United States Court of Appeals, District of Columbia Circuit
February 8, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00240-ESH)
Godina Hansford, appointed by the court, argued the cause as
amicus curiae in support of appellant. With her on the briefs
was Kannon K. Shanmugam.
H. Walker III, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney. Caitlin O. Trujillo, Assistant U.S.
Attorney, entered an appearance.
Before: Garland, Chief Judge, and Rogers and Millett, Circuit
GARLAND CHIEF JUDGE.
he was convicted of narcotics offenses, Stephen Aguiar filed
several Freedom of Information Act requests for materials
relating to his investigation by the Drug Enforcement
Administration (DEA). The DEA denied two of the requests,
saying that software Aguiar identified was not an agency
record and that copies of administrative subpoenas he wanted
could not be located. The district court granted the
DEA's motion for summary judgment as to both requests.
Because the government's declarations were insufficient
to support summary judgment in its favor, we vacate the
judgment and remand for further proceedings.
2009, the Drug Enforcement Administration joined a criminal
investigation of a drug-trafficking ring involving Aguiar.
During the investigation, the DEA installed a Global
Positioning System (GPS) tracker on at least one of his cars.
Agents used software to monitor the tracker and to visualize
tracking data on satellite maps. Around the same time, agents
issued administrative subpoenas seeking Aguiar's
telephone and financial records. The investigation ultimately
led to Aguiar's conviction on drug-trafficking charges,
which the Second Circuit affirmed in December 2013. See
United States v. Aguiar, 737 F.3d 251, 265 (2d Cir.
his direct appeal in the Second Circuit was pending, Aguiar
made Freedom of Information Act (FOIA) requests seeking
materials from the investigation. Two requests are at issue
Aguiar requested "all tracking information collected via
GPS devices attached to my vehicles, " along with
"all . . . proprietary software associated with that
information." Letter from Stephen Aguiar to DEA (Aug.
19, 2013) (J.A. 102). In response to that request, the DEA
gave Aguiar a printed copy of spreadsheets listing latitude
and longitude coordinates captured by the GPS tracker that
was attached to his Subaru Impreza. Unsatisfied with these
spreadsheets, which he found difficult to interpret, Aguiar
renewed his request for a copy of the software the DEA used
to visualize GPS coordinates on maps. In case the DEA again
refused to give him the software, Aguiar asked in the
alternative for images of the coordinates plotted onto
satellite maps. Letter from Stephen Aguiar to U.S. Dep't
of Justice (Apr. 1, 2014) (J.A. 139). The DEA did not provide
either the software or the map images.
Aguiar requested four specific administrative subpoenas that
the DEA issued during its investigation. The agency responded
that it had already searched for them to no avail. A few
months before Aguiar's request for the four subpoenas,
Aguiar had made several broader FOIA requests, including one
for "any administrative subpoena" issued from the
DEA's Burlington, Vermont office during the
investigation. Letter from Stephen Aguiar to DEA (Aug. 1,
2013) (J.A. 101). In response to those earlier requests, the
DEA conducted a search that it said would have located the
four subpoenas that Aguiar later specified.
particular, according to a declaration from the chief of the
DEA's FOIA unit, Katherine Myrick, Aguiar's earlier
requests "were construed as seeking, " among other
records, "administrative subpoenas . . . pertaining to
[Aguiar]." Decl. of Katherine L. Myrick at 16 (Apr. 7,
2015) (J.A. 165) ("First Myrick Declaration"). The
declaration described how the agency searched one of its
record systems to locate two relevant case files.
Id. at 18-19 (J.A. 167-68). In describing the search
within those case files, however, all the declaration said
was that the "Burlington Resident Office was tasked with
conducting a search of the two (2) files for all records
related to [Aguiar] to include all investigative reports
[and] administrative subpoenas." Id. at 19
(J.A. 168). The DEA did not find the four specific subpoenas
2014, Aguiar, acting pro se, filed a FOIA complaint in the
United States District Court for the District of Columbia,
challenging the DEA's failure to release the GPS mapping
software, map images of the GPS data, the four administrative
subpoenas, and additional materials no longer at issue. The
DEA filed a motion for summary judgment, accompanied by
Myrick's declaration describing the agency's search.
briefing from both sides, the district court ordered the DEA
to file a supplemental declaration identifying the
"software used by the DEA to create images from the GPS
tracking data, the nature of the DEA's license to use
that software, " and any applicable FOIA exemption.
Aguiar v. DEA, Civ. No. 14-02401, slip op. at 2
(July 20, 2015). The court instructed that the supplemental
declaration should also explain whether the DEA's search
encompassed the four specific subpoenas Aguiar requested.
Id. In response, Myrick filed a supplemental
declaration that did not address the software at all,
although the accompanying Notice of Compliance explained that
counsel for the DEA believed the software was licensed only
for official purposes. See Supp. Decl. of Katherine
L. Myrick (Sept. 8, 2015) (J.A. 199) ("Second Myrick
Declaration"); Notice of Compliance at 4 n.5 (Sept. 9,
2015). The declaration did say, however, that Aguiar's
request for the four subpoenas "was duplicative of his
earlier requests, " and that the "previous searches
would have uncovered all subpoena related
information." See Second Myrick Declaration at
4 (J.A. 202).
district court then granted summary judgment to the DEA on
all issues except Aguiar's request for the software. As
to Aguiar's alternative request for map images, the
district court held that producing those images would require
creating a new record, which FOIA does not compel. As to the
subpoenas, the court held that the DEA had discharged its
FOIA obligations by performing an adequate search.
the software, however, the court found that the record was
still insufficient. Invited to supplement the record again,
the agency submitted another declaration, this time stating
that it had searched two DEA offices but concluded that it
"was not in possession or control of any system or
software that was responsive to [Aguiar's] request."
Supp. Decl. of Katherine L. Myrick at 3 (Nov. 10, 2015) (J.A.
223) ("Third Myrick Declaration"). The district
court accepted this declaration as proving that the software
"is not an agency record, " and ...