RIOS v. UNITED STATES OF AMERICA

Filing 41

MEMORANDUM OPINION AND ORDER denying 35 Defendant's Motion to Dismiss or for Summary Judgment; directing Defendant to propose a schedule by August 9, 2017 (see document for details). Signed by Judge Tanya S. Chutkan on 7/31/17.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALEX RIOS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Civil Action No. 15-cv-1183-TSC

MEMORANDUM OPINION AND ORDER
In this action filed pro se, Plaintiff Alex Rios sues the United States under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. He challenges the Drug
Enforcement Administration’s (“DEA”) responses to his initial request for records
pertaining to an investigation of a DEA Special Agent (“third-party records”) and his
expanded request for records pertaining to himself (“first-party records”). 1
Before the court is Defendant’s Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (ECF No. 35). DOJ contends that Plaintiff failed to
exhaust his administrative remedies by (1) providing the special agent’s authorization
or proof of his death, and (2) certifying his own identity to enable a search for firstparty records. Plaintiff does not dispute that he failed to provide the requested thirdparty documentation, but DEA has nonetheless conducted a search and found no

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DEA is a component of the Department of Justice (“DOJ”). Although Plaintiff has named the
United States as the sole defendant, FOIA actions are properly brought against U.S. agencies. See
Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 100 (D.D.C. 2012) (discussing “proper
party defendant” to FOIA complaint). Therefore, the court considers DOJ to be the proper
defendant.
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responsive records. In addition, the record establishes that Plaintiff has in fact
complied with the agency’s identity certification requirement. Consequently, for the
reasons explained more fully below, Defendant’s motion will be DENIED.
I. BACKGROUND
On February 2, 2015, Plaintiff requested essentially all DEA records “regarding
the investigation and ‘misconduct’ of DEA Agent Bruce D. Lange within the Northern
District of Texas.” (Decl. of William C. Little, Jr., ¶ 11 and Ex. A, ECF No. 35-2).
In a letter dated March 3, 2015, with the subject line “Information regarding Third
Party – DEA Special Agent Bruce D. Lange,” DEA informed Plaintiff that before
processing his request, it needed either proof of Lange’s death “or an original
notarized authorization (DOJ Form 361 and Third Party Release Statement) from
[Lange].” (Id., Ex. B at 1). Otherwise, it could neither confirm nor deny the
existence of responsive records, any such records would be exempt from disclosure
under FOIA exemptions 6, 7(C), 7(D), and 7(F). (Id.). DEA further informed
Plaintiff that if no response was received within 30 days, it would administratively
close the request. (Id. at 2).
On March 7, 2015, Plaintiff replied that he had a “particularized need for the
requested information,” having learned two years after his criminal trial that Lange
was himself “under investigation for allegations of criminal activities while on duty as
a DEA Agent during the time of [Plaintiff’s] criminal investigation and trial[.]”
(Little Decl., Ex. C at 2). Plaintiff included purported “evidence” of Lange’s
“numerous” violations of the DEA Manual and Code of Ethics. (Id. at 2-3). DEA
responded on April 8, 2015, reiterating why it could not yet process Plaintiff’s request

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for third-party records. It explained that it was not required to conduct a search for
responsive records without proof of Lange’s death or his notarized authorization, and
added that any responsive records “would be categorically exempt from disclosure”
under FOIA exemption 7(C) for personal privacy reasons. (Id., Ex. D at 1). DEA
assured Plaintiff that it would initiate a search upon its receipt of the requested
documentation, and it informed him that he had 30 days from the original March 3,
2015 date to provide the documentation. It also informed Plaintiff that its fee
structure afforded him “two (2) hours of search and 100 pages of duplication at no
charge,” and that he would be provided an estimate of processing fees beyond that
threshold once his request was “perfected.” (Id. at 2).
On April 18, 2015, Plaintiff appealed DEA’s denial of third-party records,
which the Office of Information Policy (“OIP”) received on May 6, 2015. On June
15, 2015, OIP affirmed DEA’s decision to neither confirm nor deny the existence of
responsive records in the absence of “consent, proof of death, official
acknowledgment of an investigation, or an overriding public interest,” and informed
Plaintiff of his right to sue. (Little Decl., Ex. G). OIP cited FOIA exemptions 6 and
7(C), and added, “to the extent that such records exist, they would be protected from
disclosure” under FOIA exemption 7(F). (Id. at 1).
Plaintiff filed this action in July 2015. In a letter dated March 1, 2016, DEA
informed Plaintiff that “during the course of the litigation review,” it discovered “that
certain information related to . . . Lange and his employment with DEA is in the
public realm. As a consequence, a search for records to your request may be
conducted.” (Id., Ex. H). DEA then identified various deficiencies in Plaintiff’s

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February 2, 2015, request, some of which it advised “can be overcome, but not all.”
(Id. at 3). In addition, DEA informed Plaintiff that based on the “breath [sic] and
scope” of his “request as currently construed,” the search could take as long as 27
hours, and estimated the search fee alone to be $1,000 (after exhaustion of the first
two hours of free search time). DEA further informed Plaintiff that pursuant to DOJ
regulations, a requester without a payment history must “pay the entire anticipated
fee” before a search begins if the estimated fee exceeds $250. (Id).
On March 30, 2016, Plaintiff submitted a “reformulated request with specifics”
and suggested “it might be that the standard 2 hour afforded to each requestor is
enough” to commence a search, but regardless, his wife would be sending “the initial
$250.00 fee.” (Id., Ex. I). The reformulated request sought “reports, rough notes,
302’s that mention[ ] Alex Romo Rios as a suspect in Case No. 5:07 CR-022-1-c.,
Northern District of Texas, Lubbock Division,” and essentially all records “that
became the basis” of Lange’s alleged removal from his position as a DEA Special
Agent. (Id. at 1). Plaintiff included a citation to a Merit Systems Protection Board
(“MSPB”) proceeding and offered that the requested information about Lange “would
be found in the above Docket Number.” (Id.).
In a May 10, 2016 letter, DEA informed Plaintiff that it could not “comply with
[his] request at this time.” (Little Decl., Ex. J at 1). It explained that Plaintiff’s
reformulated request had “not narrowed the scope of the search” but in fact expanded
it in several ways. Furthermore, because Plaintiff had added a request for his records,
he needed to complete a “Certification of Identity, DOJ 361” form, which was
enclosed. (Id. at 2).

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DEA also informed Plaintiff that the records he sought about himself were not
“reasonably describe[d]” to permit staff “to locate responsive records with a
reasonable amount of effort.” (Id.) It explained that (1) DEA does not create or
prepare “302’s,” (2) DEA’s records are not indexed “by reference to a criminal case or
. . . MSPB docket number, and (3) the request “describe[d] records that relate to
actions taken by other agencies or DOJ components.” (Id. at 2-3). DEA listed contact
information for the FBI, which it advised may maintain “302’s,”; the Executive Office
for United States Attorneys “[f]or records associated with a criminal case”; the DOJ
Office of the Inspector General “[f]or records associated with actions taken [there]”;
and MSPB “[f]or records associated with an MSPB Docket[.]” (Id.)
Finally, DEA further explained why the estimated $1,000 search fee “still holds
true for records related” to Lange. (Id. at 3). It “reject[ed]” as inadequate Plaintiff’s
offer to pay $250 and again suggested that he narrow his request. DEA concluded
“[i]f the Certification of Identity is not received and the elections are not made within
the next 30 days, DEA will assume you no longer wish that a search be conducted.”
(Id.).
On June 6, 2016, Plaintiff responded with a reformulated request, referencing
possible documents that he claimed may be found in the Office of Professional
Responsibility. (Id., Ex. K). In a letter dated August 8, 2016, DEA reminded
Plaintiff that he had “been afforded the opportunity to rectify deficiencies in your
request for [Lange’s records], to make elections regarding the systems you wanted
searched and to pay the estimated fee,” but had “not fully availed yourself of the
opportunity.” (Little Decl., Ex. L at 1). It informed Plaintiff that as “currently

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construed,” his request as to Lange sought records “referenced in” an “MSPB Initial
Appeal File (IAF). However, an agency is not required to conduct research or obtain
records from another agency to satisfy a FOIA request[.]” (Id.). Nevertheless, “at
[Plaintiff’s] insistence,” DEA searched “litigation files maintained by the DEA Office
of Chief Counsel” for the MSPB IAF “referenced in the MSPB Opinion and Order”
that Plaintiff had provided; it located no responsive records. (Id. at 1-2). DEA
informed Plaintiff that the foregoing search had exhausted the two hours of free time,
and that he would need to pay an estimated search fee of $160 for the search to
continue. (Id. at 2).
On August 15, 2016, Plaintiff filed yet another reformulated request “based on
information gleaned from an Initial Decision” of the MSPB. (Ex. M to Little Decl.,
“Second Reformulated FOIA/PA Request”). He included his date and place of birth
and his social security number “[i]n order to assist [DEA] in identifying me.” In
addition, Plaintiff declared under penalty of perjury pursuant to 28 U.S.C. § 1746 that
the information in the request was true and correct. (Id. at 4). In a letter dated
November 22, 2016, DEA interpreted the request as seeking (1) “documents
generated, created, prepared, processed or handled by the DEA in relation to
[Plaintiff’s] criminal case,” and (2) MSPB “disciplinary proceedings against Agent
Lange to the extent those proceedings involve, directly or indirectly [Plaintiff’s]
criminal case.” (Id., Ex. N). DEA again informed Plaintiff that it could not process
the request for his records because “it fails to meet the requirements of DOJ Agency
Rules.” (Id., Ex. N). DEA explained:
Under DOJ Agency Rules, when making a request for access to records
about one’s self, an individual must verify their identity, state their full
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name, current address, and date and place of birth, sign their request
and their signature must either be notarized or submitted by them under
28 U.S.C. § 1746, a law that permits statements to be made under
penalty of perjury as a substitute for notarization. See 28 C.F.R. §
16.41(d). Without the required information, DEA cannot search for or
release any records that may be responsive to your request. A DOJ
Certification of Identity, DOJ 361, is enclosed for your convenience.
(Id. at 1-2).
As to the request for records connecting Lange’s MSPB proceedings with
Plaintiff’s criminal case, DEA explained initially that the request was “not a
reasonable description of a record under FOIA, since it requires a subjective legal
determination regarding what records would be responsive. Information such as the
date, title or name of the record, DEA case number, a DEA file designation, or
reference number, however, would assist.” (Ex. N at 3). According to DEA, the
“passages” Plaintiff supplied from the MSPB decision may support the existence of
records, but those would not be “sufficient to allow DEA personnel to locate those
records with a reasonable amount of effort.” (Id.). Nevertheless, DEA reminded
Plaintiff of its unsuccessful search for the MSPB IAF, and again suggested that
Plaintiff contact the MSPB directly. (Id).
During the course of this litigation, “DEA acquired [and reviewed] the
complete MSPB opinion and orders relevant to the case to which plaintiff referred,”
discovered that “the administrative agency actions taken against . . . Lange [were]
reversed,” and thus concluded “that the release of information by MSPB did not
support the release of any information held by DEA that could relate to any alleged
misconduct of . . . Lange.” (Id. ¶¶ 39-40). “Currently, DEA is awaiting the

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certification of identity from plaintiff which will allow DEA to inform him of any fee
required to search for information that pertains to him.” (Id. ¶ 44).
II. LEGAL STANDARD
Because the court will rely on matters beyond the pleadings, it will proceed
under the standards for summary judgment. See Fed. R. Civ. P. 12(d). Summary
judgment may be granted 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be
rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed. R.
Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in the record.” Fed. R.
Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome
of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’
do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895
(quoting Liberty Lobby, 477 U.S. at 248). An issue is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. See id.
“FOIA provides a ‘statutory right of public access to documents and records’
held by federal government agencies.” Citizens for Responsibility & Ethics in
Washington v. DOJ, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v.
Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies
comply with requests to make their records available to the public, unless such
“information is exempted under [one of nine] clearly delineated statutory language.”

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Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b). An agency is
generally required to disclose only those records that are in its custody and control at
the time of the FOIA request, McGehee v. Central Intelligence Agency, 697 F.2d
1095, 1110 (D.C. Cir. 1983), and only upon receiving a “request for records which (i)
reasonably describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed[.]” 5 U.S.C. §
552(a)(3)(A). But if the agency receives no FOIA request, or one that does not
comply with its published rules, it “ ‘has no reason to search or produce records[.]’ ”
Johnson v. United States, ___ F. Supp. 3d ___, ___, 2017 WL 883779, at *4 (D.D.C.
Mar. 6, 2017) (quoting Carbe v. Bureau of Alcohol, Tobacco and Firearms, No. 03CV-1658, 2004 WL 2051359, *8 (D.D.C. Aug. 12, 2004)). Moreover “when an
agency does not possess or control the records a requester seeks, the agency’s nondisclosure does not violate FOIA because it has not “withheld” anything.” DiBacco v.
U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015). In deciding whether an agency has
fulfilled its disclosure obligations, “the court shall determine the matter de novo . . .
and the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B).
III. ANALYSIS
Defendant contends that it is entitled to judgment as a matter of law because
“Plaintiff has not exhausted his administrative remedies and DEA has sent several
correspondences requesting additional information from plaintiff.” (Def.’s Mem. at
4). “Exhaustion of administrative remedies is generally required before seeking
judicial review ‘so that the agency has an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support its decision.’ ” Wilbur

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v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (quoting Oglesby v. United States Dep't of
the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). Although exhaustion under FOIA is not
a jurisdictional requirement, “failure to exhaust precludes judicial review” if
proceeding on an unexhausted claim would undermine the purposes and policies
underlying the exhaustion requirement. Id.; see Bayala v. United States Dep't of
Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 35 (D.C. Cir. 2016) (exhaustion
is not jurisdictional “but instead can be a substantive ground for rejecting a FOIA
claim in litigation”). Such is not the case here.
In contrast to DEA’s November 23, 2016 declaration that Plaintiff “has failed
to certify his identity[,] [d]espite being provide[d] a DOJ Certification of Identity,
DOJ Form 361,” Little Decl. ¶ 42, the record reveals that Plaintiff in fact complied
with the identity verification rule three months before the declaration was executed.
The rule provides in relevant part:
Verification of identity. When you make a request for access to records
about yourself, you must verify your identity. You must state your full
name, current address, and date and place of birth. You must sign your
request and your signature must either be notarized or submitted by you
under 28 U.S.C. 1746, a law that permits statements to be made under
penalty of perjury as a substitute for notarization. . . . [N]o specific
form is required[.] . . . In order to help the identification and location
of requested records, you may also, at your option, include your social
security number.
28 C.F.R. § 16.41(d) (emphasis added). At the conclusion of his second reformulated
request dated August 15, 2016, which contained Plaintiff’s prison address, Plaintiff
stated “[i]n order to assist you in identifying me, I hereby advise you that I was born
on December 20, 1959, in Lubbock Texas” and added his social security number.
Moreover, Plaintiff signed the request with his full name and provided his declaration

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pursuant to 28 U.S.C. § 1746. (Little Decl., Ex. M). Because the regulation requires
“no specific form,” the fact that Plaintiff failed to execute DOJ Form 361 is of no
material consequence. Therefore, DEA’s motion with respect to Plaintiff’s request for
first-party records is denied, and DEA should now process Plaintiff’s August 15, 2016
Second Reformulated FOIA/PA Request and “inform him of any fee required to search
for information that pertains to him.” (Little Decl. ¶ 44).
As for Plaintiff’s request for records pertaining to Lange, DOJ “has a
decentralized system for responding to FOIA requests[.]” 28 C.F.R. § 16.3(a)(1). The
regulation governing third-party records provides:
Where a request for records pertains to a third party, a requester may
receive greater access by submitting either a notarized authorization
signed by that individual or a declaration made in compliance with the
requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof
that the individual is deceased (e.g., a copy of a death certificate or an
obituary). As an exercise of administrative discretion, each component
can require a requester to supply additional information if necessary
in order to verify that a particular individual has consented to
disclosure.
28 C.F.R. § 16.3(a)(4) (emphasis added). Nowhere in its response to the second
reformulated request did DEA reassert the need for Lange’s authorization or proof of
his death, and the text of the controlling regulation does not require it. (See Ex. N to
Little Decl., Nov. 22, 2016 letter). Instead, DEA reminded Plaintiff that a search in
August 2016 of its litigation files for certain records pertaining to Lange had
“consumed the two hours of search time afforded without charge.” (Id. at 3). And it
assessed Plaintiff an estimated fee of $160 to enable it to continue that search. (See
Ex. L to Little Decl., Aug. 8, 2016 letter at 2). Consequently, the court finds that
DEA’s changed position during the course of litigation has rendered the exhaustion
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defense moot, and “[t]here is no required administrative exhaustion process for
[DEA’s] in-court litigation decision. Bayala, 827 F.3d at 35-36. 2
Accordingly, it is
ORDERED that Defendant’s Motion to Dismiss or for Summary Judgment is
DENIED without prejudice; it is further
ORDERED that by August 9, 2017, Defendant shall propose a schedule to
govern further proceedings.
SO ORDERED.

Date: July 31, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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Both parties have strayed from the central question of whether agency records have been
improperly withheld. Going forward, the parties should heed the following. Because an agency
is responsible for disclosing only those records in its possession and control at the time of the
FOIA request, DEA has absolutely no obligation under FOIA to retrieve documents from MSPB
or any other agency or agency component. In addition, the FOIA imposes no duty on DEA “to
create records,” Forsham v. Harris, 445 U.S. 169, 186 (1980), or to answer what DEA has
reasonably interpreted to be questions regarding the relationship between Plaintiff’s criminal
proceedings and Lange’s MSPB proceedings. See Adams v. FBI, 572 F. Supp. 2d 65, 68 (D.D.C.
2008) (“Under [the] FOIA, an individual may obtain access to records ‘written or transcribed to
perpetuate knowledge or events.’ . . . [The] FOIA neither requires an agency to answer questions
disguised as a FOIA request, [n]or to create documents or opinions in response to an individual's
request for information.”) (quoting Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C.1985), aff'd, 808
F.2d 137 (D.C. Cir. 1987) (alterations in original)). A “withholding subject to review under the
FOIA occurs only when an agency component fails to produce [responsive] documents in its
‘custody’ or ‘control’ at the time of the FOIA request, Hicks v. Exec. Office for U.S. Attorneys, 12
F. Supp. 3d 25, 29 (D.D.C. 2013) (quoting McGehee, 697 F.2d at 1110), which also “may arise
from an agency’s failure to conduct an adequate search,” Maydak v. U.S. Dep't of Justice, 254 F.
Supp. 2d 23, 44 (D.D.C. 2003). See Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 514 (D.C. Cir. 2011) (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”) (citation and internal quotation marks omitted)).
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