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GROVE v. CIA

December 14, 1990

DAVID A. GROVE, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF JUSTICE, DEFENSE INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, UNITED STATES SECRET SERVICE, FEDERAL BUREAU OF INVESTIGATION, NATIONAL SECURITY AGENCY, DRUG ENFORCEMENT ADMINISTRATION, CHINA LAKE NAVAL WEAPONS CENTER, DEPARTMENT OF THE NAVY, DEA FIELD OFFICE, SECRET SERVICE FIELD OFFICE, and FBI FIELD OFFICE, Defendants



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part.

 Background

 Plaintiff, a former police officer for the Philadelphia Police Department, is a defendant in a criminal proceeding in the United States District Court for the Eastern District of Pennsylvania. The criminal charges arise out of plaintiff's service as an undercover police officer assigned to narcotics enforcement in a special narcotics unit known as 5-squad.

 By letter dated November 16, 1988, plaintiff requested that the defendant agencies provide access to or copies of a number of records, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In essence, the records plaintiff requested fall into two categories: (1) records pertaining to Bradley F. Bryant, Larry E. Bryant, Roger Barnard, all three of whom were arrested by plaintiff and other members of the 5-squad during a raid in Philadelphia in 1980, and Col. James Atwood (requests 1-4), and (2) records pertaining to plaintiff and five co-defendants in his criminal case (request 5).

 Discussion

 1. The Group A Defendants

 Several defendants, referred to in their motion as the Group A defendants, submit that they have diligently searched their files for documents responsive to plaintiff's request, but that they have not found any such documents. *fn1" They argue, therefore, that as to them, plaintiff's action should be dismissed as moot. Plaintiff argues that because these defendants have not searched their files for records responsive to plaintiff's requests 1-4, i.e., records pertaining to Bradley F. Bryant, Larry E. Bryant, Roger Barnard, and Col. James Atwood, their motion to dismiss on mootness grounds must be denied.

 The declarations provided by representatives of these four defendants in support of their position indicate that they refused to search for records responsive to plaintiff's requests 1-4, absent signed release authorizations from the individuals that were the subjects of those requests. See Def.'s Memorandum, Attachments A-D. Plaintiff did not provide the release authorizations, and, consequently, the Group A defendants did not search for the records.

 The defendants, however, have failed to properly claim legal exemptions under the FOIA which would justify granting summary judgment as to requests 1-4. In paragraph 4 of the Declaration set forth at Attachment A, Dr. Richard W. Gronet, Director of Policy for the NSA, states merely that plaintiff was informed by letter that such information "would be protected under the sixth exemption of the FOIA because its release would be an unwarranted invasion of personal privacy." He also makes passing reference to the Privacy Act, 5 U.S.C. § 552a. In other declarations set forth at Attachments B-E, declarants state in conclusory fashion that information regarding individuals for whom plaintiff has not provided release authorizations could not be produced.

 The Court can only assume that the agencies which require release authorizations do so as a matter of course, pursuant to the Privacy Act. However, it is clear that the Privacy Act is not to be used "as a barrier to FOIA access." Greentree v. United States Customs Serv., 218 U.S. App. D.C. 231, 674 F.2d 74, 79 (D.C. Cir. 1982). Under 5 U.S.C. § 552a(t)(2),

 
No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of [the FOIA].

 Moreover, the burden is on an agency to prove that the requested information is exempt from FOIA disclosure. Sims v. CIA, 206 U.S. App. D.C. 157, 642 F.2d 562, 567-68 (D.C. Cir. 1980), later app., 709 F.2d 95 (D.C. Cir. 1983), aff'd in part, rev'd in part, 471 U.S. 159, 85 L. Ed. 2d 173, 105 S. Ct. 1881 (1985). The Group A defendants have either failed to claim legal exemptions under the FOIA, or they have failed to provide support for a claim that an exemption would apply. Thus, ...


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