MOSES KI NG, Plaintiff,
v. UNI TED STATES DEPARTMENT OF J USTI CE et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08-1555 ( HHK)

MEMORAN DUM OP INION This case , broug ht pursuant to the Fr eedom of I nformation Ac t (“F OI A”) , 5 U.S.C. § 552, is before the Court on a motion for summary judgme nt filed by

the DrugEnforc ement Administration (“DEA” ) on beha lf of the de fenda nt, the Depa

rtment of Just ice ( “DOJ”). The 1 motion is opposed by

the pro se plaintiff, Moses King . Upon consider ation of the motion, the opposition t here to, and the re cord of this case, the Court c oncludes the motion should be g rante d. I. BACKG ROUND King was prose cuted f

or violatingfede ral na

rcotics law s. Compl. at 3. I n Aug ust 2007, He submitted a broa dly

worde d FOIA re quest to the DEA F ree dom of Information Of fice in Arling ton, Virg inia, seeking , without lim itation, information relatingto him either “dire ctly or

King also submitted FOIA re quests to two other compone nts of the DOJ, the Bure au of 1 Alcohol, Tobac co, F irea

rms and Explosi ves, and the Ex ecutive O ffice of the United States Attorney s. J udg ment alre ady has bee n awa

rded to the D OJ with respec t to these claims. See King v. Dep’t of Justice

, 2009 WL2951124 (D.D.C. Sept. 9, 2009).indirectly .” De cl. of Willi am C. L ittle, J r. (June 29, 2009) (“ L ittle Decl.”) , Ex . A (“ King ’s 2 FOIA Request”) . King ag ree d to pay any rea sonable c osts, “but would assert my privileg e of g etting the first 100 pag es without cost or handlingfee s.” Id . The DEA ’s file index showed 15 files that might c ontain responsive r ecor ds, and the DEAconsumed the statutory 2 fre e hours of
sear ch time in sear chingonly one of the files, 5 U.S.C. § 552(a)( 4)(A) (iv), a f ile that listed King as a de fenda

nt and containe d 93 pag es of r esponsive re cords. L ittle Decl.¶ 40. B y letter to King dated De cembe r 10, 2007, the DEAforwa rded 18 pa g es of pa

rtially disclosed re cords, a

nd notified him that it was withholding the re st of the pag es in full. Compl. at 5; L ittle Decl.¶ 19. The DEAcontends that it also informed K ing, in a separ ate letter

of the same date, that “ his
name wa s mentioned in 14 ‘re lated’ f iles, and that if he w ished to have those 14 f iles sear ched, he would be r esponsible for a sear ch fe e of $728.00.” L ittle Decl. ¶ 20, Ex. F. Kingaver s that he did not rece ive this second letter , and he e x presse s doubt that the DEA eve r sent it. Opp’n at 7-8; Affida vit of Moses King ¶ 2 (Sept. 21, 2009). 3 King promptly

appea led the DEA ’s disclosure de cisions to the DOJ ’s Off ice of I nformation Policy

(“O I P”), and le arne d by

letter dated Fe bruar

y 19, 2008, that OI P affirme d the DEA’s se arc h and disclosure decisions. Compl. at 2-3; L ittle Decl. ¶ 26. While the appe al was still pending , King sent an identica l FOIA re quest to the DEA’ s field offic e in South Carolina, the district in which he ha d been pr osecute d. L ittle Decl. ¶ 23. That reque st was forw arde d to DEA’s F OI A offic e in Arling ton, which informed King that no action would be take n beca use

The L ittle Declar ation and its exhi bits are f iled on the public re cord w ith the DEA’s 2 Motion for Summary

J udg ment at Docke t Entry #31. The KingAffida

vit is filed with his Opposition, at Docket Entry #36. 3 -2-“[n] o further information other tha

n that previously

sent is available to you.” L ittle Decl. ¶ 25 & Ex . K. In Marc h 2008, the DEA voluntar ily re- rele ased to Kingthe 18 pag es of r edac ted documents in order

to corre late the c laimed exemption with t he spec ific information withheld. L ittle Decl. ¶ 27. I n Aug ust 2008, King f

iled this lawsuit. S ever al wee ks later, the D EA sent Kinga letter stating that there w ere an additional 15 fie ld office files that might c ontain responsive information, stating that the estimated fe e for proce ssing the 15 f

ield office files and the
rema ining 14 DE A hea dquarte rs files wa s $2464, and explaining that the f ee quote d in its Dec ember

10, 2007 letter wa s based only on the 14 hea dquarte rs files. L ittle Decl. ¶ 28 & Ex . N. King does not deny

that he re ceive d the Dec ember 4, 2008 letter, but notes that it was issued a fter the lawsuit was f

iled. Opp’n at 8-9. I t is undisput ed that Kinghas not paid the DEA for 4 additional sear chingbeyond the one f ile. I t is also undisput ed that King has not revise d or
narr owed his re quest. Sometime after K ing initiated this lawsuit, EOUSA re fer red to the D EA for

proce ssing a total of 620 pag es of potentially responsive materials it had identified in c onnection with the FOIA re quest Kinghad addr essed to EOU SA. L ittle Decl. ¶¶ 30-32. Afte r cullingrec ords that
wer e non-r esponsive, exact duplicate s, or alre ady rele ased to King , the DEA ma de an a dditional King g oes to some leng th to establish that the prison mail log does not show that King 4 rec eived a

letter fr om the DEA in De cembe r 2008. Opp’n a t 9 n.4. The import of this point is not clear , as he doe s not deny rec eiving notice of the fee . King broadly alleg es that the DEA ’s conduct amounts to bad faith and urg es the Court to “de ny the DEA’ s motion for summary judgme nt simpl y

beca use the DEAhas attempted suc h unethical she nanig ans in an e ffor t to preva il in thi s matter bef

ore the Court.” Id. at 8. In support, he alleg es, for example, that the “DEAdenied the e x istence of any rec ords beyond the 74 [recor ds] i t initi ally identified.” Id. at 9 (punctuation altered) . An examination of the letters fr om the DEA to Kingestablish that this alleg ation is without foundation in fact. -3-rele ase to Kingconsisting of 29 pag es disclosed in full, 30 pag es disclosed with re dactions, and a notice that 21 pag es we re w ithheld in their entirety . L ittle Decl. ¶¶ 33-34. All told, considering both the EOUSA-r efe rre d rec ords and the one DEA he adquar ters file, the DEA re lease d to King 29 pag es without reda ctions and 48 pag es with reda ctions. I n addition, another 96 pa g es we re withheld in full . King c halleng es the DEA ’s withholdings. II. ANALYSIS On a motion to dismi ss for fa ilure to state a c laim broug ht under Rule 12(b) (6) of the Fe dera l Rules of Civil Procedur e, whe re matters outside the plea dings a re pr esente d and not excluded by

the Court, the motion must be tre ated a s one brought under Rule 56. F ed. R. Civ. P. 12(d). A motion for summary judgme nt under Rule 56 must be g rante d if the plea dings a nd evidenc e on file show that there is no g enuine issue of materia l fac t, and that the moving party is entitled to judgment a s a matter of law. F ed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, I nc., 477 U.S. 242, 247 (1986). In consideringwhether there is a triable issue of

fac t, a cour

t must draw all rea sonable infe renc es in favor of the non-movingparty . Liberty Lobby, 477 U.S. at 255. The pa rty opposing a

motion for summary

judgme nt, however , “may not rely mere ly on alleg ations or denials in its own pleading ; rather , its response must . . . set out specific f acts showing a g enuine issue f or trial,” F ed. R. Civ. P. 56(e)(2), that would permit a re asonable jury to find in his favor, Laningham v. U.S. Navy, 813 F.2d 1236, 1241 ( D.C. Cir. 1987). The non-moving party

must do more than simply “show that ther e is some metaphy sical doubt as to the mater ial fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). More over, “ any

fac tual asser

tions in t he movant’s a ffidavits will be ac cepte d as being true unless [the opposing pa rty ] subm its his own affidavits or other documentar

y evidenc e -4-contra dicting the asser tion.” Neal v. Kelly, 963 F.2d 453, 456 ( D.C. Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 ( 7th Cir.1982)). A. The 29 DEA Files Not Searche d and Processe d A FO I A re quester c annot maintain a c ivil action unless he ca n demonstrate that he has first exhausted his administrative remedie s. Hidalgo v. FBI, 344 F.3d 1256, 1259 ( D.C. Cir. 2003). A fa ilure to exhaust administ rative r emedies be fore filing a FOIA suit is properly

treated as a f ailure to state a

claim upon which r elief ma y be g rante d. Id. at 1260. “Exhaustion [ of administrative re medies] does not occur until the re quired fe es ar e paid or an appe al is taken from the r efusa l to waive fe es.” Oglesby v . Dep’ t of Army, 920 F.2d 57, 66 ( D.C. Cir. 1990). “Reg ardle ss of whethe r the plaintiff f iled suit before or af

ter re ceivinga re quest for pa y ment, the plaintiff has a

n obligation to pay

for the r easona

ble copy ing a nd sear ch fe es asse ssed by the defe ndant.” Trueblood v. Dep’ t of the Treasury , 943 F. Supp. 64, 68 (D.D .C. 1996). Even whe n a fe e asse ssment comes “a fter the filing of [t he] lawsuit, [ a] plaintiff is obligated none theless to pay the fe e or to see k from the a g ency either a fee waiver

or a f ee r eduction.” Maydak

v. De p’t of Justice, 254 F. Supp. 2d 23, 50 (D.D .C. 2003). The Court fully

cre dits King’s state ment that he did not rec eive the D EA’s De cembe r 10, 2007 letter infor

ming him that he would be require d to pay $728 befor e the DE A would undertake any

additional sear chingof the 14 files loc ated at headqua rters. K ing’ s relate d alleg ations of bad f

aith are unsubstantiated, howeve r. Proof that mail wa s not rece ived is not proof that mail wa s not sent. Thus, King ha s not shown that the L ittle Declar ation is mist aken, let alone made in bad fa ith. Theref ore, the Court acc ords to the ag ency decla ration a pr esumption of g ood faith, see Safe Card Servs., Inc . v. SEC, 926 F.2d 1197, 1200 ( D.C. Cir. 1991), and fully
-5-cre dits the DEA’s stateme nt that it prepare d and sent the le tter on or a bout Dece mber 10, 2007. Whil e ther e is doubt as to when Kinglear ned that he w ould be re quired to pay fee s if he wa

nted additional sear ching , there is no doubt that King ha s not paid the fee s associate d with any additional sear chingand proc essingof potentially responsive r ecor ds. There fore , beca use he ha s not exhausted his adminis trative re medies, Kingcannot maintain a challeng e to the scope or adequa cy of the sea

rch, a nd any claim he make s with respec t to the 29 files that the DEA ultimately

identified as c ontaining pote ntially responsive doc uments, but did not search a nd proce ss for re lease , cannot survive . Acc ording ly , as there is no dispute as to the material f acts, the DOJ is entit led to judgme nt with respec t to the unexhausted portions of King’ s FOIA re quest, that is, any

thing to do with the 29 files not sea rche d. B. The Exe mptions Clai med for the Proc essed Re cords As to the one file se arc hed and the EOUSA-r efe rre d rec ords, the DEA is entitled to summary judgme nt with respec t to the exempti ons claimed if it ca n demonstrate that all information in the 173 unique pag es of r esponsive re cords e ither has be en re lease d to King or is exempt from disclosure. Students Against Genocide v . Dep’ t of State, 257 F.3d 828, 833 ( D.C. Cir. 2001). “The burden is on the a g ency to produce aff

idavits or decla

rations that desc ribe the documents involved and justify the non-disclosure in a clea r, spec ific and r easona

bly detailed
manner , and that ar e not controve rted by either c ontrary

evidenc e in the re cord or by evidenc e of ag ency bad fa ith.” Voinche v . FBI, 412 F. Supp. 2d 60, 64 (D.D .C. 2006). The a g ency may choose to use a

n index t o assist with satisfy ing this burde n, or may selec t some other method of “provid[ing] a re viewingcourt with suffic ient information to deter mine, without the disclosure of actua l documents, whethe r informa tion withheld by

[t he] ag ency

falls within the claimed F OI A
-6-exemption.” Id. at 65. In this case, the D EA has f iled a deta iled decla

ration as we ll as an index that corr elates the specific exemption claimed with the specific inf ormation withheld. See L ittle Dec l. & Ex. T. King challeng es the e x emptions the DEA cla ims for the 48 pag es withheld in part a nd the 96 pag es withheld in full. His challeng es ar e g ener ic, not specific . Opp’n at 10 (“Plaintiff will not belabor this Court by

challeng ing the Def

endant’ s arg

ument point by

point or else this opposition wil l also be 74 pag es long .”) In what appe ars to be a g lobal challeng e, Kingargues that the re cords a

re strippe d of their statutory exemptions “bec ause the information has be en rele ased into the public domain via judicia l proce eding s and media outlets.” Id; se e also Opp’n at 12 (a rguing that the confide ntial source e x emption is inapplicable bec ause “ [t ]here ar e no confide ntial sources that have not alr eady been disc losed throug h the cr iminal procee dings” ). Of
course , King has no wa

y of knowingwhether

his statement is true, as he does not know what is in the undisclosed re cords. In any case , King has not “‘point[ed] to s pecif ic information in the public domain that appea rs to duplicate that be ing w ithheld,’” a s the law re quires him to do befor e a c ourt ca

n find that the exemption has been wa ived by the public domain doctrine
. Cottone v. Reno, 193 F.3d at 555-56 (D.C. Cir. 1999) (quoting Afshar v. Dep’ t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). B eca use Kinghas not identified any specific information or the“the exac t portions” of a specific document that is in fac t “pre serve d in a per manent public domain,” id. (interna l quotation marks omitted), his public domain challeng e fa ils. The DEAapplied F OI A exemptions 7(C) and 7(F ) to withhold the names and othe r identifying inf

ormation of third par

ties, including suspe cts, co-de fenda nts, and confide ntial
source s of information. L ittle Decl. ¶¶ 65-73, 80-84. F OIA exemption 7(C) applies to
-7-information “c ompiled for law e nforc ement purpose s,” the disclosure of which “ could re asonably

be expected to c onstitut e an unw arr anted invasion of pe rsonal priva cy .” 5 U.S.C. § 552(b)(7) (C). Ex emption 7(F) applies to information “c ompiled for law e nforc ement purpose s,” the disclosure of which “ could re asonably be expected to e ndang er the life or phy sical saf ety of any individual.” 5 U.S.C. § 552(b)(7)( F) . King makes no a rgument specific to exempti on 7(F ), and a rgues that exemption 7(C) “should not apply ,” bec ause his cr iminal prosecution is completed, whic h he presumes to mea

n that “the c riminal investigation has come to a c onclusion.” Opp’n at 10-11. King ’s ar gument runs counter to the law; as a

n individual’s privacy

interest prote cted by exemption (b)(7)(C) is not diminished by the “pa ssag e of time.” Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990). Ac cording ly , King ’s cha lleng e to FO I A exemptions (7)(C) and 7( F) fails. The DEAapplied F OI A exemption 7(D) to withhold the identity of conf idential source s and the infor

mation that source r evea led. See L ittle Decl. ¶¶ 74-79 (discussingthe desc ribing the application of F OI A exemption 7(D) to the withheld information). F OIA exemption 7(D) applies to “re cords or

information compiled for law enf orce ment purposes” the disclosure of which “could r easona

bly be expected to disclose the identity of a c onfidential sourc e . . . and, in the c ase of a r ecor d or information compiled by a cr iminal law enfor ceme nt authority in the course of a criminal investig ation . . . information furnishe d by a conf idential source .” 5 U.S.C. § 552(b)( 7)(D) . King urg es the Court to revie w the docume nts in camera to ensure that the confide ntial source e x emption is applied only to parties who a ctually

relied on a

n express
assura nce of confide ntiality . Opp’n at 11. King ha s offe red no r eason f or the Court to doubt the ag ency ’s g ood faith in restric ting the a pplication of the c onfidential sourc e exemption to
-8-confide ntial sources. In the abse nce of any cause shown, the Court will acc ord to the ag ency decla ration the g ood faith to which it is entitled and will decline to under take a n in camera revie w. King also raise s three othe r issues. Fir st, he attac ks the DEA’ s use of F OI A exemption 7(E), a nd argues that “the DEA must demonstrate that the cer tain law enf

orce ment techniques or proce dures [withheld] are not well known to the public, or a re othe rwise e x traordina

ry .” Opp’ n at 14. A re view of the L ittle Declar ation and the a ccompa nying inde x of re dactions and exemptions shows that the DEA did not invoke e x emption 7(E). Sec ond, King asks the Court to “conside r the issue of se g reg ability .” Opp’ n at 12. The D EA has state d throug h the L ittle Dec laration that it has conducted a “pag e-by -pag e and line- by -line” r eview of both the DEA
rec ords and the E OUSA-re fer red r ecor ds, and has se g reg ated a nd rele ased a ll seg reg able information. L ittle Decl. ¶ 85. K ing ha s provided no spec ific fa cts to challeng e the a g ency ’s statement. Third, Kingappea rs to think that the DEA is claiming an exemption under§ 552a (j)(2) of the Privac y Act, 5 U.S.C. § 552a. See Opp’n at 9-10. Such is not the case
. The DEArevie wed the r ecor ds for re lease under the FOIA exemptions and did not base any of its withholdings on the Privac y Act provision cited. See L ittle Decl. ¶¶ 58-59. III. CONCLUSION I t is undisput ed that King did not pay

the re quired fe es for

additional sear ching
. There fore , he has not e x hausted his administrative re medies with respe ct to any thing but the one DEA he adquar

ters file that was sea

rche d. As to that one file, a nd as to rec ords re fer

red to the DEA by the EOUSA, the D EA has submitted a de clar ation and an inde x descr ibing the information it withheld, expl aining why it was withheld, and c iting the statutory exemptions that
-9-justify

the withheld information. Upon c are ful revie w of these materia ls and King ’s objections, the Court is satisfied that the exemptions are justified. Ther efor e, as ma tters outside the pleading s were considere d by the Court and as the re is no g enuine dispute a s to a materia l fac t, the DOJ is entit led to judgme nt with respec t to King’ s claims relating to his FO I A re quest direc ted to the DEA. Asepar ate f inal order acc ompanies this memorandum opinion.
HENRY H. KENNEDY , J R. Date: Ma rch 17, 2010 United States District J udg e

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