UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MICHAEL PENNY, : 

 : 

 Plaintiff, : Civil Action No.: 08-1666 (RMU) 

 : 

 v. : Re Document No.: 9 

 : 

U.S. DEPARTMENT OF JUSTICE, : 

 : 

 Defendant. : 

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS 

OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

I. INTRODUCTION 

 In this civil action brought pro se under the Freedom of Information Act (“FOIA”), 5 

U.S.C. § 552, the plaintiff challenges the Drug Enforcement Administration’s (“DEA”) response 

to his requests for records pertaining to himself, other individuals and certain real property. The 

defendant moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) 

and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil 

Procedure 56. 

Upon consideration of the parties’ submissions and the entire record, the court dismisses 

without prejudice the plaintiff’s claims premised on his request for third-party records because 

he failed to exhaust his administrative remedies with respect to those requests prior to 

commencing suit. With respect to his remaining requests, however, the court denies the 

defendant’s motion without prejudice because the defendant has not submitted a competent 

affidavit demonstrating the reasonableness of its search efforts. 
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II. FACTUAL & PROCEDURAL BACKGROUND

 In September 2006, the plaintiff requested DEA records pertaining to himself, a search 

warrant issued against him in August 1990, DEA agents who executed the search warrant and a 

retired case agent who allegedly made a statement about the plaintiff. Def.’s Mot., Decl. of Leila 

I. Wassom (“Wassom Decl.”), Ex. A. In addition, he also requested records pertaining to the 

occupants at 4901 W. Congress, Chicago, Illinois, including himself and an individual named 

Tammie Brown. Id. By letter dated June 1, 2007, the DEA informed the plaintiff that it could 

not process his request for records pertaining to third parties without a notarized privacy waiver 

or proof of death for each third party. Id., Ex. F. Subsequently, by letter dated June 6, 2007, the 

DEA informed the plaintiff that its search for records pertaining to himself and the 

aforementioned address returned no responsive records. Id., Ex. G. The DEA’s June 6 letter 

invited the plaintiff to offer additional search criteria that he felt would assist in conducting a 

more in-depth search and advised him of his right to appeal its determination to the Department 

of Justice’s Office of Information and Privacy (“OIP”). Id. 

The plaintiff appealed to the OIP, which, by letter dated July 26, 2007, affirmed the 

DEA’s determinations. Id., Exs. H, J. The plaintiff initiated this civil action on September 30, 

2008. See generally Compl. 
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III. ANALYSIS

A. The Court Dismisses Without Prejudice the Plaintiff’s Claims Predicated on his 

Requests for Third-Party Records for Failure to Exhaust His Administrative Remedies

 The defendant contends that because the plaintiff failed to exhaust his administrative 

remedies with respect to his requests for records pertaining to third parties, the claims predicated 

on those requests should be dismissed. Def.’s Mot. at 10-12. The plaintiff does not specifically 

address this argument. See generally Pl.’s Opp’n. The plaintiff concedes, however, that he did 

not provide the required third-party privacy waivers until several months after his administrative 

appeal to the OIP was denied. Pl.’s Opp’n, Pl.’s Decl. ¶¶ 7-8, 15; Def.’s Mot. at 2. 

 “Exhaustion of administrative remedies is generally required before seeking judicial 

review ‘so that the agency has an opportunity to exercise its discretion and expertise on the 

matter and to make a factual record to support its decision.’” Wilbur v. CIA, 355 F.3d 675, 676 

(D.C. Cir. 2004) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). In 

the FOIA context, the exhaustion requirement is a prudential consideration, not a jurisdictional 

prerequisite, and therefore a plaintiff’s failure to exhaust does not deprive the court of subjectmatter jurisdiction. Id. But as a prudential consideration, the exhaustion requirement may still 

bar judicial review if both (1) the administrative scheme at issue and (2) the purposes of 

exhaustion support such a bar. Id. (citing Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 

2003)). With regard to the first factor, the D.C. Circuit has concluded that the FOIA’s 
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administrative scheme supports barring judicial review.1 Id. (citing Hidalgo, 344 F.3d at 1259). 

As for the second factor, courts look to see whether barring judicial review would “prevent[] 

premature interference with agency processes, so that the agency may function efficiently and so 

that it may have an opportunity to correct its own errors, to afford the parties and the courts the 

benefit of its experience and expertise, and to compile a record which is adequate for judicial 

review.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975); see also Hidalgo, 344 F.3d at 1259 

(applying the Weinberger description of the purpose of exhaustion in the FOIA context). 

In the instant case, the plaintiff has offered nothing to indicate that the defendant 

withheld any third-party records after the plaintiff submitted the required privacy waivers. See 

generally Compl.; Pl.’s Opp’n. To the contrary, it appears that the defendant has yet to formally 

respond to the plaintiff’s requests for third-party records, as the defendant represents that it needs 

time to “authenticate the privacy waivers and begin its search for the third-party information.” 

Def.’s Mot. at 11. As a result, it would be premature at this juncture for the court to interfere 

with the agency’s efforts to respond to the plaintiff’s requests. The court therefore dismisses 

 

1

 Specifically, the court has stated that 

[t]he FOIA expressly requires that an agency receiving a request for information (i) 

determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after 

the receipt of any such request whether to comply with such request and shall 

immediately notify the person making such request of such determination and the reasons 

therefor, and of the right of such person to appeal to the head of the agency any adverse 

determination; and (ii) make a determination with respect to any appeal within twenty 

days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such 

appeal . . . . If the denial of the request is upheld on appeal, the agency must notify the 

person making such request of the provisions for judicial review of that determination 

. . . . As we have previously concluded, this statutory scheme requires each requestor to 

exhaust administrative remedies. 

Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003) (internal quotations and citations omitted). 
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without prejudice the plaintiff’s claims predicated on his requests for third-party records based 

on his failure to exhaust administrative remedies. 

B. The Defendant Is Not Entitled to Summary Judgment on Claims 

Predicated on the Plaintiff’s Request for Non-Third Party Records

1. Legal Standard for a Motion for Summary Judgment

 Summary judgment is appropriate when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a 

genuine issue of material fact, the court is to view the record in the light most favorable to the 

party opposing the motion, giving the non-movant the benefit of all favorable inferences that can 

reasonably be drawn from the record and the benefit of any doubt as to the existence of any 

genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To 

determine which facts are “material,” a court must look to the substantive law on which each 

claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is 

one whose resolution could establish an element of a claim or defense and, therefore, affect the 

outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. 

 The FOIA affords the public access to virtually any federal government record that FOIA 

itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 

820, 823 (D.C. Cir. 1973). The FOIA confers jurisdiction on the federal district courts to order 

the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a 

judicial review of an agency’s response to a FOIA request, the defendant agency has the burden 
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of justifying nondisclosure, and the court must ascertain whether the agency has sustained its 

burden of demonstrating that the documents requested are exempt from disclosure under the 

FOIA and that the agency has adequately segregated exempt from non-exempt materials. 5 

U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v. Dep’t 

of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead Data Cent., Inc. v. Dep’t of Air Force, 

566 F.2d 242, 260 (D.C. Cir. 1977). An agency may meet its burden by providing the requester 

with a Vaughn index, adequately describing each withheld document and explaining the reason 

for the withholding. Summers, 140 F.3d at 1080; King v. Dep’t of Justice, 830 F.2d 210, 224 

(D.C. Cir. 1987); Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a 

“Vaughn index”). 

The court may award summary judgment solely on the information provided in affidavits 

or declarations that describe “the justifications for nondisclosure with reasonably specific detail 

. . . and are not controverted by either contrary evidence in the record nor by evidence of agency 

bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn 

v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). When, as here, 

responsive records are not located, an agency is entitled to summary judgment if it establishes 

“beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant 

documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For 

purposes of this showing, the agency “may rely upon affidavits . . . , as long as they are relatively 

detailed and nonconclusory and . . . submitted in good faith.” Id. (citations and quotations 

omitted). The required level of detail “set[s] forth the search terms and the type of search 

performed, and aver[s] that all files likely to contain responsive materials (if such records exist) 
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were searched . . . .” Oglesby, 920 F.2d at 68; accord Valencia-Lucena v. U.S. Coast Guard, 180 

F.3d 321, 326 (D.C. Cir. 1999). “If the requester produces countervailing evidence placing the 

sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is 

inappropriate.” Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of 

Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). In determining the 

adequacy of a FOIA search, the court is guided by principles of reasonableness. See Campbell v. 

U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). An agency is required to produce only 

those records in its custody and control at the time of the FOIA request. McGehee, 697 F.2d at 

1110. 

2. The Defendant Has Not Established the Reasonableness of its Search

 The defendant contends that summary judgment is warranted because the evidence 

demonstrates that it conducted a reasonable search for records responsive to the plaintiff’s 

requests. See Def.’s Mot. at 9-10. To demonstrate the reasonableness of its search efforts, the 

defendant proffers the declaration of Leila I. Wassom, a DEA Paralegal Specialist assigned to the 

Administrative Law Section of the Office of Chief Counsel. Wassom Decl. ¶ 1. Wassom 

reviews FOIA requests made to the DEA for purposes of litigation. Id. ¶ 2. Her declaration is 

based on her review of the complaint “and the records maintained by the DEA Freedom of 

Information Operations Unit (SARO),” which is responsible for processing FOIA requests 

submitted to the agency. Id. ¶¶ 4-5. In short, Wassom states that the DEA conducted a 

comprehensive search in response to the plaintiff’s request but recovered no responsive 

documents. Id. ¶¶ 16-22. 
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“A declarant in a FOIA case satisfies the personal knowledge requirement in Rule 56(e) 

if in [her] declaration, [she] attests to [her] personal knowledge of the procedures used in 

handling [a FOIA ] request and [her] familiarity with the documents in question.” Barnard v. 

Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations and internal 

quotation marks omitted); compare SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 

1991) (noting that the individual in charge of a search is “the most appropriate person to provide 

a comprehensive affidavit” and may rely on information provided by third-parties with personal 

knowledge of the search efforts) (citing Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir.1986)) 

with Weisberg v. Dep’t of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980) (vacating summary 

judgment because the district court improperly relied upon a statement provided by an individual 

with no personal knowledge of the object of the search and who did not rely on information 

provided by someone with actual knowledge). 

Although Wassom’s review of the DEA’s official records qualifies her to testify about 

the procedures employed in processing the plaintiff’s request, she neither attests to having 

personal knowledge about the search conducted, Wassom Decl. ¶ 19, nor states that she relied on 

information provided to her by individuals who actually performed the search, see id. ¶¶ 16-22. 

The court therefore denies the defendant’s summary judgment motion with respect to his request 

for non-third party records without prejudice to reconsideration of a properly supported motion. 
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IV. CONCLUSION

 For the foregoing reasons, the court grants the defendant’s motion to dismiss the claims 

predicated on the plaintiff’s requests for third-party records and denies the defendant’s motion 

for summary judgment with respect to the plaintiff’s remaining claims. An Order consistent with 

this Memorandum Opinion is separately and contemporaneously issued this 21st day of 

September, 2009. 

 RICARDO M. URBINA 

 United States District Judge