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DURHAM v. UNITED STATES DOJ

August 17, 1993

RICKY DURHAM, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court are the Defendant's Motion for Summary Judgment and the Plaintiff's Cross-Motion for Summary Judgment in this case under Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. *fn1" After consideration of the filings by both parties, the applicable law, and the record herein, the Court shall grant the Defendant's Motion.

 The Plaintiff is a prisoner in jail for the homicide of Kenneth Clark, a former Postal Service Carrier. He is requesting records pertaining to Clark's murder from the Defendant Executive Office for United States Attorneys ("EOUSA") under FOIA. He asks for all investigative records that pertain to himself relating to Clark's murder, the names of all suspects (including criminology reports on one particular suspect), and a waiver of any copying fees.

 In response to the Plaintiff's requests, EOUSA provided the Plaintiff with 103 pages in full. EOUSA released 62 pages with some information excised and withheld approximately 1,488 pages in full under certain FOIA Exemptions. See Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Partial Summary Judgment. The Defendant has submitted three detailed declarations which describe the documents that were withheld and indicated under which FOIA exceptions those records fall. See Defendant's Motion for Partial Summary Judgment, Declaration of Virginia L. Wright ("Wright Declaration"); Declaration of Special Agent James L. Vermeersch ("Vermeersch Declaration"); and Declaration of Mary Otto ("Otto Declaration"). *fn2"

 Because the Defendant has demonstrated that the withheld documents and information fall within FOIA Exemptions (b)(2), (b)(3), (b)(5), (b)(7)(C), (b)(7)(D), (b)(7)(F), the Court shall grant summary judgment for the Defendant. *fn3"

 II.EXEMPTION 2

 The Defendant invokes Exemption 2 to withhold from disclosure an informant's symbol number. *fn4" Under FOIA Exemption 2, material "related solely to the internal personnel rules and practices of an agency" is exempted from disclosure. 5 U.S.C. § 552(b)(2). Exemption 2 permits withholding of information when disclosure would permit circumvention of a statute or agency regulation. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051, 1074 (D.C. Cir. 1981). It is established law that the symbol numbers of informants fall within Exemption 2. See Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 485-86 (D.C. Cir. 1980) (informant codes "plainly fall within the ambit of Exemption 2"); Watson v. United States Department of Justice, 799 F. Supp. 193, 195 (D.D.C. 1992) (DEA protection of Informant Identifier codes properly withheld as internal markings). Accordingly, the Court finds that the Defendant here properly withheld the informant source numbers under FOIA Exemption 2. *fn5"

 The Defendant invokes Exemption 3 to justify its refusal to release 355 pages of grand jury records. Exemption 3 permits the withholding of information where:

 
[a statute] requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld.

 5 U.S.C. § 552 (b)(3). The Defendant cites Rule 6(e) of the Federal Rules of Criminal Procedure as its justification for withholding "256 pages of transcripts of grand jury testimony, 96 grand jury subpoenas, 2 letters to grand jury witnesses, and a one-page draft memo from the grand jury foreman requesting evidence for inspection by the grand jury." Defendant's Motion for Partial Summary Judgment, Wright Declaration, P 17.

 Rule 6(e) prohibits the disclosure of grand jury records which would "tend to reveal some secret aspect of the grand jury's investigation[;] such matters as 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'" Senate of Puerto Rico v. United States Department of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 582 (D.C. Cir. 1987) (quoting SEC v. Dresser Industries, Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1382 (D.C. Cir. 1980), cert. denied, 449 U.S. 993, 66 L. Ed. 2d 289, 101 S. Ct. 529 ); see Fund for Constitutional Gov't v. National Archives & Records Serv., 211 U.S. App. D.C. 267, 656 F.2d 856, 867 (D.C. Cir. 1981). The Court agrees that the information withheld by the Defendant here would enable the identification of witnesses or jurors, and would show the substance of testimony and the direction of the investigation. Accordingly, the Court finds that the grand jury records were properly withheld under FOIA Exemption 3.

 In addition to the grand jury records, the Defendant has also withheld three pages of tax records under this Exemption. *fn6" The relevant statute limiting disclosure of tax return information is 26 U.S.C. § 6103 (a), which provides, inter alia, that returns and return information shall be confidential, and shall not be disclosed except as authorized by that title. As the tax information refers to a person other than the Plaintiff, there is no exception in that ...


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