BURNETT v. DOJ/DEA

Filing 17

MEMORANDUM AND OPINION. Signed by Judge Carl J. Nichols on March 31, 2021. (lccjn2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GERRY D. BURNETT,
Plaintiff,
v.

Civil Action No. 1:19-cv-00870 (CJN)

U.S. DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.

MEMORANDUM OPINION
In this suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and Privacy
Act, 5 U.S.C. § 552a, Gerry Burnett seeks to compel the Drug Enforcement Administration to
release records detailing the methods used to identify him in a controlled drug purchase and his
eventual criminal prosecution in 2012. See generally Compl., ECF No. 1. The DEA claims that
it has adequately searched for responsive records and produced non-exempt materials. See
generally Def.’s Cross-Mot. and Opp’n to Pl.’s Mot. for Summ. J., ECF No. 12 (“Def.’s Mot.”).
Both Parties have moved for summary judgment, id.; Pl.’s Mot. for Summ. J., ECF No. 10 (“Pl.’s
Mot.”), and Burnett has requested an in camera review of the withheld materials. Because the
government has conducted an adequate search and complied with its disclosure obligations, the
Court denies Burnett’s motions and awards summary judgment to the DEA in full.
I.

Background

On April 30, 2018, Gerry Burnett submitted a FOIA and Privacy Act request to the DEA
for

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[a f]ull copy of my search warrant (inventory sheet, etc.) for 1707 D St. S.E.
Washington, DC. Next, all methods of surveillance used in the investigation of
Gerry D. Burnett and 1707 D St. S.E. (cell site simulator—Stingray, Triggerfish,
etc.) specifically between 9/15/11—9/29/11, full discovery. Also, what method
was used to identify Gerry Burnett as the “unidentified mail” [sic] over by the jail
during the 1st controlled buy on 9/16 referenced in the DEA-6.
See generally Compl.; Def.’s Mot. Ex. A, ECF No. 12-1 (“FOIA Request”). The request also cited
the docket number of the criminal prosecution that resulted in Burnett’s conviction. See generally
Compl.; FOIA Request.

After receiving assurances that DEA was handling his request as

“expeditiously as possible” but being provided no date upon which he would receive a substantive
response, Burnett filed this suit on March 27, 2019. See generally Compl. On November 8, 2019,
DEA responded to Burnett’s request, releasing the file for his arrest and prosecution as well as
additional records responsive to his request. See Decl. of Angela D. Hertel ¶ 13, ECF No. 12-1
(Hertel Decl.). In total, the DEA released four pages in full, released forty-one pages with
redactions, and withheld five pages in full. Id. DEA asserted that its redactions and withholdings
were made under Privacy Act Exemption (j)(2) and FOIA Exemptions 6, 7(C), 7(D), 7(E), and
7(F). Id. ¶¶ 13, 18–20. Burnett moved for summary judgment, arguing that the DEA had not
conducted an adequate search and contesting its invocations of the claimed exemptions. See
generally Pl.’s Mot. The DEA cross-moved for summary judgment on the basis that it had
complied with all of its disclosure obligations. See generally Def.’s Mot.
II.

Legal Standard

Summary judgment is appropriate when “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). “FOIA . . . mandates that an agency disclose records on request, unless they fall within one
of nine exemptions.” Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011). “FOIA mandates a
‘strong presumption in favor of disclosure,’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
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26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991))—so much
so that FOIA “expressly places the burden ‘on the agency to sustain its action’ and directs the
district courts to ‘determine the matter de novo,’” U.S. Dep’t of Justice v. Reps. Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III.

Analysis

A. The Search’s Adequacy
Burnett first contests the adequacy of the government’s search, asserting that “they possibly
did no search at all.” Pl.’s Mot. at 1.
“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.” Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 4 (D.C. Cir. 1999) (internal quotation omitted). “The agency
must show that it made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Id. at 326
(internal quotation and alterations omitted). “The agency cannot limit its search to only one or
more places if there are additional sources that are likely to turn up the information requested.” Id.
(internal quotations omitted). “In a suit seeking agency documents—whether under the Privacy
Act or FOIA—at the summary judgment stage, where the agency has the burden to show that it
acted in accordance with the statute, the 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.” Chambers v. U.S. Dep’t of Interior,
568 F.3d 998, 1003 (D.C. Cir. 2009) (internal quotations omitted).
The DEA explained its search methodology in a declaration by Angela Hertel, the unit
chief who oversees FOIA/Privacy Act processing.
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See Hertel Decl. ¶¶ 1–2, 16–17.

That

declaration explains that all DEA investigative records are maintained in the agency’s
Investigative Reporting and Filing System (“IRFS”). Id. ¶ 6. An individual is identified in the
IRFS index system by name, Social Security Number, or date of birth. Id. ¶ 9. Hertel’s declaration
indicates that, because it interpreted Burnett’s request as “seeking records associated with the
search warrant issued for 1707 D Street, S.E., Washington, D.C., records associated with any
surveillance conducted on [Burnett] and the [1707 D Street address] from September 15, 2011 to
September[] 29, 2011, and records discussing [Burnett’s] involvement in a ‘controlled buy’ on
September 16, 2011,” id. ¶ 16, DEA searched IRFS by querying the index system using Burnett’s
name, id. ¶ 14. As for Burnett’s request for “the methods used to surveil” him and his address and
to identify him during the “controlled buy,” DEA asserts that it need not respond to those requests
because they are merely questions posed as FOIA requests. Id. ¶ 17.
Burnett lodges two challenges to the adequacy of DEA’s search. See Pl.’s Mot. at 1. First,
he argues that the DEA “possibly did no search at all” because the released documents can be
pulled from public records. Pl.’s Mot. at 1. Second, he argues that the search was inadequate
because it did not address his “surveillance issues,” id., and that his request was “a statement or a
command[,] not a question.” Pl.’s Resp. to Def.s Mot. at 1, ECF No. 13 (“Pl.’s Resp.”).
But each of Burnett’s challenges misses the mark. Although in some circumstances a FOIA
plaintiff may point to the availability of public records to demonstrate that an agency cannot
withhold the documents pursuant to a statutory exemption, see, e.g., Blanton v. Dep’t of Just., 64
F. App’x 787, 789 (D.C. Cir. 2003), the mere public availability of certain documents does not
evidence an inadequate search. And as for Burnett’s contention that his request for information
regarding surveillance was a proper request for records, not a question, the form of his submission
is irrelevant. FOIA does not require federal agencies to provide information; it requires them to

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release records. See 5 U.S.C. § 552(b); see also Jean-Pierre v. BOP, 880 F. Supp. 2d 95 (D.D.C.
2012) (request for name of guard who gave order, reason for order, and date of conversation
between employees was not valid request because complainant was seeking “specific pieces of
information rather than records”). Burnett’s requests for “methods of surveillance” and the
“method used to identify” him, FOIA Request at 1, are requests for information, not for records.
Having answered each of Burnett’s objections, the DEA has sufficiently demonstrated that
its search was “a good faith effort . . . using methods which can be reasonably expected to produce
the information requested,” Valencia-Lucena, 180 F.3d at 326, and is entitled to summary
judgment on that question.
B. Privacy Act Exemption (j)(2)
That leaves the question of whether the DEA is required to produce any of the material
located in its search but withheld or redacted pursuant to a statutory exemption. As a preliminary
matter, the DEA argues that it is not obligated make any disclosures pursuant to the Privacy Act
because all of the relevant materials are contained in a system that is exempted from the Act’s
disclosure provisions. Hertel Decl. ¶¶ 18–20.
The Privacy Act permits a qualifying agency to exempt, by rule, records systems from the
Act’s disclosure requirements if they consist of
(A) information compiled for the purpose of identifying individual criminal
offenders and alleged offenders and consisting only of identifying data and
notations of arrests, the nature and disposition of criminal charges, sentencing,
confinement, release, and parole and probation status; (B) information compiled for
the purpose of a criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or (C) reports
identifiable to an individual compiled at any stage of the process of enforcement of
the criminal laws from arrest or indictment through release from supervision.
5 U.S.C. § 552a (j)(2). As an agency that “performs as its principal function any activity pertaining
to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime
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or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon,
or parole authorities,” the DEA may exempt such systems. Id. Because the DEA has properly
promulgated regulations exempting its records database from the Privacy Act’s disclosure
provisions, see Hertel Decl. ¶¶ 19–20 (citing 28 C.F.R. § 16.98), the DEA properly withheld
materials pursuant to Privacy Act Exemption (j)(2).
C. FOIA Exemptions
The Court next turns to the DEA’s redactions and withholdings under FOIA Exemptions
6, 7(C), 7(D), 7(E), and 7(F). Hertel Decl. ¶¶ 13, 22–42. To prevail on a FOIA exemption claim,
an agency must demonstrate “that each document that falls within the class requested . . . is wholly
exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365,
368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable Television Ass’n v.
FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). Although the Court examines the facts and inferences
in the light most favorable to the requester, an agency may satisfy its burden to prove the
applicability of an exemption by affidavit. Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.
2009). Summary judgment is warranted when the affidavits “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Id. (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C.
Cir. 1984)). Declarations supporting an agency’s motion for summary judgment “are accorded a
presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” Pinson v. U.S. Dep’t of Justice, 160 F. Supp.
3d 285, 293 (D.D.C. 2016) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991)). Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it

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appears “logical” or “plausible.” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370,
374–75 (D.C. Cir. 2007)).
FOIA authorizes agencies to withhold qualifying information if disclosure would risk any
of several enumerated harms. 5 U.S.C. § 552(b). To justify its withholdings here, the DEA
invokes Exemption 6 and four prongs of Exemption 7 by arguing that release of the withheld
information might (1) constitute an unwarranted invasion of personal privacy (Exemptions 6 and
7(C)); (2) disclose the identity of confidential sources or information furnished by confidential
sources (Exemption 7(D)); or disclose law enforcement techniques or procedures and increase the
risk of (3) evasion of law enforcement (Exemption 7(E)) or (4) harm to any individual (Exemption
7(F)). Burnett appears to challenge the applicability of each exemption and requests an in camera
review of the withheld information. See Pl.’s Mot. at 1–2; Pl.’s Resp. at 1–2.
1. Exemptions 6 and 7(C)
Exemption 6 protects from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). To invoke Exemption 6, an agency’s explanation “must show that the
documents come from the type of files that are statutorily protected, and must also show that, on
balance, the public interest in disclosure does not outweigh the personal privacy interest of the
individual who is the subject of the file.” Allen v. Dep’t of Def., 658 F. Supp. 15, 21 (D.D.C. 1986)
(citing Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976)). In a similar vein, Exemption
7(C) covers law enforcement records that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C). When evaluating an agency’s
invocation of Exemption 7(C), the Court generally defers to the agency’s claim that the
information is compiled for law enforcement purposes, Pub. Emps. for Envtl. Responsibility v.

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U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195, 203 (D.C. Cir. 2014),
and examines whether the agency has sufficiently demonstrated that disclosure “could reasonably
be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C).
But even when disclosure implicates private interests, the government may be required to
disclose documents if the individual seeking the information demonstrates
a public interest in the information that is sufficient to overcome the privacy interest
at issue. In order to trigger the balancing of public interests against private interests,
a FOIA requester must (1) show that the public interest sought to be advanced is a
significant one, an interest more specific than having the information for its own
sake, and (2) show the information is likely to advance that interest. If the public
interest is government wrongdoing, then the requester must produce evidence that
would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.
Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 386–87 (D.C. Cir. 2007) (internal quotation
marks and citations omitted).
The DEA has explained that its withholdings under Exemptions 6 and 7(C) included
information that could be used to identify law enforcement personnel and third parties, including
confidential informants. Hertel Decl. ¶¶ 26–27.1 It further contends that there is no public interest
that outweighs the privacy interests of the individuals discussed or mentioned in those reports. Id.
¶ 28. Burnett’s public-interest challenge to this argument fails because he does not proffer any
evidence that could reasonably indicate impropriety. See Boyd, 475 F.3d at 386–87.

In particular, DEA explained that the withheld information consisted of “names of law enforcement personnel, their
initials, names of third-party individuals, telephone numbers and addresses, fugitive declarations, vehicle registrations
that could be used to identify third-parties, signatures of law enforcement personnel, [index system information], DEA
routing information that would reveal law enforcement personnel, criminal associates, information derived from
sources of information, confidential source numbers, and the like.” Hertel Decl. ¶¶ 26–27.
1

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2. Exemption 7(D)
The DEA next invokes Exemption 7(D) to withhold information that would likely reveal
the location and identity of confidential sources or information furnished by those sources. Hertel
Decl. ¶¶ 29–32. Exemption 7(D) applies to law enforcement information that
could reasonably be expected to disclose the identity of a confidential source . . .
and, in the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation, information furnished by a
confidential source.
5 U.S.C. § 552(b)(7)(D). Here, the DEA has explained that it applied Exemption 7(D) to
information about or provided by confidential sources involved in the investigation into Burnett’s
illegal activities. Hertel Decl. ¶ 29. It asserts that those informants acted with an understanding
of confidentiality and that disclosure of the withheld information could jeopardize DEA operations
or threaten confidential sources and their family members. Id. ¶ 32. Burnett proffers no specific
objection to any of these claims. See generally Pl.’s Resp.
3. Exemption 7(E)
DEA next explains its withholding of information that would reveal investigative
techniques and increase the risk of circumvention of the law. Hertel Decl. ¶¶ 33–37.
Exemption 7(E) applies when law enforcement records “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). It “sets a relatively low bar for the agency
to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “[T]he exemption
looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual
or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally

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expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected
risk, but for the chance of a reasonably expected risk.” Mayer Brown LLP v. IRS, 562 F.3d 1190,
1193 (D.C. Cir. 2009). “Rather than requiring a highly specific burden of showing how the law
will be circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how
the release of the requested information might create a risk of circumvention of the law.” Id. at
1194 (internal quotation and alterations omitted). Moreover, as the Court of Appeals stated in
connection with another law-enforcement agency,
[b]ecause the FBI specializes in law enforcement, its decision to invoke exemption
7 is entitled to deference. [The] court’s deferential standard of review is not,
however, vacuous. If the FBI relies on declarations to identify a law enforcement
purpose underlying withheld documents, such declarations must establish a rational
nexus between the investigation and one of the agency’s law enforcement duties
and a connection between an individual or incident and a possible security risk or
violation of federal law. If the declarations fail to supply facts in sufficient detail to
apply the . . . rational nexus test, then a court may not grant summary judgment for
the agency.
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (internal quotations and
citations omitted).
Here, the DEA has explained that it withheld information concerning investigative
reporting procedures that document criminal activity, including information about meetings with
confidential sources and acquisition of other evidence, as well as information indicating “the
classification of [specific suspects], the types and amount of suspected drugs involved, the priority
of the investigation, and the suspected location and scope of criminal activity.” Hertel Decl. ¶ 35.
As for the risk of circumvention of law enforcement, the DEA contends that, if disclosed, the
information would enable criminal suspects to “change their patterns of drug trafficking . . . to
respond to what they determined the DEA knows about them, develop enforcement

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countermeasures, avoid detection and apprehension, [and] create [excuses or] alibis for suspected
activities.” Id.
4. Exemption 7(F)
In addition to the exemptions discussed above, the DEA invokes Exemption 7(F) to
withhold “names of DEA Special Agents, other law enforcement personnel, [and] individuals
involved in criminal investigations” contained within “DEA Form 6s, the search warrant, and
[arrest and seizure reports].” Hertel Decl. ¶ 39.
Exemption 7(F) protects against the disclosure of law enforcement information that “could
reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C.
§ 552(b)(7)(F). “The exemption does not require that a particular kind of individual be at risk of
harm; ‘any individual’ will do. Disclosure need not definitely endanger life or physical safety; a
reasonable expectation of danger suffices.” Pub. Emps. for Envtl. Responsibility, 740 F.3d at 205.
Here, the DEA has explained that disclosing the names of individuals involved in drug
investigations could result in “harassment, reprisal or physical retaliation” against those
individuals—and notes that such dangers have been realized on several occasions. Hertel Decl.
¶¶ 41–42. Plaintiff makes no serious effort to respond to this quite reasonable argument.
*

*

*

All of the DEA’s explanations for the invoked exemptions are reasonably detailed, logical,
and plausible. See Larson, 565 F.3d at 862 (quoting Wolf, 473 F.3d at 374–75). The Court
therefore concludes that it has properly made and justified those invocations.
D. Segregability
Even when parts of a document are protected by a FOIA exemption, “non-exempt portions
of a document must be disclosed unless they are inextricably intertwined with exempt portions.”

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Mead Data Cent. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Courts have
an “affirmative duty” to consider whether any non-exempt segregable material can be released.
Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007). Agencies are entitled to a presumption that
they complied with the obligation to disclose reasonably segregable material, Boyd v. Crim. Div.
of the U.S. Dep’t of Justice, 475 F.3d 381, 382 (D.C. Cir. 2007), and the Court may rely on agency
affidavits that show with reasonable specificity why documents withheld pursuant to a valid
exemption cannot be further segregated, see Armstrong v. Exec. Off. of the President, 97 F.3d 575,
578 (D.C. Cir. 1996).
Of the fifty pages of records responsive to Burnett’s request, the DEA contends that it
released four pages in their entirety, released forty-one pages with redactions, and withheld five
pages in full. Hertel Decl. ¶ 43. As to the five pages withheld in full, the DEA asserts that it
withheld pages entirely only when all of the information was withheld pursuant to an applicable
exemption and/or would “provide no useful information, or incomprehensible words or phrases
that would not shed any light on how the Government conducts business.” Id. It avers it examined
each page to determine whether there was (and if so, produced) any reasonably segregable
information. Id. ¶ 44. Burnett does not argue that the DEA failed to adequately segregate and
produce non-exempt information. The Court therefore finds that the DEA has complied with its
obligations to produce any non-exempt information that may reasonably be segregated for release.
5. In Camera Review
On a final note, Burnett requests that the Court review the withheld information in camera.
See Pl.’s Resp. at 1–2. While FOIA does permit the Court to review records in camera “to
determine whether such records or any part thereof shall be withheld under any of the exemptions,”
5 U.S.C. § 552(a)(ii)(4)(B), such review is often unnecessary. The Court of Appeals has set forth

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criteria for determining the need for such review, including: (1) judicial economy, (2) the
conclusory nature of the agency affidavits, (3) possible bad faith on the part of the agency, (4)
whether the agency proposes in camera review, (5) disputes concerning the content of the
document, and (6) the strong public interest in disclosure. See Allen v. CIA, 636 F. 2d 1287, 1297–
99 (D.C. Cir. 1980), abrogated on other grounds by Founding Church of Scientology v. Smith, 721
F.2d 828 (D.C. Cir. 1983). Here, Burnett’s mere speculation that the DEA may have engaged in
some impropriety, see generally Pl.’s Mot.; Pl.’s Resp., cannot form the basis for in camera review,
see Elgabrowny v. CIA, No. 17-cv-00066, 2020 WL 1451580, at *11 (D.D.C. Mar. 25, 2020)
(citing DiViaio v. Kelley, 571 F.2d 538, 543 (10th Cir. 1978) (finding that if courts were to conduct
an in camera review each time a requester alleged the possibility of untruthfulness or existence of
nonexempt material, an in camera review would be required in every FOIA case, which is “clearly
not what congress intended”)). And because the DEA has adequately justified its search and
production (and because there is no evidence that it engaged in impropriety) in camera review is
unwarranted.
IV.

Conclusion

The DEA has demonstrated that it conducted an adequate search for records responsive to
Burnett’s request, has provided reasonably detailed justifications for its withholdings, and has
produced any non-exempt information that may reasonably be segregated. The Court therefore
denies Burnett’s Motion for Summary Judgment and grants summary judgment for the DEA in
full. An Order will be entered contemporaneously with this Memorandum Opinion.

DATE: March 31, 2021
CARL J. NICHOLS
United States District Judge
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