Ortiz v. DOJ, No. 12-1674, 2014 WL 4449686 (D.D.C. Sept. 9, 2014) (Hogan, J.)

Ortiz v. DOJ, No. 12-1674, 2014 WL 4449686 (D.D.C. Sept. 9, 2014) (Hogan, J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendant's motion for summary judgment

• Procedural Considerations, Searching for Responsive Records:  The court holds that although "[p]laintiff's opposition to defendant's motion is silent as to the adequacy of the DEA's search for responsive records, . . . and therefore he failed to demonstrate the existence of a genuine issue of material fact as to the search," "[u]pon review of defendant's submission, the Court concludes that the DEA conducted a reasonable search for records responsive to plaintiff's FOIA request."
   
• Exemption 3:  "The Court concludes that the teletype is properly withheld under Exemption 3 because it is derived from reports generated pursuant to the Bank Secrecy Act, and the Act deems such reports exempt from disclosure under the FOIA."  The court explains that "[u]nder 31 U.S.C. § 5319, the declarant explains, 'a [BSA] report and records of reports are exempt from disclosure under [5 U.S.C. § 552].'"  "Pursuant to this authority, a [United States Department of the Treasury, Financial Crimes Enforcement Network] regulation . . . 'specifically exempt[s] BSA records from FOIA disclosure.'" "For this reason, the DEA withholds the 21–page teletype in full under FOIA Exemption 3 in conjunction with 31 U.S.C. § 5319 and 31 C.F.R. § 103.54."  The court also notes that "[p]laintiff does not oppose this argument."
   
• Exemption 7, Threshold:  The court holds that "[i]t is apparent from the DEA's and ICE's declarations and from the nature of the FOIA request itself that the responsive records were compiled for law enforcement purposes."  "Thus, the defendant easily meets its initial burden by establishing that the records at issue are law enforcement records for purposes of FOIA Exemption 7."
   
• Exemption 7(C):  "The Court . . . concludes that the names of and identifying information about third parties is properly withheld under FOIA Exemption 7(C)."  The court finds that "plaintiff fails to discuss the exemption, let alone offer any evidence of agency misconduct."  "Nor does plaintiff demonstrate a public interest of sufficient magnitude to outweigh the recognized privacy interests of the individuals identified in the responsive records."
   
• Exemption 7(D):  "The Court concurs" with defendant.  The court relates that "[b]ecause 'it could not be ascertained that a source ... expressly [had been] made a promise of confidentiality,' the DEA asserts that the confidential source(s) supplied [information] under circumstances from which an assurance of confidentiality is implied."  "The declarant explains that '[p]laintiff was convicted of offenses surrounding the importation of marijuana across the Mexican border with the United States,' and in the DEA's experience, 'violence is inherit in the illicit trafficking in marijuana and other drugs coming into the United States from Mexico and other countries.'"
   
• Exemption 7(E):  Regarding the DEA, the court relates that "[t]he DEA withholds Geographical Drug Enforcement Program . . . and Narcotics and Dangerous Drug . . . violator identifier codes under FOIA Exemption 7(E)," as well as "'internal DEA and other agency telephone numbers.'"  "The Court concludes that this type of information properly is withheld under FOIA Exemption 7(E)."  The court explains that "[i]f the DEA were to release G–DEP codes, the declarant states, '[s]uspects could decode ... information' to 'identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings,' and thus 'change their pattern of drug trafficking in an effort to ... avoid detection and apprehension.'"  Additionally, the court explains that "telephone numbers are assigned to DEA employees, and their release to the public 'could enable violators to identify law enforcement personnel, disrupt official DEA business, subject DEA employees to harassing phone calls and cause interference with the DEA internal communications network.'"  Regarding ICE, the court relates that "ICE withholds 'investigative techniques and procedures including: external system identification numbers, and other law enforcement agency database case numbers, or identifiers, means of access to intra-agency databases to include case file numbers, event numbers, internal codes, computer function commands, identification numbers, and other law enforcement codes and numeric references.'"  The court finds that "[i]f this [information] were disclosed . . . one could obtain information from other law enforcement agencies."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Based on defendant's supporting declarations and the Vaughn indices, . . . the Court concludes that all reasonably segregable information has been disclosed to plaintiff."