Kowal v. DOJ, No. 18-938, 2020 WL 2849889 (D.D.C. June 1, 2020) (Kelly, J.)

Kowal v. DOJ, No. 18-938, 2020 WL 2849889 (D.D.C. June 1, 2020) (Kelly, J.)

Re:  Request for records concerning capital defendant that plaintiff's office represents, as well as several of capital defendant's codefendants

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

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that DEA's search was adequate."  The court relates that defendant searched "[the Investigative Reporting and Filing System ("IRFS")] [which] houses '[a]ll DEA criminal law enforcement investigative records,' and that '[r]ecords from other DEA record systems that are related to an individual's involvement in, or association with, a DEA intelligence operation or civil, criminal or regulatory investigation are also retained in IRFS.'"  "Given that [plaintiff's] request was for documents 'pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of [the subject],' which would all appear to be housed in IRFS, and further, that that DEA has asserted that its query of IRFS was reasonably calculated to return all responsive records, . . . the Court finds its search adequate on this score."  Responding to plaintiff's argument, the court holds that "[w]hile including the [subject's] alias – if that was even technically feasible – might have made the search even more thorough, omitting the alias did not make the search unreasonable, especially considering the 'unique, identifying terms already used.'"  In response to plaintiff's "argu[ment] that the search was inadequate because it did not produce any of the over two hundred items that she possesses and that she alleges would have been responsive to her request," the court holds that "'the adequacy of a FOIA search is not judged on results, but rather on the good faith search itself.'"  The court holds that "[plaintiff] has not explained why, merely because she has them, DEA must also still have them such that it could produce them in response to a FOIA request."
   
• Litigation Considerations, Vaughn Index/Declaration:  "The Court agrees with [plaintiff] that the DEA's Vaughn index is deficient."  "To begin with, the indices claim exemptions for each document, but they do not adequately 'correlat[e] those claims with the particular part of a withheld document to which they apply.'"  "Therefore, the Court has no basis to tell which exemption or exemptions are claimed for each portion of the documents withheld either in full or in part."  "Furthermore, the Court has no way of knowing on this record the factual basis for why the DEA asserts that each portion of the document is subject to a particular exemption."  "Therefore, the Court finds on this record that it cannot tell whether the DEA has properly invoked the asserted FOIA exemptions."  "The DEA will be provided the opportunity to submit a revised Vaughn index, and, if necessary, to submit redacted versions of the documents withheld in full or in part that help explain which portions of the documents have been withheld under which exemptions, and the factual basis for each portion of the documents withheld."