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KIRK v. UNITED STATES DOJ

January 17, 1989

ROBERT KIRK, SR., et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE.

 Plaintiffs in this case seek to compel information and the award of attorney's fees from defendant through the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 & Supp. IV 1986). Defendant has moved for summary judgment, which plaintiffs have opposed. Oral argument was heard on November 18, 1988. The Court grants defendant's motion for summary judgment with regard to the request for information, but denies the motion with regard to plaintiffs' request for attorney's fees.

 I. Factual Background

 Plaintiffs Robert Kirk, Donald Shannon, and Rose Shannon were investigated by the Federal Bureau of Investigation (FBI) starting in 1980 with regard to their businesses in Newark, Ohio; the investigation led to a criminal misdemeanor information being filed by the United States. Plaintiffs' Opposition at 2. All charges were dismissed in 1984. Id. Later that year, plaintiffs Donald and Rose Shannon brought a civil action in federal court in Ohio against FBI agents, federal prosecutors, and private persons. Id. at 3. In aid of discovery in that case, plaintiffs in 1985 requested documents held by the FBI concerning the investigation. Defendant's Statement of Facts para. 1. The FBI provided plaintiffs with certain documents on the investigation but withheld others, claiming FOIA exemptions. Id. para. 7.

 After losing an appeal of the partial denial, plaintiffs filed the instant case on February 25, 1988, to compel the information that was withheld. Id. para. 8-10. Reviewing its files once again, the FBI discovered that certain documents that previously had been mistakenly withheld were releasable and gave them to plaintiffs. Id. para. 10-12.

 Plaintiffs and defendant, of which the FBI is part, still dispute the withholding of certain information, primarily the identities of persons whose names were excised from released documents. Defendant contends the disclosure of the identities are covered by FOIA exemptions, and has submitted a declaration from Angus B. Llewellyn, a special agent of the FBI assigned to FOIA matters. In the declaration, Mr. Llewellyn states the reasons why the FBI is withholding the information sought by plaintiffs.

 In considering defendant's motion, the Court concludes that there is no genuine issue as to any material fact, see Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and that defendants are entitled to summary judgment on the issue of disclosure of the information that has been withheld.

 II. FOIA Exemption (7)

 The right of persons to gain access to government information under FOIA is limited by exemption (7), 5 U.S.C. § 552(b)(7), which exempts certain "records or information compiled for law enforcement purposes" to the extent that production of the information would, or could be reasonably be expected to, result in any of the harms listed in subsections (A)-(F), 5 U.S.C. § 552(b)(7)(A)-(F). Exemption (7)(C) protects from disclosure information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Exemption (7)(D) protects that information that "could reasonably be expected to disclose the identity of a confidential source." 5 U.S.C. § 552(b)(7)(D). Plaintiffs do not dispute that the information sought was "compiled for law enforcement purposes." Rather, plaintiffs dispute whether disclosure of the information "could reasonably be expected to" implicate the harms noted in exemptions (7)(C) and (7)(D). *fn1"

 III. Evaluating the Claimed Exemptions

 A. Exemption (7)(C)

 Defendant has invoked the (7)(C) exemption to protect the identities and personal privacy of persons -- both FBI officials and private individuals -- mentioned in its investigatory records. In considering an exemption for "personal privacy," a court must balance the privacy interest at stake against the public interest in disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 370-73, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976); Keys v. United States Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 346 (D.C. Cir. 1987). The defendant need only demonstrate a "reasonable expectation" of an unwarranted invasion of privacy. Keys, 830 F.2d at 346. In the instant case, defendant contends that disclosure of the names "could reasonably be expected to constitute an unwarranted invasion of the privacy of the individuals by subjecting them to harassment, unofficial questioning or unwanted public attention." Defendant's Motion at 7; Llewellyn Declaration at 12.

 In weighing the privacy rights, the Court first notes that FBI agents in their official capacities may not have as great a claim to privacy as do private citizens, although they do not forgo altogether their right of privacy by virtue of their official status. Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 487-88 (D.C. Cir. 1980). Specifically, when there is evidence of inconsistencies in the statements of FBI personnel or when the reliability of their statements is otherwise in doubt, the balancing scales may tip in favor of disclosure. See Baez v. United States ...


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