terms of 5 U.S.C. § 552(a)(3), for example, an agency must "upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . . make the records available to any person." 5 U.S.C. § 552(a)(3). The nine categories of exemptions preventing disclosure under this and related FOIA provisions pertain to such matters as national defense secrets, 5 U.S.C. § 552(b)(1), privileged trade information, 5 U.S.C. § 552(b)(4), and certain inter- or intra-agency memoranda. 5 U.S.C. § 552(b)(5). Nowhere in the FOIA is there a requirement that an agency release records simply because another agency that may possess similar records has done so. Thus, the FBI's release of criminal information has no bearing on whether the Navy should make the same decision.
3. The FBI
In requesting summary judgment, the FBI argues that it has produced all non-exempt documents or parts thereof that are responsive to plaintiff's requests 1-4. Plaintiff replies that the FBI (1) has failed to demonstrate how Exemption 5 applies to the documents requested; (2) has asserted an overbroad application of Exemption 7(C); and (3) has not met its burden with respect to certain documents it referred to other federal agencies for consultation. Plaintiff also challenges the adequacy of the FBI's search because the agency has failed either to produce or to discuss the existence of a map that he claims was found in a car used by several of the individuals at the time of their arrest in Philadelphia. Finally, plaintiff states that many of the photocopied documents that the FBI did disclose are illegible, and that the Court should deny summary judgment unless adequate copies are supplied.
A. Exemption 5
The FBI argues that certain documents or parts thereof are protected from disclosure by the FOIA Exemption 5. 5 U.S.C. § 552(b)(5). Exemption 5 states that the FOIA's release requirements do not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id. The FBI claims this exemption for two reasons: (1) the information is attorney work product; and (2) the information is deliberative material.
i. Attorney Work Product
The Supreme Court has recognized that an attorney's work product falls within the group of materials protected under Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S. Ct. 1504, 1518, 44 L. Ed. 2d 29 (1975). The work-product privilege extends to government as well as private attorneys. See id. The purpose of the privilege is not to protect every document or piece of information prepared by an attorney, but to ensure effective legal representation within the adversary system. See Jordan v. United States Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 755 (D.C. Cir. 1978) (en banc). Because the privilege "focuses on the integrity of the adversary trial process," its application is specifically limited to materials "prepared in anticipation of litigation or for trial." Id. In addition, if material is exempt from FOIA disclosure because of the attorney work-product privilege, the exemption does not terminate at the close of the litigation for which the material was prepared. See FTC v. Grolier Inc., 462 U.S. 19, 28, 103 S. Ct. 2209, 2215, 76 L. Ed. 2d 387 (1983). Rather, "attorney work product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared." Id.
The burden is on the agency to prove that an exemption prevents the disclosure of the information sought. See Sims v. CIA, 206 U.S. App. D.C. 157, 642 F.2d 562, 567-68 (D.C. Cir. 1980), later app., 709 F.2d 95 (D.C. Cir. 1983), aff'd in part, rev'd in part on other grounds, 471 U.S. 159, 105 S. Ct. 1881, 85 L. Ed. 2d 173 (1985). To sustain its burden, the agency must demonstrate in its affidavits or indices that the documents were prepared with the possible litigation of a specific case in mind. See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 865-66 (D.C. Cir. 1980). In addition, the agency may point to non-exempt portions of the documents that it has released, and show by circumstances that the deleted portions "constitute the bare bones of protected matter." See EPA v. Mink, 410 U.S. 73, 93, 93 S. Ct. 827, 839, 35 L. Ed. 2d 119 (1973).
The FBI has met its burden of proving that the material deleted under Exemption 5 is attorney work product. In its affidavit the FBI sets forth a relatively detailed Vaughn index indicating which documents or portions thereof it is withholding and its reasons for doing so. In asserting Exemption 5, the FBI states that it is withholding certain information contained in FBI documents but generated by the Department of Justice attorneys during litigation. The FBI's affidavit further notes that disclosure of this information "would reveal frank communications within and among Government agencies discussing various litigation issues, alternative positions and strategies." Declaration of Regina M. Superneau P 21 (April 9, 1991) [hereinafter Superneau Decl.]. Because the information deleted from the FBI's documents originates from DOJ materials, the FBI does not describe the original DOJ attorney work-product documents in detail. However, the FBI's assertion that the information itself is attorney work product is supported by surrounding circumstances including portions of the documents that the FBI did disclose. For example, several of the released documents indicate that the individuals about whom the plaintiff seeks information were under government investigation for mail and wire fraud, theft of government property, and conspiracy to distribute marijuana. Certain portions of some of these documents were deleted because of Exemption 5. The deletions, in the context of the documents, suggest that the FBI simply redacted the material that comprises the "bare bones" of the protected attorney work product compiled in preparation for the government's case against these individuals.
ii. Deliberative Material
In asserting Exemption 5, the FBI states that the withheld material also involves inter- and intra-agency policy discussions and is therefore protected under the deliberative process privilege. This privilege applies to prevent the disclosure of certain inter- or intra-agency letters and memoranda. See 5 U.S.C. § 552(b)(5). The exemption was intended to promote frank and open discussions among Government policymakers and advisors and to protect such deliberations from publicity. See Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 789-90 (D.C. Cir. 1980). Congress "intended 'to delimit [Exemption 5] as narrowly as consistent with efficient Governmental operation.'" EPA v. Mink, 410 U.S. at 89, 93 S. Ct. at 837 (citing S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)). Because of this, the Supreme Court has stated that the privilege does not prevent the disclosure of factual material that may be severed from the document without compromising the protected policy discussions. See id. at 89-91, 93 S. Ct. 837 at 837-38 . In addition, the privilege only safeguards discussions that take place before the final agency policy decision, not those discussions that implement an existing policy. See Ryan, 617 F.2d at 791.
Plaintiff argues that the FBI has not addressed whether the material it has withheld under Exemption 5 concerns discussions that occurred prior to or after the agency's final decision, or whether the factual portion of the material may be severed from the policy-related portions. The FBI's affidavit does not address these concerns, and if the agency had asserted only this privilege under Exemption 5, then its affidavit would not suffice to justify the withholding of this information. However, the FBI's affidavit indicates that both the attorney work-product privilege and the deliberative-process privilege protect all of the information withheld under Exemption 5.
As indicated, the FBI has adequately asserted the attorney work-product privilege in withholding this information. Because its arguments concerning the attorney work-product privilege alone are enough to justify the withholding of the material under Exemption 5, the FBI does not have to address whether the withheld information contained factually segregable portions or post-decisional discussions.
B. Exemption 7(C)
The FBI argues that Exemption 7(C) protects certain documents or parts thereof from disclosure. See 5 U.S.C. § 552(b)(7)(C). In its affidavit the FBI categorizes eight types of information for which it asserts this exemption. Although plaintiff does not dispute that all of this information was compiled for law enforcement purposes, plaintiff argues that the FBI improperly asserted the exemption with respect to several categories of information concerning third parties.
To determine whether the FBI correctly asserts Exemption 7(C), the Court must balance the public interests in disclosure against the privacy interests of the individuals about whom plaintiff seeks information. See Reporters Comm., 489 U.S. at 776, 109 S. Ct. at 1483. The Court must take into account the privacy interests of persons who are public officials or private citizens, either targeted by the Government for investigation or not so targeted. In each instance the Court finds that privacy interest considerations outweigh the public interests claimed by plaintiff, and thus Exemption 7(C) applies to protect the information.
i. Public Interests
In arguing for disclosure, plaintiff does not attempt to respond individually to each category of materials that the FBI asserts fall under Exemption 7(C). Rather, plaintiff makes several general assertions why Exemption 7(C) should not apply. For example, he suggests that, given the nature of the four individuals' activities, the public interest in the redacted names of the other third parties is strong, and outweighs their privacy interests. Secondly, he argues that the deletions are unjustifiable in view of the extensive release of documents that has already been made. Thirdly, he asserts that the deleted information would provide "substantive information about the activities of [the four individuals named in his original FOIA request] or their associates."
In addition to these general arguments, plaintiff specifically discusses the deletions made under Category (b)(7)(C)-3. This category was used to justify the redaction of names contained in the telephone log, address books, and personal papers of the arrested individuals.
Although it is unclear, plaintiff seems to imply that because some of these individuals are government employees, defense contractors, and lawyers, the public-related character of their occupations militates in favor of disclosure.
ii. Privacy Interests
The FBI argues that the privacy interests of these third parties are stronger than any public interests in disclosure. The FBI indicates that some of these individuals are unrelated to any FBI investigation, and that they are "not of interest to the plaintiff or the public." Superneau Decl. P 30. According to the FBI, the disclosure that their names are contained in an FBI file could subject them to harassment or criticism. The FBI also asserts that it would be an unwarranted invasion of privacy to release the names and personal information of those third parties in whom the agency has an investigative interest. These persons may be of interest as suspects, witnesses, persons with a criminal history, or as sources of information regarding a suspect. The FBI argues that the disclosure of their names and personal information could "expose them to unnecessary public attention, questioning, harassment, criticism and intrusion into their private lives without any judicial safeguards." Declaration of Regina M. Superneau P 41 (November 24, 1989) (cited in Superneau Decl. PP 32-33).
iii. The Balance
In applying the balancing test, the Court must consider whether the disclosure of the names and personal information of these third parties "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The Court must also determine whether disclosure would advance the goals of the FOIA. See Reporters Comm., 489 U.S. at 772, 109 S. Ct. at 1481. The Court finds that these third parties' privacy interests outweigh any public interests in disclosure.
As the Court of Appeals has recognized, "individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity. Protection of this privacy interest is a primary purpose of Exemption 7(C)." Stern v. FBI, 237 U.S. App. D.C. 302, 737 F.2d 84, 91-92 (D.C. Cir. 1984). The Court finds persuasive the argument that disclosure could subject these persons to such a risk. The revelation that their names are contained in an FBI file regarding a specific criminal investigation might lead to public speculation concerning whether they, too, were suspected of illegal activity. This risk is particularly evident with respect to the third parties telephoned by the individuals before their arrest in Philadelphia. Disclosure of their names clearly could stigmatize and embarrass them, and expose them to unnecessary attention merely because their telephone numbers were dialed.
In contrast to these strong privacy interests, the Court finds that the public interests in disclosure of this information are relatively weak. The purpose of the FOIA, to expose agency action to public scrutiny, Reporters Comm., 489 U.S. at 772, 109 S. Ct. at 1481, would not be served by revealing the names of these third parties. Rather, such disclosure would reveal nothing about the FBI's conduct.
Further, plaintiff's assertion that some of these third parties are involved in government-related activities does not tip the balance in favor of disclosure. Even "government officials do not surrender all rights to personal privacy when they accept a public appointment." Bast v. United States Department of Justice, 214 U.S. App. D.C. 433, 665 F.2d 1251, 1255 (D.C. Cir. 1981). The privacy interests of persons acting in an official government capacity may not be quite as great as those of private citizens. See Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 487 (D.C. Cir. 1980). However, even those in government "have a legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives." Id. Therefore, the Court finds that the FBI properly applied Exemption 7(C) in refusing to reveal the names and personal information of these third parties.
C. Documents Referred to Other Agencies
In its affidavit the FBI indicates that it has referred to other federal agencies certain documents that may be responsive to plaintiff's request. The FBI states that these documents will be discussed in a future supplemental declaration. Plaintiff responds (1) that he has not yet received such declaration; and (2) that the FBI has improperly cited "consultation" as its reason for deleting certain information from the released documents.
The FBI may refer documents to their originating agencies and enlist the agencies' assistance in making a release determination. However, the FBI cannot avoid its own obligation to respond to the FOIA request with respect to these forwarded documents. See Paisley v. CIA, 229 U.S. App. D.C. 372, 712 F.2d 686, 691 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984). The FBI must therefore provide the supplemental declaration and either assert applicable exemptions or release the forwarded documents. Moreover, in each instance in which the FBI has claimed "consultation" as its reason for a deletion, without asserting a valid exemption, the FBI must either release the information or explain to plaintiff which exemption applies.
D. The Map
Plaintiff argues that the FBI's search was inadequate because it failed to reveal the existence of a map that plaintiff claims was used by the individuals arrested in Philadelphia. He asserts that the FBI took possession of the map, that this item is responsive to his FOIA request, and that it should be released.
The issue is "not whether any further documents might exist but whether [the agency's] search for responsive documents was delegates Goland II, 607 F.2d at 369. In determining the adequacy of an agency's search, the Court may rely on agency affidavits that are "'relatively detailed' and nonconclusory and . . . submitted in good faith." Goland I, 607 F.2d at 352 (citations omitted). These affidavits "enjoy a presumption of good faith, which will withstand purely speculative claims about the existence and discoverability of other documents." Ground Saucer Watch, Inc. v. CIA, 224 U.S. App. D.C. 1, 692 F.2d 770, 771 (D.C. Cir. 1981) (citation omitted). Moreover, whether an agency's failure to produce an identified document raises a sufficient question as to the agency's good faith depends on the factual context of the case. See id. at 772.
In this instance, there is no indication that the FBI acted in bad faith when it responded to plaintiff's FOIA request. The FBI's affidavit, as previously described, contains a relatively detailed Vaughn index that explains which exemptions it is asserting and its reasons for doing so. Moreover, the FBI has not refused to supply the plaintiff with the requested information, but instead has released hundreds of responsive documents to him. Therefore, the Court holds that plaintiff has not made a showing of bad faith regarding the FBI's search of its own documents sufficient to undermine the Court's reliance on the FBI's affidavit.
E. Illegible Documents
Plaintiff's final assertion is that many of the photocopied documents that the FBI disclosed to him are illegible. Plaintiff is entitled to receive legible copies of documents that are responsive to his request and are not exempt. The Court therefore orders plaintiff to provide the FBI with copies of what he validly considers to be illegible documents. The Court further orders the FBI, within 45 days from receipt of such documents, to provide plaintiff legible copies of the documents. If the FBI does not have legible copies of any or some of these documents, then the FBI shall provide plaintiff with an affidavit stating that no legible copy exists, and for which documents this is the case.
Therefore, for the reasons stated above, this Court denies in part and grants in part defendants' motion for summary judgment. The Court grants summary judgment as to the NSA, the DIA, and the Navy as to plaintiff's remaining requests 1-4. The Court further grants summary judgment to the FBI as to plaintiff's remaining requests 1-4, but only with respect to those documents for which the FBI has made a release determination. The Court denies summary judgment, without prejudice to providing sufficient affidavits, to the FBI with respect to those documents that the FBI has referred to other agencies and for which it has made no release determination. In addition, the Court orders plaintiff and the DOJ, within 21 days of the date of this Opinion, to inform the Court of the status of plaintiff's requests 1-5 to the DOJ. The Court also orders the FBI to provide plaintiff with legible copies of the illegible documents, if ones are available. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: SEP 25 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 802 F.2d 506.
ORDER - September 25, 1992, Filed
For the reasons stated in the Court's accompanying Opinion, it hereby is
ORDERED, that the NSA's motion for summary judgment as to plaintiff's remaining requests 1-4 is granted. Therefore, the case is dismissed as to the NSA. It hereby further is
ORDERED, that summary judgment is granted in favor of the DIA as to plaintiff's remaining requests 1-4. Therefore, the case is dismissed as to the DIA. It hereby further is
ORDERED, that summary judgment is granted in favor of the Navy as to plaintiff's remaining requests 1-4. Therefore, the case is dismissed as to the Navy. It hereby further is
ORDERED, that the FBI's motion for summary judgment as to plaintiff's remaining requests 1-4 is granted with respect to those documents for which the FBI has made a release determination. It hereby further is
ORDERED, that the FBI's motion for summary judgment as to plaintiff's remaining requests 1-4 is denied without prejudice with respect to those documents that the FBI has referred to other agencies and for which the FBI has not made a release determination. It hereby further is
ORDERED, that the FBI make a release determination with respect to the documents that it referred for consultation to other agencies. It hereby further is
ORDERED, that plaintiff provide the FBI with copies of the documents it has received from the FBI that he validly considers to be illegible. It hereby further is
ORDERED, that the FBI, within 45 days from receipt of such documents, either provide plaintiff with legible copies of the documents or an affidavit stating for which documents it has no legible copies. It hereby further is
ORDERED, that plaintiff and the DOJ, within 21 days of the date of this Opinion and Order, inform the Court of the status of plaintiff's requests 1-5 to the DOJ.
Stanley S. Harris
United States District Judge
Date: SEP 25 1992