UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 08-1439 (CKK)

MEMORANDUM OPINION (September 9, 2013) Plaintiff Jeffrey North, proceeding pro se , filed suit against the Drug Enforcement Administration (“DEA”) and several other federal agencies alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The onl y remaining claim at issue is Count 1 of the Amended Complaint, which challenges the DEA’s Glomar response to the Plaintiff’s FOIA request seeking information regarding a purpo rted DEA informant—Gi anpaolo Starita—who testified against the Plaintiff during his criminal trial. The Court previously granted summary judgment in favor of the DEA on this count, but vacated that judgment upon the Plaintiff’s motion to reconsider, and ordered the DEA to conduct a search for re sponsive records. Presently before the Court are the par ties’ renewed cross-motions for summary judgment and the Plaintiff’s motion for a Vaughn index. Upon consideration of the parties’ pleadings, 1 the

1 The Court’s decision is based on the record as a whole, but the Court’s analysis focused the following documents, in chronological orde r of filing: DEA’s Second Renewed Mot. for Summ. J. (“DEA’s Mot.”), ECF No. [149]; Pl.’ s Opp’n & Second Renewed Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”), ECF No. [153]; DEA’s Reply & Opp’n to Pl.’s Second Renewed Cross-Mot. (“DEA’s Reply”), EC F No. [155]; Pl.’s Mot. for Vaughn Index, ECF No. [164]; Pl.’s Reply, ECF No. [167]; Pl.’s Errata, ECF Nos. [168-170]; Def.’s Notice, ECF No. [171].

JEFFREY NORTH, Plaintiff,

v. UNITED STATES DEPARTMENT OF JUSTICE, et al. , Defendants.2 relevant legal authorities, and the summary j udgment record, the Court finds the DEA conducted an adequate search for responsive records, which revealed no records responsive to the Plaintiff’s request. Accordingly, the DEA’s [149] Sec ond Renewed Motion for Su mmary Judgment is GRANTED and the Plaintiff’s [153] Second Rene wed Cross-Motion for Su mmary Judgment and [164] Motion for Vaughn Index are DENIED. I. BACKGROUND A. Plaintiff’s FOIA Requests Following a jury trial in Marc h 2000, the Plaintiff was convict ed of conspiracy to possess with intent to distribute marijuana a nd various firearm-related offenses. See United States v. North , No. 98-10176, Jury Verdict (D. Mass. Mar. 15, 2000) . The Plaintiff is currently serving a combined term of imprisonment of 540 months. United States v. North , No. 98-10176, Judgment (D. Mass. Dec. 26, 2000). Between 2004 and 2008, the Plaintiff submitted six separate Freedom of Information Act requests to the DEA seeking information regarding Gianpaolo Starita, who testified against the Plaintiff during the Plaintiff’s criminal trial. See First Little Decl., ECF No. [19-1], ¶¶ 14-35. The Plaintiff’s Amended Complaint challenges the DEA’s response to the request submitted on July 13, 2007, seeking any and all documents “which contain any debriefing/proffer statements made/given by Gianpaolo Starita in regard to [Plaintiff].” First Little Decl., ECF No. [19-1] Ex. M at 1. The Plaintiff explained that during the Plaintiff’s criminal trial, Starita testified that [Starita] was a drug dealer in the illegal purchase and sales of marijuana and that his partners in this illegal drug busine ss were Gele Kostovski and Roger Leach, with Robert Ortel-Wortel, Josh Good man, Michael Papone, Jay Grassis being other persons who assisted [Starita] in his illegal drug business. Additionally, Starita testified in relation to telephone conversations that he had with Regina Monaghan and that he met her at Boston Billiards. Starita also testified that he had met Carla North at the apartment of R oger Leach. Starita testified that he had3 a relationship with DEA Agent Damian Farley and ATF Agent John Mercer testified at my trial that he debriefed Starita. Id. The request included an affidavit from the Plai ntiff averring that Starit a testified to the above information, and further testified that he (Sta rita) “sold large quanti ties of marijuana to [Plaintiff].” Id. at 3. The DEA responded to the Plaintiff’s 2007 request on Septembe r 20, 2007, by indicating that the agency would “neither confirm[] nor den[y] the existence of any requested records regarding Gianpaolo Starita.” First Little Decl., Ex. O (9/ 20/2007 Ltr.) The agency explained that Without proof of death or an original notarized authorization, to confirm the existence of law enforcement records or information about another person is considered an unwarranted invasion of personal privacy. Such record would be exempt from disclosure pursuant to Ex emptions (b)(6) and/or (b)(7)(C) of the Freedom of Information Act (FOIA), Ti tle 5 U.S.C. Section 552. Before DEA can begin processing information related to any alleged criminal background, it will be necessary for you to provide either proof of death or an original notarized authorization (privacy wa iver) from that person. Id. The Plaintiff appealed the DE A’s response to the Office of Information Policy (“OIP”), but the OIP affirmed the DEA’s action. First Little Decl., Exs. P (11/3/2007 Appeal from denial of FOIA request) & R (12/31/2007 Ltr. affirming DEA response). On May 1, 2008, the Plaintiff submitted a FOIA request to the Drug Enforcement Administration seeking “all documents . . . that contain any debriefing/proffer statements made/given by Gianpaolo Starita,” and repeating the same summary of Starita’s testimony as set forth in the Plaintiff’s 2007 request. Pl.’s Reply, Ex. A (5/1/2008 FOIA Request). The Plaintiff’s request included an excerpt of the tr ial transcript of Mr. St arita’s testimony, and an affidavit from the Plaintiff averring that the transc ript excerpts “are true and correct copies from the trial transcripts as [the Plaintiff] r eceived them from the court reporter.” Id . at 3. The DEA4 once again refused to confirm or deny whether any of the requested records exist. Pl.’s Reply, Ex. B (9/18/2008 Ltr.). B. Litigation History The Plaintiff filed suit on August 15, 2008, and amended his complaint on September 12.
See Compl., ECF No. [1]; Am. Compl., ECF No. [3]. Count I of the Amended Complaint challenges the DEA’s response to the Plaintiff’s 2007 Request. Am. Compl. at 2-3. The Plaintiff has never amended his complaint to include the DEA’s response to his 2008 request. Count II contests the Bureau of Alcohol, Tobacc o, Firearms, and Explosiv es’ response to a FOIA request submitted by the Plaintiff in July 2007 whic h also sought records relating to Mr. Starita. Id. at 3-4. Counts III and IV challenge responses from the Executive Officer for United States Attorneys to FOIA requests seeking documents concerning Grand Jury pr oceedings relating to the Plaintiff. The Court grante d summary judgment to the Defendants on Count I-II and IV on September 30, 2009. North v. U.S. Dep’t of Justice , 658 F. Supp. 2d 163 (D.D.C. 2009). The Court subsequently granted summary judgment on C ount III in favor of th e Executive Office for the United States Attorneys. North v. U.S. Dep’t of Justice , 774 F. Supp. 2d 217 (D.D.C. 2011). Upon reconsideration, th e Court determined that its ruling with respect to Count I was too broad, and thus vacated the gran t of summary judgment and orde red the DEA to “search for and produce any responsive records that contain info rmation identical [to] that which has been publicly disclosed” in trial transc ripts submitted by the Plaintiff. North v. U.S. Dep’t of Justice , 810 F. Supp. 2d 205, 208 (D.D.C. 2011). The DEA sought reconsideration of the Court’s September 2011 order, which the Court denied, setting the stage for the cross-motions for summary judgment now before the Court. North v. U.S. Dep’t of Justice , 892 F. Supp. 2d 297 (D.D.C. 2012).5 II. LEGAL STANDARD Congress enacted FOIA to “pie rce the veil of administrativ e secrecy and to open agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose , 425 U.S. 352, 361 (1976) (citation omitted). Congress rema ined sensitive to the need to achieve balance between these objectives and the potential that “legitimate governme ntal and private interests could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory
Comm'n , 975 F.2d 871, 872 (D.C. Cir. 1992 ) (en banc) (citation omitted), cert. denied , 507 U.S. 984 (1993). To that end, FOIA “r equires federal agencies to make Government records available to the public, subject to nine exemp tions for categories of material.” Milner v. Dep’t of Navy , 131 S.Ct. 1259, 1261-62 (2011). Ultimately, “discl osure, not secrecy, is the dominant objective of the act.” Rose , 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner , 131 S.Ct. at 1262 (citations omitted). When presented with a motion for summary judg ment in this context, the district court must conduct a “de novo” review of the record, wh ich requires the court to “ascertain whether the agency has sustained its burden of demonstr ating that the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture , 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). Th e burden is on the agency to justify its response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reas onable specificity of detail rather than merely conclusory statements, and if they are not calle d into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media , 515 F.3d at 1227 (citation omitted). “If an agency's affidavit describes the justifica tions for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption,6 and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U .S. Dept of Defense , 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidav its showing reasonable specificit y and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State , 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summar y judgment is proper when the pleadings, the discovery materials on file, a nd any affidavits or declarations “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.” Fed. R. Civ. P. 56(a). With these principles in mind, th e Court turns to the merits of the parties' crossmotions for summary judgment. III. DISCUSSION The crux of the DEA’s renewed motion for summ ary judgment is that a reasonable search for responsive documents did not locate any docu ments responsive to the Plaintiff’s request. 2 “An agency fulfills its obligati ons 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, 390 (D.C. Cir. 1999) (citation omitted). “At summary judgment, a court may rely on [a] reasonably detaile d affidavit, setting forth the search terms and the type of search performed, a nd averring that all files likely to contain responsive materials (if such records exist) were searched.” Ancient Coin Collectors Guild , 641 F.3d at 514 (citation omitted). “The agency cannot limit its search to only one or more places if there are additional

2 Although the DEA’s motion discusses various FOIA exemptions, the Court understands from the DEA’ s [171] Notice that it is seeking summary judgment on the grounds that the search conducted by the agency was reasonable and did not locate any responsive documents.7 sources that are likely to turn up the information requested.” Valencia-Lucena , 180 F.3d at 391 (citation omitted). Ultimately, the adequacy of a search is “determined not by the fruits of the search, but by the appropriate ness of [its] methods.” Iturralde v. Comptroller of the Currency , 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted). To establish the adequacy of its search for records responsive to th e Plaintiff’s request, the DEA submitted a declaration from William C. L ittle, Jr. Third Little D ecl., ECF No. [149-1]. Mr. Little is an attorn ey with the Office of Chief Counsel fo r the DEA. First Little Decl., ECF No. [19], ¶¶ 3-4. Mr. Little expl ained that “[i]f any records exist that summarized information provided DEA by an individual or entity during th e course of a criminal investigation, the information would be summarized in a DEA Report of Investigation (ROI). The DEA Form 6, and DEA Form 6a, are multi-block forms that compri se the DEA ROI.” Third Little Decl. ¶ 4. DEA investigative case files are maintained in the DEA Investigative Reporting and Filing System, or “IRFS.” Id. ¶¶ 4-5. The IRFS contains “ all administrative, general, and criminal investigative files” compiled by the DEA for law enforcement purposes. Id. ¶ 6 (emphasis added). Accordingly, Mr. Little explained that “[a]ny DEA ROI responsive to plaintiff’s request is reasonably likely to be found in the DEA [IRFS].” Id. ¶ 4. The “Narcotics and Dangerous Drugs Information System,” or “NADDIS” is the index to IRFS. Id. ¶ 7. Individuals are identified in NADDIS by thei r name, social security numbe r, and/or date of birth. Id

. Investigative files are titled according to the name of the principal suspect at the time the DEA office commencing the investiga tion opened the file. Third Lit tle Decl. ¶ 5. In addition to information regarding the suspect for which the file is named, an investigative file “may also include other individuals such as those who are suspected of engaging in criminal activity in association with the subject of the. file.” Id. The DEA does not maintain separate investigative8 files on each individual or entity that is of investigative interest to the agency, thus “information related to any individual or entity could be co ntained in multiple investigative case files.” Id. “Proffer statements taken from an individual that is functioning as a confid ential source are filed in investigative case files and confidential source files.” Id. ¶ 11. In response to the Plaintiff’s request, th e DEA conducted two NADDIS queries. First, the DEA searched for the Plaintiff’s name, soci al security number, and date of birth, which identified three criminal investigative files in which information regarding the Plaintiff was located. Third Little Decl. ¶ 8. There was no indication in any of the files that “a Gianpaolo Starita was a criminal associate of plaintiff.” Second, the DEA searched for any files associated with “Gianpaolo Starita.” Id. ¶ 9. “The files identified in N ADDIS associated with a Gianpaolo Starita did not correspond with any DEA file associat ed with plaintiff, and plaintiff was not listed as a criminal associate of any Gianpaolo Starita.” 3 Id. In other words, the DEA’s searches did not reveal any investigative f iles in which both the Plaintiff and Gianpaolo Starita appear. Id. ¶ 11. Furthermore, Mr. Little personally reviewed the confidential source file for Gianpaolo Starita on February 23, 2012, and October 5, 2012, but did not locate any responsive records. Id. The detailed affidavit provided by Mr. Litt le clearly establishes the adequacy of the DEA’s search documents responsive to the Plai ntiff’s 2007 request. Th e Plaintiff sought any debriefing or proffer statements made by Mr. St arita concerning the Plaintiff. Mr. Little explained these statements, if they existed, would appear in relevant inve stigative files and Mr. Starita’s confidential source file. All investigative files are maintained in IRFS and indexed by NADDIS. The DEA searched NADDIS for the Plai ntiff’s name and Mr. St arita’s name. None

3 Contrary to the Plaintiff’s repeated asse rtion, the DEA does not claim that it was unable to determine if the files indexed under the name “Gianpaolo Starita” refe r to the same person identified in the Plaintiff’s FOIA request. See Pl.’s Reply ¶ 22.9 of the investigative file s located during these sear ches indicated the Plaint iff and Mr. Starita were criminal associates. The affiant personally revi ewed Mr. Starita’s conf idential source file, and did not locate any responsive documents. The DEA’s search was reasonably calculated to uncover all relevant documents, thus satisfying the agency’s obligations under the Freedom of Information Act. The Plaintiff did not address the adequacy of the DEA’s search in his opposition to the DEA’s motion. See generally Pl.’s Cross-Mot., ECF N0. [153]. The Court shall not consider arguments raised for the first time in the Plai ntiff’s reply in support of his cross-motion. Am. Wildlands v. Kempthorne , 530 F.3d 991, 1001 (D.C. Cir. 2008). Even if the Court were to consider the Plaintiff’s arguments, none have merit. First, the Plaintiff ar gues that the fact that Gianpaolo Starita and the Plaintiff were not listed as criminal associ ates in any investigative files “is not to say that there is no statement in the St arita file that Movant was either a criminal or non-criminal associate of Starita.” Pl.’s Reply ¶ 19. Even if the Plaintiff’s argument were true, the Plaintiff does not dispute the representati on in the Third Little Declaration that any statements Mr. Starita might have made about the Plaintiff would also be in Mr. Starita’s confidential source file, and a revi ew of that file did not locat e any responsive documents. Second, the Plaintiff contends that the DEA’s search was inadequate because there is no indication “that a search was conducted for informa tion related to Starita and his seven marijuana trafficking associates identified in the pages of trial transcripts attached to [Plaintiff’s] May 1, 2008, FOIA request.” Pl.’s Mot. for Vaughn Index ¶ 6; Pl.’s Reply ¶¶ 20-21. The Plaintiff’s original and amended complaints address the Plaintiff’s 2007 request to the DEA only. The DEA does not have to establish that it conducted an adequate search for documents responsive to

a different request in order to justify a grant of summary of judgment with respect to its search10 concerning the Plaintiff’s 2007 requ est. Third, the Plaintiff sugge sts that the DEA was obligated to conduct a separate search “for information c ontained in the DEA’s records which matches the information in the 250+ pages of trial and grand ju ry transcripts containing testimony of Starita.” Pl.’s Reply ¶ 13; Pl.’s Mot. for Vaughn Index ¶ 6. If the DEA had located documents responsive to the Plaintiff’s request, certain exemptions may not have applied if the information was disclosed in the transcripts at issue. Because the DEA’s search did not locate any documents responsive to the Plaintiff’s 2007 request, the transcript issue is moot. Finally, the Court notes there are no grounds on which to re quire the DEA to produce a Vaughn index. “A Vaughn index indicates in some descriptive way which documents the agency is withholding and which FOIA exemptions it believes apply.” Am. Civil Liberties Union v. CIA , 710 F.3d 422, 432 (D.C. Cir. 2013). The DEA did not locate any document s responsive to the Plaintiff’s 2007 request, thus th e DEA has not withheld any doc uments pursuant to any FOIA exemptions and there are no documents to index.
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//11 IV. CONCLUSION For the foregoing reasons, the Court finds th e DEA is entitled to summary judgment on Count I of the Amended Complaint. As set fo rth in detail in the de claration submitted by William Little, the agency’s search was reasonabl y calculated to locate all relevant documents, but ultimately did not locate any records responsiv e to the Plaintiff’s 2007 request. Because the agency did not locate any responsive documents , there are no grounds for requiring the DEA to produce a Vaughn index. Accordingly, the DEA’s [149] Second Renewed Motion for Summary Judgment is GRANTED and the Plaintiff’s [153] Second Renewed Cross-Motion for Summary Judgment and [164] Motion for Vaughn Index are DENIED. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE