BLACKBURN, Senior Appellate Judge.
Christine H. Alexander appeals from the trial court's grant of judgment on the pleadings to Wachovia Bank, National Association ("Wachovia") in a suit brought by Wachovia to recover amounts allegedly owed by Alexander under the terms of a promissory note. Because Alexander's pleadings disputed the amounts that Wachovia alleged were owed under the note, and because Wachovia failed to offer any proof as to those amounts, we vacate the order of judgment and remand the case for a determination of Wachovia's damages.
"On appeal, we review de novo the trial court's decision on a motion for judgment on the pleadings, and we construe the [pleadings] in a light most favorable to the appellant, drawing all reasonable inferences in [her] favor." (Punctuation omitted.) Hewell v. Walton County. "[A]ll well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false." (Punctuation omitted.) Rolling Pin Kitchen Emporium v. Kaas.
Hewell v. Walton County, 292 Ga. App. 510, 510-511 ( 664 SE2d 875) (2008).
Rolling Pin Kitchen Emporium v. Kaas, 241 Ga. App. 577, 578 (2) ( 527 SE2d 248) (1999).
So viewed, the record shows that in September 2004, Alexander executed a promissory note in favor of Wachovia in the principal amount of $45,938.50, with an annual interest rate of 7.04%. The loan was secured by a second lien on certain real property owned by Alexander, and was to be repaid in 360 monthly installments of $307.95. At some unspecified point in time between September 2004 and August 2009, Alexander defaulted on the note. Wachovia then initiated the current action.
Wachovia attached a copy of the promissory note to its complaint and asserted that, under the terms of the same, Alexander owed it $45,580.60 in principal, $3,244.04 in interest, and $4,907.47 in attorney fees. Acting pro se, Alexander filed an answer in which she did not deny her liability on the note, but disputed the amounts that Wachovia alleged were owed thereunder. Specifically, Alexander asserted that the property securing the note had been surrendered for foreclosure in November 2007, and that she believed that at least some, if not all, of the debt under the promissory note had been satisfied by proceeds from the foreclosure sale.
Wachovia moved for judgment on the pleadings, based on the fact that Alexander's answer did not deny liability. Alexander filed a response in which she again disputed the amounts Wachovia alleged were owed under the promissory note, stating "I have not denied the debt, but do not agree with the amount of debt [claimed by Wachovia]." The trial court granted Wachovia's motion and entered an order of judgment against Alexander and in favor of Wachovia for $53,732.19 (the entire amount requested in Wachovia's complaint), plus costs. Alexander now appeals from that order.
"In an action on a promissory note, a movant may establish a prima facie right to judgment as a matter of law [on the issue of liability] by producing the promissory note and showing that it was executed." Vandegriff v. Hamilton. To be entitled to judgment on the pleadings on the issue of damages, however, a movant must show either liquidated damages or evidence demonstrating the method by which it calculated the specific damages sought. Morgan v. Wachovia Bank, N.A. See also Tucker Nursing Center v. Mosby ("[w]here a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which . . . the trial judge . . . can calculate the amount of the loss with a reasonable degree of certainty") (punctuation omitted).
Vandegriff v. Hamilton, 238 Ga. App. 603, 604 ( 519 SE2d 702) (1999).
Morgan v. Wachovia Bank, N.A., 237 Ga. App. 257, 258 (2) ( 514 SE2d 239) (1999).
Tucker Nursing Center v. Mosby, 303 Ga App. 80, 82 (1) ( 692 SE2d 727) (2010).
Although Alexander did not deny liability, she did dispute the amounts Wachovia claimed were owed under the note and, in response, "Wachovia offered no testimony or any documentation explaining its method of calculating the specific amounts sought [, such as] evidence of [Alexander's] account payment history" or evidence showing how it "calculated the interest or attorney fees" sought. Morgan, supra, 237 Ga. App. at 258 (2). Where, as here, "we cannot be certain of the amounts due under the terms of the agreement without reference to evidence outside the pleadings, the amounts are unliquidated and must be established." Id. See also Hazlett Hancock Constr. Co. v. Virgil Womack Constr. Co. ("[a]lthough the debt may in fact be `clear, certain, manifest and ascertained,' the pleadings do not show it, and so for the purposes of . . . judgment [on the pleadings], must be considered unliquidated") (citation omitted). "Because the pleadings do not contain evidence from which the trial court could confirm Wachovia's calculations of its purported damages, we must [vacate and remand]." Morgan, supra, 237 Ga. App. at 258 (2).
Hazlett Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 27 (2) ( 351 SE2d 218) (1986).
Judgment vacated and case remanded. Barnes, P. J., and Senior Appellate Judge Marion T. Pope, Jr., concur.
BLACKBURN, Senior Appellate Judge.
DECIDED AUGUST 20, 2010.
iff Failed to Exhaust his Administrative Remedies with Respect to Request Nos. 95-0263-F, 96-0264-P, and 98-1218-F.
The defendant argues that because the plaintiff did not appeal the DEA's responses to his six FOIA requests by pursuing administrative appeals to the OIP, these claims are subject to dismissal for failure to exhaust available administrative remedies. Def.'s Mem. at 19; see id., Little Decl. ¶¶ 18 (Request No. 95-0263-F), 20 (Request No. 96-0264-P), 22 (Request No. 98-1218-F), 26 (Request No. 04-0699-F), 33 (Request No. 09-0187-P), and 37 (Request No. 09-0285-P). The plaintiff acknowledges that "he did not seek an appeal from some of the agencies after being denied documents," Plaintiff's Opposition [to] the Defendant's Request for Dismissal of the Civil Action and Alternatively for Summary Judgment on the Pleadings ("Pl.'s Opp'n") at 19-20, and he also points to no evidence in the record to show that he pursued an administrative appeal of these six requests. Instead, he argues that his failure to exhaust his administrative remedies "presented no risk of undermining the purposes and policies underlying the exhaustion requirement." Id. The plaintiff opines that the Court "is not precluded under these circumstances from deciding the merits of [his] claims notwithstanding his failure to comply with the FOIA appeal process." Id. Further, the plaintiff argues that because his requests "sought documents to reveal government wrongdoing, criminal acts and misconduct, the process should proceed forward." Plaintiff's Opposition to the Defendant's Reply to Plaintiff's Opposition to the Defendant's Request for a Motion to Dismiss In Part, and Alternatively, for Summary Judgment, with Request for Judgment on the Pleadings ("Pl.'s Surreply") at 14. The Court is not persuaded by the plaintiff's arguments, at least with respect to Request Nos. 95-0263-F, 96-0264-P, and 98-1218-F. At a minimum, the OIP has had no opportunity to review the DEA's initial responses to three of the plaintiff's six FOIA requests, and therefore the plaintiff and the Court are deprived of the "the agency's experience and expertise" as well as having a more complete record for review. Wilbur, 355 F.3d at 677.
The DEA provided no substantive response to Request Nos. 04-0699-F, 09-0187-P, and 09-0285-P until after the plaintiff had filed this lawsuit. See Def.'s Mem., Little Decl., Ex. C (September 11, 2009 letter from W.C. Little, Jr., Senior Attorney, Administrative Law Section, Office of Chief Counsel, DEA, regarding Request No. 04-0699-F), Ex. G (February 4, 2009 letter from K.L. Myrick regarding Request No. 09-0187-P) and Ex. J (April 7, 2009 letter from K.L. Myrick regarding Request No. 09-0285-P). Accordingly, at this stage of the proceedings, it is not
reasonable to expect the plaintiff to exhaust his administrative remedies by filing an appeal to the OIP, and the law does not require him to do so.
Ordinarily, if a plaintiff receives a substantive response from the agency before he files a lawsuit, he must pursue his administrative remedies with respect to the response. 5 U.S.C. § 552(a)(6)(C); Oglesby, 920 F.2d at 61. Here, the pro se plaintiff is incarcerated, and he has certified that he served a copy of his complaint on the named defendants by mail on February 13, 2009. The Clerk of Court's date stamp reflects that the complaint was received on April 9, 2009, and it was officially filed on the Court's electronic docket on April 23, 2009. Although the plaintiff could have received the DEA's February 4, 2009 letter with respect to Request No. 09-0187-P and might have appealed the response to the OIP before he mailed his complaint, it is unreasonable to expect such prompt delivery of mail to a prisoner. Moreover, the February 4, 2009 letter was a partial response to the plaintiff's FOIA request. It notified plaintiff, among other matters, that it had forwarded his request to program areas within the DEA but had not yet received responses from them, and the letter did not include a notice to the plaintiff of his right to appeal the denial of his request to the OIP. The Court therefore declines to punish the plaintiff for failing to exhaust his administrative remedies when the DEA had not yet advised him of his right to pursue an appeal to the OIP.
2. The Plaintiff Failed to Submit a Proper FOIA Request to the Civil Division
A requester who fails to submit a proper FOIA request has not exhausted his administrative remedies, see Thomas v. FCC, 534 F. Supp. 2d 144, 146 (D.D.C. 2008), and an agency is under no obligation to respond "until it has received a proper FOIA request in compliance with its published regulations," Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15, 26 (D.D.C. 2008) (citing 5 U.S.C. § 552(a)(3) and 552(a)(6)(A)(i)). The defendant has demonstrated that the Civil Division did not receive a proper FOIA request from the plaintiff, Def.'s Mem., Kovakas Decl. ¶ 5, and the plaintiff does not challenge this position, Pl.'s Opp'n at 10-11. The plaintiff's FTCA claim does not constitute a proper FOIA request because it neither demands the disclosure of agency records nor describes the records sought. 5 U.S.C. § 552(a)(3)(A) ("[E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.").
The plaintiff having failed to pursue administrative appeals of the DEA's responses to Request Nos. 95-0263-F, 96-0264-P, and 98-1218-F, and submit a proper FOIA request to the Civil Division, the Court must grant the defendant's motion for summary judgment in part on the ground that the plaintiff failed to exhaust his administrative remedies.
C. Searches for Records Responsive to the Plaintiff's FOIA Requests
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was `reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of conflicting evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. However, if the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt, 897 F.2d at 542.
1. The DEA's Searches for Records Responsive to Request Nos. 04-0699-F and 09-0187-P
Both Request No. 04-0699-F and Request No. 09-0187-P were interpreted as requests in part for criminal investigative information about the plaintiff. Def.'s Mem., Little Decl. ¶ 38. The declarant of the Little Declaration explains that such criminal investigative records "are reasonably likely to be contained in the DEA Investigative Reporting and Filing System, JUSTICE/DEA-008 (IFRS)." Id. ¶ 39. The DEA Narcotics and Dangerous Drugs Information System ("NADDIS") "is the . . . practical means by which [the] DEA retrieves investigative reports and information from IFRS." Id. ¶ 44. "As an index, NADDIS points to investigative files and . . . other documents . . . [containing] information regarding a particular individual or subject of an investigation[] and other information such as releases made to individuals under the FOIA." Id. Information can be retrieved concerning an individual indexed in NADDIS by his name, Social Security number, or date of birth. Id.
A NADDIS query regarding Request No. 09-0187-P, using the plaintiff's name, Social Security number and date of birth as search terms, id. ¶ 45, revealed that no investigative information related to the plaintiff had been entered into the system since 1995, id. ¶ 46. The search results also indicated that the DEA had released information to the plaintiff on May 1, 1996 in response to Request No. 96-0264-P. Id. It was further determined that Request No. 06-0699-F was duplicative of Request No. 96-0264-P, and that no new investigative information had been entered into any case file maintained in IFRS concerning the plaintiff since May 1, 1996. Id. ¶ 47. The DEA represents that it "does not duplicate a prior release when no additional information [is] available in response to a subsequent request for the same information." Id.
Insofar as the plaintiff's requests also sought information regarding investigations of two DEA special agents, id. ¶ 38, the DEA declarant explains that "[i]information related to the conduct of any DEA employee . . . [is] reasonably likely to be maintained in the DEA Planning and Inspection Division records, JUSTICE/DEA-010." Id. ¶ 39. The DEA's Office of Professional Responsibility ("OPR"), a section of the Planning and Inspections Division, is the section responsible for conducting investigations into the conduct of DEA employees. Id. ¶ 41. Its files are maintained under the name of the individual subject of the investigation and a sequentially-assigned investigative file number. Id. ¶ 42. These investigative files are retrieved "by querying the Office of Professional Responsibility Case Tracking System (OCTS) . . . using the subject individual's name or social security number, the complainant's name or the OPR case number." Id. ¶ 43.
A query of OCTS yielded no records "regarding the receipt by DEA of a complaint from the plaintiff regarding any DEA agent's involvement in illegally intercepted telephone communications." Id., Little Decl. ¶ 48. However, the search did yield 50 pages of records regarding the plaintiff's complaint "related to property [allegedly] stolen or illegally seized, illegal searches and the falsification of evidence." Id. The plaintiff contends that the components failed to conduct a reasonable search for the requested records, see Pl.'s Opp'n at 9-11, yet he fails to identify the defect or defects in the searches that were conducted.
2. The EOUSA and the OPR Searches
The EOUSA's declarant states that staff forwarded the plaintiff's FOIA request to the FOIA Contact for the United States Attorney's Office for the Middle District of Florida, Def.'s Mem., Luczynski Decl. ¶ 7, who looked for records in a computer case tracking system under the name "Lewis." Id. ¶ 8. The OPR's FOIA Specialist "searched the OPR database and identified three files responsive to the Plaintiff's request." Def.'s Mem., Reiersen Decl. ¶ 6. On the current record of this case, the Court concludes that neither the EOUSA nor the OPR has demonstrated that its staff conducted a search reasonably calculated to discover records responsive to the plaintiff's FOIA requests.
"While the affidavits or declarations submitted by the agency need not set forth with meticulous documentation the details of an epic search for the requested records, they must describe what records were searched, by whom, and through what processes, and must show that the search was reasonably calculated to uncover all relevant documents." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009) (citations and internal quotation marks omitted). The declarations submitted by the EOUSA and the OPR do not establish that the systems of records actually searched were those most likely to contain records responsive to the plaintiff's FOIA requests. See Oglesby, 920 F.2d at 68 (stating that "the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested"). Nor do the declarations "describe[] with particularity the files that were searched [or] the manner in which they were searched." Steinberg, 23 F.3d at 552.
The Court therefore grants the defendant's motion for summary judgment in part because the DEA has demonstrated that its searches for records responsive to Request Nos. 04-0699-F and 09-0187-P were reasonable under the circumstances, and denies the motion in part on the ground that the defendant has not demonstrated compliance with the FOIA by conducting searches reasonably calculated to locate EOUSA and OPR records responsive to the plaintiff's FOIA requests.
D. Exemptions Claimed by the DEA 1. Exemption 2
Exemption 2 shields from disclosure information that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Review of the Vaughn Index shows that the DEA relies on Exemption 2 to withhold codes assigned to confidential informants, Def.'s Mem., Little Decl., Ex. K (Page Itemization for page numbers 10-49), yet the declaration does not refer to Exemption 2 or otherwise explain the agency's decision to withhold information under Exemption 2. It is unclear whether the DEA relies solely on Exemption 2 to withhold confidential informant codes, or whether Exemption 7(D) may also be a basis for non-disclosure. See id. Little Decl. ¶ 75 (discussing the withholding of "source-identifying and source-supplied investigative information," including informant identifier codes, under Exemption 7(D)). The Court will defer its consideration of Exemptions 2 and 7(D), so that the defendant is accorded an opportunity to clarify this matter in a renewed summary judgment motion.
The Court also defers ruling on the applicability of Exemptions 7(C) and 7(F). The DEA does not rely on Exemption 7(C) alone as the basis for withholding responsive documents; in each instance it has withheld information in conjunction with either Exemption 7(D) or Exemption 7(F). There also are instances where the DEA withheld information under Exemption 7(D) in conjunction with Exemption 7(F). If information is properly withheld under any one of these exemptions, there will be no need to consider the applicability of another exemption with respect to that same information. See Simon v. Dep't of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994). The defendant therefore will be afforded an opportunity to further explain its positions regarding these Exemptions.
2. Exemption 3
Exemption 3 protects from disclosure records that are "specifically exempted from disclosure by statute" provided that such statute either requires a withholding (A) "in such a manner as to leave no discretion on the issue," or (B) "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). The 59 pages of records referred by the EOUSA to the DEA "comprise a d[r]aft of an Affidavit in Support of Application for a court ordered Title III intercept of wire communications of the plaintiff and several third-parties." Def.'s Mem., Little Decl. ¶ 63. The DEA has withheld portions of the draft affidavit on the ground that the draft "contain[s] information specifically exempted by statute," that is, 18 U.S.C. § 2517, which "prohibits the disclosure of information obtained from the use of a wire intercept." Def.'s Mem., Little Decl. ¶ 63.
It is true that information pertaining to wiretaps may be withheld under Exemption 3. See, e.g., Wolfson v. United States, 672 F. Supp. 2d 20, 28 (D.D.C. 2009); Peay v. Dep't of Justice, No. 04-1859, 2007 WL 788871, at *4 (D.D.C. Mar. 14, 2007); Queen v. Gonzales, No. 96-1387, 2005 WL 3204160, at *5 (D.D.C. Nov. 15, 2005). The DEA's declaration is incomplete, however, as it neither explains that the agency had no discretion on the decision to withhold this information nor sets forth the particular criteria applied in reaching its decision to withhold certain information in the draft affidavit. Its reference to Title III alone, without any explanation in the declaration, does not suffice. The Court therefore denies the defendant's motion for summary judgment in part because it has failed to justify its decision to withhold information under Exemption 3.
3. Exemption 6
Exemption 6 protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Information that applies to a particular individual meets the threshold requirement for Exemption 6 protection. See United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982). Furthermore, the exemption requires "a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act `to open agency action to the light of public scrutiny.'" Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). The privacy interest at stake belongs to the individual, not the agency. Reporters Comm., 489 U.S. at 763-65; Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting individual's significant privacy interest "in avoiding the unlimited disclosure of his or her name and address"). It is the requester's obligation to articulate a public interest sufficient to outweigh an individual's privacy interest, and the public interest must be significant. See Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
Under Exemption 6, the DEA has withheld the names of DEA personnel from the second page of a two-page letter from the OPR to the plaintiff dated September 1, 1995. Def.'s Mem., Little Decl. ¶ 56. Although the DEA relies both on Exemptions 6 and 7(C) with regard to the information it has withheld, see id., it is unclear whether this letter was compiled for law enforcement purposes, and therefore the Court considers only whether the agency properly withheld these names under Exemption 6. The DEA certainly meets its threshold obligation under Exemption 6, as the information at issue applies to particular individuals. Its declarant also explains that the DEA identified no public interest, that is, "information that would shed light on the DEA's performance of its mission," from disclosure of the identities of its employees sufficient to outweigh these individuals' personal privacy interests. Id. ¶ 64.
The plaintiff deems the declarant's statements "conclusory and generalized," Pl.'s Opp'n at 17, and asserts that government misconduct justifies the release of all the records he requests, id. at 12. Specifically, the plaintiff contends that "his telephone communications were intercepted without authorization from the United States Attorney General" in violation of federal law, id., and he accuses the DEA and two Special Agents of "fraudulent concealment," see id. at 17, due to their failure to disclose the requested records in response to his FOIA request. In his view, "[t]he DEA has engaged in illegal activity, and the documents sought is [sic] more than necessary in order to confirm that evidence." Id.
It appears that the plaintiff's interest in obtaining the requested records under the FOIA relates to his criminal conviction. He posits that he has "provide[d] the court with evidence in support of his claims that crimes, fraud and fraudulent concealment has [sic] been used to convict him, where his telephone communications were illegally and unlawfully intercepted, used, and disclosed throughout his trial, all without the United States Attorney General authorizing interception, use, and disclosure." Id. at 5. However, any personal interest the plaintiff may have in the identities of the DEA Special Agents referenced in the letter from OPR does not qualify as a public interest favoring disclosure, and "it is well established that an individual's personal interest in challenging his criminal conviction is not a public interest under FOIA because it `reveals little or nothing about an agency's own conduct.'" Willis v. U.S. Dep't of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008) (quoting Reporters Comm., 489 U.S. at 773). Moreover, the so-called evidence on which he relies to establish agency misconduct hardly leads a reasonable person to conclude that the DEA and its agents acted improperly. Cf. Favish, 541 U.S. at 174 ("We hold that, where . . . the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred."). This purported evidence appears to consist of records that have not been released in response to the plaintiff's FOIA requests, see Pl.'s Opp'n at 12-14, 16-18; see id. Ex. B-C, E; see generally Pl.'s Decl, which reduces it to nothing more than pure speculation. Thus, absent a compelling public interest of such magnitude that it outweighs these individuals' privacy interests, the Court concludes that the DEA properly withheld the agents'
names under Exemption 6. See U.S. Dep't of Defense v. Fed. Labor Relations Auth. 510 U.S. 487, 502 (1994) (finding that "the privacy interest of bargaining unit employees in nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in disclosure" of their addresses to union representative).
4. Law Enforcement Records Under Exemption 7
Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that disclosure of such records would cause an enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must establish that the records at issue were compiled for law enforcement purposes, and that the material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). In assessing whether records are compiled for law enforcement purposes, the "focus is on how and under what circumstances the requested files were compiled, and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding." Jefferson v. Dep't of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).
The DEA declarant explains that the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236 (codified as amended in sections of Title 21 of the U.S. Code), authorizes the DEA to investigate "incidences involving the trafficking in controlled substances, dangerous drugs and precursor chemicals and the violators who operate at interstate and international levels," and to "seize and forfeit assets derived from, traceable to, or intended to be used for illicit drug trafficking," among other functions. Def.'s Mem., Little Decl. ¶ 65. "The records deemed responsive to the plaintiff's FOIA requests are criminal investigative records . . . compiled during criminal law enforcement investigations of the plaintiff and several third-parties." Id. ¶ 66. The plaintiff raises no objection to this assertion, and the Court concludes that the 59 pages of records referred by the EOUSA to the DEA were compiled for law enforcement purposes within the scope of Exemption 7.
5. The DEA's Glomar Response
If an individual is the target of a FOIA request, the agency to which the FOIA request is submitted may provide a "Glomar" response, that is, the agency may refuse to confirm or deny the existence of records or information responsive to the FOIA request on the ground that even acknowledging the existence of responsive records constitutes an unwarranted invasion of the targeted individual's personal privacy. Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1014-15 (D.C. Cir. 1976) (CIA refused to confirm or deny existence of secret vessel, the "Glomar Explorer"); see Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995); Enzinna v. U.S. Dep't of Justice, No. 97-5078, 1997 WL 404327, *2 (D.C. Cir. June 30, 1997) (affirming the agency's refusal to confirm or deny the existence of responsive records because acknowledging the existence of such records would associate a witnesses with a criminal investigation).
Relying on Exemptions 6 and 7(C), the DEA neither confirmed nor denied the existence of investigative records pertaining to Special Agents Tom Feeney or Dale VanDorple. Def.'s Mem., Little Decl. ¶ 52. Based on the plaintiff's assertions as to these agents' misconduct, "the alleged offenses [committed by them] are violations of criminal laws, and DOJ and DEA directives." Id. ¶ 57. If any such responsive records exist, they would be "collected pursuant to [the] DEA's law enforcement responsibility [under the] Drug Abuse Prevention and Control Act of 1970, . . . and [its] responsibility for the actions of its employees," and "would be placed into DEA investigative case files that are maintained in the Planning and Inspection Records." Id.
The plaintiff contends that the DEA "was under a duty and obligation to provide [him] the documents relevant to the interview, investigation, findings, and results from the internal affairs complaint filed" with respect to Special Agents Feeney and VanDorple, and, without support, he argues that redacted records could be released. Pl.'s Opp'n at 17. He does not, however, argue the existence of a public interest in disclosure.
"[S]omething, even a modest privacy interest, outweighs nothing every time." Horner, 879 F.2d at 879. Individuals' privacy interests are substantial given the nature of law enforcement records. See SafeCard Servs., 926 F.2d at 1205; Bast v. U.S. Dep't of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981). And "[t]he District of Columbia Circuit has identified `a [] general interest in protecting the privacy of [one's] employment records against public disclosure . . . [and] at least a minimal interest in not having it known whether those records contain or do not contain [disciplinary action].'" Smith v. FBI, 663 F. Supp. 2d 1, 5 (D.D.C. 2009) (alterations in original) (quoting Dunkelberger v. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)). If the DEA were to confirm the existence of investigative records pertaining to Special Agents Feeney and VanDorple, the DEA necessarily reveals the information its Glomar response is intended to shield. Accordingly, the Court concludes that the DEA's Glomar response was appropriate. See, e.g., Smith, 663 F. Supp. 2d at 5 (affirming Glomar response with respect to a request for disciplinary reports regarding an FBI agent); Roth v. U.S. Dep't of Justice, 656 F. Supp. 2d 153, 166-67 (D.D.C. 2009) (affirming FBI's refusal to search for records pertaining to three individuals absent privacy waivers or proof of death because agency confirmation that it maintains records about them "would thus associate them with criminal activity").
III. CONCLUSION
The plaintiff has failed to exhaust his administrative remedies with respect to his three FOIA requests submitted to the DEA and that he failed to submit a proper FOIA request to the Civil Division. The DEA has demonstrated that its search for records responsive to DEA FOIA Request Nos. 04-0699-F and 09-0187-P were reasonable under the circumstances, and that its decision to withhold certain information under FOIA Exemptions 6 and 7(C), and that its Glomar response were appropriate. For these reasons, the Court will grant in part the DOJ's motion for summary judgment. However, because the EOUSA and the OPR have not demonstrated that their searches for records responsive to the plaintiff's FOIA requests were reasonable under the circumstances, and because the DEA has not demonstrated that it properly has withheld certain information under Exemption 3, the DOJ's motion will be denied in part. The Court defers issuing a ruling on the defendant's decisions to withhold information under Exemptions 2, 7(C), 7(D), 7(E), and 7(F). As to these matters on which summary judgment is denied, the defendant may file a renewed motion for summary judgment based on additional undisputed facts or by presenting additional legal arguments. An Order accompanies this Memorandum Opinion.