STEPHEN AGUIAR v. DRUG ENFORCEMENT ADMINISTRATION

Washington, DC - Criminal defense lawyer represented defendant with federal narcotics

charges.

Appellant was convicted in 2011 of federal narcotics

charges based partly on GPS surveillance conducted by DEA.

See United States v. Aguiar, 737 F.3d 251, 255 (2d Cir. 2013),

cert. denied, 574 U.S. 959 (2014). At appellant's trial, DEA

agent Richard Carter testified that he installed a GPS tracking

device on appellant's Subaru Impreza on January 23, 2009. He

explained that this tracking device returned longitude and

latitude information at his command or at preset times and that

a software program would automatically plot the device's

location on Google maps ("GPS mapping software”), which

DEA agents monitored. Agent Carter also testified that he

"assisted in the preparation of some exhibits” to help explain

the GPS tracking data to the jury. Trial Transcript at 127 (Apr.

1, 2011). The U.S. Attorney's Office in Vermont introduced

into evidence exhibits based on DEA's GPS surveillance,

including (1) binders of spreadsheets listing the latitudinal and

longitudinal position of the tracking device at different times

over the course of the investigation; (2) screenshots of agent

Carter's computer screen showing the location on a map of the

tracking device at specific times; and (3) maps depicting paths

traveled by the tracking device over specific periods of time.

In August 2013, appellant submitted a FOIA request to

DEA for a CD "containing the DEA computer file of all

tracking information collected via GPS devices attached to

[his] vehicles with all images and proprietary software

associated with that information from January 23, 2009

thr[ough] July 30, 2009, the very same file used by DEA to

prepare exhibits for trial.” Ltr. Stephen Aguiar to Katherine

Myrick, Chief, DEA FOIA/Privacy Act Unit, Records Mgmt.

Section (Aug. 19, 2013). He stated that he wanted "to study

and view the exact data and images DEA monitored while

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agents were tracking [his] vehicle(s).” Id. DEA responded that

"no records were located related to any images” and produced

"351 spreadsheet formatted pages” listing coordinate data

generated by the GPS tracking device. Ltr. Myrick to Aguiar

at 2 (Mar. 21, 2014). Challenging the sufficiency of DEA's

response, appellant renewed his request for a copy of the GPS

mapping software and, alternatively, all GPS tracking data

"including its corresponding satellite image plot on google

maps at the lowest available altitude between 50-100 feet on

the version of google maps in place at the time the GPS

tracking of [his] vehicle(s) was performed by agents in 2009.”

Ltr. Aguiar to DEA Off. of Info. Pol'y (Apr. 1, 2014).

In January 2014, appellant filed a FOIA complaint in the

district court here, challenging DEA's failure to produce the

GPS mapping software or map images of the GPS coordinate

data. The district court granted summary judgment to DEA.

On appeal, this court appointed amicus curiae to present

arguments in support of appellant's position. See Aguiar v.

DEA, 865 F.3d 730, 734 (D.C. Cir. 2017). Concluding that

DEA had failed to demonstrate it was entitled to judgment as a

matter of law on whether the GPS mapping software was an

agency record under FOIA, see id. at 735–37, this court

remanded the case and did not reach appellant's alternative

request for the map images, see id. at 737. On remand, based

on DEA's supplemental declarations, the district court granted

summary judgment to DEA. See Aguiar v. DEA, 334 F. Supp.

3d 130, 147 (D.D.C. 2018). It held that the GPS mapping

software was not an agency record under FOIA, see id. at 141–

42, and that 5 U.S.C. § 552(a)(3)(B) did not require DEA to

create map images visualizing the GPS coordinate data, see id.

at 142–44. The district court also denied as futile appellant's

August 2017 pro se motion for leave to file a complaint

supplementing his amended complaint with six new claims

under the Privacy Act, 5 U.S.C. § 552a. See id. at 145–47.

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Appellant appeals the grant of summary judgment

regarding the map images, conceding that FOIA does not

require DEA to provide him a copy of its GPS mapping

software, and the denial of his pro se motion for leave to file a

supplemental complaint. This court reviews the grant of

summary judgment de novo, Judicial Watch, Inc. v. Dep't of

Def., 913 F.3d 1106, 1110 (D.C. Cir. 2019), and the denial of

leave to file a supplemental complaint for abuse of discretion,

James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.

1996).

II.

FOIA instructs:

In making any record available to a person . . ., an

agency shall provide the record in any form or format

requested by the person if the record is readily

reproducible by the agency in that form or format.

5 U.S.C. § 552(a)(3)(B). FOIA, however, "only requires

disclosure of documents that already exist, not the creation of

new records not otherwise in the agency's possession.” Nat'l

Sec. Counselors v. CIA, 969 F.3d 406, 409 (D.C. Cir. 2020);

accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162

(1975). The issue is whether the map images requested by

appellant are a "readily reproducible” "form or format” of the

GPS coordinate data, which DEA must produce pursuant to

§ 552(a)(3)(B), or altogether new records, which DEA has no

duty to create, Kissinger, 445 U.S. at 152.

Amicus maintains that "the relevant record is the location

information for each ping [identifying the date and time], not a

spreadsheet,” Amicus Br. 30, and that § 552(a)(3)(B) obligates

DEA to provide this location information in appellant's

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preferred map format because DEA has not disputed that this

information is "readily reproducible” in that format, see

Amicus Br. 20–25. Maps, in amicus' view, are definitionally

another "form or format” of GPS coordinate data because

"stating a longitude and latitude is simply a way to describe

where on a map something is located.” Id. at 21; see id. at 27–

28. Anything that presents the same underlying information

without altering its substantive contents, amicus suggests, is

another "form or format” of a record. See id. at 21–22. For

instance, a "scatter plot” is another "form or format” of a "list

of values for two variables.” Amicus Reply Br. 6. DEA, by

contrast, views § 552(a)(3)(B) "not [to] require agencies to

provide 'information' in any form or format requested,” but

simply "to provide their 'record[s]' in readily reproducible

forms or formats.” Appellee Br. 15. DEA maintains that the

record "here is a spreadsheet of numerical coordinates.” Id. As

DEA sees it, the requested map images are not different forms

or formats of this record, but instead "new records with

additional and expanded content.” Id. at 11. For the following

reasons, we conclude that amicus' interpretation of

§ 552(a)(3)(B) lacks support in the statutory text, context,

purpose, and history. See Bailey v. United States, 516 U.S. 137,

144–48 (1995); Saadeh v. Farouki, 107 F.3d 52, 57–58 (D.C.

Cir. 1997); see also Proffitt v. FDIC, 200 F.3d 855, 860 (D.C.

Cir. 2000).

Section 552(a)(3)(B), by its plain terms, speaks to the

"form or format” of a "record.” Although FOIA does not

define the term "record,” Aguiar, 865 F.3d at 735, a "record”

includes "any information that would be an agency record . . .

when maintained by an agency in any format, including an

electronic format.” 5 U.S.C. § 552(f)(2). The Report of the

House Committee on Government Reform and Oversight

explained that § 552(f)(2) "does not broaden the concept of an

agency record,” while noting that FOIA occasionally uses the

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terms "record” and "information” interchangeably. H.R. Rep.

No. 104-795, at 19–20 (1996). But even assuming for purposes

of argument that the relevant "record” is the location

information and not a spreadsheet, amicus' broad interpretation

of the phrase "form or format” is unpersuasive. The dictionary

definitions marshaled by amicus that the terms "form” and

"format” refer to physical attributes and general makeup, as

opposed to substance, do not establish that two things

presenting the same substantive information are always forms

or formats of one another. See Amicus Reply Br. 5 (citing

MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 458 (10th ed.

1993) and Public Citizen v. Carlin, 184 F.3d 900, 903 (D.C.

Cir. 1999) (citing WEBSTER'S NEW INT'L DICTIONARY

UNABRIDGED 992 (2d ed. 1942))). Neither, contrary to amicus'

suggestion, does the inclusion of the modifier "any” before the

phrase "form or format” in § 552(a)(3)(B). See id. The title of

the enactment adding § 552(a)(3)(B) — "Electronic Freedom

of Information Amendments of 1996” — "is of some

interpretative use” and it suggests that the primary

congressional concern was to provide for public access to

electronic records. Patchak v. Salazar, 632 F.3d 702, 709

(D.C. Cir. 2011) (citing Pennsylvania Dep't of Corr. v. Yeskey,

524 U.S. 206, 212 (1998)).

Nothing in § 552(a)(3)(B)'s purpose or history suggests

that Congress intended to obligate agencies to organize

information contained in a record in a FOIA requestor's

preferred way solely for the requestor's convenience. In

enacting the Electronic Freedom of Information Act

Amendments of 1996, Congress provided that "agencies

should use new technology to enhance public access to agency

records and information.” Pub. L. No. 104-231, § 2(a)(6), 110

Stat. 3048 (1996). Because a list of coordinates is "not usable”

for appellant, who as a federal prisoner "does not have access

to the internet or even to physical maps,” amicus concludesthat

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"DEA is obligated to provide the data in . . . a comprehensible

format.” Amicus Br. 24–25; see Aguiar, 334 F. Supp. 3d at

135, n.1. Notwithstanding the generic statement identified by

amicus, it points to nothing in § 552(a)(3)(B)'s legislative

history supporting a categorical obligation on agencies to

display requested information in a way usable or convenient

for the FOIA requestor whenever doing so does not alter the

information's substantive content.

Interpreting § 552(a)(3)(B) as imposing such an obligation

on agencies in the circumstances here would likely also be in

tension with this court's precedent holding that FOIA does not

obligate agencies to "add explanatory material to a document”

and that a FOIA "requestor must take the agency records as he

finds them.” Yeager v. DEA, 678 F.2d 315, 321–23 (D.C. Cir.

1982). Likewise, our precedent construing agencies'

disclosure obligations under FOIA generally has not held them

to vary with the characteristics or convenience of the requestor.

See, e.g., id. at 323; Nat'l Sec. Counselors v. DOJ, 848 F.3d

467, 471 (D.C. Cir. 2017); Sample v. Bureau of Prisons, 466

F.3d 1086, 1088 (D.C. Cir. 2006).

The court therefore cannot accept amicus' sweeping

interpretation that maps are, as a matter of law, another "form

or format” of coordinate data under § 552(a)(3)(B) merely

because plotting coordinates on a map "displays them in an

understandable form without altering their substance.” Amicus

Br. 21–22. The court leaves open the question whether and

under what circumstances a duty of production would arise

under FOIA when an agency technically stores information in

one way, such as numerically as GPS coordinates, but typically

accesses that information in another way, such as graphically

as maps. Congress was acutely aware when it enacted the 1996

amendments that FOIA would apply to "yet-to-be invented

technologies.” H.R. Rep. No. 104-795, at 20 (1996). Because

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evolving practices of data storage and use may blur the line

between existing records and new ones, the court does not

decide whether a map generated from coordinates in an

agency's possession might, under circumstances not presented

here, be another "form or format” of an agency record.

Today, the court need not define the precise scope of the

phrase "form or format” in § 552(a)(3)(B) or identify the line

distinguishing a "form or format” of a record from an entirely

new record. Whatever that line, the record before this court

shows that to produce the maps requested by appellant — like

those viewed by DEA agents during their investigation or those

introduced at appellant's trial by the U.S. Attorney's Office —

DEA would have to create new records. As DEA suggests,

producing the requested maps would require editorial judgment

on DEA's part. See Appellee Br. 18.

FOIA "only obligates [an agency] to provide access to

those [records] which it in fact has created and retained.”

Kissinger, 445 U.S. at 152. "Thus, although an agency is

entitled to possess a record, it need not obtain or regain

possession of a record in order to satisfy a FOIA request.”

Yeager, 678 F.2d at 321. Here, the exact map images viewed

by DEA agents using the GPS mapping software during their

real-time monitoring of appellant's vehicle, as distinct from the

map images introduced at appellant's trial, were transient and

"not . . . located with a reasonable amount of effort by a person

familiar with DEA's record systems.” Myrick 3rd Suppl. Decl.

¶ 16 (Dec. 18, 2017); Myrick 2nd Suppl. Decl. ¶ 2 (Nov. 10,

2015). Appellant acknowledges that DEA does not possess this

GPS mapping software, which was "phased out and retired”

before appellant made his FOIA request. Decl. of Paul M. Roy,

Chief, DEA Infrastructure Support Unit, Admin. Support

Section, Off. of Investigative Tech. ¶ 10 (Dec. 18, 2017); see

Amicus Br. 14. The U.S. Attorney's Office in Vermont, with

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some assistance from DEA, apparently prepared for appellant's

trial the distinct map images introduced as exhibits. See Roy

Decl. ¶ 14; Myrick 2nd Suppl. Decl. ¶¶ 4–5; Trial Transcript at

127 (Apr. 1, 2011). Declarations of DEA officials, which are

"accorded a presumption of good faith,” SafeCard Servs., Inc.

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), explain that "[i]t

is unknown how the exhibits were created” and that "[t]o learn

how the exhibits were created would require research and

investigation.” See Myrick 2nd Suppl. Decl. ¶ 5; see also Roy

Decl. ¶ 14. Appellant has not challenged the adequacy of

DEA's records search, which did not locate any map images or

tracking information relating to DEA's investigation of

appellant. See Myrick 2nd Suppl. Decl. ¶ 11; see also Wilbur

v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004). DEA did not even

possess the spreadsheets of GPS coordinate data that it

ultimately produced for appellant, instead obtaining them from

the U.S. Attorney's Office, as to which appellant has not

pressed a FOIA request. See Myrick 2nd Suppl. Decl. ¶¶ 11–

12. There is no suggestion of bad faith or misconduct by DEA

in responding to appellant's FOIA request.

On this record, because DEA does not possess the GPS

mapping software or any related map images and never created

or retained the map images introduced at appellant's trial,

FOIA does not obligate DEA now to create such map images

in the first instance. See Kissinger, 445 U.S. at 152.

III.

Appellant filed a pro se motion for leave to file a

supplemental complaint proposing six new claims for

monetary damages and declaratory relief under the Privacy

Act, 5 U.S.C. § 552a, against DEA and two new defendants,

"Unknown U.S. DOJ GPS Contractor” and "Executive Office

for U.S. Attorneys.” The district court properly denies a

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motion to amend a complaint "as futile if the proposed claim

would not survive a motion to dismiss.” Hettinga v. United

States, 677 F.3d 471, 480 (D.C. Cir. 2012) (citing James

Madison Ltd., 82 F.3d at 1099). The district court found that

appellant's first claim was futile because it was "premised on

the alleged withholding of materials that are either not agency

records or have already been provided.” Aguiar, 334 F. Supp.

3d at 145. It also concluded that appellant's remaining claims,

even when "liberally” construed, see Toolasprashad v. Bureau

of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002), are not

cognizable under the Privacy Act or related to any cognizable

civil-rights claim. Aguiar, 334 F. Supp. 3d at 145–47.

Appellant fails to establish that the district court abused its

discretion in denying his motion for leave to file a supplemental

complaint. See James Madison Ltd., 82 F.3d at 1099.

Accordingly, we affirm the grant of summary judgment to

DEA and the denial of appellant’s motion for leave to file a

supplemental complaint.