a request from Mr. Carbe on November 7, 2002, asking for all records concerning him at the Federal Detention Center ("FDC") Houston and United States Prison ("USP") Beaumont, including all phone records and taped phone conversations to phone number 281-579-8818. Id. ¶ 35. He was informed, by letter dated December 10, 2002, that he would be given access to all of his records except for those in the FOIA Exempt section of his file and the telephone records, although both kinds of records would be reviewed for possible release. Id. ¶ 36.
Thereafter, by letter dated December 30, 2002, BOP informed Mr. Carbe that it had searched the telephone account statements at FDC Houston and USP Beaumont and could find no record of phone calls to number 281-579-8818. Id. ¶ 39. From the FOIA Exempt portion of his file, consisting of 107 pages, BOP released fourteen (14) pages in their entirety and thirty-three (33) pages with redactions. It withheld sixty (60) pages. Id. ¶ 39. Mr. Carbe reviewed his complete medical file at USP Beaumont on January 6, 2003, and the releasable portions of his central file at USP Beaumont on January 19, 2003. Id. ¶ 40.
Mr. Carbe appealed the withholding of portions or all of some documents to OIP/DOJ on January 9, 2003. Id. ¶ 41. OIP/DOJ ordered release of only Part III of a BOP disciplinary report from November 1, 2001, and a Visitor Approval Request memo dated April 12, 2002. Id. ¶ 42.
The instant lawsuit alleges arbitrary and capricious withholding by BOP and untimely handling of the FOIA requests. Response to [Other Federal Defendants'] Motion for Summary Judgment at 2.
5. United States Marshals Service
The Office of General Counsel of USMS received Mr. Carbe's October 6, 2002, FOIA request on October 17, 2002. Id. ¶ 43. As elsewhere, Mr. Carbe sought a copy of all records pertaining to him. Id. USMS searched its district offices in the locations identified by Mr. Carbe, i.e., the Western District of Louisiana, the Eastern District of Texas, and the Southern District of Texas. As a result of these searches, 17 pages of records pertaining to Mr. Carbe were located, of which eleven (11) were disclosed in their entirety and six were disclosed with minimal deletions pursuant to exemption 7(C) of FOIA. Id. ¶¶ 46, 47.
Mr. Carbe appealed the denial of a full release of the documents on November 8, 2002. Id. ¶ 48. His appeal was denied by OIP/DOJ on April 28, 2003. Id. ¶ 49.
In this Court, Mr. Carbe argues that the withholdings were arbitrary and capricious.
II.
Summary judgment is appropriate if "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When there are no material facts at issue and no facts "susceptible to divergent inferences bearing upon an issue critical to disposition of the case," Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988), summary judgment expeditiously resolves a lawsuit with a savings of time and money and no adversity to the litigants.
Summary judgment is the frequent vehicle for resolution of a FOIA/PA action because the pleadings and declarations often, as here, provide undisputed facts on which the moving parties are entitled to judgment as a matter of law. Miscavige v. IRS, 2 F.3d 366, 360 (11th Cir. 1993); Alyeska Pipeline, 856 F.2d at 313; Weisberg, 627 F.2d 365, 368 (D.C. Cir. 1980). The burden is on the agency to justify all non-disclosures. 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). Agencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith. See Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
In moving for summary judgment, an agency must establish a proper basis for withholding any documents or parts of documents. "In response to this special aspect of summary judgment in the FOIA context, agencies regularly submit affidavits. . . ." Judicial Watch v. HHS, 27 F. Supp. 2d 240, 242 (D.D.C. 1998). "The materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege." Delaney, Migdail Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987). This presentation of information to support any withholding of records, or parts of records, is called a Vaughn index. See Vaughn, 484 F.2d 820. The description of withheld material "must be sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
The agencies here have relied upon various exemptions specified in FOIA to protect certain government documents from disclosure:
FBI and DEA relied as well on Exemption (j)(2) from the PA. However, because the Court has chosen to hold FBI's motion in abeyance and finds DEA's withholdings valid under FOIA Exemptions 2, 7(C), 7(D) and 7(F), it does not address these PA Exemptions.
Exemption 2, 5 U.S.C. § 552(b)(2), exempts from disclosure those records that are "related solely to the internal personnel rules and practices of an agency." Depending on the nature of the information, documents may fall within the "high 2" category or the "low 2" category. "High 2" exempts from disclosure documents relating to substantive internal matters. See Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). To be protected by the "high 2" exemption, information must be "predomina[ntely] internal" and must "significantly risk circumvention of agency regulations or statutes." See Crooker v. BATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981) ( en banc). Essentially under "high 2," an agency is allowed to withhold records to protect techniques and procedures for law enforcement investigations or prosecutions. Id. "Low 2" information refers to internal procedures and practices of an agency where disclosure would constitute an administrative burden unjustified by any genuine and significant public benefit. Martin v. Lauer, 686 F.2d 24, 34 (D.C. Cir. 1982).
Exemption 7(C) of FOIA exempts disclosure of information compiled for law enforcement purposes when its release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). "[T]he term 'law enforcement purpose' is not limited to criminal investigations but can also include civil investigations and proceedings in its scope." Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240, 1243 (D.C. Cir. 1996), cert denied, 519 U.S. 1123 (1997). However, a criminal law enforcement agency "warrants greater deference" to claims under Exemption 7(C). Keys v. DOJ, 830 F.2d 337, 340 (D.C. Cir. 1987). Information about individuals that does not directly reveal the operations or activities of the government — which is the focus of FOIA — "falls outside the ambit of the public interest that the FOIA was enacted to serve" and may be protected under Exemption 7(C). Reporters Comm. for Freedom of the Press, 489 U.S. at 775. For this reason, "unless access to names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). In addition, Exemption 7(C) protects the identities of suspects, witnesses and other persons of investigatory interest who are identified in agency records in connection with alleged criminal activity. Computer Prof'ls for Soc. Responsibility v. U.S. Secret Service, 72 F. 3d 897, 904 (D.C. Cir. 1996) (noting "strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity" (quoting Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990)). For the same kinds of protective reasons, the names of law enforcement officers who work on criminal investigations have usually been protected against release by Exemption 7(C). Lesar v. DOJ, 636 F.2d 472, 487 (D.C. Cir. 1980).
Exemption 7(D) of FOIA allows the withholding of records if their disclosure "could reasonably be expected to disclose the identity of a confidential source. . . ." 5 U.S.C. § 552(b)(7)(D). The "paramount objective" of this exemption "is to keep open the Government's channels of confidential information." Birch v. U.S. Postal Serv., 803 F.2d 1206, 1212 (D.C. Cir. 1986). When invoking Exemption 7(D), an agency must demonstrate, through the use of reasonably-detailed affidavits, that the information was compiled for a law enforcement purpose, that an informant provided the information under either an express or implied promise of confidentiality and that disclosure could reasonably be expected to disclose the source's identity. DOJ v. Landano, 508 U.S. 165, 171-72 (1993).
FOIA also protects from disclosure information compiled for law enforcement purposes when release "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)").
Just as informers and techniques are protected, so too does FOIA exempt disclosure of the identity of "any individual" if release of that information "could reasonably be expected to endanger [his or her] life or physical safety." 5 U.S.C. § 552(b)(7)(F) ("Exemption 7(F)"). This exemption permits withholding names and identifying information of federal employees and third persons who may be unknown to the requester in connection with a particular law enforcement matter. Isley v. EOUSA, No. 96-0123, slip op. at 8-9 (D.D.C. Mar. 27, 1997) (individuals who provided information during murder investigation), appeal dismissed, No. 97-5105 (D.C. Cir. Sept. 8, 1997); Housley v. FBI, No. 87-3231, slip op. at 7 (D.D.C. Mar. 18, 1988) (informants who had been threatened). This protection can continue past the retirement of a law enforcement officer in the appropriate circumstances. Moody v. DEA, 592 F. Supp. 556, 558-59 (D.D.C. 1984).
FOIA Exemption 6 permits the government to withhold all information about individuals contained in "personnel and medical files and similar files" when the disclosure of such information "would constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b) (60 ("Exemption 6"). The withheld material must fall within "personnel," "medical" or "similar" files and must be identifiable as to a specific individual. Arieff v. Dep't of the Navy, 712 F.2d 1462, 1466 (D.C. Cir. 1983) (Scalia, J.). If those tests are met, the public and private interests are balanced to determine, "'whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy.'" Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991) (quoting Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (Exemption 6 requires "balancing of interests between the protection of an individual's private affairs from public scrutiny, and the preservation of the public's right to governmental information.").
III
Because this is a single lawsuit against nine separate federal agencies, it appears to be lengthy and complex. Upon closer examination, however, Mr. Carbe's arguments are without merit and can be addressed without great elaboration.
A. Customs
Mr. Carbe filed a partial motion for summary judgment against all defendants because he had exhausted all administrative remedies at each of the defendant agencies. However, none of the defendants, except Customs, argues otherwise — and all have admitted administrative exhaustion in their answers to the complaint. Thus, the issue of administrative exhaustion is moot as to all defendants except Customs. As to Customs, the Court will grant the government's motion for summary judgment. While Mr. Carbe mailed his request and appeal, there is no record of receipt of those documents by the agency. Without a request for records, the agency cannot be held liable for having refused to release records — no such refusal occurred. Mr. Carbe argues that Customs has also ignored this lawsuit and has not yet notified him whether any records exist, nor has it even explained that it never received his letters. See Response to [Customs] Motion for Summary [Judgment], Exh. 1. These arguments misconstrue the nature of FOIA and the bureaucratic process. A proper FOIA request, once received, requires the government to search for responsive records and to release all that are not otherwise exempt. If no FOIA request is received, an agency has no reason to search or produce records and similarly has no basis to respond. A lawsuit does not constitute a FOIA request, even when it appears, as this one does, timely and for good cause due to Custom's lack of response. Once Customs responded that it had never received a FOIA request from Mr. Carbe, the suit alleging a violation of FOIA was doomed. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). If Mr. Carbe wishes to pursue his request for Customs documents, he should file a new FOIA request.
Mr. Carbe also filed a motion against DEA asking for an in-camera inspection of pages 60, 61 and 87. Since that time, DEA has filed its Vaughn index, which identifies these pages, and the FOIA exemptions on which DEA relies for redactions. As DEA has adequately explained its redactions, the Court denies the motion for in camera inspection.
B. IRS
The IRS responds to Mr. Carbe's lawsuit with the argument that the court is without jurisdiction unless a plaintiff can show that an agency has (1) improperly (2) withheld (3) agency records. 5 U.S.C. § 552(a)(4)(B). Jurisdiction exists only where an agency has contravened all three components of this obligation. Kissinger, 445 U.S. at 150; accord, DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989); Forsham v. Harris, 445 U.S. 169, 177 (1980). Noting that the IRS located no responsive documents, the agency argues that the Court should dismiss Mr. Carbe's lawsuit. A reasonable search may nonetheless fail to uncover responsive documents. Oglesby, 920 F.2d at 68. With a properly-detailed and non-conclusory agency affidavit, summary judgment remains appropriate unless "a review of the record raises substantial doubt" about the adequacy of the agency search for records. Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citation omitted). Recognizing that the IRS found no responsive documents, Mr. Carbe argues that it still violated FOIA because of its untimeliness, a repeated refrain in his briefs. The IRS answers by noting that a FOIA request becomes moot once it is answered or no records are located, even if the agency has failed to meet the FOIA deadlines. Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) (release of all non-exempt material, no matter how delayed, moots lawsuit). Because the IRS conducted a reasonable search and located no responsive documents, the Court finds that Mr. Carbe's FOIA lawsuit against the agency is moot and the IRS is entitled to summary judgment.
An agency's failure to meet FOIA deadlines may release a requester from the obligation to pursue administrative remedies and allow an immediate court lawsuit, but a full response nonetheless moots any charge that the agency failed to meet the deadlines.
C. FBI
Mr. Carbe filed a Motion to File Multifurcated Response, by which he asked permission to respond to each agency filing separately. Inasmuch as Mr. Carbe is a federal prisoner proceeding on his own, the Court granted his motion by Order entered on March 3, 2004. The same Order required him to complete his responses no later than May 3, 2004.
Nonetheless, Mr. Carbe has filed no response to the FBI's motion for summary judgment. The Court will grant an extension of time for him to do so, should he choose to file a response, until September 10, 2004. It may be that Mr. Carbe overlooked this particular agency filing in the flood of papers he has received. The FBI's motion for summary judgment will be held in abeyance.
D. DEA
Through its affidavits and briefs, the DEA has fully explained its decisions to withhold all or parts of documents relevant to Mr. Carbe. In response, Mr. Carbe argues only,
[A]ffidavits by employees with an interest in the outcome of the proceeding [are] not enough to confirm the possible evidence presented by the plaintiff. . . . [T]he defendant has provided no evidence as to the truth of it's [sic] claim besides it's [sic] own affidavit.
Plaintiff's Opposition to Motion for Summary Judgment for Defendant Drug Enforcement Administration at 3. This argument is contradicted by long-standing law. An agency can establish the reasonableness of its search by affidavits if they are relatively detailed, non-conclusory, and in good faith. Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The issue is not whether records might exist that would be responsive to a FOIA request, but whether the search the agency conducted was reasonable. Id. A reasonable search may nonetheless fail to uncover responsive documents. Oglesby, 920 F.2d at 68. With a properly detailed and non-conclusory agency affidavit, summary judgment remains appropriate unless "a review of the record raises substantial doubt" about the adequacy of the agency search for records. Valencia-Lucena v. Coast Guard, 180 F.3d at 326. Finding that the declaration submitted by DEA meets this legal standard, and that Mr. Carbe has offered no argument, much less a factual basis, to conclude that the agency's search was inadequate, the Court will grant DEA's motion for summary judgment.
The Court does not read Mr. Carbe's objections as being objections to the FOIA exemptions claimed by DEA. If he so intended, his argument is totally insufficient to raise any serious questions about the exemptions upon which DEA relied and which it has explained, at length, in its Vaughn index, declaration, and brief. DEA relied on Exemption 2 to protect violator and information codes that could lead to impairment of DEA investigations. Albuquerque Publ'g Co. v. DOJ, 726 F. Supp. 851, 854 (D.D.C. 1989). DEA relied on Exemption 7(C) to withhold criminal investigative records containing names and addresses and other identifying information of persons who were involved or associated with Mr. Carbe. Little Decl. at ¶¶ 50-55. Similarly, the identities of government employees were withheld under Exemption 7(C). DEA properly concluded that these persons' interests in privacy outweighed the public interest in their identities. DEA relied on Exemption 7(D) to protect information on confidential sources concerning some 41 responsive pages. Little Decl. ¶¶ 56-75. Given the potential for retaliation against a source involved in cocaine trafficking, such individuals generally should be entitled to an implied grant of confidentiality, if an express grant of confidentiality is not obvious from the record. See Mays v. DEA, 234 F.3d 1324 (D.C. Cir. 2000). DEA also relied on Exemption 7(F) to withhold the names and identifying information of law enforcement personnel, including DEA Special Agents, Supervisory Agents, and other law enforcement officers. Little Decl. at ¶¶ 76-80. The Court would grant summary judgment to DEA on its reliance on FOIA exemptions if, indeed, Mr. Carbe intended to argue that they did not apply. The redactions are well supported, and the Court has therefore denied Mr. Carbe's motion for in camera inspection.
E. Other Federal Defendants
1. USPS
Mr. Carbe's only argument about the nature of the USPS response to his FOIA request is that the Postal Service took one year "to finally decide that no records existed in connection to him," in "gross violation of the statutory time limits." Response to [Other Federal Defendants] Motion for Summary [Judgment] at 1. However, the answer here is the same as for the IRS. See Tijerina, 821 F.2d at 799 (release of all nonexempt material, no matter how delayed, moots lawsuit). Because USPS has demonstrated the adequacy of its search, and it located no responsive documents, the Court finds that Mr. Carbe's FOIA lawsuit against the agency is moot and USPS is entitled to summary judgment.
2. ATF
Mr. Carbe challenges the delays with which ATF handled his FOIA requests and also its allegedly arbitrary and capricious "withholdings, excisions, [and] blanket denials of records and information." Response to [Other Federal Defendants'] Motion for Summary Judgement [sic] at 1. Because ATF responded fully to Mr. Carbe's FOIA letters, his challenge to the time delays in processing his requests is now moot. Tijerina, 821 F.2d at 799.
Whether ATF conducted a proper search and explained its withholdings and deletions is a different issue. However, a plaintiff may not continue a FOIA lawsuit based solely on "bare suspicion" that an agency's search was inadequate. Judicial Watch, Inc., 27 F. Supp. 2d at 243-44. Summary judgment is not avoided by "pure conjecture about the possible content of withheld information, raising 'some metaphysical doubt as to the material facts.'" Steinberg v. DOJ, 179 F.R.D. 357, 360 (D.D.C. April 28, 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Other than his bald assertion that ATF withheld documents in an arbitrary and capricious manner, Mr. Carbe offers no facts in support and no argument that ATF improperly relied on any particular FOIA exemptions. His "assertions are insufficient to raise a material question of fact with respect to the adequacy of the agency's search." Oglesby, 920 F.2d at 68 n. 13 (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)). For these reasons alone, the Court will enter summary judgment for ATF.
As a pro se litigant, Mr. Carbe is entitled to certain expansive readings of his pleadings. However, even if his response is read to challenge the ATF withholdings, it is infirm. ATF has demonstrated that it conducted an adequate search in fact. It searched the Treasury Enforcement Communications System ("TECS"), a database maintained by the Customs Service; ATF uses TECS to locate records within the ATF Criminal Investigation Report System of Records. See 68 Fed. Reg. 3553. Because the TECS database contains the names of individuals that ATF has investigated, it was the place most likely to reveal responsive records. This search determined that all records related to Mr. Carbe were located in the Houston ATF Field Division. ATF released segregable portions of Mr. Carbe's 1995 investigative file and properly withheld release of the 2001 investigative file, which remained open.
From the records it released, ATF redacted information that showed file numbers and other internal administrative codes in criminal law enforcement databases, pursuant to Exemption 2 of FOIA. In addition, under Exemption 2, ATF withheld administrative codes and file numbers for case summaries, reports of investigation and reports of expenditure. ATF relied on Exemption 7(C) to protect the identities of ATF special agents and other law enforcement personnel. Chambers Decl. at ¶ 37. Mr. Carbe does not challenge these withholdings directly and identifies no public interest that would outweigh the privacy interests of the officers involved.
ATF also withheld information on named sources of information who had provided information regarding Mr. Carbe's criminal activities. Chambers Decl. at ¶ 40. Because Mr. Carbe was convicted of being involved in a drug trafficking enterprise and had previously been found in possession of a stolen firearm, ATF reasonably determined that disclosure of informants' names or identifying information could put such persons in danger. Id. ¶ 42. Mr. Carbe does not refute this logic or the application of Exemption 7(D) to protect this kind of information. Indeed, it would be difficult for him to do so. "This exemption does not involve a balancing of public and private interests; if the source was confidential, the exemption may be claimed regardless of the public interest in disclosure." Jones v. FBI, 41 F.3d 238, 247 (6th Cir. 1994). "[O]nce the agency receives information from a 'confidential source' during the course of a legitimate criminal investigation . . . all such information obtained from the confidential source receives protection." Parker v. DOJ, 934 F.2d 375, 380 (D.C. Cir. 1991).
The circumstances of the ATF investigations described in the Chambers Declaration demonstrate that informants were either assured of confidentiality or the circumstances were such that the informants dealt with ATF under an implied promise of confidentiality. See Chambers Decl. ¶¶ 40-43. In any event, Mr. Carbe does not direct his challenge to the ATF withholdings on any basis having to do with this exemption or the character of the information that was not released.
ATF invoked Exemption 7(E) in withholding two types of documents from release to Mr. Carbe: electronic surveillance request forms and asset forfeiture reimbursement forms. It explained that these documents reveal law enforcement techniques that are not widely known since the subject matter of the documents is not widely dispersed. Chambers Decl. at ¶ 47. Certainly, disclosing sources of electronic surveillance and how ATF uses funds in these types of operations (which might reveal the nature of electronic equipment and the sequence of its uses) is protected from release by Exemption 7(E). Id. Mr. Carbe does not challenge the application of Exemption 7(E), except to the extent he generally claims that ATF was arbitrary and capricious, which is without merit.
Finally, ATF relied on Exemptions 6 and 7(C) to withhold the names of law enforcement support staff employees and identifying information; names and identifying information of law enforcement agents; third-party witnesses or leads; names and identifying information on individuals investigated by ATF; and third parties mentioned during an investigation who have no connection with it. Chambers Decl. ¶ 29.
The Court finds that ATF properly relies on the cited FOIA exemptions and that Mr. Carbe advances no substantive argument otherwise. The Court will enter summary judgment for defendant ATF.
3. EOUSA
EOUSA conducted an adequate search by looking for documents maintained in Houston, Texas and everywhere in Louisiana and Texas connected to Case 4:01CR00337-001 and Mr. Carbe's criminal prosecution, as its submitted declaration describes without challenge from Mr. Carbe. Mr. Carbe was sent 130 pages from the U.S. Attorney's Office in the Southern District of Texas and no documents were located after a search in Louisiana. Mr. Carbe was notified that he needed to contact the U.S. Bureau of Prisons to obtain a copy of his presentence investigation report. Thus, EOUSA produced all the records that it located and withheld none. Mr. Carbe's argument that the agency violated FOIA timelines because it took too long to process his requests is now moot. He has no legitimate challenge that EOUSA withheld documents in an arbitrary and capricious manner because it withheld none. The Court will enter summary judgment for EOUSA.
4. BOP
Mr. Carbe argues that BOP withheld documents from him in an arbitrary and capricious manner but offers no support for the argument. In fact, BOP has demonstrated in the record that it released the entirety of Mr. Carbe's Central File for his review with the exception of the FOIA Exempt section; that it reviewed the 107 pages in the FOIA Exempt section and released 14 in their entirety and 33 pages in part, leaving only 60 withheld in whole; that Mr. Carbe was afforded full access to his complete medical file; and that BOP searched its Telephone Account Statements and could find no record of the calls referenced in Mr. Carbe's request, as clarified. The totality of Mr. Carbe's challenge to this record is that "[h]e alleges arbitrary and capricious withholding by BOP." Response to [Other Federal Defendants'] Motion for Summary Judgement [sic] at 2. This argument fails in the face of BOP's detailed and nonconclusory declaration of the scope of its search and its results as well as BOP's justifications for application of FOIA Exemptions 2, 7(C) and 7(F). The Court will enter summary judgment for BOP.
Under Exemption 2, BOP withheld computer and/or teletype codes that it uses to access confidential information maintained on the National Crime Information Center computerized data systems. Rawls Declaration at ¶ 17. It also refused to identify names, personal identifiers, or locations of individuals providing testimony against Mr. Carbe, or persons who must otherwise be maintained separate from Mr. Carbe for their mutual safety and protection. Rawls Decl. at ¶ 18, Att. E. BOP also withheld, under Exemption 7(C), background investigative information on prospective visitors to Mr. Carbe. Rawls Decl. ¶ 19. Pursuant to Exemption 7(F), BOP withheld information about informants who could be at risk in a prison setting were other inmates to know that they testified against or provided information concerning another individual. Rawls. Decl. at ¶ 20. Mr. Carbe does not specifically challenge these withholdings, which the Court finds are appropriate under FOIA.
5. USMS
USMS located 17 pages of records pertaining to Mr. Carbe by searching the Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS), JUSTICE/USM-005, and the Warrant Information Network (WIN), JUSTICE/USM-007. These records are compiled for law enforcement purposes in connection with USMS receipt, processing, transportation and custody of prisoners, the execution of Federal arrest warrants, and the investigation of fugitive matters. See FED. R. CIV. P. 4; 18 U.S.C. § 4206; 28 U.S.C. § 566; 28 C.F.R. § 0.111(a), (j), (k), (q). These systems of records are exempt from the Privacy Act. 5 U.S.C. § 552a(j)(2). Upon review for FOIA purposes, 11 pages were disclosed to Mr. Carbe in their entirety and the remaining six pages were disclosed with minimal deletions under FOIA exemption 7(C).
USMS relied on Exemption 7(C) to withhold names and initials of federal and nonfederal law enforcement officers and the names and prisoner numbers of USMS inmates other than Mr. Carbe. Graham Decl. at ¶ 9. Nothing else was withheld. The Court finds that USMS fully complied with FOIA and will enter summary judgment accordingly.
F. Segregability
The Court of Appeals for the District of Columbia Circuit has held that a District Court in a FOIA case has "an affirmative duty to consider the segregability issue sua sponte." Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). This direction refers to the requirement under 5 U.S.C. § 552(b) that any "reasonably segregable" information must be disclosed — that is, information that can be separated from the rest of a document — even if the document is otherwise exempt from disclosure, unless the exempt and nonexempt portions are "inextricably intertwined with exempt portions." Id.; Mead Data Ctr., Inc. v. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency must provide a "detailed justification" and not just "conclusory statements" to prove that it has released all reasonably segregable information. Mead Data Center, Inc., 566 F.2d at 261.
The USMS redacted only the names of law enforcement officers and others under Exemption 7(C). The BOP and ATF have provided declarations from Gerard Rawls and Dorothy Chambers that describe a review of each page and that no additional information could be released. See Rawls Decl. at ¶ 21; Chambers Decl. at ¶ 53. DEA submitted a declaration from William Little that describes in detail the non-segregable information and the reasons why partial releases could not be made. See Little Decl. at ¶¶ 81-92. There is no question of partial release by the IRS or EOUSA.
On this record, the Court finds that the agencies demonstrated that each released such "reasonably segregable" information as was not intertwined with exempt portions.
IV
Summary judgment is GRANTED as to all defendants except the FBI. Mr. Carbe shall have until September 10, 2004, to file a response to the FBI's motion for summary judgment, should he elect to do so. The FBI may file a reply within three weeks of Mr. Carbe's response, i.e., no later than October 1, 2004, should it elect to do so. Any outstanding motions not addressed in this opinion are denied as moot with the exception of the FBI's motion for summary judgment. A separate Order accompanies this Memorandum Opinion.
ORDER
For the reasons stated in the Memorandum Opinion separately and contemporaneously issued this 12th day of August, 2004, it is hereby
ORDERED that Motion for Summary Judgment filed by Milton E. Carbe [dkt. no. 14] is DENIED; and it is
FURTHER ORDERED that the Motion for an In-Camera Inspection filed by Mr. Carbe [dkt. no. 45] is DENIED; and it is
FURTHER ORDERED that the Motion for Summary Judgment filed by the United States Customs Service [dkt. no. 17] is GRANTED; and it is
FURTHER ORDERED Motion for Summary Judgment filed by the Internal Revenue Service [dkt. no. 21] is GRANTED; and it is
FURTHER ORDERED that the Motion for Summary Judgment filed by the Bureau of Alcohol, Tobacco and Firearms, the Executive Office for United States Attorneys, the Federal Bureau of Prisons, the United States Marshals Service, and the United States Postal Service [dkt. no. 30] is GRANTED; and it is
FURTHER ORDERED that the Motion for Summary Judgment filed by the Drug Enforcement Administration [dkt. no. 46] is GRANTED; and it is
FURTHER ORDERED that Mr. Carbe shall file an opposition to the Federal Bureau of Investigation's Motion for Summary Judgment [dkt. no. 52] by September 10, 2004, and that the Federal Bureau of Investigation may file a reply no later than October 1, 2004; and it is
FURTHER ORDERED that any outstanding motions not addressed in this Order are denied as moot with the exception of the FBI's motion for summary judgment.