Peeler v. Justice
Filing
28
ORDER granting 23 Motion for Summary Judgment. Please see attached Ruling for details. Signed by Judge Robert N. Chatigny on 9/30/2013. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUSSELL PEELER,
:
Plaintiff,
:
V.
:
U.S. DEPARTMENT OF JUSTICE,
:
Defendant.
CASE NO. 11cv1370 (RNC)
:
RULING AND ORDER
Plaintiff Russell Peeler, a Connecticut inmate proceeding
pro se, brings this action pursuant to the Freedom of Information
Act ("FOIA"), 5 U.S.C. § 552.
The case arises from a FOIA
request the plaintiff submitted to the Drug Enforcement
Administration ("DEA"), seeking records relating to an
investigation. The Department of Justice ("DOJ") has moved for
summary judgment (ECF No. 23) on the ground that it has satisfied
its obligation under FOIA to conduct an adequate search for the
requested records.
For reasons that follow, the motion is
granted.
I. Background
The undisputed facts, taken from the parties' Local Rule 56
statements and attached exhibits, are as follows.
By letter
dated May 26, 2011, plaintiff made a FOIA request to the DEA for
"all the phone calls to and from Target [telephone number] (203)
373-0780 on 1-07-1999."
Def.'s Ex. A (ECF No. 23-4).
The
plaintiff attached a document identified as a DEA "Calls Database
1
Listing" for the target number.
Id.
On June 17, 2011, the DEA
sent a letter to the plaintiff acknowledging receipt of his
request.
The letter stated that because the plaintiff was
seeking investigative records located in various field offices,
his request involved "unusual circumstances" and the DEA would
require additional time to respond.
See Def.'s Ex. B (ECF No.
23-4).
On July 18, 2011, plaintiff contacted the Office of
Government Information Services ("OGIS") to "express his
"concern[] about the DEA's delay in responding to [his] request."
Pl.'s Ex. D (ECF No. 26-2) at 14.
The Director of OGIS responded
that "[d]elays, while regrettable, are not unusual in the FOIA .
. . process."
The Director added that the DEA had informed OGIS
that the plaintiff's request was being processed and that "a
search [had] identified one responsive file, which must be
retrieved from a field office."
Id.
On July 26, 2011, plaintiff sent a letter to the DOJ
complaining about the DEA's delay in responding to his FOIA
request.
See Def.'s Ex. C (ECF No. 23-4).
After receiving no
response, plaintiff filed this action on August 30, 2011,
alleging that "It's been beyond thirty business days since my
FOIA was received" and that the DEA "has been particularly
dilatory in seeking to address my FOIA request."
1) at ¶ 3.
Compl. (ECF No.
Plaintiff asked the Court to "instruct the
2
defendant[] to adhere to [FOIA] and turn over the requested
information."
Id.
On September 13, 2011, DOJ's Office of Information Policy
("OIP") notified the plaintiff that it was treating his July 26,
2011 letter as an administrative appeal challenging the DEA’s
handling of his FOIA request.
See Def.'s Ex. D (ECF No. 23-4).
Plaintiff responded that he did not request an appeal and was
still waiting for a response to his FOIA request from the DEA.
See Def.'s Ex. E (ECF No. 23-4).
On October 13, 2011, OIP
informed the plaintiff it had contacted the DEA and been advised
that his request was being processed.
Def.'s Ex. F (ECF No. 23-
4).
The DEA responded to plaintiff's FOIA request by letter on
December 1, 2011, notifying him that no records responsive to his
request "for a complete listing of all incoming and outgoing
calls to and from telephone number (203) 373-0780 on January 6,
1999 . . . could be located."
Def.'s Ex. G (ECF No. 23-4).
The
DEA sent another letter to the plaintiff on January 4, 2012,
correcting the search date to January 7, 1999.
No. 23-4).
Def.'s Ex. H (ECF
Plaintiff appealed to OIP on January 18, 2012.
Def.'s Ex. I (ECF No. 23-4).
By letter dated April 30, 2012, OIP
informed the plaintiff that because he had filed this suit it was
closing his appeal in accordance with 28 C.F.R. § 16.9 (a)(3).
Def.'s Ex. K (ECF No. 23-4).
3
On May 3, 2012, plaintiff filed an amended complaint in this
action and attached a DEA "Hot Number List," which he alleged
"demonstrated [that] a phone call [from (203) 373-0780] existed
on January 7, 1999."
Am. Compl. (ECF No. 18) at 5.
The DOJ
subsequently filed the present motion for summary judgment,
attaching in support a declaration summarizing the policies and
practices of the DEA and detailing the steps the agency took to
comply with plaintiff's FOIA request.
See Declaration of William
C. Little, Jr. ("Little Declaration") (ECF No. 23-3).
The signer
of the declaration, William C. Little, Jr., is a Senior Attorney
in the Administrative Law Section of the DEA charged with
reviewing FOIA matters.
The Little Declaration shos the following.
DEA maintains
telephone call information relating to criminal investigations in
case files in the agency's Investigative Reporting and Filing
System ("IRFS") and the "DEA Tolls" database.
17.
See id. at ¶ 16-
The DEA Tolls database consists of "telephone numbers,
records of incoming and outgoing telephone calls keyed to a
target telephone number, subscriber records and email data."
at ¶ 18.
Id.
This database can be searched electronically by
telephone number, subscriber name and address.
Id.
In
accordance with a National Archives and Records Administration
disposal schedule, toll information is destroyed ten years after
entry into the database.
Id. at ¶ 19.
4
The DEA construed plaintiff’s FOIA request as a request for
any and all records pertaining to phone calls to and from the
target number (203) 373-0780 on January 7, 1999.
Id. at ¶ 16.
A
November 11, 2011 query of the DEA Tolls database using this
telephone number yielded no results.
Id. at ¶ 19.
On May 17,
2012, the DEA also performed a search of the Narcotics and
Dangerous Drugs Information System ("NADDIS"), which is used by
the agency to index all the administrative, general and criminal
investigative files stored in the IRFS.
Id. at ¶¶ 20-23.
Information about a telephone number can be retrieved by entering
the number into NADDIS.
Id. at 22.
The May 17 query indicated
that the target telephone number was associated with only one
investigative file: DEA Investigative File No. CV-99-0008.
at ¶ 23.
Id.
Mr. Little proceeded to personally search that file
and found no record reflecting calls to or from the target
number.
Id. at ¶ 23-24.
In short, the Little Declaration shows
that DEA searched for the information sought by the plaintiff in
areas likely to contain responsive materials and no responsive
materials were found.
II.
Id. at 25.
Legal Standard
The FOIA provides that "any member of the public is entitled
to have access to any record maintained by a federal agency,
unless that record is exempt from disclosure under one of the
Act's nine exemptions."
A. Michael's Piano, Inc. v. F.T.C., 18
5
F.3d 138, 143 (2d Cir. 1994).
"A requester dissatisfied with the
agency's response that no records have been found may challenge
the adequacy of the agency's search by filing a lawsuit in the
district court after exhausting any administrative remedies."
Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999) (citing 5 U.S.C. § 552(a)(6)(A)(I) & (C)).
"As with all motions for summary judgment, summary judgment
in a FOIA action should be granted only if the moving party
'shows that there is no genuine issue as to any material fact and
the [moving party] is entitled to judgment as a matter of law.'"
Godaire v. U.S. Dept. of Justice, No. 3:10cv01266(MRK), 2011 WL
3047656, at *2 (D. Conn. July 25, 2011) (citing Fed. R. Civ. P.
56(a)).
To prevail on a motion for summary judgment in a FOIA
case, "the defending agency bears the burden of showing that its
search was adequate and that any withheld documents fall within
an exemption to the FOIA."
Carney v. Department of Justice, 19
F.3d 807, 812 (2d Cir. 1994).
The adequacy of the agency's
search is judged by a standard of reasonableness.
See Grand
Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999)
("[A]n agency's search need not be perfect, but rather need only
be reasonable.").
Affidavits may be used to obtain summary judgment in an
action under the FOIA.
185, 190 (2d Cir. 2012).
Long v. Office of Pers. Mgmt., 692 F.3d
To satisfy its burden at the summary
6
judgement stage, the defendant agency may rely on "[a]ffidavits
or declarations supplying facts indicating that the agency has
conducted a thorough search."
Carney, 19 F.3d at 812.
"This
means, for instance, that an agency affidavit or declaration must
describe in reasonable detail the scope of the search and the
search terms or methods employed."
Serv. Women's Action Network
v. Dep't of Def., 888 F. Supp. 2d 231, 240-41 (D. Conn. 2012);
see also Valencia-Lucena, 180 F.3d at 326 ("[T]he court may rely
on [a] reasonably detailed affidavit setting forth the search
terms and the type of search performed, and averring that all
files likely to contain responsive materials (if such records
exist) were searched.").1
presumption of good faith.
1999).
Agency affidavits are accorded a
Cuomo, 166 F.3d at 489 (2d Cir.
To rebut this presumption, the "plaintiff must make a
showing of bad faith on the part of the agency sufficient to
impugn the agency's affidavits or declarations."
Id.
The
presumption "cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents."
1
Id.
"An affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy Rule
56(e); there is no need for the agency to supply affidavits from
each individual who participated in the actual search." Carney,
19 F.3d at 814; see also Serv. Women's Action Network, 888 F.
Supp. 2d at 240-41 (D. Conn. 2012) (finding a declaration of a
"second line supervisor" who "doesn't seem to have actually
supervised the search, but seems to have been an attenuated
supervisor of a person who did" sufficient where declarant
provided a "thorough description of the search" and "reasons why
certain actions were taken").
7
(internal quotation marks omitted); see also Carney, 19 F.3d at
813 ("[S]omething more than [] bare allegations is needed.").
III.
Discussion
The DOJ moves for summary judgment on the ground that
its search was adequate.
In support of its motion, it relies on
the declaration of Mr. Little, who avers that he has worked with
FOIA matters since 1999, that he has received formal FOIA
training, and that he is "familiar with the DOJ and DEA policies,
practices and procedures regarding the administration of, and
processing and release of information requested under the FOIA."
See Little Decl. at ¶ 1-2.
His declaration describes the methods
the DEA uses to gather and store investigative information and
details the process the agency used to search for records
responsive to the plaintiff's request.
As shown by the Little
Declaration, a search was conducted of the DEA Tolls database and
the NADDIS index using the target telephone number and Mr. Little
personally searched investigative case file No. CV-99-0008, which
contained no responsive records.
The plaintiff contends that the DEA's search was inadequate
because the agency has failed to produce two documents he already
has in his possession: the "Calls Database Listing" attached to
his FOIA request showing that a call was made from the target
number on January 7, 1999, see Pl.'s Ex. B (ECF No. 26-2), and
the "Hot Numbers List" attached to his amended complaint showing
8
a call from the target number on the same date.
(ECF No. 26-2).
See Pl.'s Ex. C
He asserts that these documents "impugn[] the
government's affidavits" purporting to show that "there were no
responsive records."
26) at 4, 6.
Pl.'s Mem. in Opp'n to Summ. J. (ECF No.
The Little Declaration states that "there are a
number of factors that could explain why such records from 1999
were not located in the local database or DEA Tolls, . . .
includ[ing] not inputting such data into one or both systems
and/or purging."
Little Decl. at ¶ 25.
"When a plaintiff questions the adequacy of the search an
agency made in order to satisfy its FOIA request, the factual
question it raises is whether the search was reasonably
calculated to discover the requested documents, not whether it
actually uncovered every document extant."
SafeCard Services,
Inc. v. S.E.C, 926 F.2d 1197, 1201 (D.C. Cir. 1991).
Under this
standard, plaintiff's showing that the DEA's search failed to
discover the documents in his possession dating from 1999 is
insufficient to create a genuine issue of material fact as to the
adequacy of the search.
See id. ("Mere speculation that [other]
documents may exist does not undermine the finding that the
agency conducted a reasonable search."); Schoenman v. F.B.I., 763
F. Supp. 2d 173, 204 (D.D.C. 2011) ("Because the adequacy of a
FOIA search is generally determined not by the fruits of the
search, but by the appropriateness of the methods used to carry
9
out the search, . . . the mere fact that a particular document
was not found does not demonstrate the inadequacy of a search."
(internal quotation marks and citations omitted)); Ferguson v.
U.S. Dept. of Educ., No. 09 Civ. 10057(FM), 2011 WL 4089880, at
*10 (S.D.N.Y. Sept. 13, 2011) ("[A]n agency's search may be
sufficient under FOIA even if it does not uncover every record
that a plaintiff believes is relevant and likely to exist in the
agency's files."); Adamowicz v. I.R.S., 672 F. Supp. 2d 454, 462
(S.D.N.Y. 2009) aff'd, 402 F. App'x 648 (2d Cir. 2010)
("[F]ailure to return all responsive documents is not necessarily
inconsistent with reasonableness: an agency is not expected to
take extraordinary measures to find the requested records, but
only to conduct a search reasonably designed to identify and
locate responsive documents." (internal quotation marks
omitted)).
Indeed, this Court considered and rejected a similar
argument made by the plaintiff in a 2010 FOIA case.
See
Recommended Ruling (ECF No. 24) at 11, Peeler v. Myrick, No. 10
Civ. 540(RNC) ("[T]he plaintiff's belief that additional
responsive records exist does not render the DOJ's search
inadequate.").2
2
Plaintiff also appears to be arguing that the letter he
received from OGIS stating that a DEA "search identified one
responsive file, which must be retrieved from a field office,"
see Pl.'s Ex. D, contradicts the conclusion that there were no
responsive records. However, OGIS's representation that there
was one responsive file associated with number (203) 373-0780 is
entirely consistent with Little's declaration that "A NADDIS
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The Little declaration setting forth in reasonable detail
the scope of the search and the search terms and methods the DEA
employed demonstrates that the agency's search was reasonably
calculated to discover documents responsive to the plaintiff's
FOIA request.
See Penny v. U.S. Dep't of Justice, 712 F. Supp.
2d 18, 22 (D.D.C. 2010) (finding a DEA paralegal's declaration
that she searched the NADDIS index and found no responsive
records sufficient to demonstrate an adequate search, absent
"specific evidence calling into question the reasonableness of
the defendant's search efforts").
As plaintiff has submitted no
evidence sufficient to rebut the presumption of good faith the
Court must accord the Little Declaration, DOJ has met its burden
of showing that it is entitled to summary judgment.
IV. Conclusion
Accordingly, the motion for summary judgment (ECF No.
23) is hereby granted.
The Clerk may close the file.
So ordered this 30th day of September 2013.
/s/ RNC
Robert N. Chatigny
United States District Judge
query . . . indicated that the telephone number was associated
with a single investigative file–DEA Investigative File No. CV99-008." Little Decl. at ¶ 23.
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