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ROJEM v. UNITED STATES DOJ

September 30, 1991

RICHARD NORMAN ROJEM, JR., Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, and its component, THE FEDERAL BUREAU OF INVESTIGATION, Defendant



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552(a), Plaintiff Richard Norman Rojem, Jr. has requested the FBI to produce his rap sheet and all other information in his file, as well as information pertaining to two victims of violent crimes which he allegedly committed. The Defendant FBI withheld certain documents and redacted parts of other documents, invoking FOIA Exemptions (b)(2), (5), (7)(C), and (7)(D). Upon consideration of the parties' cross-motions for summary judgment, the responses thereto, the record herein, and the applicable law, the Court grants the Defendant's Motion in part and denies it in part and denies the Plaintiff's Motion in part and grants it in part.

 BACKGROUND

 The Plaintiff, currently an inmate on death row, seeks information pertaining to his alleged involvement in the murder, rape and kidnapping of Linda Mack and Leyla Dawn Cummings. See Complaint at para. 1. On July 19, 1985, Plaintiff requested his FBI rap sheet and any other data in his file. See Exhibit A, Superneau Declaration. By letter of February 7, 1990, Plaintiff requested all records in the FBI Headquarters and the Oklahoma City Field Office relating to himself, or to the deaths of Leyla Dawn Cummings or Linda Mack. Id. at Exhibit H. According to the Defendants, the FBI compiled the information contained in documents responsive to Plaintiff's requests to assist the Oklahoma State Bureau of Investigation in their investigation of these crimes. Specifically, the State authorities enlisted the FBI for technical assistance in preparing a "profile of the Linda Mack murder and a personality assessment of the plaintiff." Declaration of Regina Superneau, Defendant's Motion for Summary Judgment at para. 9 (hereinafter, Superneau Declaration).

 In response to the Plaintiff's requests, the agency examined files located at FBI Headquarters, the FBI Oklahoma City Field Office, and the FBI facility at Quantico, Virginia. The first search yielded a total of 359 pages; only four pages were released in their entireties while 352 pages were withheld in their entireties and three pages were withheld as duplicates. See Superneau Declaration at paras. 5-6. Upon realizing an oversight in the examination, the FBI undertook a second search to locate documents pertaining to one of the Plaintiff's alleged victims. The second search yielded approximately 86 pages of material. Three pages were released in full while ten pages were released in part and 72 pages were withheld in their entireties. One page was a duplicate of material already released to the Plaintiff. See Superneau Declaration at paras. 7-8. The FBI invoked FOIA Exemptions 2, 5, 7(C), 7(D) and 7(E) as justification for withholding. See Superneau Declaration at paras. 3(H), 3(M).

 Plaintiff appealed the agency's decision on April 17, 1990. Superneau Declaration at para. 3(N); see also Exhibit N attached thereto. Upon review, the Department of Justice Office of Information and Privacy released one additional document and otherwise denied the appeal. Id, at para. 3(O), and Exhibit O attached thereto (letter of August 8, 1990).

 Plaintiff sought review of the agency's actions in this Court. The Court granted Plaintiff's January 18, 1991 Motion to Compel Preparation of a Vaughn Index, as the Motion was conceded by the Defendants. See Order, Rojem v. United States Department of Justice, Civ. 90-3021 (D.D.C. Feb. 4, 1991) (invoking Local Rule 108(b)). As part of this litigation, the parties stipulated that the Plaintiff would not challenge the Defendant's use of FOIA Exemption 2, relating to the decision to withhold an FBI telephone number. Pursuant to this same stipulation, the Plaintiff agreed that the Defendant could invoke Exemption 7(C) in order to withhold the names and initials of FBI agents and FBI employees. See Order, Rojem v. United States Dept. of Justice, Civ. 90-3021 (D.D.C. April 3, 1991). The Defendants abandoned their claim as to Exemption 5, and now invoke Exemption 7(D) as the basis for withholding. *fn1" Thus, the Court now considers the parties' contentions on cross-motions for summary judgment only with regard to whether the agency properly withheld documents pursuant to Exemptions 7(C), 7(D) and 7(E). The Court also considers the Plaintiff's request that the Court inspect the documents at issue in camera.

 ANALYSIS

 Pursuant to Fed. R. Civ. P. 56(c), a moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). In FOIA cases, the agency has the burden of proving the legality of any limitation on disclosure. John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989); see also 5 U.S.C. § 552(a)(4)(B). The Defendants have shown that they are entitled to judgment as a matter of law with respect to the decision to withhold documents pursuant to Exemptions 7(C) and 7(D). Although the Plaintiff has not demonstrated any factual basis warranting broad in camera review, the Plaintiff has articulated a sufficient basis warranting an in camera inspection of the material withheld pursuant to Exemption 7(E). *fn2"

 FOIA EXEMPTION 7 CLAIMS

 A. MATERIALS WHICH STATE LAW ENFORCEMENT AGENCIES PROVIDED TO THE FBI AS PART OF A COLLABORATIVE EFFORT TO INVESTIGATE A STATE LAW CRIME IS MATERIAL "COMPILED FOR LAW ENFORCEMENT PURPOSES" WITHIN THE MEANING OF EXEMPTION 7.

 FOIA Exemption 7 permits an agency to withhold "records or information" if the agency demonstrates that the material was "compiled for law enforcement purposes" and that it qualifies for exclusion under at least one of the narrowly-defined criteria in subsections (A)-(F). See 5 U.S.C. § 552 (b)(7)(A)-(F) (1988); FBI v. Abramson, 456 U.S. 615, 622, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982); Keys v. United States Dept. of Justice, 265 App. D.C. 189, 830 F.2d 337, 340 (D.C. Cir. 1987). According to the Plaintiff, the Defendants may not avail themselves of Exemption 7 because the FBI was not investigating the Plaintiff for a violation of ...


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