UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRISELLE MARINO,

Plaintiff,

v. Civil Action No. 06-1255 (TJK) DRUG ENFORCEMENT ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

In this case brought under the Freedom of Information Act, Plaintiff Griselle Marino

seeks documents related to a witness who testified against her deceased spouse at his trial, at

which he was convicted on federal drug charges. The parties have cross-moved for summary

judgment. For the reasons explained below, Marino’s motion for summary judgment will be

denied, and Defendant’s cross-motion will be granted.

Background

This suit concerns a FOIA request submitted in 2004 by Carlos Marino, which sought

records connected to an individual, Everth Lopez, who testified at his criminal trial. 1 ECF No.

95 at 2. Carlos Marino was ultimately convicted. Id. In his FOIA request, he asked the Drug

Enforcement Administration (“DEA”) for “a copy of all documents indexed under No. 3049901

of the Narcotics and Dangerous Drug Information System (“NADDIS”). I am only requesting

information that is already public information or was required to be made public in public trials

. . . .” ECF No. 136 ¶ 1. NADDIS numbers are unique numbers assigned to individuals in the

1 Following Carlos Marino’s death, Griselle Marino was substituted as Plaintiff in December 2013. ECF No. 89. DEA’s database for various reasons, e.g., because the person is a subject of an investigation,

defendant, witness, confidential source, victim, or family member. ECF No. 136-2 (“Myrick

Decl.”) ¶ 9. Carlos Marino suspected that No. 3049901 was associated with Lopez. ECF No. 95

at 6.

In response to the request, the DEA issued what is known as a Glomar response, stating it

could neither confirm nor deny the existence of the requested records because NADDIS No.

3049901 was linked to a third party. Thus, according to the DEA, there would be an

unwarranted invasion of privacy unless it was provided proof of the third party’s death or a

notarized privacy waiver. ECF No. 136 ¶ 3; Myrick Decl. ¶ 15. As a result, the DEA did not

search for any documents. Myrick Decl. ¶ 18. Carlos Marino filed this case in 2006, and the

DEA maintained its Glomar response until 2013. ECF No. 136 ¶ 4; Myrick Decl. ¶ 15.

Ultimately the DEA withdrew that response and conducted a search, but one limited to

documents that had been made public. ECF No. 95 at 10, 23. The DEA argued that its search

was reasonable based on the language of the request, and that even if the request were interpreted

more broadly, all other documents could be “categorically” withheld under Exemption 7(C),

which protects against “unwarranted invasion of personal privacy.” ECF No. 65 at 16. But

Judge Kessler, to whom this case was previously assigned, rejected the DEA’s approach and

ordered it to search for all documents indexed to NADDIS No. 3049901, no matter whether they

were made public or required to be made public at the related trials. ECF No. 95 at 23–24.

Although the DEA asserted it had already searched all its records for documents indexed to

NADDIS No. 3049901, Judge Kessler found that the DEA “offered virtually no detail as to the

methods . . . employed or the results of [the] search.” Id. at 23 n.8.

2 So the DEA went back and conducted a more thorough search for NADDIS No.

3049901, which returned three case files. Myrick Decl. ¶ 19. In those files, the DEA searched

page-by-page for documents “indexed to NADDIS number 3049901,” i.e., pages “that had a

notation indicating that information on the page had been entered into NADDIS and linked to

number 3049901.” Id. This search turned up 128 responsive pages. Id. Of those, in 2015, the

DEA released 1 page in full, 35 pages with redactions, and withheld 92 pages in full. Id. ¶ 20.

The DEA moved for summary judgment, while Marino moved for in camera review. See ECF

Nos. 103, 105. Judge Kessler denied the DEA’s motion for summary judgment and granted

Marino’s motion to review the 128 pages in camera. ECF No. 110. Ultimately, Judge Kessler

upheld those redactions and withholdings. See Minute Order of June 11, 2015.

Judge Kessler then ordered the parties to submit statements of remaining issues. Minute

Order of July 28, 2015. In light of those filings and citing confusion in determining the posture

of the case, Judge Kessler instructed the parties to submit another round of motions for summary

judgment. ECF No. 127. In the meantime, the case was re-assigned to this Court. Griselle

Marino filed her current motion for summary judgment first, ECF No. 130, in which she claimed

that the DEA’s search was inadequate, the DEA’s assertion of exemptions other than 7(C) was

untimely, and the DEA had failed to produce all reasonably segregable portions of the relevant

records. The DEA then filed its current cross-motion, ECF No. 136—but not before it re-

reviewed the three case files. This time, the DEA looked for any pages referring to Lopez

regardless of whether they were indexed to NADDIS No. 3049901. Myrick Decl. ¶ 23. The

DEA identified 406 additional pages through this search. Id. ¶ 24. In 2018, it released 62 pages

in full, 260 pages with redactions, withheld 12 pages in full, and referred 73 pages to other

agencies or components of the Department of Justice (“DOJ”), only one of which is relevant to

3 the instant motions, an 11-page document withheld by DOJ’s Organized Crime Drug

Enforcement Task Forces (“OCDETF”). Id. ¶¶ 24, 28.

Marino then filed her combined opposition and reply, ECF No. 138, in which she

maintained her challenges to the adequacy of the search and the timeliness of any exemption

other than exemption 7(C), clarified that she challenged the segregability of material on only 45

specific pages (34 pages redacted or withheld by the DEA in 2018, and the 11-page document

withheld by OCDETF in 2018), and asserted that while the DEA had withheld two pages in full

under exemption 7(C), it had only explained its basis for applying this exemption to one page in

its affidavit.2 ECF No. 138-1 at 2; ECF No. 138-3 at 2. Marino requested in camera review of

those 45 pages on both the timeliness issue and for segregability. ECF No. 138-1 at 2.

In response, the DEA re-processed some of the documents one more time and resolved an

indexing backlog issue. ECF No. 141-1 (“Miller Decl.”) ¶¶ 10–15. In all, in 2018, the DEA re-

processed the 34 pages identified by Marino to disclose further information and minimize

redactions. Id. ¶¶ 17(a)–(y). The DEA also realized that it had miscounted how many of those

34 pages it had withheld in full—the correct total number was ten, rather than 11. Id. ¶ 16. In

connection with the reprocessing, the DEA ultimately released five of those ten pages with

redactions, and so it continues to withhold in full only five. Id. Because of the resolution of the

backlog issue and re-processing, the Court permitted Marino to file a sur-reply addressing these

issues. Minute Order of Feb. 5, 2021. The Court also ordered the DEA to produce the 45

2 This dispute is no longer relevant to resolving the instant motions. The DEA’s count of two pages withheld in full under exemption 7(C) turned out to be correct, but the DEA released in part those two pages as part of subsequent re-processing described above, ECF No. 141 at 11 n.3, and now explains the redactions on both pages, Miller Decl. ¶¶ 17(g), (w). Marino does not challenge those explanations, and as explained below, Marino dropped her timeliness and segregability challenges to all documents produced in 2018 except those pages that were withheld in full.

4 documents identified by Marino for in camera review. Id. Marino filed a sur-reply and clarified

that of the 34 reprocessed pages, she now “limits [her] challenge . . . to the withholding in full of

five of these pages.” ECF No. 149 at 1. She does not, however, appear to have made any

concession as to the 11-page OCDETF document.

So after all that, the disputes that remain for resolution are the following: (1) the

adequacy of the DEA’s search, (2) its invocation of exemptions other than 7(C) as untimely as to

the 92 pages withheld in 2015, the five pages the DEA withheld in full in 2018, and the 11-page

OCDETF document withheld in full in 2018; and (3) the segregability of information in the five

pages the DEA withheld in full in 2018 and the 11-page OCDETF document withheld in full in

2018.

Legal Standard

“Congress enacted the FOIA in order to ‘pierce the veil of administrative secrecy and to

open agency action to the light of public scrutiny.’” Morley v. CIA,

(D.C.

Cir. 2007) (quoting Dep’t of Air Force v. Rose,

(1976)) (internal quotation

marks omitted). “FOIA ‘mandates that an agency disclose records on request, unless they fall

within one of nine exemptions.’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec. (“EPIC”),

(D.C. Cir. 2015) (quoting Milner v. Dep’t of Navy,

, 565 (2011)).

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Office of U.S. Trade Rep.,

(D.C. Cir. 2011). “Summary judgment is

appropriately granted when, viewing the evidence in the light most favorable to the non-movants

and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in

their favor.” Lopez v. Council on Am.–Islamic Relations Action Network, Inc.,

(D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’”

(quoting Fed.

5 R. Civ. P. 56(a)). “In the FOIA context, a district court reviewing a motion for summary

judgment conducts a de novo review of the record, and the responding federal agency bears the

burden of proving that it has complied with its obligations under the FOIA.” MacLeod v. Dep’t

of Homeland Sec., No. 15-CV-1792 (KBJ),

, at *6 (D.D.C. Sept. 21, 2017)

(citing

(a)(4)(B)); see also Cable News Network, Inc. v. Fed. Bureau of

Investigation,

(D.D.C. 2017) (“Unlike the review of other agency

action that must be upheld if supported by substantial evidence and not arbitrary or capricious,

the FOIA expressly places the burden on the agency to sustain its action . . . .” (quoting Dep’t of

Justice v. Reporters Comm. for Freedom of Press,

(1989)) (internal quotation

marks omitted).

Analysis

A. Adequacy of the DEA’s Search

“To prevail on summary judgment [in a FOIA case], an ‘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,’ which it can do by submitting ‘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.’” Reporters Comm. for Freedom of Press (“RCFP”) v. Fed. Bureau of Investigation,

(D.C. Cir. 2017) (cleaned up) (quoting Oglesby v. Dep’t of Army,

(D.C. Cir. 1990)). “The agency fails to meet this burden such that summary judgment is

inappropriate when the agency fails to set forth the search terms and the type of search

performed with specificity or otherwise provides ‘no information about the search strategies of

the agency components charged with responding to a FOIA request’” and “‘no indication of what

each component’s search specifically yielded.’” Evans v. Fed. Bureau of Prisons, No. 16-cv-

6 2274 (BAH),

, at *2 (D.D.C. Feb. 5, 2018) (quoting RCFP,

)

(cleaned up). “At a bare minimum, the agency’s affidavits need to specify ‘what records were

searched, by whom, and through what process.’” Rodriguez v. Dep’t of Defense,

(D.D.C. 2017) (quoting Steinberg v. Dep’t of Justice,

(D.C. Cir. 1994)).

The DEA has carried its burden. After Judge Kessler construed the FOIA request at issue

as seeking “all documents indexed to NADDIS number 3049901,” ECF No. 95 at 20–21, the

DEA searched its Investigative Reporting and Filing System (IRFS) for NADDIS No. 3049901,

Myrick Decl. ¶ 19. A search of IRFS using a NADDIS number is a worldwide search for DEA

records, including records maintained at field offices. Id. ¶ 12. The DEA’s search for NADDIS

No. 3049901 identified three case files. Id. ¶ 19. The DEA searched those files for pages

“indexed to NADDIS number 3049901,” i.e., pages with a notation showing that the information

on the page had been entered into NADDIS and linked to No. 3049901, or a notation reflecting

that information would be so entered and linked. Id. It identified 128 responsive pages. Id. As

already mentioned, the DEA later re-processed these files to look for any pages referring to

Lopez regardless of whether they were indexed to NADDIS No. 3049901. Id. ¶ 23. The DEA

identified 406 pages through that search. Id. ¶ 24.

Marino contends that the Court should find the DEA’s search inadequate and order it to

search IRFS for Lopez’s name and known aliases because “the only way to get an adequate

search is to direct the DEA to search for any documents in its investigative files that reference

Mr. Lopez.” ECF No. 130-1 at 9. By searching for NADDIS No. 3049901, the DEA construed

the request too narrowly, according to Marino, and the search was therefore not reasonably

calculated to capture all relevant documents. But the request’s plain language sets the search

parameters as documents indexed to that number. ECF No. 136 ¶ 1. Indeed, the DEA likely

7 went above and beyond what the request called for by searching the three case files for all

documents referring to Lopez, even if they were not indexed to NADDIS No. 3049901.

In addition, that Marino suspects further documents must exist for various reasons, ECF

No. 138-1 at 3–4, is immaterial, see, e.g., Iturralde v. Comptroller of Currency,

(D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is generally determined not by the

fruits of the search, but by the appropriateness of the methods used to carry out the search.”);

SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (presumption of good faith

accorded agency affidavits “cannot be rebutted by purely speculative claims about the existence

and discoverability of other documents”); Hedrick v. Fed. Bureau of Investigation,

, 94–95 (D.D.C. 2016) (plaintiff cannot challenge adequacy of search based on speculation

that agency is hiding or destroyed records). She also points to evidence of bad faith at Carlos

Marino’s trial and the considerable delays in this case as reasons the Court should order a new,

broader search. ECF No. 130-1 at 15–18. Although these issues are concerning, the DEA has

shown on this go-round with detailed affidavits why its search was sufficient, and as already

explained, the Court finds the search methodology reasonable and faithful to the request’s

scope.3

B. Timeliness of Exemptions

“In addition to demonstrating the adequacy of the search, the agency must ‘demonstrate

that the records have not been improperly withheld.’” Evans,

, at *3 (quoting

Ctr. for the Study of Servs. v. Dep’t of Health & Human Servs.,

(D.C. Cir.

3 Marino also previously argued that an indexing backlog issue provided a basis for ordering a new, broader search. But Marino has since withdrawn that argument. ECF No. 149 at 1 (characterizing backlog issues as “moot” because “[t]he DEA, by re-doing its search after all files had been entered into NADDIS, resolved the backlog issue Ms. Marino had raised”).

8 2017)). “The burden is on the agency to justify withholding the requested documents, and the

FOIA directs district courts to determine de novo whether non-disclosure was permissible.”

EPIC,

. “Summary judgment is warranted on the basis of agency affidavits 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.”

Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v. Casey,

(D.C. Cir. 1984)). The agency cannot rely on “conclusory and generalized allegations

of exemptions.” Morley,

(quoting Founding Church of Scientology of Wash.,

D.C., Inc. v. Nat’l Sec. Agency,

(D.C. Cir. 1979)).

Marino does not challenge that the DEA has met the invoked exemptions’ requirements;

rather she argues that the assertion of any exemption other than 7(C) as to certain documents is

untimely under Maydak v. Dep’t of Justice,

(D.C. Cir. 2000) because that is the

only exemption the DEA raised at the beginning of this litigation.4 ECF No. 138-1 at 15. In

Maydak, the D.C. Circuit held that “as a general rule,” the government “must assert all

exemptions at the same time, in the original district court proceedings.”

. Essentially, Maydak prohibits the government from “play[ing] cat and mouse by

withholding its most powerful cannon until after the District Court has decided the case and then

4 In connection with this argument, Marino requested in camera “Maydak review” of certain documents so that the Court could “reject[] . . . the attempt to raise new exemptions.” ECF No. 138-1 at 15. Although the Court ordered the DEA to produce certain documents for in camera review of segregability, the Court finds that in camera review is unnecessary to resolve any Maydak issue. Maydak is mainly a legal question about the timeliness of the DEA’s assertion of certain exemptions, and Marino has identified no relevant factual issues that the Court’s review of the documents in camera would illuminate. No. 138-1 at 15.

9 springing it on surprised opponents and the judge.” August v. Fed. Bureau of Investigation,

(D.C. Cir. 2003) (quoting Senate of the Commonwealth of Puerto Rico (“Senate of

Puerto Rico”) v. Dep’t of Justice,

(D.C. Cir. 1987)). But it did not establish a

“rigid ‘press it at the threshold, or lose it for all times’ approach to agenc[ies’] FOIA exemption

claims.”

(quoting Senate of Puerto Rico,

). In that vein, even where the

Maydak rule would otherwise apply, this Circuit has recognized two exceptions: (1)

“extraordinary circumstances where, from pure human error, the government failed to invoke the

correct exemption and will have to release information compromising national security or

sensitive, personal, private information unless the court allows it to make an untimely exemption

claim”; and (2) “a substantial change in the factual context of the case or an interim development

in the applicable law forces the government to invoke an exemption after the original district

court proceedings have concluded.” Maydak,

.

Marino invokes this doctrine as to the 92 pages withheld in 2015, the five pages the DEA

withheld in full in 2018, and the 11-page OCDETF document withheld in full in 2018. The

Court finds that the DEA has not run afoul of Maydak as to either the 2015 or 2018 production.

First, Judge Kessler already decided that the DEA could assert these exemptions as to the 2015

set, and the Court declines to reconsider that decision. In 2015, Judge Kessler upheld the DEA’s

withholdings under exemptions 7(C), 7(D), 7(E), and 7(F) after reviewing the documents in

camera. Marino argues that the application of Maydak to these withholdings remains an open

question because Judge Kessler only issued a minute order approving the withholdings and did

not specifically address Maydak. ECF No. 138-1 at 15. But the Maydak issue was before Judge

Kessler when she reviewed the withholdings because Marino raised it in her motion for in

camera review. ECF No. 105 at 5–6. Her review of the merits of the withholdings on that

10 record therefore implicitly acknowledged the exemptions as timely raised, and that conclusion is

the law of the case. See Loma Linda Univ. Kidney Ctr. v. Burwell,

(D.D.C. 2016) (“[T]he law-of-the-case doctrine [provides that] the same issue presented a second

time in the same case in the same court should lead to the same result.” (quoting LaShawn A. v.

Barry,

(D.C. Cir. 1996))); Williamsburg Wax Museum, Inc. v. Historic

Figures, Inc.,

(D.C. Cir. 1987) (“The doctrine encompasses a court’s explicit

decisions, as well as those issues decided by necessary implication.”). And there has been no

“intervening change in the law” or demonstration that “the previous decision was ‘clearly

erroneous and would work a manifest injustice’” to justify revisiting this issue. See Loma Linda,

(quoting Kimberlin v. Quinlan,

(D.C. Cir. 1999)).

Second, as to the five withheld pages from the 2018 production and the OCDETF

document withheld then as well, Maydak simply does not apply. The Maydak cases concern

instances in which the government tries to raise additional exemptions late in litigation as to the

same documents over which it previously asserted different ones. Marino has not suggested that

is what has happened here, and she cites no case in which Maydak was applied to bar invocation

of new exemptions over newly identified documents. In Maydak, the plaintiff sought his

criminal case file from a U.S. Attorney’s Office.

. At first, DOJ asserted only

exemption 7(A), which protects documents when their release “could reasonably be expected to

interfere with enforcement proceedings,”

(b)(7)(A), because the plaintiff was

litigating a series of direct and collateral challenges to his conviction.

The district court

granted summary judgment for DOJ, and the plaintiff appealed. Id. at 763. On appeal, once

most of the plaintiff’s conviction challenges concluded, DOJ moved to remand, stating that 7(A)

no longer applied and seeking to assert new exemptions over the same documents. Id. at

11 764. The court denied the motion for remand and ordered all requested documents released to

the plaintiff because DOJ had not timely raised the exemptions before the district court and did

not qualify for either of the two Maydak exceptions. Id. at 769.

Here, in contrast, Marino does not suggest that the DEA is seeking to assert additional

exemptions over the same documents as to which it once asserted different exemptions. Rather,

the DEA asserted Exemption 7(E) the first time it addressed the five pages at issue, in its now-

pending motion for summary judgment. Myrick Decl. ¶¶ 37–39. The same goes for OCDETF:

the first time it addressed the 11-page document at issue, it asserted exemptions 5, 6, 7(C), and

7(E). ECF No. 136 at 21. And obviously, the DEA has no obligation to anticipate documents

that may be later identified as FOIA litigation runs its course and somehow preemptively raise

exemptions. Finally, that the DEA may have previously asserted 7(E) in conjunction with 7(C)

and 7(F) over these pages, but now asserts only 7(E), see ECF No. 149 at 2, does not violate

Maydak either, because the DEA has added no new exemptions.

C. Segregability

FOIA also requires that “[a]ny reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are exempt,”

(b), “unless the exempt portions are ‘inextricably intertwined with exempt

portions,’” Johnson v. Exec. Office for U.S. Attorneys,

(D.C. Cir.

2002) (quoting Mead Data Cent., Inc. v. Dep’t of Air Force,

(D.C. Cir.

1977)). “The agency is ‘entitled to a presumption that [it] complied with the obligation to

disclose reasonably segregable material,’ but that does not excuse the agency from carrying its

evidentiary burden to fully explain its decisions on segregability,” 100Reporters LLC v. Dep’t of

Justice,

(D.D.C. 2017) (quoting Hodge v. Fed. Bureau of Investigation,

(D.C. Cir. 2013) (alteration in original). Indeed, the agency “must . . . provide

12 descriptions of excerpts deemed to be non-segregable, with explanations as to these

decisions.” Am. Immigration Council v. Dep’t of Homeland Sec.,

(D.D.C. 2013).

The DEA has met its burden. As it explained: “All responsive information was examined

to determine whether any reasonably segregable information could be released,” and information

was withheld only where it met the requirements for an exemption or where “the release of any

additional information would . . . provide no useful information, or [be] incomprehensible words

or phrases.” Myrick Decl. ¶ 49. Further, the DEA re-reviewed the documents and narrowed its

redactions and withholdings, ECF No. 141-1 ¶ 17, which the Court then reviewed in camera.

Based on the record and that review, the Court finds that the DEA redacted and withheld what it

represents it did, and that any reasonably segregable portion of these records was provided to

Marino.

Conclusion

For all the above reasons, Defendant’s motion for summary judgment, ECF No. 136, will

be granted, and Plaintiff’s motion for summary judgment, ECF No. 130, will be denied. A

separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date:

, 2021

13