The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court is defendant's motion for summary judgment. After consideration of the motion and plaintiff's opposition and the Motion and Affidavit in Response thereto, the Court grants defendant's motion in part and denies it in part.
By letter dated March 29, 1990, plaintiff requested records pursuant to the Freedom of Information Act (FOIA) and the Privacy Act from the Department of Justice (DOJ) and agencies under its supervision. The DOJ referred plaintiff's request to the Executive Office for United States Attorneys (EOUSA); the Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); and the United States Marshals Service (USMS). Defendant moves for summary judgment on the ground that it has produced all nonexempt items to plaintiff.
Both the DEA and the USMS assert exemption (b)(2) to protect internal markings. See 5 U.S.C. § 552(b)(2). 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 22. The USMS asserts the exemption "to withhold an administrative marking used for internal identification purposes for the security of federal prisoners . . . . Graham Deposition P 6. In addition, USMS withheld "teletype routing symbols and access codes from teletype correspondence. Disclosure of this information . . . . could allow unauthorized access to . . . data . . . ." Id. These types of internal markings clearly are exempt under (b)(2). See Lesar v. Dep't of Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); 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).
Next, the EOUSA argues that 31 pages of grand jury information were properly withheld pursuant to exemption (b)(3). 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 withholding or refers to particular types of matters to be withheld.
Under Rule 6(e)(2) of the Federal Rules of Criminal Procedure,
an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.
Fed. R. Crim. P. 6(e)(2). This rule satisfies the "statute" requirement of exemption (b)(3). Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981). ...