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CROWELL & MORING v. DOD

January 12, 1989

Crowell & Moring, Plaintiff,
v.
Department of Defense, et al., Defendants



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 This Freedom of Information Act ("FOIA") suit arises out of a FOIA request that plaintiff, a Washington, D.C. law firm, filed with the Defense Reutilization and Marketing Service ("DRMS"), a component of the Defense Logistics Agency ("DLA"), on behalf of one of its corporate clients. In its request, plaintiff asked the DRMS for solicitation and bidding records that it had concerning its sale of surplus explosives from January 1, 1983 to June 1, 1987.

 DRMS provided plaintiff with those documents in its possession that were responsive to plaintiff's request; however, other responsive documents had been previously seized by the Defense Criminal Investigative Service ("DCIS") to assist it in its investigation of possible antitrust violations arising out of the sale of surplus explosives by DRMS. As such, DRMS forwarded plaintiff's FOIA request to the DCIS. The DCIS has released 211 of the 224 responsive documents in its possession to plaintiff; the thirteen remaining documents are the subject of this suit.

 Two outstanding motions are now before the Court. The first is defendants' motion for summary judgment in which they claim the applicability of FOIA exemptions 7(A) (law enforcement proceedings) and 7(D) (confidential sources) to the thirteen withheld documents. *fn1" The other motion is one plaintiff filed pursuant to Fed. R. Crim. P. 6(e) to redact or to place under seal defendants' filings that identify plaintiff's client by name.

  Upon consideration of these motions, the supporting and opposing legal memoranda, defendants' affidavits, oral arguments by counsel for both parties, and an in camera inspection of the withheld documents, *fn2" the Court concludes that defendants are properly withholding the documents at issue pursuant to Exemptions 7(A) and 7(D) and, therefore, will grant their motion for summary judgment. The Court also concludes that defendants' reference to plaintiff's client by name is inconsistent with one of the underlying purposes of Fed. R. Crim. P. 6(e) and will, therefore, grant plaintiff's motion to place under seal defendants' filings identifying plaintiff's client by name.

 BACKGROUND

 Plaintiff wrote a letter to DRMS, dated June 19, 1987, seeking general information about DRMS' sale of surplus explosives and more detailed information concerning the bidding on a particular sale. Plaintiff sent DRMS another letter on July 21, 1988 supplementing its earlier request of June 19, 1987.

 On July 9, 1987, plaintiff received some documents that were responsive to its request from the Defense Logistics Agency, a sub-agency of DRMS. At that time, plaintiff was advised that some of the documents responsive to its request had been "seized" by the Defense Criminal Investigative Service ("DCIS"), an investigative arm of the Department of Defense Inspector General, and that its FOIA request was forwarded to DCIS for its review.

 DCIS had previously seized these documents to assist it in its investigation of possible antitrust violations arising out of DRMS' sale of surplus explosives from 1982 to 1987. DCIS began this investigation when an attorney at DRMS received information from a source indicating the possibility of certain criminal antitrust violations. After DRMS conducted a brief investigation of these allegations of criminal misconduct, DRMS referred the information that it obtained to DCIS for further investigation. Since June, 1987, a grand jury investigation of these allegations has been ongoing in Memphis, Tennessee.

 Subsequent to its learning of the whereabouts of the documents it was seeking, plaintiff made numerous inquiries with the Department of Defense between August and December, 1987 concerning the status of its FOIA request. Because plaintiff became impatient with repeatedly being told that its request was being "processed," plaintiff filed this suit on December 17, 1987.

 After plaintiff filed this suit, DCIS determined that it had seized from DRMS 224 documents that were responsive to plaintiff's request. Upon completion of its review of these documents, DCIS forwarded 211 of these documents to the headquarters of the Defense Logistics Agency which in turn released them to plaintiff on January 15, 1988. The thirteen documents that were not turned over to plaintiff were withheld in their entirety.

 On January 19, 1988, defendants wrote a letter to plaintiff asking if it desired to enter a stipulation of dismissal in light of the supplemental releases that defendants had made subsequent to plaintiff's filing of this suit. Plaintiff declined defendants' invitation to dismiss its suit because it was convinced that the thirteen remaining documents were being improperly withheld. As such, defendants filed a Vaughn index and accompanying affidavits to justify its nondisclosure of the withheld documents as well as a motion for summary judgment.

 I.

 DEFENDANTS HAVE DEMONSTRATED THAT THE DOCUMENTS THEY ARE WITHHOLDING WERE COMPILED FOR LAW ENFORCEMENT PURPOSES AND, THEREFORE, HAVE SATISFIED EXEMPTION 7'S THRESHOLD REQUIREMENT.

 Before considering whether defendants have met their burden of demonstrating the applicability of Exemptions 7(A) and 7(D) to the thirteen documents at issue, the Court will note that it is fully aware of the factual dispute between the parties over the circumstances surrounding the creation of the withheld records. While plaintiff contends that DRMS created the records at issue during the course of its routine marketing functions, *fn3" defendants maintain that no written records were made until the commencement of an actual investigation of criminal activity. *fn4" This factual dispute does not, however, defeat defendants' motion for summary judgment because, as the Court will explain below, a factual determination as to the circumstances surrounding the creation of the records is not material to a resolution of whether defendants have properly asserted Exemptions 7(A) and 7(D). See Fed. R. Civ. P. 56(c) (providing that movant in a motion for summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law") (emphasis added).

 Defendants claim both Exemptions 7(A) and 7(D) for all of the withheld documents. "Judicial review of an asserted Exemption 7 privilege requires a two-part inquiry." See Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 622, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982). At first, as a threshold matter, the Court must determine whether the agency has demonstrated that the withheld documents consist of "records or information compiled for law enforcement purposes . . . ." 5 U.S.C. § 552(b)(7) (1982), as amended by Pub. L. No. 99-570, § 1802(a) (Oct. 27, 1986). If the agency meets its burden on this threshold matter, the Court must then determine whether the agency ...


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