UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL PENNY, : : Plaintiff, : Civil Action No.: 08-1666 (RMU) : v. : Re Document No.: 9 : U.S. DEPARTMENT OF JUSTICE, : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this civil action brought pro se under the Freedom of Information Act (“FOIA”),

, the plaintiff challenges the Drug Enforcement Administration’s (“DEA”) response

to his requests for records pertaining to himself, other individuals and certain real property. The

defendant moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil

Procedure 56.

Upon consideration of the parties’ submissions and the entire record, the court dismisses

without prejudice the plaintiff’s claims premised on his request for third-party records because

he failed to exhaust his administrative remedies with respect to those requests prior to

commencing suit. With respect to his remaining requests, however, the court denies the

defendant’s motion without prejudice because the defendant has not submitted a competent

affidavit demonstrating the reasonableness of its search efforts. II. FACTUAL & PROCEDURAL BACKGROUND

In September 2006, the plaintiff requested DEA records pertaining to himself, a search

warrant issued against him in August 1990, DEA agents who executed the search warrant and a

retired case agent who allegedly made a statement about the plaintiff. Def.’s Mot., Decl. of Leila

I. Wassom (“Wassom Decl.”), Ex. A. In addition, he also requested records pertaining to the

occupants at 4901 W. Congress, Chicago, Illinois, including himself and an individual named

Tammie Brown.

By letter dated June 1, 2007, the DEA informed the plaintiff that it could

not process his request for records pertaining to third parties without a notarized privacy waiver

or proof of death for each third party.

Ex. F. Subsequently, by letter dated June 6, 2007, the

DEA informed the plaintiff that its search for records pertaining to himself and the

aforementioned address returned no responsive records.

Ex. G. The DEA’s June 6 letter

invited the plaintiff to offer additional search criteria that he felt would assist in conducting a

more in-depth search and advised him of his right to appeal its determination to the Department

of Justice’s Office of Information and Privacy (“OIP”).

The plaintiff appealed to the OIP, which, by letter dated July 26, 2007, affirmed the

DEA’s determinations.

Exs. H, J. The plaintiff initiated this civil action on September 30,

2008. See generally Compl.

2 III. ANALYSIS

A. The Court Dismisses Without Prejudice the Plaintiff’s Claims Predicated on his Requests for Third-Party Records for Failure to Exhaust His Administrative Remedies

The defendant contends that because the plaintiff failed to exhaust his administrative

remedies with respect to his requests for records pertaining to third parties, the claims predicated

on those requests should be dismissed. Def.’s Mot. at 10-12. The plaintiff does not specifically

address this argument. See generally Pl.’s Opp’n. The plaintiff concedes, however, that he did

not provide the required third-party privacy waivers until several months after his administrative

appeal to the OIP was denied. Pl.’s Opp’n, Pl.’s Decl. ¶¶ 7-8, 15; Def.’s Mot. at 2.

“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 v. CIA,

(D.C. Cir. 2004) (quoting Oglesby v. Dep’t of the Army,

(D.C. Cir. 1990)). In

the FOIA context, the exhaustion requirement is a prudential consideration, not a jurisdictional

prerequisite, and therefore a plaintiff’s failure to exhaust does not deprive the court of subject-

matter jurisdiction.

But as a prudential consideration, the exhaustion requirement may still

bar judicial review if both (1) the administrative scheme at issue and (2) the purposes of

exhaustion support such a bar.

(citing Hidalgo v. FBI,

(D.C. Cir.

2003)). With regard to the first factor, the D.C. Circuit has concluded that the FOIA’s

3 administrative scheme supports barring judicial review.1

(citing Hidalgo,

).

As for the second factor, courts look to see whether barring judicial review would “prevent[]

premature interference with agency processes, so that the agency may function efficiently and so

that it may have an opportunity to correct its own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to compile a record which is adequate for judicial

review.” Weinberger v. Salfi,

(1975); see also Hidalgo,

(applying the Weinberger description of the purpose of exhaustion in the FOIA context).

In the instant case, the plaintiff has offered nothing to indicate that the defendant

withheld any third-party records after the plaintiff submitted the required privacy waivers. See

generally Compl.; Pl.’s Opp’n. To the contrary, it appears that the defendant has yet to formally

respond to the plaintiff’s requests for third-party records, as the defendant represents that it needs

time to “authenticate the privacy waivers and begin its search for the third-party information.”

Def.’s Mot. at 11. As a result, it would be premature at this juncture for the court to interfere

with the agency’s efforts to respond to the plaintiff’s requests. The court therefore dismisses

1 Specifically, the court has stated that

[t]he FOIA expressly requires that an agency receiving a request for information (i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal . . . . If the denial of the request is upheld on appeal, the agency must notify the person making such request of the provisions for judicial review of that determination . . . . As we have previously concluded, this statutory scheme requires each requestor to exhaust administrative remedies.

Hidalgo v. FBI,

(D.C. Cir. 2003) (internal quotations and citations omitted).

4 without prejudice the plaintiff’s claims predicated on his requests for third-party records based

on his failure to exhaust administrative remedies.

B. The Defendant Is Not Entitled to Summary Judgment on Claims Predicated on the Plaintiff’s Request for Non-Third Party Records

1. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

(1986);

Diamond v. Atwood,

(D.C. Cir. 1995). In deciding whether there is a

genuine issue of material fact, the court is to view the record in the light most favorable to the

party opposing the motion, giving the non-movant the benefit of all favorable inferences that can

reasonably be drawn from the record and the benefit of any doubt as to the existence of any

genuine issue of material fact. Adickes v. S.H. Kress & Co.,

(1970). To

determine which facts are “material,” a court must look to the substantive law on which each

claim rests. Anderson v. Liberty Lobby, Inc.,

(1986). A “genuine issue” is

one whose resolution could establish an element of a claim or defense and, therefore, affect the

outcome of the action. Celotex,

; Anderson,

.

The FOIA affords the public access to virtually any federal government record that FOIA

itself does not specifically exempt from disclosure.

; Vaughn v. Rosen,

(D.C. Cir. 1973). The FOIA confers jurisdiction on the federal district courts to order

the release of improperly withheld or redacted information.

(a)(4)(B). In a

judicial review of an agency’s response to a FOIA request, the defendant agency has the burden

5 of justifying nondisclosure, and the court must ascertain whether the agency has sustained its

burden of demonstrating that the documents requested are exempt from disclosure under the

FOIA and that the agency has adequately segregated exempt from non-exempt materials.

(a)(4)(B); Al-Fayed v. CIA,

(D.C. Cir. 2001); Summers v. Dep’t

of Justice,

(D.C. Cir. 1998); Mead Data Cent., Inc. v. Dep’t of Air Force,

(D.C. Cir. 1977). An agency may meet its burden by providing the requester

with a Vaughn index, adequately describing each withheld document and explaining the reason

for the withholding. Summers,

; King v. Dep’t of Justice,

(D.C. Cir. 1987); Vaughn,

(fashioning what is now commonly referred to as a

“Vaughn index”).

The court may award summary judgment solely on the information provided in affidavits

or declarations that describe “the justifications for nondisclosure with reasonably specific detail

. . . and are not controverted by either contrary evidence in the record nor by evidence of agency

bad faith.” Military Audit Project v. Casey,

(D.C. Cir. 1981); see also Vaughn

v. Rosen,

(D.C. Cir. 1973), cert. denied,

(1974). When, as here,

responsive records are not located, an agency is entitled to summary judgment if it establishes

“beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant

documents.” Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1983). For

purposes of this showing, the agency “may rely upon affidavits . . . , as long as they are relatively

detailed and nonconclusory and . . . submitted in good faith.”

(citations and quotations

omitted). The required level of detail “set[s] forth the search terms and the type of search

performed, and aver[s] that all files likely to contain responsive materials (if such records exist)

6 were searched . . . .” Oglesby,

; accord Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999). “If the requester produces countervailing evidence placing the

sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is

inappropriate.” Spannaus v. CIA,

(D.D.C. 1993) (citing Church of

Scientology v. Nat’l Sec. Agency,

(D.C. Cir. 1979)). In determining the

adequacy of a FOIA search, the court is guided by principles of reasonableness. See Campbell v.

U.S. Dep’t of Justice,

(D.C. Cir. 1998). An agency is required to produce only

those records in its custody and control at the time of the FOIA request. McGehee, 697 F.2d at

1110.

2. The Defendant Has Not Established the Reasonableness of its Search

The defendant contends that summary judgment is warranted because the evidence

demonstrates that it conducted a reasonable search for records responsive to the plaintiff’s

requests. See Def.’s Mot. at 9-10. To demonstrate the reasonableness of its search efforts, the

defendant proffers the declaration of Leila I. Wassom, a DEA Paralegal Specialist assigned to the

Administrative Law Section of the Office of Chief Counsel. Wassom Decl. ¶ 1. Wassom

reviews FOIA requests made to the DEA for purposes of litigation. Id. ¶ 2. Her declaration is

based on her review of the complaint “and the records maintained by the DEA Freedom of

Information Operations Unit (SARO),” which is responsible for processing FOIA requests

submitted to the agency. Id. ¶¶ 4-5. In short, Wassom states that the DEA conducted a

comprehensive search in response to the plaintiff’s request but recovered no responsive

documents. Id. ¶¶ 16-22.

7 “A declarant in a FOIA case satisfies the personal knowledge requirement in Rule 56(e)

if in [her] declaration, [she] attests to [her] personal knowledge of the procedures used in

handling [a FOIA ] request and [her] familiarity with the documents in question.” Barnard v.

Dep’t of Homeland Sec.,

(D.D.C. 2008) (citations and internal

quotation marks omitted); compare SafeCard Servs., Inc. v. SEC,

(D.C. Cir.

1991) (noting that the individual in charge of a search is “the most appropriate person to provide

a comprehensive affidavit” and may rely on information provided by third-parties with personal

knowledge of the search efforts) (citing Meeropol v. Meese,

(D.C. Cir. 1986))

with Weisberg v. Dep’t of Justice,

(D.C. Cir. 1980) (vacating summary

judgment because the district court improperly relied upon a statement provided by an individual

with no personal knowledge of the object of the search and who did not rely on information

provided by someone with actual knowledge).

Although Wassom’s review of the DEA’s official records qualifies her to testify about

the procedures employed in processing the plaintiff’s request, she neither attests to having

personal knowledge about the search conducted, Wassom Decl. ¶ 19, nor states that she relied on

information provided to her by individuals who actually performed the search, see id. ¶¶ 16-22.

The court therefore denies the defendant’s summary judgment motion with respect to his request

for non-third party records without prejudice to reconsideration of a properly supported motion.

8 IV. CONCLUSION

For the foregoing reasons, the court grants the defendant’s motion to dismiss the claims

predicated on the plaintiff’s requests for third-party records and denies the defendant’s motion

for summary judgment with respect to the plaintiff’s remaining claims. An Order consistent with

this Memorandum Opinion is separately and contemporaneously issued this 21st day of

September, 2009.

RICARDO M. URBINA United States District Judge

9