Reep v. United States Department of Justice

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RODNEY REEP,/7W se^

Plaintiff,

V. Case No: 16-cv-1275-RCL

UNITED STATES DEPARTMENT OF JUSTICE,

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

This case concerns a March 2009 request by pro se plaintiff Rodney Reep under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for records held by defendants Executive Office for United States Attorneys ("EOUSA"), Federal Bureau of Investigation ("FBTO, United States Drug Enforcement Agency ("DEA"), and Bureau of Alcohol, Tobacco, Firearms, and

Explosives ("ATF"). The plaintiffrequested records regarding himselfand records relating to two criminal cases prosecuted in the United States District Court for the Eastern District ofVirginia. On June 23, 2016, Mr. Reep brought suit against the defendant agencies under FOIA, the Privacy Act of 1974, 5U.S.C. §552a, and the Administrative Procedure Act. The gravamen of plaintiffs complaint is that the agencies failed to uphold their obligations under FOIA. The government moved to dismiss the suit as against defendants EOUSA, FBI, and DEA, arguing that the Court lacks subject-matter jurisdiction overclaims barred by the statute of limitations. In the

same filing, defendant ATF moved for summary judgment in its favor, arguing that it fulfilled all of its obligations under FOIA as it relates to Mr. Reep's requests. Mr. Keep filed an opposition brief and the defendants chose not to reply.

Upon consideration of the defendants motion, the plaintiff's opposition, the entire record, and the applicable law, the Court GRANTS dismissal of the suit as to defendants EOUSA, FBI, and DBA, and GRANTS defendant ATF's motion for summary judgement. ECF No. 12. 11. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Rule 12(b)(1)

To survive a motion to dismiss under Federal Rule ofCivil Procedure 12(b)(1), the plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear the claim. See Lujan V. Defenders of Wildlife, 504 U.S. 555 (1992). Unlike when addressing a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside thepleadings indeciding whether to grant a motion to dismiss for lack ofjurisdiction." Jerome Stevens Pharm., Inc. v. Food&Drug Admin., 402 F.3d 1249,1253 (D.C. Cir. 2005).

B. Summary Judgment in FOIA Cases

Summary judgment is appropriate where "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw." Fed. R. Civ. Pro. 56(a). As applied in a FOIA case, an agency defendant may be entitled to summary

judgment ifitdemonstrates that 1) no material facts are in dispute, 2) ithas conducted an adequate search for responsive records, and 3) each responsive record that it has located has either been

produced to the plaintiffor is exempt fi-om disclosure. Miller v. U.S. Dep't ofJustice, 872 F. Supp. 2d 12, 18 (D.D.C. 2012) {citing Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)).

When an agency receives a FOIA request it is obligated to "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Dep't ofState, 897 F.2d 540, 541 (D.C.

Cir. 1990) (internal quotation marks omitted). The adequacy ofasearch, therefore, depends not on 'Vhether any further documents might conceivably exist," id., but on the search's design and scope. An agencymustaccordinglyshowthatitmade"agood faith effort to conductaset^ch for therequestedrecords, usingmethods[that]can be reasonablyexpected to producetheinfonnation requested." Oglesbyv. U.S. Dep't ofArmy, 920 P.2d 57,68 (D.C. Cii. 1990). The agency bears the burden ofshowing that it complied with FOIA and it may meet this bmk. > proving.. ^ of ^ p««>n»d. mi ..™.e that .11 «!., in,„ „ /W&, 3,5 FJd311, 3,3-14(D.C. Cl,. 2003), The plainairm.,to -piprtd, 'Co™.™!,tag..ddence-.. to ft, .d.,«„,offt, .g™,., U«314. If. ,rt».otft, tort CM by ft„, ,flld,W0 d<»ba-„ ». «—•. -paniouiarty ^ ov«loolrrtm.t«.l.-»,™,„gtogme„, would y,, Cto ftooyd. ISO F,,d 32, ,20 ,D.C. eft 1«, „.o,l„g ^ Nat'l. Sec. Agency, 610 F.2d 824,837 (D.C. Cir. 1979)). An .tooy cltonilog an totompiio. »FOIA Itoa ft, tort™ of tobliaMog ft,, ft, «»,.ion appa„, « Op,, ooto „/«. ^

for(1079). A. aganto,.ift ft. btode, byaobtolaliig n..di.,l».„ rtBdatoto a«-daaodb,ft. d«il. d»„n«. jto«otol„„ ft. ft, tof,„„g„„ logicallyfill, mftinft„to,„,g ^ ^ ^ o»ttoM,dby.ft.„,toy,v|g,„c in ft. tort by .,|d„c..,.g„y ^^ ^ (D.C. Cir. 2009) (internal quotation marks omitted).

"Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability ofother documents.'" SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.D.C. 1991). They may, however, be rebutted by evidence of bad faith. Id.

III. DISCUSSION

A. Motion to Dismiss Complaint against FBI, DEA, and EOUSA

The government moves to dismiss the complaint against the FBI, DEA, and EOUSA, arguing that it is barred by the statute of limitations and that the Court lacks subject-matter jurisdiction over the claims.

The statute of limitations period for FOIA actions is six years, as set forth in 28 U.S.C. § 2401(a). Spannaus v. U.S. Dep't ofJustice, 824 F.2d 52,55 (D.C. Cir. 1987). The statute provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." The six-year statute of limitation period "must be strictly construed" because § 2401(a) "is a jurisdictional condition attached to the government's waiver of sovereign immunity." Id. A FOIA claim "accrues" when "a party has [actually or constructively] exhausted all administrative remedies," at which point "the person challenging theagency action caninstitute andmaintain a suitin court." Id. at 56-57. Constructive exhaustion occurs "when the time limits by which an agency must reply to a FOIA claimant's request or appeal (if there is an appeal) expire." Aftergood v. CIA, 225 F.Supp.2d 27, 29 (D.D.C.2002).

The D.C. Circuit explained that "there are 'two time limit' provisions that trigger constructive exhaustion." Spannus, 824 F.2d at 58. "First, the agency has 'ten days (excepting

Saturdays, Sundays, and legal public holidays) after the receipt of any [FOIA] request' within

which to 'detennine ... whether to comply with such request..."' Id. (citing 5U.S.C. § 552(a)(6)(A)(i)). "Second, the agencyhas 'twentydays (excepting Saturdays, Sundays, and legal public holidays) after receipt of ... [an administrative] appeal' within which to 'make a determination' on that appeal. Id. (citing 5U.S.C. §552(a)(6)(A)(ii)). In other words, when a FOIA requestorappeals the initial agencydeteimination, his claim accrues-and thesix-yearclock begins to run ^twenty days after the agency receives the appeal. Plaintiff filed this action on June 23, 2016. The government proffers that the DEA informed the plaintiffthat his appeal was received on December 30, 2009, meaning that his right of action accrued twenty days later on January 29, 2010. ECF No. 17-1, Myrick Decl. K10. Therefore, he only had until January 29, 2016, to bring this action against the DEA. His suit was filed almost 5 months too late.

The FBI received the plaintiffsadministrative appeal on May 11, 2009. ECF No. 12-7, Hardy Decl. | 17. After his request was remanded to the FBI for further review and the FBI produced additional responsive documents, the plaintiff subsequently filed asecond appeal on May 17,2010. Id. 118. Despite filing asecond appeal, the plaintiffconstructively exhausted his administrative remedies twenty days after his first appeal because at that point he could have brought suit mthis Court. Therefore, his nght ofaction accrued on June 8,2009, and his window to bring suit against the FBI closed on June 8, 2015, more than one year before he actually filed this action.

Finally, the Office ofInformation Policy ("DIP") acknowledged receiving the plaintiffs appeal from the EOUSA decisionon January 8,2010. DIP subsequentlyinformed the plaintiffon April 9, 2010, that it agreed with the EOUSA's decision to withhold records in response to his FOIA request. ECF No. 12-8, Francis Decl. If 13. The plaintiffs right of action against the

EOUSA accrued on around February 11, 2010. Therefore, the statute of limitations precluded plaintiff from filing suit after February 11,2016, a few months before he actually filed this action.

Plaintiff does not dispute the specific dates proffered by the government in a way that would materially alter the outcome of this case.' Rather, the plaintiff points to his last correspondences with each agency to demonstrate that his lawsuit was in fact filed within the six-year statute of limitations window. Plaintiffs argument fails because the relevant factor is when the plaintiff has constructively exhausted his remedies, not when the administrative appeal has been adjudicated or when the agency last corresponds with the plaintiff. See Spannus, 824 F.2d at 57-59. Since the plaintiff failed to file suit against the FBI, DEA, and EOUSA within the six-year window after he constructively exhausted his administrative remedies, the Court must dismiss the claims as to those defendants.

B. Motion for Summary Judgement as to Claims against ATF

The government argues that it is entitled to summary judgment on plaintiffs remaining claims because ATF "fully discharged its obligations under FOIA," ECF No. 12 at 5, by conducting a reasonable search and properly withholding documents under the applicable exemptions.

1. Reasonableness ofthe Search

The government puts forth a declaration byStephanie M. Boucher, Chiefofthe Disclosure Division at ATF, outlining ATF's handling of the FOIA request, including how the search was

conducted. According to Ms. Boucher, in response to the plaintiffs initial FOIA request inMarch 2009—requesting all records pertaining to himself—^the Disclosure Division of ATF searched

' Plaintiff represents that the FBI informed him in a letter that his appeal was received on June 16, 2009 and not onMay 11, 2009 asproffered bythe FBI. See ECF No, 15 at 18. However, even if the Court accepts that date as correct, theplaintiffs suitagainst theFBI would stillbe barred by thestatute of limitations.

though "N-Force" and the Treasury Enforcement Communications System ("TECS")—the two systems of records which would most likely contain the documents pertaining to the plaintiffs request. ECFNo. 12-2,BoucherDecl.^ 28. TECS is a database—^maintained by the U.S. Customs and Border Protection, U.S. Department of Homeland Security—^which functions as a "comprehensive ATF law enforcement database that contains ATF investigative records." Id. ^ 30. N-Fore is a case-management system and is "ATF's official case file of record for documenting investigative activity and information, creating reports, tracking investigative leads andlinking data." M K31. The Disclosure Division searched those two systems by inputting the plaintiffs first and last name, date of birth, and Social Security Number, /fif. f 33. The search uncovered a single investigative case file numbered 768025-02-0042 involving the plaintiff. Id.

In June 2010 in response to plaintiffs second FOIA request for all records related to case files 768025-02-0042 and 768025-03-0042, TECS and N-Force databases were again searched for responsive documents. Id. ^ 35. Again, case file numbered 768025-02-0042 was identified. Id. ATF determined case filed numbered 768025-03-0042 to be unrelated to theplaintiff

In July 2016, a Specialist in ATF's Disclosure Division searched TECS and N-Force for a third time for any documents pertaining to the plaintiffbyinputting his first and last name, date of

birth, and Social Security Number. Id. ^ 36. No additional documents were identified beyond what had already been identified and released to the plaintiffin 2009. Id. 137. Moreover, "ATF's

Washington Field Division and the Norfolk Field Office (within the Washington Field Division) performed a search ofeach respective office and confirmed that no additionaldocuments had been

placed in Plaintiffs case file since theoriginal search for records was conducted in March 2009." /f/.1I38.

The Court finds that ATF met its burden to demonstrate that it conducted a reasonable search. In 2009, 2010, and 2016, ATF searched the systems that would contain the information soughtby the plaintiffand came up with the same case file each time. As such, in order to avoid summary judgment on this issue, the plaintiff must "provide countervailing evidence as to the adequacy of the agency's search." Iturralde, 315 F.3d at 314. The plaintiff seems to allege that the search was not adequate because he "did not receive the requested date in which the Grand Jury convene (sic) for original indictment anddatethe Grand Juryissued that superceded (sic) the indictment." EOF No. 15-1 at 4. "But it is long settled that the failure of an agency to turn up one specific document in its search does not alonerendera search inadequate." Iturralde, 315 F.3d at 314(intemal citations omitted). Instead, "the adequacy of a FOIAsearchis generally determined not by the fhiits of the search, but by the appropriateness of the methods used to carry out the search." Id. (intemal citations omitted). Here, ATF conducted a thorough search onthree separate occasions. Even it failed to tum up the date that the Grand Jury was convened, it would not call into question the adequacy of the overall search. The plaintiff fails to "offer evidence of circumstances sufficient to overcome an adequate agency affidavit" and the Court finds that the search was adequate. Id.

2. Application ofFOIA Exemptions

ATF withheld certain documents from the plaintiff based on FOIA Exemptions 3, 5, 6, 7(C), and 7(E). In order for the withholding to be proper, an agency must demonstrate that

invoking an exception is "logical" or "plausible." Wolfv. C.I.A., 473 F.3d 370,374-375 (D.C. Cir. 2007) (citations omitted). Here, ATF submitted Ms. Boucher's declaration and a Vaughn index to justify its withholding determinations.

a) Withholding under FOIA Exemption 3

Pursuant to this exemption, ATF "withheld aweapon's trace summary that was generated out of the ATF Firearms Trace System database." ECF No. 12-2, Boucher Decl. | 51. FOIA Exemption 3exempts from disclosure records when they are: specifically exempted from disclosure by statute ... if that statute (A)(i) requires ErSfo ® as to leave no refer!tn rt t types ofmattersestablishes refers t^articute particular to be withheld; andcriteria from withholding (B) ifenacted after the dateor ofenactment ofthe Open FOIA Act of2009, specifically cites to this paragraph. 5U.S.C. §552(b)(3). Congress expressly prohibited ATF from disclosing firearm trace informationincircumstances suchas this caseunderthe ConsolidatedAppropriationsActof2012, Pub. L. No. 112-55,125 Stat. 552 (2011). The statute provides: [DJuring the ciment fiscal year and in each fiscal year thereafter no funds Snt" disclose part or aU Xl Center of the Bureau of Alcohol, r Tobacco, Firearms database and Explosivrr maintained by the Nationaland^o Trace

Slta In «. k SlsS'? V I , a n d publicly disclose all such data shall be rmmune from legal process, shall not be subiect ^ed reh^ on, or disclosed rn any manner, nor shall testimony or other evidence of LZEl Colmbia) ^F^d or Federal?court or® •" in an administrative (includingother proceeding the District than a SS.."""* Tobacco, a 112 Pub. L. 55, 4. The appropriations bill leaves the ATF with no discretion. And courts have previously held that Exemption 3protects ATF firearms trace data. e.g. Fowfe v. BATFB, 138 F. Supp. 3d 287, 291-92 (D.D.C. 2015); AMe/JaSiar v. BATFF, 74 F.Supp.3d 158, 17^75 (D.D.C. 2014); Smfr/i v. BAFFF, No. 13-13079, 2014 WL 3565634, at *5 n. 2(E.D. Mich. July 18.2014);mgg,„s V. l/.S. DepVofJustice. 919 F.Supp.2d 131,145 (D.D.C. 2013). Plaintiffdoes not appear to articulate any reasons why it should not apply. The Court finds that ATF properly wrthheld the weapon's trace summary under this exemption.

Under this exception, the Disclosure Division also withheld documents related to agrand jury subpoena for records and the identity ofindividuals scheduled to testify in front ofthe grand juiy. ECF No. 12-2, Boucher Decl. 145. Federal Rule ofCriminal Procedure 6(e) is the relevant statute that prohibits disclosure of matters before the grand jury. See Fundfor Const. GoVt v. Nat'l Archives &Records Serv., 656 F.2d 856, 867^8 (1981). Asubpoena for records and the identity of individuals testifying before the grand jury would certainly be prohibited under that Statute. Id. at 869.

The plaintiffdoes not appear to contest the withholding ofthose documents. But rather he appears to be arguing that ATF also improperly redacted the meeting date of the grand jury— informationthatshouldnot be exempted becauseit does notreveal theinnerworkingsofthegrand jury investigation. ECF No. 15-1 at 5. The Court finds no evidence in the ATF declaration, the Vaughn index, or anywhere else in the record that the date was redacted. But even ifit had been, the Court finds the redaction proper. The touchstone ofthe inquiry is whether disclosure ofthe date would "reveal some secret aspect ofthe grandjury's investigation." Lopez v. Departmentof Justice, 393 F.3d 1345, 1349. The D.C. Circuit has previously held that revealing the date and time that agrand jury meets is protected from disclosure by Rule 6(e) because it 'Vould tend to eal the complexifyand scope, focus and direction ofthe grandjuryinvestigations." Murphy v. Executive Officefor U.S. Attorneys, 789 F.3d 204,211. Accordingly, even ifATF had redacted those dates, it would be appropriate under FOU Exemption 3. b) Withholding under FOIA Exemption 5 Pursuant to Exemption 5, ATF withheld 28 pages ofdraft legal filings, arguing that they wereprotected from disclosure under thedeliberativeprocessprivilege, the attorney work product privilege, and theattomeyclientprivilege. ECF No. 12-2, BoucherDecl. H53. ATF also withheld

two draft documents prepared by the Assistant U.S. Attorney (AUSA) in response to the plaintiffs motions in his underlying criminal case (they were forwarded to ATF for review and comment) because they "contain the thoughts and initial legal strategy and arguments employed in preparation of filing a response to Plaintiffs motions." Id. ^55.

FOIA exemption 5 exempts from disclosure "inter-agency or intra-agency memorandums or letters that would notbe available by law to a party otherthan an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The Supreme Court has explained that the exemption authorizes withholding of documents that would normally be privileged in the context of civil discovery. NLRB V. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Therefore, "to justify nondisclosure under Exemption 5, an agency must show thatthetypeof material it seeks to withhold is generally protected in civil discovery for reasons similar to those asserted by the agency in the FOIA context." Burka v. U.S. Dept. ofHealth and Human Services, 87 F.3d 508, 517 (D.C. Cir. 1996). "[Cjourts have incorporated three traditional civil discovery privileges into Exemption 5: (1) the deliberative process privilege; (2)the attorney-client privilege; and (3) the attorney work-product privilege." Cuban v. S.E.C., 744 F. Supp. 2d 60, 75 (D.D.C. 2010) (citations omitted).

The plaintiff does not appear to contest any withholding under this exemption. Even so, the Court finds that the two draft documents prepared by the AUSA and shared with ATF for review were properly withheld under the deliberative process privilege. The documents were

"predecisional" in that no final agency action had been taken and were deliberative in that they were shared as part ofa consultative process. Mapother v. Dep't ofJustice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). They were also properly withheld under attorney-client privilege and attorney work product privilege. The documents contained legal analysis bytheAUSA, in this case counsel

for ATF, and were prepared in anticipation oflitigation. The Court also finds that the 28 pages of *12 draft legal filings were properly withheld under the attorney-client privilege. Ms. Boucher's declaration notes that the documents contained the legal advice of the AUSA handling the underlying criminal prosecution of the plaintiff and contained analysis of facts and law. ECF No. 12-2, Boucher Decl. f 57-58.

c) Withholdingunder FOIA Exemptions 6 and 7(C)

FOIA Exemption 6 protects against the disclosure of "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). Under FOIA Exemption 7(C), an agency can withhold "records or information compiled for law enforcement purposes ... that could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

Exemption 7(C), which requires the government to prove only that disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy, is somewhat broader than Exemption 6, which requires proofof a clearly unwarranted invasion of personal privacy." Roth v. United States DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (internal citations omitted). Accordingly, "[i]f the information withheld here was *compiled for law enforcement

purposes,' thus implicating Exemption 7(C), then we would have no need to consider Exemption 6 separately because all information that would fall within the scope of Exemption 6 would also

be immune fi*om disclosure under Exemption 7(C)." Id.

To assess whether disclosure would constitute a "clearly imwarranted invasion ofpersonal privacy" under Exemption 7(c), the Court must "balance the privacy interests that would be

compromised by disclosure against the public interest in release of the requested information." Davis V. U.S. Dep t ofJustice^ 968 F.2d 1276, 1281 (D.C. Cir. 1992). Courts take very seriously the privacy interests ofthird-parties. See e.g., Neely v. FBI, 208 F.3d 461,464-65 (4th Cir. 2000)

("FBI agents, government employees, third-party suspects, and other third-party suspects, and other third parties mentioned or interviewed inthecourse of the investigation havewell-recognized and substantial privacy interests in the withheld information. Among other things, those individuals have a substantial interest in the nondisclosure of their identities and their connection with particular investigations because of the potential for future harassment, annoyance, or embarrassment.")

If privacy interests are identified, the burden shifts to the FOIA requestor to "establish a sufficientreason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than havingthe information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion ofprivacy is unwarranted." NationalArchives & RecordsAdmin, v. Favish, 541 U.S. 157,172 (2004). If the FOIA requestor argues that the publicinterest in disclosure is to showthat "responsible officials acted negligently orotherwise improperly in the performance oftheir duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant abeliefbya reasonable person that the alleged Government impropriety might have occurred." Id. at 174.

In this matter, ATF withheld the names and other identifying information of federal law enforcement agents, non-law enforcement third parties, state and local law enforcement personnel, and information relating to criminal enforcement cases ofnon-law enforcement third parties. ECF No. 12-2, Boucher Decl. ^ 68. ATF aimed to protect their identities "because disclosure might seriously prejudice their effectiveness in conducting investigations to which they are assigned and subject them to embarrassment andxmwarranted harassment in the conduct of theirofficial duties

and personal affairs." Id.H68. TheCourt agrees thatwithholding thethird-party names implicates an important privacy interest.

The plaintiff has not demonstrated why the public interest in the disclosure of that information outweighs the privacy concerns. Plaintiffalleges that the informationmust be released for the purpose of "exposing improper conduct by agency officials," specifically the fact that a government prosecutorimproperlywithheld informationin violation ofhis Brady rights. ECF 15-1 at 10-11. But the plaintifffails to sufficiently substantiate the wrongdoing necessary to overcome the Favish standard. Additionally, the plaintiff appears to be justifying disclosure based on a private, not a public, interest. Namely that the government failed to release to him exculpatory information which would be helpful in challenging his own conviction. See Taylor v. United States Dep 't ofJustice,257F. Supp. 2d 101,110 (D.D.C. 2003). Therefore, the Court finds that the privacy interests of the third-parties, whose names were withheld from disclosure, outweigh any public interest that exists. ATF properly applied Exemptions 6 and 7(C).

d) Withholding under FOIA Exemption 7(E)

The Court concurs that ATF properly applied Exemption 7(E) to withhold the law enforcement codes found on TECS and NCIC computer file numbers. ECF No. 12-2, Boucher Decl. K75-76. An agency can withhold records, pursuant to Exemption 7, that "would disclose techmques and procedures for law enforcement investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552 (b)(7)(E). To satisfy its burden under this exemption, the agency must only "demonstrate[ ] logically how the release of [the requested] information might create a risk of circumvention of the law." PHE, Inc. v. DOJ, 983

F.2d248,251 (D.C.Cir. 1993).

ATF makes a logical argument for why disclosure of the codes could allow individuals to circumvent the law. Disclosing the codes would allow individuals to gain access to sensitive investigative information and/or alter or create false records. ECF No. 12-2, BoucherDecl. %76. The plaintiff does not appear to contest this rationale. Accordingly, the Court finds that the ATF properly withheld information under this FOIA exemption.

3. Segregability

FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to anyperson requesting such record after deletionof the portions which are exempt." 5 U.S.C.A. § 552(b). District Courts have a dutyto consider theissueof segregability, evenif not raised by the parties. Trans-Pac. PolicingAgreement v. U.S. Customs Serv., Ill F.3d 1022, 1028 (D.C. Cir. 1999).

Here, ATF's declaration indicates that each page of the responsive documents were reviewed to ensure thatno additional information could be released. ECFNo. 12-2, Boucher Decl. H 77. Ms. Boucher further declares that "[a]11 releasable information has been provided to Plaintiff." Id. The agency is entitled to a presumption that it properly segregated the information. Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117 (D.C. Cir. 2007). The plaintiff has not

provided any evidence to rebut that presumption in this case. The Court finds that ATF properly released any "reasonablysegregableportion of the record."

4. Document Referrals

The plaintiff also appears to call into question the referral of documents between the defendant agencies. See Complaint, ECF No. 1 at 9; see also ECF No. 15-1 at 6. It is unclear if

the plaintiffalleges that ATF improperly withheld documents byreferring toother agencies, as his claim appears to center on EOUSA's alleged improper referral of documents. However, even if

he did intend to allege improper conduct by ATF, he has not provided evidence, nor has the Court found evidence, indicating that the referral led to improper withholding of records. See Siissman, 494 F.3datlll8. rv, CONCLUSION

For the foregoing reasons, the Court GRANTS dismissal of the suit as to defendants EOUSA, FBI, and DEA, and GRANTS defendant ATF's motion for summary judgement. ECF No. 12. The case is hereby dismissed. A separate Order accompanies this Memorandum Opinion.

Date: March 2018 RoWe C. Lamberth United States District Judge