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MARRERA v. UNITED STATES DOJ

August 28, 1985

RALPH MARRERA, Plaintiff
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants



The opinion of the court was delivered by: HOGAN

HOGAN, U.S. District Judge.

 MEMORANDUM OPINION

 Plaintiff, a federal prisoner acting pro se, filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking access to records pertaining to himself maintained by sixteen components of the Department of Justice (DOJ). By orders dated December 12, 1984 and February 20, 1985 the Court dismissed for lack of prosecution plaintiff's claims against fourteen of the DOJ components that were the subject of defendants' unopposed motion to dismiss, including plaintiff's claims against the Executive Office for United States Attorneys (EOUSA), the Bureau of Prisons (BOP), and the Federal Bureau of Investigation (FBI). With respect to plaintiff's remaining claims against the United States Marshals Service (USMS) and the Office of Intelligence Policy and Review (OIPR), the Court instructed defendants to file any dispositive motions on or before May 1, 1985.

 This case is presently before the Court on defendants' motion for summary judgment with respect to the claims concerning the OIPR and USMS. Furthermore, because the USMS forwarded documents in its possession which originated with BOP, EOUSA and FBI back to those components for their direct reply to plaintiff's FOIA request, claims against BOP, EOUSA and the FBI were revived only with respect to the forwarded documents. Accordingly, defendants have also filed a motion for summary judgment with respect to the documents forwarded to BOP, and motions to dismiss with respect to the documents forwarded to EOUSA and the FBI.

 As with defendants's earlier motion to dismiss, the Court again afforded plaintiff an opportunity to respond to defendants' dispositive motions well in excess of the time normally permitted. Again, plaintiff has filed no pleading directly responsive to defendants' motions. Nevertheless, this Court has reviewed the defendants' motions in light of the entire record in this action.

 A) Office of Intelligence Policy Review

 With respect to records requested from OIPR, OIPR responded that it could not admit or deny that it maintains information regarding whether the plaintiff is a target of surveillance pursuant to the Foreign Intelligence Surveillance Act ("FISA"), or whether such an application for surveillance was made to the Foreign Intelligence Surveillance Court. With respect to all other OIPR files, the defendants informed plaintiff that no records responsive to his request had been located. This Court finds the defendants' affidavits concerning the adequacy of the search of OIPR's non-FISA files sufficient, and no contrary argument has been raised by the defendant.

 With respect to FISA materials OIPR invokes FOIA exemption 1, which exempts from disclosure records that are

 
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

 5 U.S.C. § 552(b)(1).

 The courts have consistently held that in cases involving exemption 1 substantial weight should be given to the agency's affidavits, and summary judgment granted for the government if the affidavits establish that the particular information in question is specifically authorized to be kept secret in the interests of national security, and was in fact properly classified pursuant to the applicable Executive Order. See e.g., Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. 1982); Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981). This standard applies as well when the agency takes the position that it can neither confirm nor deny the existence of responsive information. See e.g., Miller v. Casey, 235 U.S. App. D.C. 11, 730 F.2d 773, 776-77 (D.C. Cir. 1984); Gardels v. CIA, 689 F.2d 1100, 1103-05, 223 U.S. App. D.C. 88 (D.C. Cir. 1982). The applicable Executive Order cited by OIPR in declining to admit or deny the existence of any records responsive to the plaintiff's request is Executive Order 12356, 47 Fed. Reg. 14874 (April 16, 1984). In the instant case, the affidavit of Mary C. Lawton, Counsel for Intelligence Policy at the United States Department of Justice fully demonstrates that the materials requested by the plaintiff fall within the substantive definitions of classifiable material authorized to be kept secret in the interest of national security under Executive Order 12356, as information relating to intelligence sources or methods, and intelligence activities, and were properly classified in accordance with the requirements of the Executive Order. Affidavit of Mary C. Lawton, at 6-7 [hereinafter "Lawton Affidavit"].

 Furthermore, this Court finds that the Lawton Affidavit sufficiently delineates the damage to national security that could reasonably be expected to result if OIPR were to confirm or deny the existence of information responsive to plaintiff's request. The Lawton Affidavit makes evident that merely confirming or denying the existence of such records would implicitly reveal classifiable information:

 
An official acknowledgment either that OIPR maintains or does not maintain information documenting that a person is the subject of a FISA application would be tantamount to a confirmation or denial that the United States is obtaining intelligence information from ...

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