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CUCCI v. DEA

December 27, 1994

VICTOR CUCCI, Plaintiff,
v.
DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 This case is before the Court on defendants' motion for summary judgment, plaintiff's motion for summary judgment and plaintiff's motion to strike. *fn1" Upon consideration of the motions and supporting memoranda, the entire record before the Court, and counsels' arguments in open court, the Court finds that there are no genuine issues of material fact and that defendants are entitled to judgment as a matter of law.

 I. BACKGROUND

 By February 1, 1994, defendants completed processing plaintiff's request. The FBI released three pages in full or in part and withheld all remaining pages in their entirety. Exhibit CC. The DEA released 196 pages in full or in part and withheld 338 pages in their entirety. Declaration of Kevin Janet ("Janet Decl.") P 20; Supplemental Declaration of Kevin Janet P 16. The Customs Service released 50 pages in full or in part, withheld 25 pages in their entirety and referred 64 pages to the originating agencies for disclosure in accordance with their policies. Declaration of Karen Kuhn ("Kuhn Decl.") P 7. Defendants claim that they released all responsive records to plaintiff that were not covered by FOIA and Privacy Act exemptions. Defendants invoked several FOIA exemptions, including Exemptions 2, 3, 7(A), 7(C), 7(D), 7(E) and 7(F), and Privacy Act Exemption (j)(2). Plaintiff has conceded the applicability of FOIA Exemptions 2, 3, 7(E) and 7(F), and has not opposed defendants' invocation of Privacy Act Exemption (j)(2).

 The issues remaining before the Court are whether the FBI properly invoked FOIA Exemption 7(A); whether the DEA and the Customs Service properly asserted FOIA Exemptions 7(C) and 7(D); and whether the Vaughn indices prepared by defendants were sufficient. Plaintiff also is seeking an Order directing each defendant to release to plaintiff, pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), all exculpatory information contained in its files.

 H. STANDARD OF REVIEW

 Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the nonmovant, that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). For summary judgment to be granted in the agency's favor in an FOIA case, the agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements." National Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973). When the agency seeks summary judgment based on an FOIA exemption, it can discharge its burden by providing a "relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular pan of a withheld document to which they apply." Mead Data Central, Inc. v. Dep't of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977). The Court may award summary judgment solely on the information provided in affidavits or declarations that explain how requested information falls within a claimed exemption if the affidavits or declarations are sufficiently detailed, nonconclusory and submitted in good faith. Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980).

 III. FOIA CHALLENGES

 A Exemption 7(A)

 Exemption 7(A) of the FOIA protects from disclosure law enforcement records "to the extent that" their production "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The FBI relied upon Exemption 7(A) to withhold all but three pages of its records concerning plaintiff, Operation Infamita and Messrs. Maurizio Cucci and Francisco D'Arpa.

 FBI declarant Robert A. Moran described the seven types of documents withheld by the FBI and their functional usage of such documents. Declaration of Robert A. Moran ("Moran Decl.") P 59. *fn2" The declaration sets out two broad categories within which these documents were placed, administrative materials and evidentiary matters, and eight types of material within the categories. The administrative materials category includes administrative instructions, routine reporting communications and inter-agency correspondence. Moran Decl. PP 61-66. The evidentiary matters category includes witness statements, information exchanged between the FBI and local law enforcement agencies, physical evidence, evidence obtained pursuant to search warrants and documents relating to the case's documentary and physical evidence. Moran Decl. PP 67-74. Agent Moran stated that "the responsive records which have been withheld under Exemption (b)(7)(A) have been reviewed and categorized in terms of the information contained in these documents." Moran Decl. P 60. Finally, Agent Moran outlined the specific harras for each of the eight types of information in the two categories that the FBI reasonably expected to follow from any disclosure of the documents. Moran Decl. PP 62-74. The harms identified by the FBI included the threat to the continued safety and cooperation of witnesses and confidential sources that could be disclosed to subjects of continuing FBI investigations if the documents are provided to Cucci. Moran Decl. PP 64, 65, 68, 69. The FBI also stated that release of the documents could enable parties under investigation to alter or destroy evidence, concoct false alibis, change their behavior or formulate strategies to defend prosecutions (Moran Decl. PP 64, 66, 71, 72, 73), and could lead to the loss of vital communications from other cooperating law enforcement entities providing information to the FBI in confidence (Moran Decl. P 70).

 Cucci claims that the only ongoing investigation by the FBI relates to plaintiffs alleged violations of tax laws. Cucci states that he seeks only those records pertaining to his arrest and conviction, and the circumstances leading to his arrest, for conspiracy to distribute a controlled substance and the illegal use of a communications facility. He argues that these records relate to a terminated investigation and states that he does not seek records compiled thereafter relating to the ongoing tax investigation. Cucci argues that the FBI failed to fulfill its obligation to "segregate" and disclose all non-exempt records not dealing with the tar investigation. Cucci asserts that the FBI only gave a conclusory explanation of why it could not segregate the records. See Mead Data Central, Inc. v. Dep't of the Air Force, 566 F.2d at 261.

 The FBI argues that Cucci's speculation that the FBI files concerning him are segregable into materials that relate only to his 1992 conviction for conspiracy to distribute a controlled substance and the illegal use of a communications facility and those that relate only to the tax investigation is unfounded. The FBI suggests that the records pertain to more than these two investigations and that they are intertwined with other ongoing investigations. The FBI claims that its records were compiled during the course of investigations of the sales and distribution of illegal narcotics that are "still active in the development of potential evidence and witnesses and possible future subjects of investigation" and that "although some subjects in these investigations have been convicted, it is probable that information used against those subjects could be used in the prosecution of future subjects of investigation." Moran Decl. PP 57, 58. Moreover, Agent Moran, after setting forth the general nature of the ongoing investigations, declared that "there are no reasonably segregable portions of any documents related to the plaintiff that could be released without jeopardizing the ongoing investigations." Moran Decl. P 57; see also Moran Decl. PP 76, 77.

 The Court has examined the FBI declaration and exhibits and finds that the FBI has not misapplied Exemption 7(A). The FBI has properly supported, and the plaintiff has not effectively countered, the FBI's position that there are multiple intermingled investigations and not just the terminated investigation resulting in Cucci's conviction and the tax investigation of Cucci. The declaration of Agent Moran has sufficiently demonstrated that the FBI followed the dictates of Bevis v. Dep't of State. Because the agency has met its burden of showing that all its records are exempt and ...


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