AGURS v. UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION et al

Filing 17

MEMORANDUM AND OPINION. Signed by Judge Rudolph Contreras on 12/17/14. (ms, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
DAMON B. AGURS, SR.,
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE, et al., )
)
Defendants.
)
___________________________________ )

Civil Action No. 14-0188 (RC)

MEMORANDUM OPINION
This matter is before the Court on Defendants’ Motion for Summary Judgment [ECF No.
14]. 1 The motion is unopposed, and for the reasons stated below, it will be granted.
Plaintiff submitted a request under the Freedom of Information Act (“FOIA”), see 5
U.S.C. § 552, to the United States Department of Justice (“DOJ”) for “a copy of the Title III
interception of electronic communication approval letters and all other documents that are part of
the electronic surveillance for [five] telephone numbers” provided by plaintiff. Def.’s Statement
of Facts As To Which There Are No Genuine Issues (“SOMF”) ¶ 1. The Criminal Division
initially denied plaintiff’s request in full on the ground that the requested records were exempt
from disclosure pursuant to FOIA Exemption 3, id. ¶ 3, and this determination was affirmed on
administrative appeal to the DOJ’s Office of Information Policy, id ¶ 5.

1

Also before the Court is a Motion for Leave to Supplement Defendants’ Summary Judgment
Motion [ECF No. 16]. The motion will be granted.
1

“[N]otwithstanding its categorical[] withholding under Exemption 3, the Criminal
Division . . . search[ed] for records responsive to [p]laintiff’s FOIA request and processed them
under the FOIA.” Id. ¶ 7. Its searches of “the database used to track federal prosecutors’
requests for permission to apply for court[] authorization to surreptitiously intercept
conversations of person[s] allegedly involved in criminal activity . . . and . . . the database
containing archived emails of Criminal Division employees” yielded responsive records. Id. The
Criminal Division withheld certain of these records or portions of records under FOIA
Exemptions 5, 6 and 7(C), id. ¶ 10; see Mem. of P. & A. in Support of Def.s’ Mot. for Summ. J.,
Decl. of Peter C. Sprung (“Sprung Decl.”), Ex. H (Vaughn Index). Among the responsive
records were documents originating from other DOJ components. Pursuant to 28 C.F.R. §
16.4(c)(2), (d), the Criminal Division referred Title III applications to the Executive Office for
United States Attorneys (“EOUSA”) and referred agent affidavits to the Federal Bureau of
Investigation (“FBI”). SOMF ¶ 11; see Sprung Decl. ¶ 39. The EOUSA and the FBI since
“have consented to release of all the documents that were referred to them,” and on December 9,
2014, the Criminal Division sent these documents (totaling 1,094 pages) to plaintiff at his current
place of incarceration. Mot. for Leave to Supplement Defs.’ Summ. J. Mot. [ECF No. 16], Supp.
Sprung Decl. ¶ 3 & Ex. (Index of Released Documents). The declarant averred that all
reasonably segregable information has been released. See Sprung Decl. ¶¶ 40-41; Supp. Sprung
Decl. ¶ 3.
On October 15, 2014, the Court issued an Order [ECF No. 15] advising plaintiff of his
obligations under the Federal Rules of Civil Procedure and the local rules of this Court to
respond to the motion. Specifically, the Court warned plaintiff that, if he failed to file an
opposition to the motion by November 14, 2014, the motion would be treated as conceded. To

2

date, plaintiff has neither filed an opposition to the motion nor requested an extension of time.
For purposes of this Memorandum Opinion, the above facts are deemed admitted. See LCvR
7(h)(1) (“In determining a motion for summary judgment, the court may assume that facts
identified by the moving party in its statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues.”).
Although the Court may treat defendants’ unopposed motion as conceded, see LCvR
7(b), summary judgment is warranted only if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Alexander v. FBI, 691 F. Supp. 2d 182, 193 (D.D.C. 2010) (“[E]ven where a summary
judgment motion is unopposed, it is only properly granted when the movant has met its
burden.”). Here, defendants have met their burden. The Criminal Division’s declarant
adequately has explained: (1) the searches for records responsive to plaintiff’s FOIA request, see
Spring Decl. ¶¶ 14-23; (2) the withholding of records under FOIA Exemptions 5, 6, and 7(C),
see id. ¶¶ 30-38; the release of all reasonably segregable information, see id. ¶¶ 40-41; and the
referral of records to the EOUSA and the FBI, see id. ¶ 39, and their subsequent release to
plaintiff in full, see Supp. Sprung Decl. ¶ 3. Accordingly, the Court will grant summary
judgment in defendants’ favor. An Order is issued separately.

DATE: December 17, 2014

/s/
RUDOLPH CONTRERAS
United States District Judge

3