Kay based on information contained in items 1 through 17 of the Vaughn index on or before July 27, 1994, the FCC has no authority to determine or impose any forfeiture penalty based on that information now. Thus, the Plaintiffs conclude, items 1 through 17 do not fall under Exemption 7(A).
The Court observes that, while the FCC may not impose monetary penalties for charged violations which occurred more than one year prior to the issuance of notice of apparent liability, 47 U.S.C. § 503(b)(6)(B), the Federal Communications Act imposes no time limitations on the FCC's ability to revoke Kay's present licenses or to deny his future license applications. 47 U.S.C. §§ 312(a), 309. The Court finds that the FCC's statutory authority to revoke licenses or deny license applications is a qualifying law enforcement purpose. Cf. Church of Scientology, Int'l v. I.R.S., 995 F.2d 916 (9th Cir. 1993) (potential denial of tax exempt status to an organization constituted a law enforcement purpose under Exemption 7(A)); Center for Nat'l Policy Review on Race & Urban Issues v. Weinberger, 163 U.S. App. D.C. 368, 502 F.2d 370, 372 (D.C. Cir. 1974) (potential termination of financial assistance following administrative determination that racial discrimination exists qualified as law enforcement investigation). Indeed, the Court observes that, under the proper exercise of this authority, the FCC could put an enterprise out of the radio business altogether.
Finally, the Court shall address the arguments raised by the Plaintiffs in their supplemental unauthorized pleading, filed on October 19, 1994. On September 9, 1994, Kay filed two additional FOIA requests with the FCC. On October 11, 1994, the FCC responded by releasing documents which included unredacted copies of six letters, dated January 31, 1994, from FCC employee Ann Marie Wypijewski to various persons. These letters were unredacted copies of redacted letters which, except for the addressee information, the FCC released to Kay in response to the FOIA requests at issue in the instant suit, and which are referenced at item 23 of the Vaughn Index. Second Kay Decl.
On October 19, 1994, the Defendant filed a Motion to Accept Unauthorized Pleading, which the Court granted in the interests of justice. In said Motion and in the Plaintiffs' Reply to the FCC's Opposition thereto, the Plaintiffs argue that the release of the six undredacted letters demonstrates that the FCC's earlier withholding of the same documents was arbitrary and capricious. Moreover, the Plaintiff argues that the FCC's disclosure of the six unredacted letters demonstrates the "hollowness of the FCC's position" with respect to the potential for interference with law enforcement proceedings through witness intimidation. Plaintiffs' Supplement, at 3. Accordingly, the Plaintiffs argue that additional material which remains withheld in this litigation should be ordered disclosed.
The Court finds, however, that this turn of events does not create a genuine issue of material fact which would justify a denial of the Defendant's Motion for Summary Judgment. As the Second Declaration of Anne Marie Wypijewski attests, the disclosure of the six letters without redactions was entirely the result of clerical error. Second Wypijewski Decl. PP 4-7. Although Ms. Wypijewski had taken steps to secure the originals of these letters, she was unaware that the unredacted letters had been duplicated as attachments to another document. Id. P 5. In the course of processing the Plaintiffs' subsequent requests under the limited time period allowed, which resulted in the disclosure of 1,474 pages of material, Ms. Wypijewski simply missed the presence of these unredacted letters. Id. P 7. Ms. Wypijewski attests: "Had I realized that the six unredacted letters were included in the package of materials to be disclosed, I would have immediately removed them and they would not have been released." Id.
Although the Court cannot condone such carelessness, the Plaintiffs do not provide any reason supported by any legal authority as to why this admitted error exposes the FCC to the potential harms which Exemption 7(A) otherwise protects against. The Plaintiffs appear to be arguing that this mistaken disclosure of the identities of these individuals undermines the FCC's position that all of the material still withheld remains sensitive. However, where, as here, the disclosure was made entirely in error, the release of these names constitutes no reflection whatsoever on the FCC's assessment of the sensitivity of the remaining material. See generally Public Citizen v. Department of State, 304 U.S. App. D.C. 154, 11 F.3d 198, 201-04 (D.C. Cir. 1993) (no waiver of protection for material classified as "confidential" even when agency personnel had publicly testified before Congress regarding same subject).
In their Supplemental Reply, the Plaintiffs argue that, because the letter enclosing the documents released pursuant to Kay's later requests is undersigned by Ralph A. Haller, the Chief of the Private Radio Bureau, it necessarily follows that Mr. Haller -- and not Ms. Wypijewski -- made the decision to release the documents. Plaintiffs' Supplemental Reply, at 2. Thus the Plaitniffs argue that Ms. Wypijewski's declaration "constitutes nothing more than an internecine disagreement with the decision of her superior to disclose the requested information." Id.
The Court, however, must credit the Declaration of Ms. Wypijewski that it was she who reviewed and released the documents reponsive to Kay's later requests, and that she would not have released the six unredacted letters but for clerical error. The Court simply cannot rely on the Plaintiffs' entirely speculative assertions regarding the interrelationships and responsibilities of individual FCC employees. Indeed, the Court observes that it is reasonable to assume that the Chief of the Private Radio Bureau does not have the time to inspect personally each and every page of every document, among thousands, which may be responsive to every FOIA request. Rather, it is more reasonable to credit Ms. Wypijewski's Declaration that "seven Gettysburg employees were engaged in searching and reviewing thousands of the Commission's Licensing Division records," that "apparently, one of several staff members performing photocopying inadvertently also reproduced the six cover letters," and that, "prior to the release of the 1,474 pages, [she] reviewed each letter that was released in response to" Kay's subsequent requests. Second Wypijewski Decl. P 6-7.
Critically, the Court also calls attention to Ms. Wypijewski statement that, since the inadvertent disclosure of the unredacted letters, she has:
been informed that certain of the six individuals, whose names and addresses have been released to Mr. Kay, have received telephone calls from Mr. Kay subsequent to October 11, 1994. The complainants receiving the calls were alarmed by the calls, since Mr. Kay has not been in contact with them for many months. It appears that the calls may therefore have been prompted by the inadvertent and erroneous disclosure of those letters.
Second Wypijewski Decl. P 8. This statement serves to confirm the Court's determination that disclosure of the withheld documents could reasonably be expected to interfere with enforcement proceedings. Indeed, Mr. Kay's apparant contact with these individuals, contact which the individuals found alarming, is precisely the kind of interference with the investigation of Kay which Exemption 7(A) is designed to protect against.
Accordingly, in sum, the Court finds that the FCC's actions have not been arbitrary, capricious or in bad faith, and that the Plaintiffs have failed to submit any legally cognizable reason why the FCC's invocation of Exemption 7(A) in this matter is not justified.
The Court observes that the FCC has released over 1,000 pages of responsive material to the Plaintiffs, that the FCC is in the process of producing over a hundred more pages of responsive material, and that the FCC has represented that, as formal proceedings progress and it becomes appropriate to reveal certain aspects of the investigation to Kay, the FCC will promptly disclose information for which Exemption 7(A) is no longer applicable and to which no other FOIA exemption applies.
For the foregoing reasons, the Court finds that the FCC is entitled to invoke Exemption 7(A) of the FOIA to justify its continued withholding of the responsive documents at issue in this case.
Accordingly, the Court determines that the Defendant's Motion for Summary Judgment shall be granted, the Plaintiffs' Motion for Partial Summary Judgment shall be denied, and any and all issues regarding entitlement to attorneys' fees and costs shall be reserved for further proceedings. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
November 8th, 1994
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Before the Court are the Defendant's Motion for Summary Judgment, the plaintiffs' Motion for Partial Summary Judgment, along with the parties' respective oppositions and replies thereto. For the reasons set forth in the Court's Memorandum Opinion of even date herewith, the Court determines that the Defendant's Motion for Summary Judgment shall be granted, and the Plaintiffs' Motion for Summary Judgment shall be denied.
Accordingly, it is, by the Court, this 8th day of November, 1994,
ORDERED that the Defendant's Motion for Summary Judgment shall be, and hereby is, GRANTED, and the Plaintiffs' Motion for Partial Summary Judgment shall be, and hereby is, DENIED.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE