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GROVE v. DOJ

September 25, 1992

DAVID A. GROVE, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.



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

This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part.

 Background

 Plaintiff is a former police officer for the Philadelphia Police Department. In January of 1990, he was convicted of charges relating to his role in a drug-sale operation conducted by certain members of the 5-squad, the special narcotics unit to which he was assigned.

 By letter dated November 16, 1988, plaintiff petitioned the defendant agencies pursuant to the Freedom of Information Act (the FOIA), 5 U.S.C. § 552, and requested that they provide access to or copies of a number of government records. *fn1" The records plaintiff requested fall into two categories. The first category (encompassing plaintiff's requests 1-4) concerns records pertaining to Bradley F. Bryant, Larry E. Bryant, and Roger Barnard, all of whom were arrested in January 1980 by plaintiff and other 5-squad members. The first category also concerns records regarding Col. James Atwood. The second category (plaintiff's request 5) concerns records pertaining to plaintiff and his five co-defendants in his criminal case.

 Claiming that the defendants had failed to respond to his FOIA requests within the required period of time, plaintiff filed this action on January 12, 1989. On September 7, 1989, the Government filed a motion to dismiss, or in the alternative, for summary judgment. In response, on December 14, 1990, the Court issued an Opinion dismissing the complaint as to the DEA and the CIA, and granting summary judgment in favor of the Secret Service. In addition, the Court granted summary judgment, as to request 5 only, in favor of the NSA, the DIA, the Navy, and the FBI. The Court denied summary judgment to the NSA, the DIA, the Navy, and the FBI as to requests 1-4, and to the DOJ as to requests 1-5. Presently before the Court is defendants' second motion to dismiss, entitled Second Supplement to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment *fn2"

 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. FCC, 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. 1978) (Goland I), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (Goland II), cert. denied, 445 U.S. 927, 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, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974)).

 1. NSA and DIA

 The NSA and the DIA, in requesting summary judgment, assert that they have conducted a thorough search of their records but have been unable to find any documents responsive to plaintiff's FOIA requests 1-4.

 The NSA has met its burden. In response to plaintiff's requests 1-4, the agency submitted a sworn declaration of its Deputy Director of Policy, who is authorized to disclose unclassified records pursuant to the FOIA. The declaration outlines the Deputy Director's responsibilities, indicates his knowledge of the plaintiff's requests, and describes adequately the document search conducted. With respect to the search, the declaration states that:

 Although NSA is not a criminal investigative agency, my office conducted a search of all files in which records responsive to plaintiff's request could possibly be kept. No records responsive to plaintiff's request could be located. On March 21, 1991, I finally informed plaintiff's attorney that all files in NSA in which there was even a slight possibility that responsive material could be kept had been searched and that no records responsive to plaintiff's requests 1-4 could be found.

 Declaration of Frank F. Blanco P 4. In support of a motion to dismiss a FOIA case, an agency does not have to present affidavits that "set forth with meticulous documentation the details of an epic search." Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982). The NSA declaration sufficiently describes the search conducted, and summary judgment as to the NSA is therefore granted.

 Similarly, the DIA has met its burden. In response to plaintiff's requests 1-4, the DIA submitted a sworn declaration of its Assistant General Counsel, Lt. Col. Terry E. Bathen, to support its assertion that the agency's search was thorough and complete. The declaration states that Lt. Col. Bathen referred plaintiff's requests 1-4 to the following DIA component offices: the Defense Intelligence College, the Assistant Deputy Director for Human Resources, the Central Reference Division of the Directorate for Technical Services and Support, the Assistant Deputy Director for Security and Counter-intelligence, the Assistant Deputy Director for Attaches and Operations, and the Inspector General. Each of them searched their records for responsive documents, and found no documents concerning Roger Barnard, Bradley F. Bryant, or Larry E. Bryant. In addition, the declaration states that although one file concerning James P. Atwood was retrieved, Lt. Col. Bathen personally reviewed the file and determined that the documents contained therein are not responsive to plaintiff's requests. The declaration also indicates that, after making this determination, he referred certain of these documents to three other federal agencies. Although the affidavit could have been more detailed, it is similar to the affidavits held sufficient in Perry. See Perry, 684 F.2d at 127 & n.20. Therefore, because the declaration is reasonably detailed, and provides an indication of the scope and method of the DIA's search, it provides sufficient information upon which the Court may grant summary judgment. See Goland I, 607 F.2d at 352.

 This remains true despite plaintiff's misinterpretation of the Assistant General Counsel's actions. The plaintiff argues that because Lt. Col. Bathen referred certain documents to other agencies, he was asking those agencies to make the determination regarding the documents' responsiveness to plaintiff's requests 1-4. However, the declaration states "although these records are not responsive to requests 1 through 4, I have referred [them] . . . to the originating agencies." Declaration of Terry E. Bathen P 5. The DIA further notes that Lt. Col. Bathen forwarded the documents to the other agencies to permit them to decide whether to release classified or unclassified but non-responsive information originating from their offices. *fn3" Because the DIA has demonstrated through its detailed declaration that its search was thorough and complete, summary judgment as to the DIA is therefore granted.

 2. The Navy

 A. Administrative Documents

 The Navy, in requesting summary judgment, first argues that it has searched its administrative personnel files for documents responsive to plaintiff's requests 1-4. In support of this assertion, the Navy submitted a sworn declaration of a secretary with the Naval Investigative Service Command's (NISCOM's) Career Services Department, Bonnie R. Myers, who is familiar with NISCOM's active and inactive civilian personnel records. Ms. Myers's declaration details the manner and location of the files she searched, and states that she found no documents responsive to plaintiff's requests. Because the Court may rely on sufficiently detailed sworn declarations such as this, see Goland I, 607 F.2d at 352, the Court finds that with respect to the administrative personnel files, the Navy is entitled to summary judgment as to plaintiff's requests 1-4.

 B. Criminal Investigative Records

 The Navy also argues that because a FOIA exemption applies, it is entitled to summary judgment with respect to the Navy's criminal investigative records search. The Navy asserts that plaintiff is not entitled to access to any such records that might exist concerning the four individuals named in plaintiff's requests 1-4. The Navy claims that any such documents would be protected under Exemption 7(C), which permits the withholding of "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Because of this, the Navy refuses to confirm or deny the existence of any such documents.

 The Court must review de novo the Navy's decision not to disclose documents requested under the FOIA. See 5 U.S.C. § 552(a)(4)(B). The FOIA was intended to provide broad access to official information, and to "open agency action to the light of public scrutiny." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976) (citation omitted). Accordingly, the Court must construe the FOIA exemptions narrowly, because "disclosure, not secrecy, is the dominant objective of [the FOIA]." Id.

 To test the applicability of Exemption 7(C), the Court must apply a balancing test, and determine whether the public interest in disclosure outweighs the personal privacy interests of the parties about whom the information is sought. See United States Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776, 109 S. Ct. 1468, 1483, 103 L. Ed. 2d 774 (1989). In certain types of situations, however, the balance will "characteristically tip[] in one direction." Id. In those cases, "categorical decisions may be appropriate and individual circumstances disregarded." Id. In Reporters Committee, the Supreme Court used such a categorical balancing to determine that Exemption 7(C) prevented a group of journalists from obtaining an FBI rap sheet on a private citizen. See id. at 778-80, 109 S. Ct. 1484 at 1484-85 . The Supreme Court justified its categorical decision by noting that:

 The privacy interest in maintaining the practical obscurity of rap-sheet information will always be high. When the subject of such a rap sheet is a private citizen and when the information is in the Government's control as a compilation, rather than as a record of "what the Government is up to," the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir.

 Id. at 780, 109 S. Ct. at 1485. As a threshold matter, there is no dispute that the requested records concern documents compiled for law enforcement purposes. Specifically, plaintiff seeks information concerning criminal investigations of private citizens. *fn4" This information is similar to the rap-sheet information sought in Reporters Committee. Categorical balancing is thus appropriate with regard to plaintiff's requests 1-4, and the Navy is entitled to summary judgment as to these requests.

 In the alternative, the Court finds that the privacy interests of the individuals outweigh the public interests claimed by plaintiff. Under this ad hoc balancing test, the Court concludes that Exemption 7(C) applies.

 i. Public Interests

 Plaintiff makes several arguments that disclosure of criminal investigative documents would advance the public's interest in shedding light on agency action. Plaintiff first suggests, based on information contained in the FBI records disclosed to him, that the individuals were involved in government intelligence operations. Citing the FBI records, plaintiff notes that: (1) prior to their arrest in Philadelphia, the individuals made phone calls from a hotel room to certain defense contract companies and government agencies; (2) after their arrest, the individuals claimed to be working for the CIA on a mission to steal Russian radar from Libya, and that one of the individuals passed a polygraph test on that subject; and (3) the individuals possessed sophisticated government surveillance equipment and weapons. *fn5" In addition to noting the public's interest in knowing about these activities, the plaintiff argues that disclosure would serve the public's interest by showing how federal agencies "handle situations where those under investigation are suspected [of] being agents of another arm of the Government." *fn6" Secondly, the plaintiff indicates that even if the individuals were not conducting a government mission at the time of their arrest, the document disclosure would reveal how they made private use of the training they had received when they were members of the United States military. Thirdly, plaintiff seems to suggest, although it is ...


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