Fowlkes v. ATF, No. 13-0122, 2014 WL 4536909 (D.D.C. Sept. 15, 2014) (Contreras, J.)

Fowlkes v. ATF, No. 13-0122, 2014 WL 4536909 (D.D.C. Sept. 15, 2014) (Contreras, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Searching for Responsive Records:  Regarding EOUSA and ATF, the court notes that "[p]laintiff raises no objection to the scope or method of the searches for records . . . and based on the EOUSA's supporting declarations, the Court concludes that the EOUSA's searches were reasonable."
   
• Exemption 3:  Regarding ATF, the court relates that "[t]he ATF withholds in full 'a firearms Trace Report wholly derived from the contents of the Firearms Trace System Database,' . . . 'pursuant to Exemption 3 [ and the] Consolidated Appropriations Act of 2012.'"  The court holds that "the ATF's declarant does not state that the Consolidated Appropriations Act of 2012 specifically refers to 5 U.S.C. § 552(b)(3) and, therefore, the ATF does not demonstrate that Exemption 3 applies."  Regarding EOUSA, the court relates that "[i]nsofar as '[r]ecords requested by [p]laintiff contained grand jury information,' . . . the EOUSA applies Exemption 3 'in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure to withhold [the records in] part.'"  The court holds that "[w]ith one exception, the EOUSA's decision to withhold such information under Exemption 3 in conjunction with Rule 6(e) is appropriate."  The court explains that "[t]he declarations adequately explain that release of information other than the grand jury dates would reveal the scope and direction of the grand jury investigation and the sources of information on which the government based its case."  However, the court finds that "EOUSA has not adequately explained how disclosure of the name of the judge either would reveal the scope and direction of the grand jury or subject him or her to reprisal or possible harm."  Regarding DEA, the court relates that "'In this case, the DEA withheld information concerning wiretaps pursuant to 18 U.S.C. § 2517 of individuals involved in a drug trafficking organization.'"  The court holds that "[p]laintiff does not oppose this determination, and based on the supporting declaration, the Court concludes that the DEA properly withheld this wiretap information under Exemption 3."
   
• Exemption 7, Threshold:  The court holds that "[t]he declarants adequately establish, and plaintiff does not dispute, that the responsive records at issue in this case were compiled for law enforcement purposes within the scope of Exemption 7."
   
• Exemption 7(C):  The court holds that "[p]laintiff raises no objection to the redaction of names of and identifying information about any of the third parties appearing in the responsive records."  "On review of the declarations, the Court concludes that the EOUSA, the ATF and the DEA properly have withheld this information under Exemption 7(C)."
   
• Exemption 7(D):  "The Court finds that the DEA adequately justifies its decision to withhold information under Exemption 7(D) with respect to both coded informants and sources who provided information about plaintiff's drug trafficking activities."  Regarding express assurances of confidentiality, the court relates that "[i]n this case, certain information pertains to coded informants to whom the DEA extended an express grant of confidentiality."  Regarding implied assurances of confidentiality, the court relates that "[b]ecause 'plaintiff was arrested for conspiracy to distribute cocaine and crack cocain[e] and possession of a firearm,' and because in the DEA's experience 'violence is inherent in the illicit trafficking of cocain[e] and crack cocain[e],' the DEA deems it 'reasonable to infer' that these sources 'would fear for their safety.'  "In addition, release of information about these sources 'could jeopardize DEA operations, since [the sources'] cooperation, and that of any other similarly situated individuals, could be needed in future criminal investigations.'"
   
• Exemption 7(E):  The court holds that "ATF . . . fails to justify its decision to withhold information under Exemption 7(E)" because "the declarant's explanation merely mirrors the language of the exemption."  However, the court finds that "[t]he DEA's position is entirely supported by relevant case law."  The court finds that certain identifiers were appropriately withheld "'[b]ecause of the manner in which [it is] assigned and . . . used, release of [[the identifier]] could allow [a] violator[ ] to avoid apprehension, and could place law enforcement personnel in danger, since the details of many aspects of a DEA investigation would be disclosed along with the [identifier] number Id."  "If details of a DEA investigation were made public, a violator would know 'how to respond in different situations where detection and/or apprehension are eminent [sic],' and thus he could 'respond in a manner that would help [him] avoid detection and arrest.'"
   
• Exemption 7(F):  The court relates that "[t]he DEA relies on Exemption 7(F) in conjunction with Exemption 7(C) to protect the names of DEA Special Agents, other law enforcement personnel, and third parties such as suspects, co-defendants, witnesses and potential witnesses."  "It also relies on Exemption 7(F) in conjunction with Exemption 7(D) to protect confidential sources."  The court holds that because  it "finds that the same information properly is withheld under either Exemption 7(C) or 7(D), the Court need not address the applicability of Exemption 7(F)."