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.
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.
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).
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 federal law or on a matter of national security, and provided only technical assistance in an investigation spearheaded by the Oklahoma State Bureau of Investigation.
Plaintiff's attempt to confine Exemption 7 to matters of federal criminal law or national security matters fails. The case law contemplates a much broader definition of "law enforcement" activity for purposes of Exemption 7 which encompasses the material collected by the FBI in this action. In Keys v. United States Department of Justice, supra, 830 F.2d at 342, the Court of Appeals upheld the FBI's decision to withhold copies of local police reports and FBI summaries of the information, even without proof that the FBI had compiled the data in investigating a violation of federal law. According to the Court of Appeals, there exists "no requirement under exemption 7 that any violation of federal law be implicated, so long as the information is compiled for a 'federally authorized [law enforcement] purpose.'" Id. (citing, Bevis v. Department of State, 255 App. D.C. 347, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (information gathered to aid law enforcement by foreign nations qualifies under Exemption 7); Shaw v. FBI, 242 App. D.C. 36, 749 F.2d 58, 64 (D.C. Cir. 1984) (FBI's cooperation in investigation of violation of state law is a valid law enforcement purpose).
The cases cited by Plaintiff do not enervate this general principle of law. None of the cases address the specific factual question presented by the collaborative State-federal law enforcement activity as in this case.
See Plaintiff's Response Memorandum of Points and Authorities, filed July 29, 1991, at 5-6. These cases merely address the issue of whether the FBI's investigation rationally related to the law enforcement purpose espoused by the agency to justify surveillance of certain groups or individuals. See, e.g., King v. United States Dept. of Justice, supra; Pratt v. Webster, supra. In this case, the Plaintiff does not dispute that the FBI compiled scientific or technical information for a valid law enforcement purpose. The FBI provided routine technical assistance to a local law enforcement agency. Federal law specifically authorizes the FBI to assist local law enforcement agencies in this manner. See 28 U.S.C. § 534 (1990) (authorizing the FBI to compile crime-related records and to exchange the same with local law enforcement). See also 28 C.F.R. § 0.85(g) (specifying that the FBI laboratory may provide "without cost, technical and scientific assistance * * * for all duly constituted law enforcement agencies"). Thus, the material compiled by the FBI in generating a psychological profile of the Plaintiff qualifies as a valid "law enforcement" matter for purposes of Exemption 7. See, e.g., Hopkinson v. Shillinger, 866 F.2d 1185, 1222 n. 27 (10th Cir. 1989); Wojtczak v. United States Dept. of Justice, 548 F. Supp. 143, 146-148 (E.D. Pa. 1982).
B. THE AGENCY MAY WITHHOLD THE NAMES OF STATE AND LOCAL LAW ENFORCEMENT PERSONNEL AND THE HOME TELEPHONE NUMBER OF AN FBI AGENT UNDER THE AUTHORITY OF EXEMPTION 7(C).
Plaintiff also challenges the agency's decision to withhold the names of state and local law enforcement personnel as well as the home telephone number of an FBI agent on the basis of FOIA Exemption 7(C). Exemption 7(C) allows an agency to withhold records or information compiled for law enforcement purposes to the extent that release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (1988). In determining whether the agency properly invoked Exemption 7(C), the Court must balance the privacy interests of the law enforcement agents against the public interest in learning the identities of those who participated in the investigation of the Plaintiff. See United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989); Lesar v. Dept. of Justice, 204 App. D.C. 200, 636 F.2d 472, 486 (D.C. Cir. 1980); Stone v. FBI, 727 F. Supp. 662 (D.D.C. 1990). In contrast to other FOIA Exemptions, however, Exemption 7(C) "is not similarly 'tilted emphatically in favor of disclosure.'" Senate of Puerto Rico v. United States Dept. of Justice, 262 App. D.C. 166, 823 F.2d 574, 587 (D.C. Cir. 1987) (quoting Bast v. United States Dept. of Justice, 214 App. D.C. 433, 665 F.2d 1251, 1254 (D.C. Cir. 1981)).
The Plaintiff asserts that the agency has improperly balanced the interests at stake in this case. Plaintiff believes that his potential death sentence and the possibility of misconduct by investigators outweigh the agents' privacy interests. See Plaintiff's Response Memorandum of Points and Authorities at 11. While release of agents' identities may be warranted if it "sheds light on an agency's performance of its statutory duties," Reporters Committee, supra, the Plaintiff presents no factual basis upon which the Court can find that there exists even a question as to any agency's performance of its duties. Plaintiff cannot expect this Court to release the names of federal, local and State law enforcement personnel based only upon an unspecified and unsubstantiated allegation of the "possibility of Government misconduct," Plaintiff's Response, supra, at 11 (emphasis added); this allegation does not satisfy the demands for summary judgment. Celotex Corp. v. Catrett, supra, 477 U.S. at 324-325 ("One of the principal purposes of the summary judgment rule is to isolate and wrspose [dispose] of factually unsupported claims and defenses").
Plaintiff's potential death sentence is an important consideration in the balancing process. However, the mere fact that the Plaintiff may find himself on death row does not, ipso facto, demand release of the names of every law enforcement official mentioned in reports transferred to the FBI. Such a holding would betray the important competing considerations on the other side of the scale. See Lesar v. United States Dept. of Justice, 204 App. D.C. 200, 636 F.2d 472, 488 (D.C. Cir. 1980); Stone v. FBI, 727 F. Supp. at 664 (recognizing law enforcement agents' bona fide interest in privacy and noting special dangers and animosity engendered by release of names). Thus, because the Plaintiff only makes a bare assertion as to the public interest at stake, see discussion infra, the Court cannot order release of agents' names and telephone numbers.
C. THE AGENCY PROPERLY WITHHELD INFORMATION PROVIDED TO THE FBI FROM STATE AND LOCAL LAW ENFORCEMENT AUTHORITIES PURSUANT TO EXEMPTION 7(D).
Because Plaintiff knows that State and local law enforcement provided the records at issue to the FBI, Plaintiff believes that the information is not "confidential" for purposes of Exemption 7(D). Plaintiff's argument rests on the presumption that Exemption 7(D) is designed "to protect the identity of the confidential source of information." Plaintiff's Response, supra, at 12. Plaintiff's argument lacks merit in light of recent pronouncements of the Court of Appeals for this Circuit.
Exemption 7(D) allows the agency to withhold records compiled for law enforcement purposes which
could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record of information compiled by a criminal law enforcement authority in the course of a criminal investigation, information furnished by a confidential source.