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Date: 09-17-2021

Case Style:


Case Number: 18-5356

Judge: Judith W. Rogers

Court: United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Plaintiff's Attorney: Johnny H. Walker, Assistant U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney

Defendant's Attorney:

Washington, DC - Criminal defense Lawyer Directory


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

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

Outcome: Accordingly, we affirm the grant of summary judgment to
DEA and the denial of appellant’s motion for leave to file a
supplemental complaint.

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