The opinion of the court was delivered by: GREENE
George Canning ("Plaintiff") seeks materials from the Federal Bureau of Investigation ("FBI") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., regarding four individuals who were interviewed in connection with investigations into the Lyndon LaRouche political movement.
Canning submitted five FOIA requests to various FBI offices, which, in turn, performed numerous searches, released a number of documents in full and in part, and withheld a number of documents in their entirety. Dissatisfied with the results of his request, Canning brought this action to compel a further search and release of the documents withheld.
The defendant agency has maintained that it has fully complied with the FOIA in this case, and the FBI therefore requests summary judgment in its favor. Plaintiff opposes this motion and makes two motions of his own.
Plaintiff has essentially two complaints about the FBI's response to his FOIA request. First, Plaintiff argues that the FBI improperly withheld material under a number of different exemptions. To correct this, Plaintiff asks for a supplemental Vaughn index to either justify the use of the exemptions or to force the release of improperly withheld documents. Second, Plaintiff argues that the searches performed were inadequate. To correct this, Plaintiff asks the Court to compel further searches in certain FBI offices regarding certain individuals and files.
After careful study of the motions filed with this Court and the accompanying documents, including the materials released to Plaintiff, the Court concludes that each party's motions should be granted in part and denied in part. This Memorandum Order discusses each of the contested areas in turn.
Material Withheld Under Various Exemptions
Plaintiff alleges that the FBI has improperly relied on certain exemptions to justify withholding documents. It is his claim that the material withheld has not clearly been shown to fall within the scope of the various exemptions. Because of this, Plaintiff has requested a further Vaughn index to justify the continued withholding of the documents. For most of the exemptions claimed, the Court finds that they are probably justified, but the Court nevertheless finds that some further explanation by the FBI is needed to clarify the exact scope of the information for which the government claims an exemption.
A. Grand Jury Material Withheld Under Exemption 3
Some of the material still in contention has been withheld by the FBI under the authority of Exemption 3, which protects from disclosure matters that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). In this case, the relevant "statute" is Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits disclosure of "matters occurring before the grand jury." Fed. R. Crim. P. 6(e).
The FBI has maintained throughout this case that the material it has withheld falls within the scope of Rule 6(e). In his first affidavit to this Court, Agent Michael Turner of the FBI asserted that the information withheld included the names of individuals who were subpoenaed to testify before the grand jury, the material subpoenaed, and actual grand jury testimony. Turner Declaration 1, at P 24. Turner also alleged that releasing this information "would violate the secrecy of the Grand Jury proceedings and reveal the scope and direction of the same." Id..
Not content with this justification, Plaintiff has raised questions about this affidavit and its sufficiency. Plaintiff claims that Agent Turner's justification cannot meet the test for summary judgment because it leaves open genuine issues of material fact. Most importantly, Plaintiff questions how Agent Turner could have personal knowledge about the redacted material. Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for a Supplemental Vaughn Index and to Compel Further Search, at 9-10. Plaintiff argues that, if the material really was of the sort protected from disclosure by Rule 6(e), Agent Turner himself should have been prohibited from viewing it because he was not on the list of individuals with special access to what were otherwise secret documents. Id.
The Court finds that this fact raises some questions that must be answered before summary judgment may be granted. For if Agent Turner did see these materials without special clearance, then this might be an indication that the material is no longer considered secret. And if this is the case, the material would no longer be protected by either Rule 6(e) or Exemption 3. If, on the other band, Agent Turner has never seen the redacted material, then his affidavit is insufficient for summary judgment because it does not indicate how Turner knew that the material was from the grand jury.
To clear up this confusion, Plaintiff has requested a further Vaughn index, consisting of affidavits written by a person with personal knowledge about the withheld information, showing a basis for knowledge that the information came from the grand jury, and a characterization of the documents. Id. at 11. Given the confusion on this issue, the Court finds that such a further index would be helpful. It could clear up the lingering question of how Agent Turner knew that material was from the grand jury.
Clearing up this ambiguity is the first hurdle that the government must clear before the Court could grant summary judgment. If the FBI is unable to produce affidavits showing how this material falls under the Rule 6(e) umbrella, then the FBI would not be entitled to summary judgment as a matter of law.
If, on the other hand, the FBI is able to show that the material came from the grand jury, then summary judgment would probably, but not necessarily, be appropriate. In his motions to this Court, Plaintiff has raised some question about whether the material at issue was also available outside the grand jury process. At issue is the nature of the Interim Prosecutive Report from which the material was redacted. Plaintiff argues that the interim report was based on information gathered outside the grand jury process and therefore its disclosure would not reveal the secrets of the grand jury. The FBI never directly addresses this argument. Instead, it simply relies on Agent Turner's blanket statement that the material all came from the grand jury. From the parts of the report that have been released to Plaintiff, it is clear that the interim report was prepared for presentment to the grand jury, but its not clear that revelation of such a document would "disclose matters occurring before the grand jury."
draw "a veil of secrecy ... over all matters occurring in the world that happened to be investigated by a grand jury." .... There is no per se rule against disclosure of any and all information which has reached the grand jury chambers.... The touchstone is whether disclosure would "tend to reveal some secret aspect of the grand jury's investigation" such matters as "the identities of the witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberation or questions of jurors, and the like." The disclosure of information "coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury" is not prohibited.
Senate of Puerto Rico v. U.S. Department of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 582 (D.C. Cir. 1987). See also Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981) (holding that the fact that a grand jury has subpoenaed documents concerning a particular matter does not insulate that matter from investigation in another forum). The Court of Appeals in this Circuit has also made clear that the government can be required to provide more information to show why the material should be exempt. Senate of Puerto Rico, 823 F.2d at 582. This is a sensible solution in the instant case as well.
In sum, then, in order for the FBI to make the threshold showing for summary judgment on the issue of the material withheld under Exemption 3, they must provide further Vaughn material in the form of affidavits by persons with personal knowledge of the grand jury material, explaining how this material falls under the protection of Rule 6(e).
B. Material Withheld Under Exemption 7(C) on the Theory That It Would Constitute an Unwarranted Invasion of Privacy of Individuals Who Provided Information
The FBI withheld a number of documents and redacted a number of others under the authority of Exemption 7(C) on the theory that release of the material would constitute an unwarranted invasion of the privacy of individuals who provided information to the FBI. 5 U.S.C. § 552(b)(7)(C). In order to assess the propriety of this use of Exemption 7(C), the Court must balance the privacy interests of the individuals involved against the public interest in disclosure. Davis v. U.S. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1281 (D.C. Cir. 1992). And even if the Court finds, as it does in this case, that the privacy interests prevail, there is still a question of whether there is segregable material that should still be released. PHE, Inc. v. U.S. Department of Justice, 299 U.S. App. D.C. ...