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ALBUQUERQUE PUBL. CO. v. UNITED STATES DOJ

December 11, 1989

THE ALBUQUERQUE PUBLISHING COMPANY, d/b/a THE ALBUQUERQUE TRIBUNE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff, an Albuquerque, New Mexico, newspaper, brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA"), to compel the United States Department of Justice ("DOJ") to release certain documents that are responsive to plaintiff's FOIA request. Before the Court are the parties' cross-motions for summary judgment. The issues have been extensively briefed and the government has submitted two detailed affidavits and Vaughn indices describing all of the documents at issue.

 I. Background

 On September 25, 1985, plaintiff submitted a written request *fn1" to the United States Drug Enforcement Administration ("DEA"), a component of DOJ, seeking all photographs, videotapes, and tape recordings made as part of the surveillance of Ken Gattas' residence, as well as all reports and documents relating to the contents of those materials. The surveillance of Gattas' residence came about after a mysterious 1983 fire at a well-known Albuquerque nightclub of which Gattas was part owner. Eventually, Gattas was prosecuted for arson and drug trafficking, but pled guilty during the trial to the drug charge and was sentenced to ten years in prison. As a result, not all of the evidence against him was presented at the trial. Plaintiff filed its FOIA request in the hopes of learning "the complete truth about the fire . . . and the extent of drug trafficking" at the nightclub. See Brief of Plaintiff at 2-3.

 On March 23, 1987, after an administrative appeal and remand, DEA released six redacted pages to plaintiff, but withheld the remaining ninety pages it had located in reliance on one or more FOIA exemptions. After plaintiff commenced this action, the government voluntarily filed a Vaughn index and accompanying affidavit. Subsequently, it was found that additional documents might be responsive to plaintiff's request. Upon further investigation in response to plaintiff's inquiries, DOJ discovered that DEA routinely destroys documents relating to past criminal investigations and that some of the information sought by plaintiff had been destroyed according to this procedure. In addition, DEA located photographs and two tape recordings responsive to plaintiff's request. Accordingly, in the spring of 1988, the government filed a supplemental Vaughn index and affidavit. At the same time, it released an additional nine redacted pages originally withheld in their entirety.

 DEA has withheld information covered by plaintiff's request on the basis of FOIA exemptions 2, 7(C), 7(D), 7(E), and 7(F). *fn2" Plaintiff challenges the sufficiency of the agency's affidavits and indices *fn3" and the adequacy of its search for items responsive to plaintiff's request. For the reasons explained below, the Court will defer ruling on the agency's exemption 7(E) claim until after we have conducted an in camera inspection of the relevant materials. In all other respects, we find plaintiff's challenges without merit and conclude that the agency is entitled to summary judgment.

 II. The Sufficiency of the Vaughn Indices

 The burden of establishing that this information falls within one of these exemptions lies with the agency. Yeager v. DEA, 220 App. D.C. 1, 678 F.2d 315, 320 (D.C. Cir. 1982) (citing 5 U.S.C. § 552(a)(4)(B)). To meet this burden, the agency "must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C.Cir. 1977) (citations omitted); see also Yeager, 678 F.2d at 320 (citation omitted). The government's affidavits and indices must be sufficient "to allow us to make a reasoned determination that" DEA correctly invoked the exemptions. Coastal States Gas Corporation v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C.Cir. 1980).

 Plaintiff asserts that DEA has failed to justify nondisclosure of the information plaintiff seeks. Specifically, plaintiff claims that the agency's Vaughn indices "do not describe the materials with reasonable specificity and therefore do not provide the Court or plaintiff a context in which to evaluate or challenge the claimed exemption." Brief of Plaintiff at 12. In addition, plaintiff contends, these filings fail to provide a sufficiently detailed analysis of the claimed exemptions and their relevance to particular documents. Id. at 13.

 Except with respect to exemption 7(E), we disagree. Below, we first consider these challenges in the context of each claimed exemption. Next we address plaintiff's general assertion that the format of the agency's indices and affidavits is unacceptable.

 A. Exemption 2

 Exemption 2 authorizes an agency to withhold from disclosure information "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The government has claimed this exemption with respect to internal DEA markings and phrases regarding the treatment and distribution of DEA documents requested by plaintiff. As is customary practice at DEA, most of the pages involved bear "informant identifier codes" and many bear "violator identifiers." First Bordley Aff. at 4. The informant identifier codes "provide sensitive information about individuals who cooperate with DEA in carrying out its law enforcement functions." Id. at 5. The violator identifiers refer to the priority of DEA investigations, types of criminal activities, geographical areas, types of controlled substances involved, and violator ratings. Id. at 4. According to DEA, if disclosed, these codes could be deciphered and used to thwart DEA's investigative and enforcement efforts. Id.

 The informant codes plainly fall within the ambit of exemption 2. Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 485-86 (D.C.Cir. 1980). In Lesar, the Court of Appeals held that "the means by which the FBI refers to informants in its investigative files is a matter of internal significance in which the public has no substantial interest." Id. at 485-86. We believe that this reasoning applies to the violator codes as well. The public has no legitimate interest in gaining information that could lead to the impairment of DEA investigations. *fn4"

 B. The "Law Enforcement" Exemptions

 The government has also invoked four of the seven "law enforcement" exemptions described in 5 U.S.C. § 552(b)(7). That subsection authorizes an agency to withhold, inter alia :

 5 U.S.C. § 552(b)(7). It is undisputed that the documents responsive to plaintiff's request are law enforcement records compiled by a criminal law enforcement authority in the course of a criminal investigation. The question before this Court, ...


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