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EPPS v. UNITED STATES DOJ

September 15, 1992

LENNY EPPS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

Plaintiff filed suit in January 1989 under the Freedom of Information Act (FOIA) to compel disclosure of documents relating to his federal prosecution and resulting conviction. Defendant United States Attorney's Office (USAO) moves to have plaintiff's complaint dismissed, and defendants the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) seek summary judgment against plaintiff Epps. Upon consideration of defendants' motion, plaintiff's opposition, defendants' reply, and plaintiff's surreply, the Court grants the motion of the USAO, the FBI, and the DEA.

 Background

 Plaintiff seeks documents relating to a 1986 conviction. He argues that he was wrongly convicted and that he has a heightened need to obtain certain government documents to attempt to prove his innocence. In March of 1988, Epps sent a FOIA request to the Department of Justice requesting:

 from all law enforcement agenicies [sic] such as the F.B.I., D.E.A. and the Baltimore,[] City Police Dept. and any other agencies that participated in the investigations of case NO. Y-85-0547 that obtain any information such as papers Notes (rough) or transcribed in this investigation of U.S. v. Maurice C. Proctor and Lenny Epps Case No. Y-85-0547.

 The USAO moves for dismissal of the portion of the complaint against it based on plaintiff's failure to have sought documents through the administrative process prior to filing this action. Defendants the FBI and the DEA, who have already responded to plaintiff's request, argue that they have produced all unprotected documents and portions of documents as required under the FOIA. Accordingly, the FBI and the DEA move for summary judgment with respect to the portions of the complaint against them.

 Discussion

 The purpose of the FOIA, 5 U.S.C. § 552 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." National Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159 , 98 S. Ct. 2311 (1978). Accordingly, the FOIA represents "a general philosophy of full agency disclosure." Department of the Air Force v. Rose, 425 U.S. 352, 360, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976) (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). However, there are nine exemptions to this general rule of disclosure, Baldrige v. Shapiro, 455 U.S. 345, 352, 71 L. Ed. 2d 199, 102 S. Ct. 1103 (1982), and the burden is on the government to show that the requested information which it declines to produce is exempt. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989).

 To be entitled to summary judgment, each movant agency must "prove[] that no substantial and material facts are in dispute and that [it] is entitled to judgment as a matter of law." Weisberg v. Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet this burden, the agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [the FOIA's] inspection requirements." National Cable Television Ass'n v. Federal Communications Comm'n, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). In determining whether the agency has satisfied this burden, the Court may rely solely on agency affidavits. See Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir.), vacated in part on other grounds, 197 U.S. App. D.C. 25, 607 F.2d 339 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980). The affidavits, however, "must be 'relatively detailed' and nonconclusory." Id. (quoting Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974)).

 Because the primary purpose of the FOIA is to allow people to know what their government is doing, National Labor Relations Bd., 437 U.S. at 242, each requester is treated equally, regardless of his reason for requesting the information. National Ass'n of Retired Fed. Employees v. Horner, 279 U.S. App. D.C. 27, 879 F.2d 873, 875 (D.C. Cir. 1989), cert. denied 494 U.S. 1078, 108 L. Ed. 2d 936, 110 S. Ct. 1805 (1990).

 I. United States Attorney's Office

 Although the USAO acknowledges assisting the FBI with plaintiff's FOIA request as to USAO-originated information, it argues that plaintiff did not make a direct request to it. Until this suit was filed, the USAO was unaware that plaintiff wished to obtain documents from it. Wright Declaration P 3-5. Accordingly, the USAO moves that plaintiff's complaint be dismissed as to it because plaintiff seeks judicial review of a FOIA request that was never made. However, the USAO also states that it will now treat plaintiff's letter of March 15, 1988, as a request and respond accordingly. Wright Declaration P 6.

 Under the FOIA, administrative remedies must be exhausted prior to judicial review. American Fed'n of Gov't Employees v. Department of Commerce, 285 U.S. App. D.C. 133, 907 F.2d 203, 209 (D.C. Cir. 1990); Spannaus v. Department of Justice, 262 U.S. App. D.C. 325, 824 F.2d 52, 58 (D.C. Cir. 1987); Stebbins v. Nationwide Mut. Ins. Co., 244 U.S. App. D.C. 289, 757 F.2d 364, 366 (D.C. Cir. 1985). Accordingly, the USAO's motion is granted, and plaintiff's complaint against it is dismissed without prejudice for lack of subject matter jurisdiction. Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1423 (9th Cir. 1986), cert. denied, 481 U.S. 1019, 95 L. Ed. 2d 506, 107 S. Ct. 1900 (1987); see Dettmann v. Department of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472, 1477 (D.C. Cir. 1986).

 II. Federal Bureau of Investigation/Drug Enforcement Administration

 A. Exemption (b)(2)

 Exemption (b)(2) allows agencies to withhold documents "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The FBI cites exemption (b)(2) to justify its deletion of "dates, amounts and method of payment on behalf of witnesses." Superneau Declaration P 20. Plaintiff argues that payments to witnesses do not fall under exemption (b)(2) because witnesses are not personnel, and the payments are not internal.

 To support its position, the FBI relies on Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051 (D.C. Cir. 1981) (en banc). In Crooker, the court defined the limits of exemption (b)(2) in a two-part test, holding that a document does not have to be disclosed if (1) it is "predominantly internal," and (2) "if disclosure significantly risks circumvention of agency regulations or statutes." Crooker, 670 F.2d at 1074. The exemption was further expanded in National Treasury Employees Union v. Customs Serv., 255 U.S. App. D.C. 449, 802 F.2d 525 (D.C. Cir. 1986), in which the court stated that "where disclosure of a particular set of documents would render those documents operationally useless, the Crooker analysis is satisfied whether or not the agency identifies a specific statute or regulation threatened by disclosure." National Treasury Employees Union, 802 F.2d at 530-31.

 In the present case, the FBI has specifically stated that "this exemption was asserted where it was logically determined that harm could result to the FBI's investigative function." Superneau Declaration P 20. From this statement it is reasonable to conclude that the FBI has met the "circumvention" test. However, it does not satisfy the "predominantly internal" requirement. Crooker does not discuss payments to witnesses, nor do any of the District of Columbia Circuit cases which Crooker cites. Instead, Crooker addresses law enforcement training manuals and discusses cases which involve documents of a more internal nature than the witness payments in this case. See, e.g., Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C. Cir. 1980) (concerning symbols used to refer to FBI informants); Cox v. Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1 (D.C. Cir. 1979) (per curiam) (concerning United States Marshals' manual giving details concerning weapons, handcuffs, and transportation of prisoners); Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753 (D.C. Cir. 1978) (en banc) (involving documents relating to guidelines for prosecutorial discretion); Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136 (D.C. Cir. 1975) (involving reports prepared by the Civil Service Commission to provide advice to agencies on how to improve their personnel programs). For this reason, the Court finds that the records requested involving specific payments made by the FBI to non-government informants are not "predominantly internal," and cannot be protected by exemption (b)(2).

 However, this does not end the inquiry. In 1986, Congress codified the "circumvention" test in Crooker, adding it to exemption (b)(7)(E). See Kaganove v. Environmental Protection Agency, 856 F.2d 884, 888-89 (7th Cir. 1988), cert. denied, 488 U.S. 1011, 102 L. Ed. 2d 789, 109 S. Ct. 798. The Court finds that exemption (b)(7)(E) applies here and that the FBI can withhold the requested information. Revealing the dates amounts and methods of making payments to witnesses

 would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions [and] such disclosure could reasonably be expected to risk circumvention of the law. 5 U.S.C. § 552(b)(7)(E). See also Superneau Declaration P 20; Summary Judgment Motion, p. 9.

 In addition, the DEA has asserted exemption (b)(2) to protect Geographical Drug Enforcement Program (G-DEP) and Informant Identifier codes, and Narcotics and Dangerous Drugs Information System (NADDIS) numbers. These codes and numbers are "internal DEA markings and phrases regarding the treatment of and distribution of DEA documents. . . . Suspects could easily decode this information and change their patterns of drug activities, so as to evade detection by the Drug Enforcement Administration." Magruder Declaration P 20. These types of internal markings clearly are exempt under (b)(2). See Lesar, 636 F.2d at 485-86; Maroscia v. Levi, 569 F.2d 1000, 1001-02 (7th Cir. 1977); Struth v. FBI, 673 F. Supp. 949, 959 (E.D. Wis. 1987); Texas Instruments, Inc., v. Customs Service, 479 F. Supp. 404, 406-07 (D.D.C. 1979).

 B. Exemption (b)(3)

 Next, the FBI argues that information relating to the grand jury, including the identities of witnesses, the deliberations and questions of the jurors, and the strategy or direction of the investigation, should be protected under exemption (b)(3). *fn1" The FBI further argues that information obtained through the interception of a wire or oral communication is protected under the same exemption. Exemption (b)(3) permits nondisclosure of documents

 specifically exempted from disclosure by statute . . ., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for ...


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