BRESTLE v. LAPPIN

Filing 70

MEMORANDUM OPINION accompanying the final order issued separately this day. Signed by Judge Barbara Jacobs Rothstein on 10/3/13.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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GARY CHARLES BRESTLE,
Plaintiff,
v.
HARLEY LAPPIN,
Defendant.
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Civil Action No. 11-1771 (BJR)

MEMORANDUM OPINION
On June 20, 2013, the Court granted summary judgment to the defendant in this Freedom
of Information Act (“FOIA”) case on the adequacy of the search for responsive records and the
claimed exemptions but found that it had insufficient information to make the requisite
segregability finding. See June 20, 2013 Mem. Op. and Order [Dkt. # 46] at 14-16 (citing
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)). Defendant was ordered
(1) to clarify whether it had actually withheld information pertaining to “techniques and
procedures,” as was mentioned by the declarant, id. at 14, and (2) to explain the withholding of
“large blocks of information” under FOIA exemption 7(C). Id. at 14-15.
Defendant’s Response
In response to the Order, defendant has proffered the Supplemental Declaration of
Christine Greene [Dkt. # 62-1]. Ms. Greene attributes the reference to techniques and
procedures in her initial declaration to “scrivener’s error,” and she has confirmed that “[n]o
[such] information was withheld.” Id. at 2 & ¶ 4.

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As for the application of exemption 7(C), Ms. Greene admits that this exemption “was
used too extensively,” id. ¶ 8, and that only “insular words, i.e., the names and other identifying
factors” should have been redacted under exemption 7(C). Id. ¶ 9. Ms. Greene states that the
previous release was “reassessed,” id. ¶ 10, and that “[t]his error has been corrected and the
properly redacted pages have been released to [plaintiff].” Id. 9. Ms. Greene has included as
Attachment A the pages that were re-released to plaintiff on September 3, 2013. The Court finds
from Ms. Greene’s supplemental declaration and its examination of the redacted pages that
defendant has released all reasonably segregable portions of responsive pages to plaintiff.
Plaintiff’s Pending Motions
Also pending are plaintiff’s three contested motions, each of which will be denied for the
following reasons.
First, plaintiff seeks leave to file a supplemental memorandum [Dkt. # 55], but he has not
proffered the proposed document. Regardless, as defendant has observed, plaintiff’s assertions
in support of the motion “merely reiterate[] a variant” of his public interest argument that the
Court has already rejected. Def.’s Mem. of P & A in Opp’n to Pl.’s Mot for Leave to File
Supplemental Mem. at 2; see Mem. Op. at 10-12. The Court finds no basis for allowing plaintiff
to supplement the record with a futile argument.
Second, plaintiff moves to compel the production of documents responsive to a FOIA
request dated March 9, 2012, see Mot. to Compel [Dkt. # 58], Ex. 1, but defendant has correctly
countered that “this . . . request is neither at issue in nor a claim to the current action.” Def.’s
Mem. of P. & A. in Opp’n to Pl.’s Mot. to Compel at 1; see Mem. Op. at 1, 2 (identifying the
subject of this action as plaintiff’s FOIA request dated May 9, 2011).

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Third, plaintiff seeks relief under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 702, see Mot. Re: Relief, Unopposed by DOJ Under Title 5, United States Code, Section § 702
“APA” [Dkt. # 60], but judicial review under the APA is available when there is “no other
adequate remedy in a court.” 5 U.S.C. § 704. An APA claim predicated on wrongfully withheld
agency records “in connection with [a] discrete FOIA request[] . . . is precluded.” Nat’l Sec.
Counselors v. CIA, 898 F. Supp. 2d 233, 264 (D.D.C. 2012) (citing Kenney v. U.S. Dep't of
Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009)).
For the foregoing reasons, the Court will deny the plaintiff’s pending motions and will
now enter judgment for the defendant on all claims. A separate final order accompanies this
Memorandum Opinion.
_______________s/s____________
BARBARA JACOBS ROTHSTEIN
United States District Judge
DATE: October 3, 2013

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