Rodriguez v. U.S. Dept. of Justice Drug Enforcement Administration FOI Records Management

Filing 22

ORDER granting 12 Motion for Summary Judgment; denying 16 Motion for Summary Judgment. Signed by Judge George C. Smith on 6/29/15. (lvw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSE RODRIGUEZ,
Plaintiff,
v.

Case No.: 2:14-cv-173
JUDGE SMITH
Magistrate Judge King

DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.

OPINION AND ORDER
This matter is before the Court upon the cross-motions for summary judgment by
Plaintiff, Jose Rodriguez (“Plaintiff”), and Defendant, the Department of Justice, Drug
Enforcement Administration (“DEA”). The DEA moved for summary judgment as to all of
Plaintiff’s claims (Doc. 12). Plaintiff responded to the DEA’s motion with a Cross-Motion for
Summary Judgment (Doc. 16).

The DEA replied in support of its motion (Doc. 18) and

responded to Plaintiff’s motion (Doc. 19). Additionally, Plaintiff replied in support of his
motion (Doc. 20). For the following reasons, the DEA’s motion is GRANTED and Plaintiff’s
motion is DENIED.
I.

BACKGROUND

This dispute concerns Freedom of Information Act (“FOIA”) requests made by Plaintiff
to the DEA following Plaintiff’s arrest and subsequent conviction on drug trafficking charges in
Wood County, Ohio. See State v. Rodriguez, 6th Dist. Wood No. WD-08-013, 2009-Ohio-4280.

Due to the nature of Plaintiff’s FOIA request, a review of both the facts underlying Plaintiff’s
conviction and the subject case are necessary.
A. Plaintiff’s Underlying Criminal Conviction and Initial Requests for Exhibits N-3
and N-4
Plaintiff was arrested on June 1, 2007 by the Wood County Sherriff’s Office for
possession of marijuana and trafficking in marijuana.

(See Doc. 16, Ex. A, Report of

Investigation at 130-133). Two audio/video recordings were made the night of Plaintiff’s arrest,
Exhibit N-3 taken by the “Beowulf” recorder, and Exhibit N-4 taken by the “Falcon” recorder.
(Id. at 131). Plaintiff has limited his FOIA requests to copies of Exhibit N-3 and Exhibit N-4.
Exhibit N-3 is an audio and/or video recording made by the Beowulf recorder placed on
Saul Ramirez, a confidential source. (Id.). Exhibit N-4 is an audio and/or video recording made
by the Falcon recorder fitted to Mark Apple, an Investigator with the Ohio Attorney General’s
Office. (Id.). Both recordings were turned on at approximately 12:47 a.m. on June 1, 2007.
(Id.). The recordings capture the conversations that Apple and Ramirez had with Luis Melendez,
as well as other events and conversations on June 1, 2007. (Id.). Melendez is an acquaintance of
Plaintiff who offered to sell 80 pounds of marijuana to Investigator Apple. (Id.).
According to the Investigation Report provided by Plaintiff, during the meeting between
Apple, Ramirez, and Melendez, Plaintiff stayed in the vicinity of Apple, Ramirez, and Melendez
although there is no indication he was involved in the conversation. (Id.). At the conclusion of
the meeting, Plaintiff approached the confidential source and Apple, and told Apple, “let’s get
going, because there are a lot of cops in the area.” (Id. at 132). Plaintiff was pulled over shortly
after the conversation between Investigator Apple and Melendez.

(Id. at 133).

Plaintiff,

Melendez, and a passenger in Melendez’s car, Kyle Tolka, were all arrested for marijuana
possession and trafficking. (Id.). At 1:25 a.m., the recorders were turned off. (Id.).

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Plaintiff attempted to suppress the evidence obtained during the traffic stop at the trial
court, but the court denied his motion.

Rodriguez, 2009-Ohio-4280 at ¶ 5.

At trial, five

witnesses testified against Plaintiff: 1) Investigator Apple; 2) Mike Ackley, a Wood County
Sherriff’s Deputy; 3) Ramirez; 3) Melendez; and 4) Tolka. Id. at ¶ 16. In addition to the witness
testimony, Plaintiff alleges Exhibit N-4 was played at his trial. He does not claim Exhibit N-3
was played at his trial.
Plaintiff appealed his original conviction, asserting that his original stop, search, and
arrest were unlawful, and that the trial court improperly denied his motion for acquittal.
Rodriguez, 2009-Ohio-4280 at ¶¶ 2–4. The court of appeals upheld his conviction, finding that
there was probable cause for the original stop of Plaintiff’s vehicle and that there was sufficient
evidence presented at his trial to affirm his conviction. Id. at ¶¶ 10, 25, and 26.
In May 2010, after his unsuccessful appeal of his conviction, Plaintiff first sought
Exhibits N-3 and N-4 from the state agencies involved in his arrest, the Ohio Bureau of Criminal
Investigations and Identifications (“BCI&I”), the Wood County Sheriff’s Office, and the Wood
County Clerk of Courts Office. BCI&I refused to release any records to Plaintiff. The Wood
County Sheriff’s Office provided a supplemental police report and statements compiled by the
police, but refused to provide the recordings to Plaintiff. According to Plaintiff, the Wood
County Clerk of Courts provided a copy of Exhibit N-4 to Plaintiff on May 27, 2010. Plaintiff
argues the version provided to him is the version introduced at his trial and that it ends twelve
minutes prior to when the Investigative Report states the recorders were turned off. Thus, he
alleges Exhibit N-4 was altered or had portions deleted prior to its introduction at trial.
Plaintiff appealed his administrative denials on July 21, 2010, in the Wood County Court
of Common Pleas. State v. Rodriguez, 6th Dist. Wood No. WD-10-062, 2011-Ohio-1397. After

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the trial court denied his request, Plaintiff appealed the trial court decision to the Sixth District
Court of Appeals. Id. The court affirmed the trial court decision, finding the information sought
was not material to any pending proceeding under Ohio Revised Code § 149.43(B)(8). Id. at ¶ 8.
The court noted that Plaintiff had already exhausted his direct appeal and the evidence against
Plaintiff in his criminal case “was overwhelming.” Id.
Plaintiff also filed an action under 42 U.S.C. § 1983 against certain key players in his
arrest and subsequent conviction in the Northern District of Ohio. Rodriguez v. Apple, No. 3:11
CV 1108, 2011 WL 3843874, at *1 (N.D. Ohio Aug. 30, 2011). The Court dismissed Plaintiff’s
Complaint because his claim was a collateral attack on his conviction and he had no injury
“distinct of being convicted and imprisoned.” Id. at *3.
B. History of the Subject FOIA Requests
Plaintiff now seeks Exhibits N-3 and N-4 from the DEA. On February 22, 2012, Plaintiff
submitted an FOIA request to the DEA for “[a]ll audio and/or video recordings related to Jose
Rodriguez (D.O.B. xx-xx-1963) taken in Wood County Ohio in May/June 2007.” (See Doc. 12,
Ex. A, Myrick Decl. at ¶ 5; Doc. 12, Ex. A-A, Allen Letter to DEA). Katherine Myrick, Chief of
the FOIA and Privacy Unit and FOIA (“SARF”)1 and Records Management Section exchanged
detailed communication with Plaintiff’s counsel, Eric Allen regarding the requests. (See Doc.
12, Ex. A-C, Myrick Letter to Allen #2). SARF is an office of the DEA “responsible for the
receipt, processing and release of DEA information requested,” under the FOIA. (See Doc. 12,
Ex. A, Myrick Decl. at ¶ 1).
A SARF FOIA Specialist conducted a search in the DEA database using Plaintiff’s name
and date of birth. (See Doc. 12, Ex. A, Myrick Decl. at ¶ 19). The search returned one

1

The Court uses the abbreviation provided to it by the DEA to maintain continuity.

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investigative case file which the SARF investigator then requested from the DEA field office.
(Id.). Myrick identified Exhibit N-3 and Exhibit N-4 in an August 1, 2012 letter to Allen. (See
Doc. 12, Ex. A-C, Myrick Letter to Allen #2). Myrick notified Allen that the original recordings
were transferred to another Agency, the Wood County Sherriff’s Department, but that the DEA
did locate a copy of Exhibit N-3. (Id.). The DEA did not locate any original audio or video
recording in the case file or office evidence system through its search. (See Doc. 12, Ex. A,
Myrick Decl. at ¶ 20). The DEA did not produce Exhibit N-3 pursuant to four enumerated
exceptions in FOIA and an exemption in the Privacy Act. (Id. at ¶ 7).
On October 17, 2012, Plaintiff’s counsel administratively appealed the decision to
withhold Exhibit N-3 in a letter to Anne Work of the Department of Justice. (See Doc. 12, Ex.
A-D, Allen Letter to Work). On April 30, 2013, Sean O’Neill, the Chief of the Administration
Appeals Staff affirmed the decision to withhold Exhibit N-3. (See Doc. 12, Ex. A-F, O’Neill
Letter to Allen). This lawsuit followed.
Although the DEA withheld or redacted other information, Plaintiff asserts that this case
only concerns Exhibit N-3 and Exhibit N-4. The DEA asserts that it withheld all information
properly under FOIA Exemptions 7(C), 7(D), 7(E), and 7(F). The DEA further argues that
Plaintiff’s Motion for Summary Judgment should be denied because Plaintiff filed his motion six
weeks after the Dispositive Motion Deadline without Court approval. Plaintiff asks this Court to
conduct an in camera review of these exhibits because he contends that the disclosure of Exhibit
N-3 and Exhibit N-4 will expose a “cover up” by the government. Plaintiff also asks for
leniency regarding the timeliness of his motion due to his pro se status and a prisoner.

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II.

STANDARD OF REVIEW

Both parties moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate “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). The Court’s purpose in considering a summary judgment motion is
not “to weigh the evidence and determine the truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A
genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient
evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not
significantly probative,” however, is not enough to defeat summary judgment. Id. at 249-50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Cox v. Kentucky Dep’t of
Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce
evidence that results in a conflict of material fact to be resolved by a jury”). In considering the
factual allegations and evidence presented in a motion for summary judgment, the Court must
“afford all reasonable inferences, and construe the evidence in the light most favorable to the
nonmoving party.” Id.

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That the parties have filed cross-motions for summary judgment does not alter the
Court’s standard of review. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.
1991) (“[T]he standards upon which the court evaluates the motions for summary judgment do
not change simply because the parties present cross-motions.”). Thus, in reviewing crossmotions for summary judgment, the Court must still “evaluate each motion on its own merits and
view all facts and inferences in the light most favorable to the non-moving party.” Wiley v.
United States, 20 F.3d 222, 224 (6th Cir. 1994).
III.

DISCUSSION

The parties have filed cross motions for summary judgment regarding Plaintiff’s FOIA
requests and the DEA’s subsequent denials. The DEA argues that it only has one of the two
exhibits requested in its possession and that it properly withheld the exhibit pursuant to 5 U.S.C.
§ 552(b)(7). Plaintiff claims that both exhibits should be released to him because one of the
exhibits was played at his trial and because both exhibits contain information relating to him.
In order for subject matter jurisdiction to exist in a FOIA lawsuit, the Plaintiff must
demonstrate three components: that the agency “(1) improperly (2) withheld (3) agency records.”
Kissinger v. Reporters Comm. for Freedom of the Press 445 U.S. 136, 150 (1980). “Agency
possession of the requested documents is ‘an indispensable prerequisite to liability in a suit under
the FOIA.’” Vonderheide v. IRS, No. 98-4277, 1999 U.S. App. LEXIS 28518, *3, 9 (6th Cir.
October 29, 1999) (quoting Kissinger, 445 U.S. at 155).
Once subject matter jurisdiction is established, the FOIA requires this Court to review the
DEA’s denial of Plaintiff’s FOIA requests de novo. 5 U.S.C. § 552(a)(4)(B). “In response to a
FOIA request, an agency must make a good faith effort to conduct a search for the requested
records using methods reasonably expected to produce the requested information,” and “the

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burden is on the agency to establish the adequacy of its search.” Rugiero v. U.S. Dept. of Justice,
257 F.3d 534, 547 (6th Cir. 2001) (citation omitted). Under the FOIA, “an agency may not
withhold or limit the availability of any record, unless one of the FOIA’s specific exceptions
applies.” Id. at 543 (citing 5 U.S.C. § 522(d)). “These exceptions are to be narrowly construed,
and the burden is on the agency to justify its action.” Id. (citing 5 U.S.C. § 552(a)(4)(B))
(internal citations omitted).
A.

Plaintiff’s Claim Regarding Exhibit N-4 Lacks Subject Matter Jurisdiction
Regarding Exhibit N-4, the DEA has presented evidence that it does not possess Exhibit

N-4. (Doc. 12, Ex. A, Myrick Decl. ¶ 20; Doc. 12, Ex. A-C, Myrick Letter to Allen #2).
Collectively, the Myrick Letter to Allen and the Myrick Declaration clearly show that although
the DEA identified Exhibits N-3 and N-4 in its search, the DEA could only find a producible
copy of Exhibit N-3. (Id. at ¶ 20.). The Myrick Declaration further states that the original audio
and video recordings were turned over to the Wayne County Sheriff’s Office and is supported by
Myrick’s letter to Plaintiff’s counsel. (Id.; Doc. 12, Ex. A-C, Myrick Letter to Allen #2). Thus,
there is no genuine issue of material fact that the DEA does not possess Exhibit N-4 in any form.
Where the agency does not possess the requested information, there is no subject matter
jurisdiction in this Court. Vonderheide, 1999 U.S. App. LEXIS at *3. Accordingly, Plaintiff’s
claims regarding Exhibit N-4 are dismissed for lack of subject matter jurisdiction.
B.

Adequacy of the DEA’s Search
Plaintiff does adequately allege facts supporting subject matter jurisdiction regarding

Exhibit N-3. Thus, the Court must determine if the search described by the DEA was adequate.
Rugiero, 257 F.3d at 547.

Provided there is no “countervailing evidence or apparent

inconsistency of proof,” the DEA may demonstrate the adequacy of the search through affidavits
or declarations “that provide reasonable detail of the scope of the search.” Id. (citation omitted).
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The DEA provided the Declaration of Katherine Myrick to support the scope and
mechanics of the search performed by the DEA. Plaintiff’s request was directed to SARF, the
appropriate DEA office. (Doc. 12, Ex. A, Myrick Decl. at ¶ 1). Myrick properly construed
Plaintiff’s request as a request for any audio and/or video recordings made in May or June 2007.
(Id. at ¶ 11).
SARF conducted a search for Plaintiff through the Narcotics and Dangerous Drugs
Information System (“NADDIS”). (Id. at ¶ 18). NADDIS is an index used by the DEA to
retrieve investigative reports and information from the DEA Investigative Reporting and Filing
System (“IRFS”).

(Id. at ¶ 17).

IRFS contains all administrative, general, and criminal

investigative files compiled by the DEA. (Id. at ¶ 14). The cases in NADDIS are indexed using
the names, dates of birth, and social security numbers of the subject of an investigation. (Id. at
¶ 18). As a result of the NADDIS search using Plaintiff’s name and date of birth, SARF found
one investigative case file containing information regarding Plaintiff. (Id. at ¶ 19). SARF
contacted the DEA field office that maintained the case file and asked the field office to search
the file for information related to Plaintiff. (Id.). A disposition form noted that the DEA turned
over the original audio and video recordings related to Plaintiff to the Wayne Count Sherriff’s
Office. (Id. at ¶ 20).
Plaintiff has provided no countervailing evidence relating to the search procedure.
Further, although Plaintiff does allege inconsistency in other portions of the Myrick Declaration,
he does not allege—nor has the Court found—any inconsistency in Myrick’s Declaration that
would undermine the DEA’s evidence regarding the adequacy of the search. Accordingly, the
Court finds that DEA has met its burden of proving the adequacy of its search.

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C.

The DEA’s Claimed Exemptions
The second question before the Court in these motions for summary judgment is whether

the DEA appropriately withheld Exhibit N-3 pursuant to one of the FOIA’s specific exemptions.
The Court must make this determination by reviewing the declaration that justifies the
withholding of documents and determining whether the justifications given are reasonable and
consistent with the law governing application of FOIA’s exemptions. Rugiero, 257 F.3d at 552.
The Act’s exemptions are narrowly construed. Id. at 543 (citations omitted). The agency has the
burden of demonstrating that the materials sought were properly withheld or restricted due to an
exemption. Vaughn v. United States, 936 F.2d 862, 866 (6th Cir. 1991) (citation omitted).
The DEA contends that Exhibit N-3 was withheld subject to 5 U.S.C. § 552(b)(7):
records or information compiled for law enforcement purposes. Plaintiff does not challenge that
the records requested were compiled for law enforcement purposes. This does not end the
inquiry because only certain categories of records compiled for law enforcement purposes are
exempt under the FOIA. Specifically, the DEA claims that Exemptions 7(C), 7(D), 7(E), and
7(F) apply to Exhibit N-3.

Law enforcement records are only exempt under 5 U.S.C.

§ 552(b)(7)(C)–(F) if the records:
(C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy;
(D) could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, 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;
(E) 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; or

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(F) could reasonably be expected to endanger the life or physical safety of any
individual;
5 U.S.C. § 552(b)(7). Although the DEA claims that Exhibit N-3 falls under each of the four
stated exemptions, a review of only Exemption 7(D) is necessary for the determination of this
case.
Exception 7(D) applies when a requested document “could reasonably be expected to
disclose the identity of a confidential source . . . which furnished information on a confidential
basis, and . . . information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). Thus, a
government agency can exclude a document under Exception 7(D) if itcould reasonably be
expected to disclose the identity of a confidential source OR if the document contains
information furnished by a confidential source. Foster v. U.S. Dep’t of Justice, 933 F. Supp.
687, 692–93 (E.D. Mich. 1996). Even if a confidential source is eventually revealed, public
access to documents under this section is still restricted “so long as the informant and the agency
intended the identity of the source to remain undisclosed at the time the agency compiled the
information.” Rugiero, 257 F.3d at 551. “[T]he agency must provide assurances that sources in
fact received promises of confidentiality before withholding information under section
552(b)(7)(D).” Id. at 552. “This exemption does not involve a balancing of public and private
interests; if the source was confidential, the exemption may be claimed regardless of the public
interest in disclosure.” Jones v. F.B.I., 41 F.3d 238, 247 (6th Cir. 1994). However, if a tape
containing information subject to Exception 7(D) was played during an informant’s testimony,
the tape cannot be withheld. Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir.
1992).
There is no dispute that Exhibit N-3 contains information regarding a confidential source.
The Myrick Declaration notes that the DEA codes a confidential informant or source as a CI,

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SOI, or CS. (Doc. 12, Ex. A, Myrick Decl. at ¶¶ 42, 44). The Declaration attests that such a
source was identified in documents responsive to Plaintiff’s request. (Id.). Additionally, in the
Report of Investigation by Mark Apple, Apple reports the “Beowulf recorder was turned on and
place[d] on the CS.” (See Doc. 16, Ex. A, Report of Investigation at 131). As Myrick noted,
“CS” is an identification code for a coded informant who is cooperating with the DEA under a
written cooperative agreement. (Doc. 12, Ex. A, Myrick Decl. at ¶ 42). Thus, Exemption 7(D)
applies in this case.
The Court finds no evidence that would serve to undermine the DEA’s claim of
Exemption 7(D). Plaintiff’s two arguments against the claimed exemption do not remove the
protections afforded to the DEA by Exemption 7(D). First, Plaintiff argues the tape should be
produced because it was played at his trial. But Plaintiff alleges no facts demonstrating that
Exhibit N-3 was ever played at his trial. All of his allegations and evidence clearly show that if
any tape was played at his trial, it was Exhibit N-4 as recorded on the Falcon recorder. Notably,
Plaintiff states that in response to a request for audio/video recordings, the Wood County Clerk
of Courts, “responded [by] providing a copy of the Falcon video and audio recording introduced
as evidence to the trial court and court of appeals in case No. 07-CR-0212 and 0215.” (See Doc.
16, Pl. Mot. Sum. J. at 114). Plaintiff provides no evidence suggesting that Exhibit N-3 was
played at his trial. Accordingly, Exemption 7(D) still applies to the production of Exhibit N-3.
Second, Plaintiff claims disclosure is necessary because information relating to him was
captured on Exhibit N-3 and that the exhibit should thus be turned over by the DEA. But,
regardless of whether the Beowulf Recorder or Exhibit N-3 captured information relating to
Plaintiff, there is no question of material fact that Exhibit N-3 contains information provided by a
confidential informant under 5 U.S.C. 522(b)(7)(D). Nor is there any evidence that Exhibit N-3

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was played at Plaintiff’s trial. Accordingly, the Court finds that the DEA’s withholding of
Exhibit N-3 was proper under Exception 7(D).
IV.

CONCLUSION

Based on the foregoing, Defendant’s Motion for Summary Judgment is GRANTED and
Plaintiff’s Motion for Summary Judgment is DENIED.
The Clerk shall REMOVE Documents 12 and 16 from the Court’s pending motions list.
The Clerk shall enter final judgment in favor of Defendant and REMOVE this case from the
Court’s pending cases list.

IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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