MEMORANDUM OPINION
Plaintiff Eric Campbell brings this action pro se against the United States Department of Justice, Criminal Division (“defendant”); Kenneth Courier in his individual and official capacity as the Chief of the Freedom of Information Act (“FOIA”)/Privaey Act Unit; Office of Information Policy (“OIP”); the Director of OIP, Melanie Ann Pustay; and Sean R. O’Neill in his individual and official capacity as the OIP Chief Administrator for failure to disclose records, pursuant to the FOIA and Privacy Act.
BACKGROUND
The facts of this case are not unique. Indeed, this is the fifth case recently resolved in this District challenging the government’s withholding of all documents related to court-authorized wiretaps in pending drug conspiracy cases in the Western District of Pennsylvania. Plaintiffs in all five cases are incarcerated at the Northeast Ohio Correctional Center in Youngstown, Ohio, and three, including plaintiff in this case, are co-defendants in a case charging them with conspiracy to distribute and possess with the intent to distribute cocaine. See United States v. Gilliam, 12-cr-00093 (W.D.Pa.); Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. 4 [Dkt. #16] (“Def.’s Mem.”). In June of this year, Judge Boasberg dismissed a suit brought by Anthony Ellis, see Ellis v. Dep’t of Justice,
On May 10, 2013, plaintiff filed a FOIA request addressed to the U.S. Department of Justice Criminal Division, seeking “a copy of the Title III interception of electronic communication approval letters and all other documents that are a part of the electronic surveillance for [one] telephone number[]” with which plaintiff allegedly communicated. Def.’s Mem. 4. Plaintiff was not the subscriber of this telephone number. See Cunningham Decl. ¶ 5 [Dkt. # 16-2], Defendant responded on July 15, 2013, advising plaintiff that, “to the extent that any responsive records existed, they were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(3).” Id. ¶6. That FOIA exemption applies to documents which must be withheld pursuant to another statute — in this case, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521. Id.
On July 28, 2013, plaintiff appealed defendant’s decision to OIP. Id. ¶ 7. On December 30, 2013, OIP affirmed the Criminal Division’s refusal to conduct a search because any documents identified would be properly withheld under FOIA Exemption 3. Id. ¶ 8. Plaintiff filed this suit on August 8, 2014 alleging that defendant failed to properly respond to his FOIA request, see Compl. 1-2, and claiming, inter alia, that the records requested had been disclosed through discovery in his criminal case. Cunningham Decl. ¶ 9. Although defendant had initially refused to conduct a search for documents, in resрonse to this suit, defendant searched for records responsive to plaintiffs request in two records systems: (1) the database used to track federal prosecutors’ requests for permission to apply for court-authorization for wiretaps under Title III (“the Title III request tracking system”) and (2) the database containing archived emails of Criminal Division employees (“Enterprise Vault”). Id. ¶ 10. The records identified through these searches were withheld in full under Privacy Aсt Exemption (j)(2), 5 U.S.C. § 552a(j)(2) and FOIA Exemptions 3, 5, 6, and 7(C); id. § 552(b)(3), (5), (6), and 7(C). Id. ¶¶ 21-38. Defendant now moves for summary judgment.
LEGAL STANDARD
A court will grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts review an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and “FOIA cases typically and appropriately are decided on motions for summary judgment,” Petit-Frere v. U.S. Atty’s Office for the S. Dist. of Fla.,
Summary judgment may be based solely on information provided in an agency’s supporting affidavits or declarations if they “describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate, that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey,
DISCUSSION
Defendant seeks summary judgment in this action, arguing that the search conducted was adequate under both FOIA and the Privacy Act and that all the documents uncovered were properly withheld in full under exemptions to each Act. Déf.’s Mem. 4. Defendant supports this position with a declaration made by John E. Cunningham III, a Trial Attorney in the U.S. Department of Justice, Criminal Division, who is assigned to the FOIA and Privacy Act Unit, a component of the Office of Enfоrcement Operations (“OEO”). Cunningham Decl. ¶ 1. I address each argument in turn.
I. Adequacy of Search
“The adequacy of an agency’s search is measured by a standard of reasonableness and is dependent upon the circumstances of the case.” Weisberg v. Dep’t of Justice,
Unfortunately for plaintiff, upon review of defendant’s declaration, I conclude that defendant’s search was reasonable and adequate. Plaintiffs FOIA request seeks a copy “of the Title III interception of electronic communication approval letters and all other documents that are a part of the electronic surveillance for the following [one] telephone number[ ].” Cunningham Decl. Ex. A.
Plаintiff does not argue that the FOIA search conducted by defendant was unreasonable; rather, a liberal reading of his opposition reveals three challenges to the adequacy of the search; none of which have merit. Plaintiff first contends that defendant erred when it refused to conduct a search for responsive documents until after this suit was filed. Pl.’s Mem. of P. & A. in Opp’n of Def.’s Mot. for Summ. J. 26-27 [Dkt. # 23] (“Pl.’s Opp’n.”). Defendant does not deny such refusal. Def.’s Mem. 5. This delay, however, is without legal consequence in this case. The only result of an agency’s delay in conducting a search is that the agency may not raise an exhaustion defense to suit. See Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,
Plaintiff néxt objects to the fact that the agency searched only the record systems of the Criminal Division, asserting that defendant should have also searched the Drug Enforcement Administration’s (“DEA”) Narcotics and Dangerous Drugs Information System Index (“NADDIS”) and the Executive Office of the U.S. Attorney’s (“EOUSA”) Legal Information Office Network Systems (“LIONS”). Pl.’s Opp’n 27-29. Plaintiff, however, did not request documents from these components of the Department of Justice. Rather, he directed his request to the “FOIA/PA Unit Criminal Division” and filed this civil action against the Department of Justice Criminal Division. Plaintiff was required to send his request to the FOIA office of the component that maintains the records he sought, see 28 C.F.R. § 16.3(a); and a component in receipt of a request is not required to search the record systems of another component not in its control. See Ellis,
Finally, plaintiff argues that defendant erred because it failed to conduct a Privacy Act search. PL’s Opp’n. 18-20. Plaintiff fails to recognize, however, that searches conducted under FOIA and the Privacy Act are examined under the same standard. See Chambers v. Dep’t of Interior,
For these reasons and because plaintiff has done nothing to rebut the “presumption of good faith” which defendant’s supporting declaration is otherwise accorded, SafeCard Servs. v. Securities & Exch. Comm’n,
II. Exemptions
a. FOIA Exemptions
Under FOIA. agencies are required to produce requested information unless it falls into one of nine statutory exemptions. See 5 U.S.C. § 552(b). When documents are withheld, the agency bears the burden of demonstrating that its withholding was proper. 5 U.S.C. § 552(a)(4)(B). Often agencies use a Vaughn index to meet their burden, see Vaughn v. Rosen,
FOIA Exemption 5 allows agencies to withhold “inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In the words of the Supreme Court. Exemption 5 applies to “those documents, and only
“The attorney work-product privilege protects ‘documents and tangible things that are prepared in anticipation of litigation or for trial’ by an attorney.” Am. Immigration Council v. Dep’t of Homeland Sec.,
Defendant withheld the following categories of documents pursuant to the work-product privilege:
1. Prosecutors’ requests for pеrmission to apply for court-authorization to intercept wire communications, including applications, affidavits of law enforcement agents, and proposed court orders;
2. OEO Title III System Logging Notes indicating that OEO has received a request from a prosecutor for permission to apply for a Title III order with respect to a specified telephone number;
3. Email messages from the Electronic Surveillance Unit (“ESU”) to Assistant United States Attorneys (“AUSA”) acknowledging receipt of the AUSA’s Title III application;
4. Email messages between the prosecutor making the request and the ESU attorney assigned to review it, in which the attorneys discuss the ESU review process, edits, revisions, etc.;
5. Action memorandums from OEO to the Assistant Attorney General for the Criminal Division (“AAG”) rec*68 ommending approval of prosecutors’ requests;
6. Memorandums from the AAG to OEO advising that the prosecutor’s request has been approved and an attached copy of the AG’s delegation of authority to the AAG; and
7. Letters signed by Deputy AAGs on behalf of the AAG to a U.S. Attorney advising that the AAG has approved the prosecutor’s request to apply for a Title III order.
Cunningham Decl. ¶ 28. For each document withheld, defendant provides in its Vaughn Index a description of the nature and contents of the document, the documents author and origin, and the circumstances of its creation. Cunningham Decl. Ex. E. The Vaughn Index also includes a detailed justificatiоn for the withholding of each document, including describing the anticipated litigation. Id. Moreover, as defendant’s declarant notes, each document was prepared by a lawyer, or a person acting at a lawyer’s direction, as part of the wiretap application process and was therefore created in anticipation of the criminal prosecution of those implicated by the intercepted communications. Cunningham Decl. ¶ 30. As described, most of the documents — including substantive records like recommendation memoranda, affidavits, and approval letters- — -clearly qualify as attorney work-product because they were prepared for criminal prosecution, as a number of courts have held. See Ellis,
b. Privacy Act Exemption (j)(2)
Even if documents are exempt from production under FOIA, an agency may still be required to produce them pursuant to the Privacy Act. See Martin v. Office of Special Counsel,
Exemption (j)(2) of the Privacy Act states, in relevant part, that the head of a law enforcement agency may promulgate rules to exempt records systems from Privacy Act coverage if they contain information compiled for the purpоses of a criminal investigation. 5 U.S.C. § 552a(j)(2). Defendant cites this exemption in withholding documents identified in the two databases searched in this case — the Title III request tracking database and the Criminal Division email archive. See Def.’s Mem. 10-11; Def.’s Reply 13-14 [Dkt. #27]. Plaintiff does not directly challenge the application of Exemption (j)(2) to these databases, but I will briefly consider this issue nonetheless.
With respect to the Title III request tracking system, the Court agrees that Exemption (j)(2) aрplies. The Department of Justice Criminal Division is clearly a law enforcement agency, and the Title III request tracking system, used to track federal prosecutors’ requests for permission to apply for court-authorization for wiretaps under Title III, certainly contains information compiled for the purposes of criminal investigations. Further, as defendant notes, this system of records has been expressly exempted from the access provisions of the Privacy Act pursuant to 5 U.S.C. § 552a(j)(2). See 28 C.F.R. § 16.91(m) (exempting system of records containing requests to the Attorney General to approve applications to federal judges for electronic interceptions). Thus, defendant was clearly within its right to withhold documents identified in this database. Accord Gordon,
The same cannot be said for documents identified in the second database at issue — the email archive. Although defendant does not distinguish between these twо systems in arguing for the application of Exemption (j)(2), it does not appear that the email archive has been explicitly exempted by regulation as required. See 28 C.F.R. § 16.91. Indeed, the declaration offered in support of defendant’s motion only states that the Title III request tracking database has been exempted pursuant to exemption (j)(2). See Cunningham Decl. ¶¶ 21-22. Nevertheless, this Court agrees with my colleague’s reasoning in Gordon, and finds that the documents identified in the email archive were properly withheld as this database is not a “system of records” within the meaning of the Privacy Act and is therefore not subject to the disclosure provisions therein. See Gordon,
III. Segregability
The only remaining issue is, of course, segregability. Generally, if a record contains some information that is exempt from disclosure and some that is not, any reasonably segregable information must be released after deleting the exempt portions. 5 U.S.C. § 552(b). However, “[i]f a document is fully protected as work product, then segregability is not required.” Judicial Watch, Inc. v. Dep’t of Justice,
CONCLUSION
For all of the foregoing reasons, defendant’s Motion for Summary Judgment is GRANTED. A separate Order consistent with this decision accompanies this Memorandum Opinion.
Notes
. Defendants move to dismiss OIP and the individual defendants, contending they are not proper parties to this action. Def.'s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. 3 n.l [Dkt. # 16] ("Def.'s Mem.''). FOIA and the Privacy Act provide a cause of action against federal agencies only. See Antonelli v. Bureau of Prisons,
. This Court agrees with Judge Mehta’s sentiment as expressed in his recent opinion in Gilliam,
. For example, in Petit-Frere,
. Plaintiff’s argument that the documents at issue have entered the public domain and thus should be disclosed, see Pl.’s Opp’n 24-25, is misplaced. The discussion of intercepted content does not constitute public disclosure of the Title III applications, orders, and authorization memoranda. See Wright,