Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Bureau of Alcohol, Tobacco and Firearms conducted an adequate search for records concerning the investigation and conviction of David Barouch for possession of an unregistered destructive device and that with the exception of its Exemption 3 (other statutes) claim, it properly withheld records from Barouch under several exemptions. Barouch claimed there should be recordings of several interviews with an individual named Eddie Sutton that had been conducted by ATF agents. A database search failed to locate any recordings, but the ATF Special Agent who handled Barouch's investigation found one tape and indicated that he believed one other interview took place conducted by the Texas Rangers. Jackson observed that "the Court notes that [the agency's] affidavit also indicates that there may be a perfectly reasonable explanation for why defendants did not find the tapes plaintiff seeks: that instead of recording the conversations, law enforcement agents opted to have 'an unbiased witness' present." Barouch also questioned why the agency could not locate chain-of-custody records. Jackson explained that "defendants state that ATF 'does not have any subordinated agencies or sub-agencies and it does not supervise or control the records of any other law enforcement agency.'" Barouch claimed there was a public interest in disclosing the contents of the recording of the interview with Sutton. But Jackson pointed out that "third-party identifying information that appears in law enforcement records is generally not subject to disclosure under Exemption 7(C) (invasion of privacy concerning law enforcement records) 'unless there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity,' and access to the identifying information 'is necessary in order to confirm or refute that evidence.' Plaintiff's speculation about what the contents of the recording might reveal does not constitute 'compelling evidence.' Moreover, to the extent plaintiff seeks to claim that the protections of Exemption 7(C) were waived as a result of the third party's judicial proceedings, plaintiff has not made the requisite showing." ATF had withheld 97 pages under Rule 6(e) pertaining to grand jury secrecy. Jackson found the agency's description inadequate and noted that "because defendants have failed to provide virtually any description of the grand jury materials they withheld, the Court cannot determine whether the withholding was justified under Exemption 3." Jackson agreed that records contained in a Privacy Act system of law enforcement records that was exempt under subsection (j)(2) were protected, but noted that "defendants have failed, however, to account for the fact that one of the responsive records [withheld under (j)(2)] was located in the personal file of an ATF Special Agent, which was 'not an official agency file.' Defendants have not explained whether records found in this agent's personal file are also subject to withholding under the Privacy Act."
Issues: Adequacy - Search

FOIA Project Annotation: Judge Amy Berman Jackson has resolved issues remaining in David Barouch's FOIA and Privacy Act suit against BATF by ruling that the agency properly withheld 97 pages of records under Exemption 3 (other statutes) and that a voice recording located during a search for records on Barouch was not subject to disclosure under the Privacy Act. BATF had previously withheld the 97 pages under Rule 6(e) pertaining to grand jury secrecy, an explanation Jackson found insufficient. Jackson now found the agency's supplemental affidavits provided justification for withholding all the records. She agreed that the records pertained to a grand jury subpoena and the records provided to the grand jury as a result of that subpoena. Jackson previously rejected the agency's claim that the voice recording was not subject to the Privacy Act, again because the agency had not provided sufficient detail for supporting such a claim. This time Jackson observed that "defendants located this record not by conducting a name search or using some other identifying number or symbol, but only after an employee diligently searching for records responsive to plaintiff's request 'reached out to [plaintiff's] former case agent,' and the agent retrieved the records from his personal files. There is no indication that the personal files of this agent were structured in a way to permit the types of retrievals that characterize a 'system of records' under the Privacy Act."
Issues: Exemption 3 - Limited agency discretion

Date Filed	Doc #	Docket Text
2014-04-01	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES ( Filing fee $ 350, receipt number 4616063023) filed by DAVID JACK BAROUCH. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(am, ) (Entered: 04/04/2014)
2014-04-01	2	MOTION for Permission to Use P.O. Box Address by DAVID JACK BAROUCH. (am, ) (Entered: 04/04/2014)
2014-04-03		SUMMONS Issued (4) as to UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, U.S. Attorney and U.S. Attorney General (am, ) (Entered: 04/04/2014)
2014-04-08	3	Case assigned as related to 12cv0129, which is pending before Judge Amy Berman Jackson. Judge John D. Bates no longer assigned to the case. (gt, ) Modified on 4/9/2014 to reflect the correct related case number (jth). (Entered: 04/08/2014)
2014-04-14		MINUTE ORDER granting 2 Motion for Permission to Use a P.O. Box Address. Signed by Judge Amy Berman Jackson on 4/14/2014. (lcabj3) (Entered: 04/14/2014)
2014-04-14	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/9/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 5/9/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 4/9/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/9/14. (td, ) (Entered: 04/14/2014)
2014-04-28	5	NOTICE of Appearance by Shuchi Batra on behalf of All Defendants (Batra, Shuchi) (Entered: 04/28/2014)
2014-05-07	6	MOTION for Extension of Time to Respond to Plaintiff's Complaint by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Attachments: # 1 Text of Proposed Order)(Batra, Shuchi) (Entered: 05/07/2014)
2014-05-08		MINUTE ORDER granting 6 Defendants' Motion for Extension of Time. It is ORDERED that defendants' response to the complaint is due on or before June 24, 2014. Signed by Judge Amy Berman Jackson on 5/8/2014. (lcabj3) (Entered: 05/08/2014)
2014-05-08		Set/Reset Deadlines: Defendants' Response to the Complaint is now due by 6/24/2014. (jth) (Entered: 05/08/2014)
2014-06-20	7	MOTION for Extension of Time to Respond to Plaintiff's Complaint by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Attachments: # 1 Text of Proposed Order)(Batra, Shuchi) (Entered: 06/20/2014)
2014-06-23		MINUTE ORDER granting 7 Motion for Extension of Time to Respond to Plaintiff's Complaint. It is ORDERED that defendants' response to the complaint is due on or before July 1, 2014. Signed by Judge Amy Berman Jackson on 6/23/2014. (lcabj3) (Entered: 06/23/2014)
2014-06-24		Set/Reset Deadline: Defendants' Response to the Complaint is now due by 7/1/2014. (jth) (Entered: 06/24/2014)
2014-07-01	8	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Stephanie Boucher, # 4 Vaughn Index, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Text of Proposed Order)(Batra, Shuchi) (Entered: 07/01/2014)
2014-07-29	9	FOX/NEAL ORDER. It is ORDERED that plaintiff shall respond to defendants' motion for summary judgment [Dkt. #8] on or before August 29, 2014. If plaintiff fails to file a timely response, the Court will treat defendants' motion as conceded and dismiss the case. See order for details. Signed by Judge Amy Berman Jackson on 7/29/2014. (lcabj3) Modified on 7/29/2014 to add the document number for defendant's motion (jth). (Entered: 07/29/2014)
2014-07-29		Set/Reset Deadlines: Plaintiff shall file a Response to Defendants' Motion for Summary Judgment [Dkt. #8] by 8/29/2014. (jth) (Entered: 07/29/2014)
2014-08-04	10	MOTION for Extension of Time to File Response as to 8 MOTION for Summary Judgment by DAVID JACK BAROUCH (jf, ) (Entered: 08/06/2014)
2014-08-06		MINUTE ORDER granting 10 Plaintiff's Motion for Extension of Time. It is ORDERED that plaintiff's response to defendants' motion for summary judgment is due on or before September 6, 2014. Signed by Judge Amy Berman Jackson on 8/6/2014. (lcabj3) (Entered: 08/06/2014)
2014-08-06		Set/Reset Deadlines: Plaintiff's Response to Defendants' Motion for Summary Judgment is due by 9/6/2014. (jth) (Entered: 08/06/2014)
2014-08-08	11	ERRATA by DAVID JACK BAROUCH 10 MOTION for Extension of Time to File Response/Reply as to 8 MOTION for Summary Judgment filed by DAVID JACK BAROUCH. (td, ) (Entered: 08/11/2014)
2014-08-13		MINUTE ORDER that in light of 11 plaintiff's notice, the deadline for plaintiff to respond to defendants' motion for summary judgment is extended to October 6, 2014. Signed by Judge Amy Berman Jackson on 8/13/2014. (lcabj3) (Entered: 08/13/2014)
2014-08-14		Set/Reset Deadlines: Plaintiff's Response to Defendants' Motion for Summary Judgment is now due by 10/6/2014. (jth) (Entered: 08/14/2014)
2014-08-14	12	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 7/22/2014; UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES served on 7/22/2014 (td, ) (Entered: 08/19/2014)
2014-09-26	13	MOTION for Extension of Time to File Response as to 8 MOTION for Summary Judgment by DAVID JACK BAROUCH (jf, ) (Entered: 09/29/2014)
2014-09-29		MINUTE ORDER granting 13 Plaintiff's Motion for Extension of Time. It is ORDERED that plaintiff's response to defendants' motion for summary judgment is due on or before October 21, 2014. Signed by Judge Amy Berman Jackson on 9/29/2014. (lcabj3) (Entered: 09/29/2014)
2014-10-01		Set/Reset Deadlines: Plaintiff's Response to Defendants' Motion for Summary judgment is now due by 10/21/2014. (jth) (Entered: 10/01/2014)
2014-10-21	14	MOTION for Leave to File Excess Pages by DAVID JACK BAROUCH (Attachments: # 1 Exhibit Motion for Summary Judgment, # 2 Exhibit Memorandum in Support/Opposition)(jf, ) (Entered: 10/21/2014)
2014-10-21		MINUTE ORDER granting 14 Motion for Leave to File Excess Pages. The Court notes, however, that any future motion to file excess pages must be filed well in advance of the date the pleading is due -- before plaintiff has completed the process of drafting his pleading -- and must specify good cause to vary from the rules, which appears to be largely absent this time. Signed by Judge Amy Berman Jackson on 10/21/2014. (lcabj3) (Entered: 10/21/2014)
2014-10-21		MINUTE ORDER. In light of the Court's minute order granting plaintiff's motion for leave to file excess pages, the Clerk is directed to docket exhibits 1 and 2 [Dkt. # 14-1, 14-2] to that motion. Signed by Judge Amy Berman Jackson on 10/21/2014. (lcabj3) (Entered: 10/21/2014)
2014-10-21	15	MOTION for Summary Judgment by DAVID JACK BAROUCH (Attachments: # 1 Memorandum in Support)(jf, ) (Entered: 10/22/2014)
2014-10-21	16	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by DAVID JACK BAROUCH. (jf, ) (Entered: 10/22/2014)
2014-10-30	17	Letter from David Barouch. "Leave to file denied" The court advises that the plaintiff's response included page 21. A Copy is attached for your records. It was already properly filed with the court. signed by Judge Amy Berman Jackson on 10/29/2014 (jf, ) (Entered: 10/30/2014)
2014-10-30	18	NOTICE OF SUBSTITUTION OF COUNSEL by Eric Joseph Young on behalf of UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES Substituting for attorney Shuchi Batra (Young, Eric) (Entered: 10/30/2014)
2014-10-30	19	MOTION for Extension of Time to File Response/Reply to Plaintiff's Filings by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Attachments: # 1 Text of Proposed Order)(Young, Eric) (Entered: 10/30/2014)
2014-10-31		MINUTE ORDER granting 19 Defendants' Motion for Extension of Time to Respond to Plaintiff's Filings. It is ORDERED that defendants' response to plaintiff's filings is due on or before December 3, 2014. Signed by Judge Amy Berman Jackson on 10/31/2014. (lcabj3) (Entered: 10/31/2014)
2014-11-03		Set/Reset Deadlines: Defendants' Response to Plaintiff's filings is due by 12/3/2014. (jth) (Entered: 11/03/2014)
2014-11-25	20	MOTION for Extension of Time to File Response/Reply to all of Plaintiff's combined filings by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Young, Eric) (Entered: 11/25/2014)
2014-11-26		MINUTE ORDER granting 20 Defendants' Motion for Extension of Time. It is ORDERED that defendants' response to plaintiff's filings is due on or before January 5, 2015. Signed by Judge Amy Berman Jackson on 11/26/2014. (lcabj3) (Entered: 11/26/2014)
2014-11-26		Set/Reset Deadlines: Defendants' Response to Plaintiff's filings is due by 1/5/2015. (jth) (Entered: 11/26/2014)
2014-12-23	21	REPLY to opposition to motion re 15 MOTION for Summary Judgment, 8 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. (Attachments: # 1 Exhibit Exhibit 1 on Release of Recordings, # 2 Exhibit Exhibit 2 on Re-release of Original Production)(Young, Eric) . (Entered: 12/23/2014)
2014-12-23	22	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. (See Docket Entry 21 to view document) (jf, ) (Entered: 12/29/2014)
2015-01-12	23	REPLY to opposition to re 15 MOTION for Summary Judgment filed by DAVID JACK BAROUCH. (jf, ) (Entered: 01/13/2015)
2015-02-27		MINUTE ORDER. Plaintiff complains that he has not yet received the Reports of Investigation 1 through 10, listed on defendants' Vaughn Index [Dkt. # 8-4] as documents 2 through 11, but defendants have informed the Court that the documents have been provided twice. It is ORDERED that defendants shall file a notice on or before March 6, 2015, designating the pages of any previous production at which those records can be found. Signed by Judge Amy Berman Jackson on 2/27/2015. (lcabj3) (Entered: 02/27/2015)
2015-02-27		Set/Reset Deadlines: Defendants shall file a notice with the Court by 3/6/2015, designating the pages of any previous production at which the records of the Reports of Investigation 1 through 10, listed on defendants' Vaughn Index [Dkt. # 8-4] as documents 2 through 11, can be found. (jth) (Entered: 02/27/2015)
2015-03-02	24	NOTICE of Compliance with Court Order by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES re Set/Reset Deadlines, Order, (Young, Eric) (Entered: 03/02/2015)
2015-03-31	25	ORDER. It is ORDERED that defendants' motion for summary judgment 8 is GRANTED IN PART AND DENIED IN PART. It is FURTHER ORDERED that plaintiff's motion for summary judgment 15 is GRANTED IN PART AND DENIED IN PART. And it is FURTHER ORDERED that this case is remanded to defendants. And it is FURTHER ORDERED that defendants shall provide a status report on this matter on April 30, 2015. See order for details. Signed by Judge Amy Berman Jackson on 3/31/2015. (lcabj3) (Entered: 03/31/2015)
2015-03-31	26	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 3/31/2015. (lcabj3) (Entered: 03/31/2015)
2015-03-31		Set/Reset Deadlines: This case is remanded to defendants. The defendants shall provide a Status Report on this matter by 4/30/2015. (jth) (Entered: 03/31/2015)
2015-04-27	27	NOTICE OF APPEAL as to 25 Order on Motion for Summary Judgment,,, 26 Memorandum & Opinion by DAVID JACK BAROUCH. Fee Status: No Fee Paid. Parties have been notified. (jf, ) (Entered: 04/28/2015)
2015-04-28	28	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 27 Notice of Appeal. (jf, ) (Entered: 04/28/2015)
2015-04-29	29	Second MOTION for Summary Judgment Renewed Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (Attachments: # 1 Declaration Second Declaration of Boucher)(Young, Eric) (Entered: 04/29/2015)
2015-04-29	30	STATUS REPORT and Notice of Compliance with Court Order by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. (Young, Eric) (Entered: 04/29/2015)
2015-04-29		USCA Case Number 15-5124 for 27 Notice of Appeal filed by DAVID JACK BAROUCH. (md, ) (Entered: 04/29/2015)
2015-05-15	31	MOTION for Extension of Time to File Response/Reply as to 29 Second MOTION for Summary Judgment Renewed Motion for Summary Judgment by DAVID JACK BAROUCH (jf, ) (Entered: 05/18/2015)
2015-05-19		MINUTE ORDER granting 31 Plaintiff's Motion for Extension of Time. It is ORDERED that plaintiff's response to defendants' 29 memorandum of points and authorities in support of their renewed motion for summary judgment is due on or before June 8, 2015. Signed by Judge Amy Berman Jackson on 5/19/2015. (lcabj3) (Entered: 05/19/2015)
2015-05-19		Set/Reset Deadlines: Plaintiff's Response to Defendants' 29 memorandum of points and authorities in support of their renewed Motion for Summary Judgment is due by 6/8/2015. (jth) (Entered: 05/19/2015)
2015-06-08	32	RESPONSE re 29 Second MOTION for Summary Judgment Renewed Motion for Summary Judgment filed by DAVID JACK BAROUCH. (jf) (Entered: 06/09/2015)
2015-06-16	33	REPLY to opposition to motion re 29 Second MOTION for Summary Judgment Renewed Motion for Summary Judgment (To Extent Plaintiff filed a Motion for Summary Judgment this is the Defendant's Opposition) filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. (Young, Eric) (Entered: 06/16/2015)
2015-06-16	34	CERTIFICATE OF SERVICE by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES re 33 Reply to opposition to Motion, . (Young, Eric) (Entered: 06/16/2015)
2015-07-10	35	SURREPLY to re 29 Second MOTION for Summary Judgment Renewed Motion for Summary Judgment filed by DAVID JACK BAROUCH. "Leave to file GRANTED. While the rules do not permit answered to replies, However, this matter is now fully briefed and no further pleadings will be accepted. Signed by Amy Berman Jackson on 07/09/2015 (jf) (Entered: 07/10/2015)
2015-09-18	36	ORDER granting 29 defendants' Renewed Motion for Summary Judgment and denying 32 plaintiff's Renewed Motion for Summary Judgment. See order for details. Signed by Judge Amy Berman Jackson on 9/18/2015. (lcabj3) (Entered: 09/18/2015)
2015-09-18	37	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/18/2015. (lcabj3) (Entered: 09/18/2015)
2015-09-21	38	Supplemental Record on Appeal transmitted to US Court of Appeals re 37 Memorandum & Opinion, 36 Order on Motion for Summary Judgment ;USCA Case Number 15-05124. (jf) (Entered: 09/21/2015)
2015-09-22	39	MANDATE of USCA (certified copy) as to 27 Notice of Appeal filed by DAVID JACK BAROUCH. ORDERED that this case be dismissed for lack of prosecution. USCA Case Number 15-5124. (rd) (Entered: 09/22/2015)
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