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BUHOVECKY v. DOJ

October 4, 1988

Michael Buhovecky, Plaintiff,
v.
Department of Justice, et al., Defendants



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 This is a pro se Freedom of Information Act ("FOIA") action. See 5 U.S.C. Sec. 552(a) (1982 & Supp. IV 1986). Plaintiff has requested from the Federal Bureau of Investigation ("FBI") all documents arising out of a criminal investigation of a bank robbery. The investigation was conducted by the FBI's Pittsburgh, Pennsylvania, Field Office. As a result of that investigation, plaintiff was tried and convicted and is now incarcerated in the Federal Correctional Institution in Petersburg, Virginia.

 The investigative file which plaintiff has requested contains information obtained by the FBI through interviews with law enforcement officials, individuals identified in the FBI Vaughn index as confidential sources, and third parties for whom the FBI claims "implied confidentiality." Also contained in the file are criminal identification records ("rap sheets"), grand jury material and information containing investigative techniques.

 The FBI released 154 pages of documents in response to plaintiff's request; a remaining 409 pages were withheld. *fn1" The FBI asserts a variety of FOIA exemptions as the basis of its non-disclosure. Plaintiff brought this action to compel the release of these remaining documents.

 The Court has before it defendants' motion for summary judgment. For defendants to prevail, the Court must find that defendants have demonstrated that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Plaintiff has failed to respond to defendants' motion and has filed neither an opposition to defendants' motion nor a cross motion for summary judgment. The Court nonetheless must determine whether defendants have sustained their burden. See Brandon v. District of Columbia Board of Parole, 236 U.S. App. D.C. 155, 734 F.2d 56 (D.C. Cir. 1984) (directing the court to apply liberal treatment to pro se claimants).

 Plaintiff's complaint and defendants' answer and defendants' motion for summary judgment indicate that there are no material facts in dispute. Therefore, the sole issue before the court is whether, as a matter of law, defendants' are entitled to rely on the various FOIA exemptions.

 I. BACKGROUND: the FREEDOM of INFORMATION ACT

 The Freedom of Information Act was passed to "promote honesty of government by seeing to it that public business functions under the hard light of public scrutiny." Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657, 660 (6th Cir. 1972). The Act requires government agencies to disclose requested information to the public unless the information sought falls within one or more of nine FOIA exemptions. See 5 U.S.C. Sec. 552(b) (1) - (9).

 The first exemption invoked by defendants is FOIA Exemption 3. 5 U.S.C. Sec. 552(b)(3). This exemption allows governmental agencies to withhold records that are:

 
specifically exempted from disclosure by statute (other than Section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

 5 U.S.C. Sec. 552(b)(3). As indicated in the quoted section, any statute which permits non-disclosure must clearly and explicitly provide for the withholding of information.

 Defendants argue, based on FOIA Exemption 3, that two statutes permit the withholding of certain materials requested by plaintiff. First, defendants cite Federal Rule of Criminal Procedure 6(e) as a basis for withholding the names of individuals subpoenaed to appear before a federal grand jury. Second, defendants argue that 28 U.S.C. Sec. 534 (1982) exempts from disclosure certain rap sheets plaintiff has requested.

 A. FOIA Exemption 3 and Fed R. Crim. P. 6(e)

 The question of whether Rule 6(e) *fn2" qualifies as a non-disclosure statute under Exemption 3 was fully explored in Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 866-70 (D.C.Cir. 1981). In that case, plaintiff brought a FOIA action seeking the release of grand jury material held by the Watergate Special Prosecution Force. Defendant contended that Rule 6(e) qualified as an Exemption 3 statute and permitted the withholding of various grand jury information. The Court of Appeals, reviewing the legislative history and scope of Rule 6(e), held that Rule 6(e) satisfied the criteria of Exemption 3 and, therefore, could be relied upon as a non-disclosure statute. Further, the Court of Appeals noted that:

 
Disclosure of this information would reveal matters recurring before the grand jury and is, therefore, properly exempt from disclosure pursuant to FOIA Exemption 3 and Fed. R. Crim. P. 6(e). Witnesses's names are clearly covered, as are documents subpoenaed as exhibits. Potential witnesses and potential documentary exhibits, while less clearly ...

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