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FISHER v. UNITED STATES DOJ

August 15, 1991

GUY THOMAS FISHER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants



The opinion of the court was delivered by: RICHEY

 This is a suit by a prisoner seeking information related to himself and eight other individuals pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"). *fn1" Before the Court are cross-motions for summary judgment *fn2" on whether the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Agency ("DEA") properly withheld a number of documents in whole or in part. After careful consideration of the instant motions, the accompanying memoranda, the underlying law, and the entire record herein, the Court shall deny the plaintiff's motion for summary judgment, grant the defendant's motion for summary judgment, and dismiss this case from the dockets of the Court.

 I. Background

 The plaintiff submitted FOIA requests to the New York City office of the Federal Bureau of Investigation ("FBINY") and to FBI Headquarters ("FBIHQ") seeking information about himself and a number of other individuals. *fn3" He also made a similar FOIA request to the DEA. *fn4" In response to plaintiff's requests, the FBI and DEA released certain information and withheld other material in whole or in part pursuant to FOIA Exemptions 2, 5, 6, and 7.

 The FBI located 17 FBINY "cross-reference" files in response to the plaintiff's FOIA request. *fn5" Those files constitute 37 pages of which the FBI released 4 pages in their entireties, released 8 pages with redactions of allegedly exempt information, and withheld 23 pages in their entireties. Moreover, the FBI located 2 FBIHQ cross-reference files. All nine pages of the files were released to the plaintiff with redactions of exempt material. Finally, the FBI located three "main files" totaling 101 pages. The FBI withheld 67 of these pages in their entireties and released 34 pages to plaintiff with redactions. Aside from information about himself, the plaintiff requested information about eight named individuals, but failed to provide any authorization from those individuals for release of the information.

 gThe DEA searched for information responsive to plaintiff's request and processed documents referred to it by the FBI. Of the 88 pages located, the DEA withheld 63 pages in their entireties and released twenty-five pages with redactions of exempt material. The plaintiff also requested that the DEA provide information concerning several third parties whom he claimed were listed in DEA's UID Narcotic Violators Compendium. The DEA denied plaintiff's request pursuant to FOIA Exemptions 2, 7(C), 7(D) and 7(F). *fn6" Thereafter, by letter dated March 21, 1989, the DEA advised plaintiff that he would be required to submit waivers or authorizations from the individuals concerned before a search for responsive records could be made, and that he would be required to pay search fees. The plaintiff has not submitted the required waivers. See Def. Facts para. 48.

 II. Analysis

 The Freedom of Information Act, 5 U.S.C. § 552, as amended, generally provides citizens the right of access to federal agency records, except insofar as they are protected from disclosure by one of nine exemptions or three law enforcement record exclusions. "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978). "Disclosure, not secrecy, is the dominant object of the Act," Dep't of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976), and the limited exemptions to FOIA are construed narrowly to provide maximum access consonant with the overall purpose of the Act. See Yeager v. DEA, 220 App. D.C. 1, 678 F.2d 315, 320 (D.C. Cir. 1982). Yet, the goal of an informed citizenry must be balanced against other vital societal aims, which are specifically embodied in the exemptions to FOIA.

 A. FOIA Exemptions Asserted by the Defendants

 The Court will examine the FOIA exemptions asserted by the government seriatim.7 First, both the FBI and DEA asserted FOIA Exemption 2 to withhold information related to internal agency rules and practices--internal symbols and markings on various documents. See Lieb. Decl. II at 8-12; Magruder Decl. para. 29(a). Exemption 2 protects from disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Exemption 2 covers internal matters which are so routine or trivial that they could not be "subject to . . . a genuine and significant public interest." Rose, 425 U.S. at 369. *fn8" Because the internal symbols and markings redacted by the defendants are not of significant public interest, the agencies properly asserted Exemption 2.

 Second, the DEA asserted FOIA Exemption 5 to redact the opinions of a DEA Special Agent about the possible future activities of a drug trafficker and the need to relocate certain individuals, as well as the comments of another agent about projected drug trafficking arrests. These comments were directed to DEA supervisors. Magruder Decl. para. 29(b).

 FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). "Congress apparently did not intend 'inter-agency' and 'intra-agency' to be rigidly exclusive terms, but rather to include any agency document that is part of the deliberative process." Ryan v. Dep't of Justice, 199 App. D.C. 199, 617 F.2d 781, 790 (D.C. Cir. 1980). "The ultimate purpose of [the deliberative process] privilege is to prevent injury to the quality of agency decisions." NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). In particular, the deliberative process privilege furthers three policy goals: to promote open, candid discussions on policy matters between subordinates and superiors; to protect against premature disclosure of proposed policies before they are adopted in final form; and to prevent public confusion that might be caused by disclosure of reasons and rationales that were not ultimately the grounds for the agency's action. See, e.g., Russell v. Dep't of Air Force, 221 App. D.C. 96, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Coastal States Gas Corp. v. DOE, 199 App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980); Jordan v. Dep't of Justice, 192 App. D.C. 144, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc).

 To justify nondisclosure under the deliberative process privilege, an agency must show the record withheld is (1) "predecisional," that is, "antecedent to the adoption of agency policy," Jordan, 591 F.2d at 774, and (2) deliberative, or "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 173 App. D.C. 187, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Here, the withheld information was ...


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