Thus, material protected from disclosure under Rule 6(e) would clearly be protected from disclosure under Exemption 3. The only real issue in this case is whether the material withheld by the FBI from the Interim Prosecutive Report of February 11, 1988 ("Interim Prosecutive Report") is the sort of material that Rule 6(e) would protect.
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."
If the report was prepared for presentment to the grand jury, some of its contents would naturally have come to the attention of the grand jurors. But it is not clear that the report was so intimately connected to the workings of the grand jury so as to fall under the protective umbrella of Rule 6(e). To clear up this ambiguity, the FBI must assert, by affidavit, how the withheld material would reveal the secrets of the grand jury. For as the Court of Appeals recently noted, Rule 6(e) does not
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. 223, 983 F.2d 248, 252 (D.C. Cir. 1993); Krikorian v. U.S. Department of State, 299 U.S. App. D.C. 331, 984 F.2d 461, 466 (D.C. Cir. 1993). This Memorandum Order addresses each of these concerns in turn.
1. The portions withheld under Exemption 7(C) which Plaintiff contests involve three individuals, all of whom gave the FBI information in connection with the FBI's investigation of the Lyndon LaRouche organization.
The three individuals also all testified in state criminal trials against members of that organization.
Our Court of Appeals has made clear that informants and witnesses have cognizable privacy interests that may be protected by Exemption 7(C). SafeCard Servs. v. S.E.C., 288 U.S. App. D.C. 324, 926 F.2d 1197, 1205 (D.C. Cir. 1991) (holding that Exemption 7(C) "affords broad privacy rights to suspects, witnesses, and investigators"); Fitzgibbon v. C.I.A., 286 U.S. App. D.C. 13, 911 F.2d 755, 767 (D.C. Cir. 1990) (stating that "Exemption 7(C) takes particular note of the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity").
Plaintiff acknowledges this case law, but claims that the particular individuals involved have no privacy interest because they have waived their confidential status. Plaintiff thus ties the privacy issue under Exemption 7(C) to the question of what is "confidential" under Exemption 7(D).
Even if this borrowing were appropriate, its not clear how it would advance Plaintiff's case.
Plaintiff's basic argument seems to be that, since these three individuals have testified and otherwise made public their involvement in the LaRouche investigation, they have waived their confidentiality and thus they have no real privacy interest. The cases under Exemption 7(D) do not clearly support this conclusion, however. These cases clearly give FOIA requestors access to information that has previously been testified to, but they are hesitant to go any further. As one case put it:
Even when the source testifies in open court, as did the informant in this case, he does not thereby "waive the [government's] right to invoke Exemption 7(D) to withhold . . . information furnished by a confidential source not actually revealed in public." . . . The government is obliged to disclose only the "exact information" to which the source actually testified.
Davis v. U.S. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1281 (D.C. Cir. 1992). See also Parker v. Department of Justice, 290 U.S. App. D.C. 87, 934 F.2d 375, 380-81 (D.C. Cir. 1991) ("Public testimony by 'confidential sources' does not waive the FBI's right to invoke exemption 7(D) to withhold the identity of a confidential source or information furnished by a confidential source not actually revealed in public."). The cases all agree that merely because an informant was willing to have some information divulged for law enforcement purposes does not mean that he or she waived all confidentiality and all interests in privacy. U.S. Department of Justice v. Landano, 508 U.S. 165, 124 L. Ed. 2d 84, 95, 113 S. Ct. 2014 (1993) ("A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.").
Given this, it is not clear in this case that the individuals who gave information waived all confidentiality and all interests in privacy. And since "disclosure of records regarding private citizens, identifiable by name, is not what the framers of FOIA had in mind," U.S. Dept of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 765, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), the Court must look with care at the public interests which Plaintiff asserts outweigh the clear privacy interests of the individuals who assisted the FBI.
2. Plaintiff argues that the strong public interest in "the integrity of the administration of justice" outweighs the privacy interests discussed above. 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 a Further Search, at 10. More particularly, he alleges that the information he seeks in his FOIA requests contains Brady material wrongfully withheld by state prosecutors in a state criminal action against Lyndon LaRouche and several of his associates. Id. Plaintiff argues that the public interest would be served if the information were released and used in an attempt to overturn Mr. LaRouche's conviction.
In support of this argument, Plaintiff cites a decision from the Third Circuit which holds that "a FOIA request for information implicating the Brady rule" advances an "indirect public purpose." Ferri v. Bell, 645 F.2d 1213, 1218 (3d Cir. 1981). This case held that "the public has an important stake in ensuring that criminal justice is fairly administered; to the extent disclosure may remedy and deter Brady violations, society stands to gain." Id.
As true as these statements, may be, they are not wholly applicable here because Plaintiff is seeking the material from an entity that is totally separate from the entity that allegedly violated the Brady rule. According to Plaintiff's allegations, the Brady material was withheld by state prosecutors. Plaintiff now seeks evidence of that from a federal agency. Plaintiff thus does not allege any misconduct on the part of the FBI -- he merely wants evidence of misconduct by a separate sovereign.
The only cases in this Circuit to consider such a request have found that the desire to expose wrongdoing on the part of another party is not enough to satisfy the "public interest" prong of the balancing test. Johnson v. U.S. Department of Justice, 1991 U.S. Dist. LEXIS 16417, at *2 (D.D.C. 1991). See also Nishnic v. U.S. Department of Justice, 671 F. Supp. 776, 791 (D.D.C. 1987) (finding plaintiff's interest in gaining exculpatory evidence a "decidedly private interest"). They found that "in the absence of compelling evidence of misconduct" by the agency responding to the FOIA request, the "indirect public purpose of ensuring fair criminal trials" did not outweigh individual privacy interests. Johnson, 1991 U.S. Dist. LEXIS 16417, at *2. See also Nishnic, 671 F. Supp. at 791 (finding that "plaintiff's reliance on a general public interest in access to information of alleged relevance to ongoing litigation is not supported by authority").
These holdings comport with holdings by both the Supreme Court and the Court of Appeals for this Circuit which affirm that "the basic purpose of the FOIA [is] to open agency action to the light of public scrutiny." U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 772, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). Our Court of Appeals recently held that when "governmental misconduct is alleged as the justification for disclosure, the public interest is 'insubstantial' unless the requestor puts forward 'compelling evidence that the agency denying the FOIA request is engaged in illegal activity' and shows that the information sought is necessary in order to confirm or refute that evidence." Davis v. U.S. Dept. of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1282 (D.C. Cir. 1992); Accord SafeCard Servs. V. S.E.C., 288 U.S. App. D.C. 324, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991).
Plaintiff has not even hinted at misconduct on the part of the FBI in this case.
Instead, he has made unsubstantiated claims that state prosecutors withheld Brady material and that a state witness may have perjured himself. These unsupported allegations are insufficient to meet the "public interest" prong of the Exemption 7(C) balancing. The privacy interests are thus paramount, and the information that would invade the individuals' privacy is protected from disclosure under Exemption 7(C).
3. Even though the balancing weighs in favor of protecting the material withheld by the FBI, there is still the question of whether there is any segregable material that should be disclosed. Krikorian v. U.S. Department of State, 299 U.S. App. D.C. 331, 984 F.2d 461, 467 (D.C. Cir. 1993) (stating that a district court that "simply approve[s] the withholding of an entire document without entering a finding on segregability, or the lack thereof,' errs"). Plaintiff's basic argument here is that, even if the names and identifying material regarding these individuals were properly withheld under Exemption 7(C), any information provided by those individuals should not be protected by that exemption.
In one of his more recent filings, Plaintiff identified a number of different situations where he believes that Exemption 7(C) is being used to shelter not only the names of confidential sources, but also information provided by those sources. What piqued Plaintiff's interest about these particular passages was the fact that they were originally withheld under the authority of both Exemption 7(C) and Exemption 7(D). These two exemptions in tandem would protect not only a confidential source's name, but also any information provided by that source. Due to changes in the law regarding Exemption 7(D), the FBI removed references to that exemption next to the passages at issue here.
What Plaintiff wants to know, therefore, is whether the passages, which are now withheld only under the authority of Exemption 7(C), still contain information provided by the sources that would not identify the sources. In particular, Plaintiff questions the withholding of material on the following pages, all included in Exhibit A of Defendant's Motion in Further Support of Its Motion for Summary Judgment:
Audrey Carter Material