Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
LAMONT WRIGHT, )
)
Plaintiff, )
) v. ) Civil Action No. 14-272 (RBW) )
UNITED STATES DEPARTMENT OF )
JUSTICE, et al., ) )
Defendants. ) )
MEMORANDUM OPINION
Lamont Wright, the pro se plaintiff in this civil matter, alleges that the defendants, the United States Department of Justice (“DOJ”) and its Office of Information and Policy (“OIP”), violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), by failing to respond adequately to his FOIA document request. Complaint (“Compl.”) ¶ 9. Specifically, the plaintiff requested “the Title III authorization memorandums and all other documents from the DOJ involved in the authorization/approval for the electronic surveillance and interception of [the] plaintiff’[s] private telephone conversations . . . .” Id. ¶ 3. The defendants have moved for summary judgment, asserting that they “have processed [the plaintiff’s] FOIA request and determined that all of the records requested are exempt from disclosure under the FOIA.” [Defendants’] Motion for Summary Judgment (“Defs.’ Mot.”) at 1. After carefully considering the Complaint, the defendants’ Motion for Summary Judgment, and the memoranda of law *2 submitted in support of and opposition to the motion, [1] the Court concludes for the following reasons that it must grant the defendants’ motion. [2]
I. BACKGROUND
The plaintiff alleges that he submitted a FOIA request to the DOJ on August 31, 2013, for “the Title III authorization memorandums and all other documents from the DOJ involved in the authorization/approval for the electronic surveillance and interception of the plaintiff’[s] private telephone conversations . . . .” Compl. ¶ 3. The defendants assert that they responded to the request in a letter dated November 18, 2013, explaining that “to the extent that any responsive records existed, they [are] . . . exempted from disclosure by statute.” Defs.’ Facts ¶ 2 (internal quotation marks omitted); see also Sprung Decl. ¶ 7. The plaintiff appealed this response to the OIP by letter dated November 26, 2013, Compl. ¶ 4; Defs.’ Facts ¶ 4, and subsequently filed this FOIA action on February 18, 2014, Defs.’ Facts ¶ 5. [3]
Following the commencement of this action, the Criminal Division of the DOJ conducted a search for the requested records and processed them under the FOIA. Id. ¶ 8. The defendants *3 assert that “[t]he Criminal Division conducted the search in good faith . . . and every effort has been made to segregate nonexempt records from records that are exempt from disclosure.” Id. ¶ 9; see also Sprung Decl. ¶¶ 20, 41. The defendants have now moved for summary judgment, asserting that all responsive records are exempt from disclosure pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6), and (b)(7)(C). [4] Defs.’ Facts ¶ 10.
II. STANDARD OF REVIEW
Courts will grant a motion for 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). In resolving a motion for summary judgment, all reasonable
inferences that may be gleaned from the facts before the court must be construed in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc.,
Courts review an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B)
(2012), and “FOIA cases typically and appropriately are decided on motions for summary
judgment,” ViroPharma Inc. v. HHS,
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and nonconclusory.”
Safecard Servs., Inc. v. SEC,
III. ANALYSIS
To prevail on its motion for summary judgment, the defendant in a FOIA case “must
show beyond material doubt that it has conducted a search reasonably calculated to uncover all
*5
relevant documents,” Morley v. CIA,
A. Adequacy of the Defendants’ Searches
The adequacy of an agency’s search is measured by a standard of reasonableness under
the attendant circumstances. Truitt v. U.S. Dep’t of State,
In response to the plaintiff’s FOIA request, the defendants searched two sources of records where relevant documents were likely to exist:
(1) an [Office of Enforcement Operations (“OEO”)] database used to track federal prosecutors’ requests for permission to apply for court-authorization to surreptitiously intercept conversations of person[s] allegedly involved in criminal activity under Title III (“the Title III request tracking system”); and (2) archived emails of Criminal Division employees that are maintained by its IT department.
Sprung Decl. ¶ 11.
The records in the OEO database are assembled as part of the procedure for obtaining court authorization for a wiretap pursuant to Title III of the Omnibus Crime Control Safe Streets Act (“Title III”), 5 U.S.C. § 2510–21. See id. ¶ 13. Internal DOJ procedures require a federal prosecutor to “submit [a Title III] request to OEO’s Electronic Surveillance Unit (“ESU”), which reviews the request to ensure that it complies with Title III.” Id. “When [the] ESU receives a prosecutor’s request, an administrative staff member logs it into the Title III request tracking system,” id. ¶ 14, along with the “date of request; type of interception requested (e.g., cellular phone, landline, or email); where a phone is involved, the phone number; requesting AUSA; [the] investigative agency that will handle the interceptions; and the date the request was approved or rejected,” id. ¶ 16. Users may also “upload documents such as prosecutors’ applications, agents’ affidavits, proposed court orders, and action memorandums.” Id. The information in this database dates “from 1983 to the present,” id., and the OEO database is the “only official information management system for Title III applications submitted to [the] OEO *7 by federal prosecutors across the U.S.,” id. ¶ 12. The defendants searched this “system for references to the four telephone numbers that [the plaintiff] identified in his . . . FOIA request, and the name ‘Lamont Wright.’” Id.
In addition to searching the Title III request tracking system, the defendants conducted a search of archived emails between the federal prosecutor involved in the plaintiff’s underlying criminal matter and the ESU attorney who reviewed the prosecutor’s Title III request. Id. ¶ 19. According to the defendants,
[e]mail messages (as well as any attachments) sent or received by Criminal Division employees are archived in ‘Enterprise Vault,’ a file and email archiving program . . . . All emails more than [thirty] days old are automatically archived in Enterprise Vault. The Criminal Division’s Enterprise Vault contains emails dating back to 2009.
Id. ¶ 17. The DOJ’s Information Technology Management staff (“ITM”) administers this system and is tasked with “searching the Division’s email archives in response to data requests like [the plaintiff]’s.” Id. ¶ 18. The ITM searched “all emails exchanged between the ESU attorneys and the prosecutor during the period [of] December 26, 2011 to May 30, 2012[,] . . . the entire time period of communications . . . concerning the Title III authorizations that are at issue to this case.” Id. ¶ 19. According to the defendants, “these individuals would have had no reason to be communicating with each other about the authorizations outside that period.” Id.
Based on the searches described above, the Court finds that the defendants’ declaration
sets forth sufficient factual detail of the methods utilized in conducting searches for responsive
documents to conclude that the defendants “conducted . . . search[es] reasonably calculated to
uncover all relevant documents.” Elliott,
The OEO database contains both the requests for permission to obtain a wiretap and the approval letters signed by the Criminal Division officials. It follows that *8 because [the plaintiff] requested records relating to DOJ’s approval of electronic surveillance of certain telephone numbers, any responsive records would almost certainly be located in the database specifically designated for this purpose.
Ellis v. DOJ, __ F. Supp. 3d __, __,
The defendants having “made a prima facie showing of adequacy, the burden [then] shifts
to the plaintiff to provide . . . evidence sufficient to raise ‘substantial doubt’ concerning the
adequacy of the agency’s search.” Shoenman v. FBI,
Second, the plaintiff claims the search was insufficient because “neither of these two
alleged system[s] of DOJ records are regularly used by the Criminal Division for processing of
FOIA/PA[]” requests. Pl.’s Opp’n at 5–6. The plaintiff provides no evidence to support this
assertion or explain why it would be inappropriate for the defendants to rely upon the identified
systems in conducting its searches in light of the subject matter of the plaintiff’s FOIA request.
And “it is well settled that conclusory allegations unsupported by factual data will not create a
triable issue of fact.” Broaddrick v. Exec. Office of President,
B. The FOIA Exemptions Asserted by the Defendants 1. Exemption (b)(3)
Pursuant to Exemption (b)(3), an agency may withhold information “specifically exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3), so long as the statute:
(A)(i) requires [withholding] from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.
Id. To prevail on summary judgment, the agency “need only show that the statute claimed is one
of exemption as contemplated by Exemption [(b)(3)] and that the withheld material falls within
the statute.” Larson v. Dep’t of State,
The defendants invoked Exemption (b)(3) in conjunction with Title III, 18 U.S.C. §§
2510–2521, as grounds for withholding “[m]emorandums from the [Assistant Attorney General
(“AAG”)] to [the] OEO advising that the prosecutor’s request ha[d] been approved and an
attached copy of the [Attorney General]’s delegation of authority to the AAG.” Sprung Decl. ¶
24.
[5]
According to Title III, “[a]pplications made and orders granted under this chapter shall be
sealed by the judge . . . . Such applications and orders shall be disclosed only upon a showing of
*11
good cause before a judge of competent jurisdiction.” 18 U.S.C. § 2518(8)(b). The plaintiff
correctly notes in his opposition that Authorization Memoranda are not specifically articulated in
the statute as protected from disclosure. Pl.’s Opp’n at 24. But as explained by another member
of this Court, and reiterated by the defendants, while “section 2518(8)(b) does not mention
[A]uthorization [M]emoranda, the memoranda are a required part of the application submitted to
the court,” and as they “contain the very information § 2518(8)(b) seeks to protect, the
production of that information . . . would result in the disclosure of exempted information and
would thereby negate the intent of the statute.” Dorsey v. DEA, __ F. Supp. 3d __, __, 2015 WL
1431707, at *3 (D.D.C. 2015) (internal quotation marks and citations omitted); see also Sprung
Decl. ¶ 27. Because “[d]isclosure of the Authorization Memoranda necessarily discloses
information that must be protected under Title III,” they are “properly . . . withheld under
Exemption 3.” Dorsey, __ F. Supp. 3d at __,
Here, the defendants assert “that the sealing order [in the plaintiff’s criminal case] entered by the Court . . . prohibits disclosure of the [requested] documents to the general public” and thus the defendants “have no discretion to disclose them” pursuant to 18 U.S.C. § 2518(8)(b). Sprung Decl. ¶ 27. Indeed, a defendant “has no discretion, in [the] plaintiff’s case or in any other, to disclose Title III information” once a Title III application and order is sealed by a judge. Sinito, 2000 U.S. Dist. Lexis 22504, at *20.
The plaintiff challenges prior interpretations of 18 U.S.C. § 2518(8)(b) by members of this Court as a statute that contemplates exemption under the FOIA. He asserts that
C[]ongress’s intent for sec[re]cy in enacting the Title III statu[t]e was to protect the intercepted content obtained from the aggrieved party’s private [conversation], not to prevent the aggrieved party, the plaintiff in this instant matter, ‘from examining and testing’ the authorization, and approval under which such Title III intercept content was obtained.
Pl.’s Opp’n at 14–15. But this is a patent misinterpretation of Title III, and ignores clear manifestations of Congress’s intent to afford disclosure protections to both the contents of intercepts and documents submitted as part of the application process. The plain language of the statute requires Courts to seal Title III applications and orders through the mandatory verb “shall,” and permits disclosure “only upon a showing of good cause before a judge of competent jurisdiction.” 18 U.S.C. § 2518(8)(b). The legislative history of Section 2518(8)(b) further illustrates Congress’s intent:
Subparagraph (b) provides that applications and orders for authorization shall be treated confidentially. Particularly in renewal situations, they may be expected to contain sensitive information. The provision requires them to be sealed and kept wherever the judge directs . . . . Applications and orders may not be disclosed except incidental to the disclosure or use of the records themselves after a showing of good cause.
S. Rep. No. 90-1097, at 2194 (1968). For all of these reasons, the Court finds the plaintiff’s argument unpersuasive. [6]
In the alternative, the plaintiff challenges the defendants’ declaration and Vaughn Index,
arguing that they do “not provide a detailed explanation of any of the documents the Criminal
*13
Division is claiming to be in it’s [sic] system of records.” Pl.’s Opp’n at 6. Even though the
defendants do not offer detailed descriptions of the documents withheld pursuant to Exemption
(b)(3), they have nonetheless fulfilled their burden under the FOIA. “Exemption 3 differs from
other FOIA exemptions in that its applicability depends less on the detailed factual contents of
specific documents; the sole issue for decision is the existence of a relevant statute and the
inclusion of withheld material within that statute’s coverage.” ACLU v. CIA, 892 F. Supp. 2d
234, 242 (D.D.C. 2012) (citing Goland,
Lastly, the plaintiff asserts that the defendants cannot withhold the subject records
because they are part of the public domain. Pl.’s Opp’n at 16. “[A] plaintiff asserting a claim of
prior disclosure must bear the initial burden of pointing to specific information in the public
domain that appears to duplicate that being withheld.” Afshar v. Dep’t of State,
The Court disagrees for several reasons that the subject documents have entered the
public domain. First, the court transcripts do not establish that the Title III applications and
authorization memoranda have been released to the public. The government has presented proof
that “[t]he transcript simply indicates that the Government played several recordings of
intercepted conversations at the hearing. The transcript does not establish that any applications,
affidavits[,] or orders were introduced into evidence.” Sprung Decl. ¶ 29. Thus, the transcripts
do not contain “information identical” to that in the withheld records and therefore are not
considered part of the public domain. Davis v. U.S. Dep’t of Justice,
2. Exemption (b)(5)
Exemption (b)(5) protects from disclosure “inter-agency on intra-agency 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). To prevail against disclosure under Exemption (b)(5), the
document’s “source must be a Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n,
*16
The attorney work-product privilege “shields materials prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).”
McKinley v. Bd. of Governors of the Fed. Reserve Sys.,
The defendants asserted the attorney work-product privilege to withhold “all of the documents Mr. Wright is seeking in this suit.” [8] Sprung Decl. ¶ 30. Specifically, this includes:
a) Prosecutors’ requests for permission to apply for court-authorization to intercept wire communications, including applications, affidavits of law enforcement agents, and proposed court orders;
b) 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 specified telephone numbers. They include the name of the subject of the investigation, the name and address of the subscriber of the telephone service, the *17 name of the ESU attorney who has been assigned to review the request, and the user name of the ESU employee who created the Logging Note[;] c) Email messages from ESU to AUSA’s acknowledging receipt of the AUSA’s Title III application. These messages identify the names of the Target Subject, the AUSA, and the ESU attorney;
d) 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.[;]
e) Action memorandums from OEO to the AAG recommending approval of prosecutors’ requests;
f) 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
g) Letters signed by Deputy AAGs on behalf of the AAG to a U.S. Attorney advising that the prosecutor’s request to apply for a Title III order had been approved. The letters identify the name and address of the telephone subscriber and the names of the Target Subjects.
Sprung Decl. ¶ 30. The defendants represent that each of these documents was “prepared by an
attorney who was acting at the behest of a client (the U.S. Government) or someone acting at the
direction of such an attorney” in anticipation of litigation, “i.e., a criminal prosecution of the
individuals allegedly involved in the criminal activity that was evidenced by the court-ordered
interceptions.” Sprung Decl. ¶ 32. The defendants state that withheld documents were “used to
establish the existence of probable cause, that less intrusive investigative methods have been
exhausted or would be futile, and other important statutory requirements that must be met to
ensure that the resulting intercepts may be admissible.” Id. Documents such as emails and
logging notes contain information on the receipt and processing of requests and applications. Id.
¶ 30. Factual information gathered in anticipation of litigation is also contained in documents,
including the agent affidavits and action memoranda “summarize and analyze the relevant facts.”
Id. ¶ 35. Courts in this district have routinely found similar records to be properly withheld
*18
under the attorney work-product privilege of Exemption (b)(5). See, e.g., Dorsey v. DEA, __ F.
Supp. 3d __, __,
The plaintiff does not contest the defendants’ characterization of the withheld documents
as work product that are exempt from disclosure pursuant to Exemption (b)(5). Instead, he
asserts that the subject materials are improperly withheld because they are not predecisional.
Pl.’s Opp’n at 29. However, whether documents constitute attorney work-product does not turn
on whether they are pre- or post-decisional; instead, the predecisional nature of a document is a
factor to consider when Exemption (b)(5) is asserted for documents withheld as part of the
deliberative process privilege. See, e.g., Coastal States Gas Corp.,
The plaintiff also contends that if the records are protected by Exemption (b)(5), “the
defendants[’] privilege of exemption from disclosure FOIA [E]xemption 5 should be denied on
the grounds that the DOJ . . . [is] involved in alleged government misconduct.” Pl.’s Opp’n at
*19
33. The Circuit has recognized that, “at least in some circumstances, a lawyer’s unprofessional
behavior may vitiate the work product privilege.” Moody v. IRS,
the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.
Nat’l Archives and Records Admin. v. Favish,
C. Segregability
Under the FOIA, “even if [the] agency establishes an exemption, it must nonetheless
disclose all reasonably segregable, nonexempt portions of the requested record(s).” Roth, 642
F.3d at 1167 (internal quotation marks and citation omitted). Therefore, “it has long been the
rule in this Circuit that non-exempt portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344
F. Supp. 2d 1, 18 (D.D.C. 2004), (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566
F.2d 242, 260 (D.C. Cir. 1977)). Thus, an agency must provide “a detailed justification and not
just conclusory statements to demonstrate that all reasonably segregable information has been
released.” Valfells v. CIA,
The defendants represent that they have reviewed the responsive documents and deemed
all exempt and not segregable. Sprung Decl. ¶ 41 (“I have reviewed each page of the material
deemed responsive to Mr. Wright’s request to determine whether there was any non-exempt
information that could be reasonably segregated and released. I have determined that there is no
segreg[a]ble non-exempt information.”). With respect to the majority of the documents, the
defendants assert that segregability is not possible because they are exempt pursuant to the
*21
attorney work-product privilege of Exemption (b)(5). Defs.’ Mem. At 29. When assessing
segregability, “[t]he work-product privilege simply does not distinguish between factual and
deliberative material.” Martin v. Office of Special Counsel,
With respect to the Authorization Memoranda withheld pursuant to Exemption (b)(3), the
defendants’ representation in its affidavit is sufficient. An affidavit attesting to the performance
of a review of the documents and a Vaughn index describing each document satisfies the FOIA’s
segregability requirement. See, e.g., Johnson v. Executive Office for U.S. Attorneys, 310 F.3d
771, 776 (D.C. Cir. 2002) (finding “[t]he combination of the Vaughn index and the affidavits . . .
are sufficient to fulfill the agency’s obligation to show with ‘reasonable specificity’ why a
document cannot be further segregated” where the index described each document and the
defendant’s affiant stated in her affidavit that “she personally conducted a line-by-line review of
each document withheld in full and determined that ‘no documents contained releasable
information which could be reasonably segregated’”); Loving v. Dep’t of Defense,
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the defendants have provided sufficient factual detail that supports their position that they conducted reasonable and adequate searches of their records for documents responsive to the plaintiff’s FOIA requests and properly withheld all documents pursuant to an applicable disclosure Exemption. Accordingly, the Court must grant the defendants’ motion for summary judgment.
SO ORDERED this 17 th day of August, 2015. [10]
REGGIE B. WALTON United States District Judge
Notes
[1] In reaching its decision, the Court considered the following submissions: (1) the Complaint (“Compl.”); (2) the defendants’ Motion for Summary Judgment (“Defs.’ Mot.”); (3) the defendants’ Statement of Material Facts Not in Dispute (“Defs.’ Facts”); (4) the defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Defs.’ Mem.”); (5) the Declaration of Peter C. Sprung (“Sprung Decl.”); (6) the Plaintiff’s Motion in Opposition to Defendants’ [] Motion for Summary Judgment [] and Motion for Leave [] to Amend Original Complaint (“Pl.’s Opp’n”); and (7) the Defendants’ Reply in Support of Defendants’ Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Leave to Amend Original Complaint (“Defs.’ Reply”).
[2] The Court notes that the plaintiff’s opposition contains a request “for leave to file an amended complaint,” alleging
new claims under the FOIA. But “[i]t is a well-established principle of law in this Circuit that a plaintiff may not
amend [his] complaint by making new allegations in [an] opposition brief.” Budik v. Ashley,
[3] The OIP advised the plaintiff by letter on March 12, 2014, “that it was closing his appeal because he had filed the instant lawsuit.” Def.’s Facts ¶ 6; see also Compl. ¶¶ 10–13.
[4] The plaintiff also sought these records under the Privacy Act, 5 U.S.C. § 522a. Pl.’s Opp’n at 10. The Court need not consider the applicability of the Privacy Act’s exemptions as an agency may not rely exclusively “on any exemption in [the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individuals under the provisions of [the FOIA].” 5 U.S.C. § 552a(t)(2).
[5] Also withheld under Exemption (b)(3) were “[p]rosecutors’ requests for permission to apply for court- authorization to intercept wire communications, including applications, affidavits or law enforcement agents, and proposed court orders” and “[a]ction memorandums from [the] OEO to the AAG recommending approval of prosecutors’ requests.” Sprung Decl. ¶ 24. Because the Court concludes, infra, that these documents are properly withheld pursuant to Exemption (b)(5), it need not also consider Exemption (b)(3)’s applicability. See Larson, 565 F.3d at 862–63 (“[A]gencies may invoke the exemption independently and courts may uphold agency action under one exemption without considering the applicability of the other.” (citation omitted)).
[6] The plaintiff also claims the rule of lenity should apply and the statute should therefore be interpreted in his favor.
Pl.’s Opp’n at 28. However, the FOIA is a civil statute and “the rule [of lenity] does not generally apply to a civil
statute.” U.S. v. Turner,
[7] In his opposition, the plaintiff argues that if Exemption (b)(3) applies to the subject documents, he has nonetheless
demonstrated good cause for disclosure as required by 18 U.S.C. § 2518(8)(b). Pl.’s Opp’n at 26. While the Court
notes that any such attempt to disturb the sealing order should generally be adjudicated by the judge responsible for
overseeing that criminal matter, the Court need not reach the merits of the good cause argument. Asserting good
cause to compel disclosure under Title III is a novel claim for relief separate and apart from this FOIA action, and it
is inappropriate for a Court to consider new claims raised for the first time in a brief in opposition to a motion for
summary judgment. See, e.g., Arbitraje Casa de Cambio,
[8] The defendants also assert that they withheld some of these records pursuant to Exemptions (b)(3), (b)(7)(c), and (b)(6). The Court, in concluding that the defendants properly withheld records responsive to the plaintiff’s request pursuant to Exemption (b)(5), need not also consider the applicability of these other Exemptions. See Larson, 565 F.3d at 862–63 (“[A]gencies may invoke the exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other.” (citation omitted)).
[9] The Court reviewed the exhibits the plaintiff attached in support of this claim and concludes that none of them present relevant or reputable information on the subject. An increase in the number of wiretaps per year does not necessarily indicate government misconduct, as the plaintiff claims. See Pl.’s Opp’n at 43. Additionally, although the plaintiff contends that a disproportionate percentage of African Americans are targets of wiretaps, he has not provided the source of these purported statistics. Thus, representing that “97% of the targets and subjects” of wiretaps are African Americans without providing a source for this information proves nothing. See id. at 44. Lastly, no evidence is offered to substantiate the plaintiff’s claim that the government has employed unauthorized wiretaps.
[10] An Order consistent with this Memorandum Opinion will be issued contemporaneously.