Lowe v. U.S. Department of Justice Office of Information Policy

Background

Kevin Lowe, proceeding without a lawyer, brought this Freedom of Information Act (FOIA) action seeking records held by the Executive Office of the United States Attorneys (EOUSA) relating to his criminal prosecution and conviction. Lowe submitted his request to EOUSA in December 2017. EOUSA referred the request to the U.S. Attorney’s Office for the Southern District of New York, which identified approximately 5,250 potentially responsive pages. EOUSA made five productions between July 2020 and October 2023, releasing some records in full or in part, withholding others, and providing a detailed index explaining the withholdings.

Some records originated with other federal agencies, including the Drug Enforcement Administration (DEA). EOUSA referred those records to the originating agencies for review. In June 2024, the DEA released 585 pages in full or in part, withheld 939 pages, and provided its own index and explanations under several FOIA exemptions. One released document was a redacted report of a DEA interview with Dr. Cesar Santos.

Lowe later moved for summary judgment, asking for records he believed had been improperly withheld. The Government opposed his motion and filed a cross-motion for partial summary judgment concerning records produced as of January 2025. Magistrate Judge Ona T. Wang recommended denying Lowe’s motion and granting the Government’s motion as to those records. She found that the Government had conducted an adequate search, properly withheld records under FOIA, and had not acted in bad faith.

Objection concerning the interview report

Lowe objected only to the treatment of the redacted interview report. He argued that, because the DEA originated the report and allegedly controlled an unredacted version, the DEA had to disclose the original. He also argued that EOUSA should have searched DEA records for the unredacted report.

The court rejected those arguments. FOIA requires an agency to respond for records that were created or obtained by, and controlled by, the agency that received the request. Lowe sent his request to EOUSA, not the DEA. The Government represented that the report was already redacted when the U.S. Attorney’s Office located it and sent it to EOUSA. Therefore, the redacted version was the version in EOUSA’s control when it received Lowe’s request. The court held that the DEA’s later review of the referred record did not require the DEA to find and produce a different, unredacted version.

The court also held that EOUSA had no obligation to search the DEA’s records for the original report merely because both agencies are components of the Department of Justice. The referral of records to the DEA for review did not create such an obligation.

Review of the report and recommendation

The court explained that it could review the challenged portions of the report and recommendation independently because Lowe filed a timely objection. It noted that several of Lowe’s arguments concerning the interview report had not been presented to Judge Wang. Those new arguments would ordinarily be reviewed only for clear error, but the court stated that Lowe’s challenges failed even under independent review.

For the portions to which Lowe did not object, the court found no clear error. The court also stated that it had reviewed the entire report and recommendation independently and found it well reasoned. It agreed that the Government’s sworn declarations showed an adequate search, that the Government adequately justified the FOIA exemptions used to redact or withhold records, and that Lowe had not rebutted the presumption that the Government acted in good faith.

Disposition

Judge John P. Cronan overruled Lowe’s objection and adopted the report and recommendation in its entirety. The court denied Lowe’s motion for summary judgment. It granted the Government’s cross-motion for partial summary judgment with respect to records produced as of January 2025. The Clerk was directed to close Docket Numbers 39 and 48.