affidavit is specific as to what information is being withheld and why the privacy interest outweighs the public's interest in this case, it is not conclusory or vague, and there is no evidence anywhere in the record of bad faith on the part of the agency. Accordingly, BOP's motion for summary judgment is granted.
U.S. Marshals Service ("USMS")
USMS provided Plaintiff all requested materials with the exclusion of computer and teletype routing symbols, access codes, computer option commands for recording, amending or retrieving data, and numerical symbols used to identify federal prisoners. USMS invokes exemption (b)(2) of FOIA to justify the exclusion of this information. USMS also withheld the names of law enforcement personnel and the names and numbers of federal prisoners pursuant to exemption (b)(7)(C) of FOIA.
Exemption (b)(2) exempts from disclosure records "related solely to the internal personnel rules and practices of an agency." To justify the withholding of information under exemption (b)(2), the agency must show that the information is used for "predominantly internal purposes" and that its disclosure would "significantly risk circumvention of federal statutes or regulations." Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051, 1053, 1071, 1073. The case law supports both of these exclusions. Watson, 799 F. Supp. at 195 (holding that the exclusion of internal administrative markings and the numbers of federal prisoners was justified); Lesar, 636 F.2d at 485-86. The agency's affidavit is specific as to what information is being withheld and why disclosure of this information that is used for internal purposes would "significantly risk circumvention of statutes or regulations", it is not conclusory or vague, and there is no evidence anywhere in the record of bad faith on the part of the agency.
USMS excluded the names of law enforcement personnel and prisoners pursuant to exemption (b)(7)(C). The case law supports the exclusion of this type of information. Watson at 196; Lesar, 636 F.2d at 487-88; Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). The agency's affidavit is specific as to what information is being withheld and why the privacy interest outweighs the public's interest in this case, it is not conclusory or vague, and there is no evidence anywhere in the record of bad faith on the part of the agency. Accordingly, USMS's motion for summary judgment is granted.
United States Parole Commission ("USPC")
The USPC provided Plaintiff all requested materials with the exclusion of the names and addresses of Plaintiff's victims in his prior offense of weapons violation. USPC invokes exemption (b)(6) to justify the withholding of this information. Exemption (b)(6) is used to withhold personal information, that if disclosed, would constitute a "clearly unwarranted invasion of personal privacy." Case law supports exclusion in cases where the public interest is not great in comparison to the individual's privacy interest. United States Dep't of Defense Dep't of Military Affairs v. Federal Labor Relations Auth., 296 U.S. App. D.C. 26, 964 F.2d 26, 29 (D.C. Cir. 1992); See also Reporters Comm., 489 U.S. at 775 (holding that if the information does not directly reveal the operations or activities of the agency it "falls outside the ambit of the public interest that the FOIA was enacted to serve"). The agency's affidavit is specific as to what information is being withheld and why the victims' privacy interests clearly outweighs the public's interest in disclosure, it is not conclusory or vague, and there is no evidence anywhere in the record of bad faith on the part of the agency. Accordingly, USPC's motion for summary judgment is granted.
The Federal Bureau of Investigation ("FBI")
The FBI did not provide the Plaintiff with the information he requested because of the alleged applicability of exemption (b)(7)(C) and (b)(7)(D) of FOIA to the responsive material. The withheld documents consist of six pages that comprise a burglary-robbery suspects' album that contains pictures and identification records obtained from law enforcement investigations of known armed robbers and burglars. The album also contains the names and titles of non-federal law enforcement officers.
Exemption 7(C) and (D)
Under exemption 7(C) and (D) of FOIA the following material may not be disclosed:
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation..., information furnished by a confidential source."
5 U.S.C. § 552(b)(7)(C)-(D) (1988).
As a threshold test to qualify for exemption under subsection 7, the record or information in question must have been compiled for law enforcement purposes. The test that was used in the D.C. Circuit to determine if the threshold has been met was enunciated in Pratt v. Webster.4 The two part test was: "(1) whether the agency's investigatory activities that give rise to the documents sought are related to the enforcement of federal laws or to the maintenance of national security; and (2) whether the nexus between the investigation and one of the agency's law enforcement duties is based on information sufficient to support at least a colorable claim of rationality."
In 1986, amendments were made to exemption 7. Prior to 1986, the records compiled for law enforcement purposes had to have originated in connection with a specific investigation. After the amendments, the records could arguably have originated from any activity of the agency as long as they were compiled for law enforcement purposes. Subsequently, in Keys v. United States Dep't of Justice, the D.C. Circuit modified the Pratt test so that an agency would now have to demonstrate that the nexus "between [its] activity" (rather than investigation) "and its law enforcement duties [are] based on information sufficient to support at least 'a colorable claim' of its rationality."
In the instant case, the modified Pratt test is clearly met. The non-federal law enforcement agency acquired the information at issue through their investigations of various state crimes. (Griffin Decl. P 19). There is an obvious nexus between the local agency's investigations of the state crimes and its law enforcement duty of upholding state robbery and burglary laws. Accordingly, the documents at issue are "records or information compiled for law enforcement purposes."
As the threshold test has been met, the remaining issue is whether the disclosure of the information would constitute an unwarranted invasion of personal privacy and/or would reveal the identity of a confidential source.
Unwarranted Invasion of Personal Privacy
The FBI claims that exemption 7(C) justifies the withholding of the names and titles of non-federal law enforcement officers contained in the albums. To meet exemption 7(C), the agency must first establish that a privacy interest exists, and if so, that interest must be balanced against the public interest of "sheding light on the agency's performance of its statutory duties."
The FBI claims that disclosure of the non-federal law enforcement officers' identities might subject them to unofficial inquiries not anticipated in connection with their assistance to the FBI, as well as potential harassment that would result in an unwarranted invasion of privacy. (Griffin Decl. P 15) The public interest component in this case is weak in comparison because disclosure of the identities would not shed light on the FBI's performance of its statutory duties, which in this case is the FBI's investigation of possible violations of federal laws. Therefore, the non-federal law enforcement officers' names were properly withheld.
The FBI claims that exemption 7(D) justifies the withholding of the names of, and information supplied by, the non-federal law enforcement agency. The FBI claims that the information was provided under a clear understanding that the information would not be disclosed by the FBI. (Griffin Decl. P 19). The Supreme Court in United States Dep't of Justice v. Landano described the method for determining the status of a document as confidential.
The Court stated that under exemption 7(D), "the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential."
If the agency made an explicit promise of confidentiality, then the name of the informant may be withheld under exemption 7(D).
The problem arises when there is the question of an implied grant of confidentiality. In Landano, the Court held that an implied grant of confidentiality can be inferred when 1) the character of the crime at issue, and 2) the source's relation to the crime, are such that the source would not have given the information to the agency without believing that it would be kept confidential.
In the instant case, there was an ongoing understanding between the local law enforcement agencies and the FBI that information obtained from a criminal investigation conducted by the local agency and shared with the FBI would remain confidential. (Griffin Decl. P 19). That alone could support the conclusion that there was an explicit grant of confidentiality in this case. The argument could be made, however, that because the FBI cannot document an actual grant of confidentiality in this specific instance, then at most, there was an implied grant of confidentiality. Even so, the facts also support an implied grant of confidentiality under the Landano test. The crimes at issue are burglary and robbery, and the sources of the information are the local law enforcement agents that investigated these crimes. It could reasonably be concluded that if the local law enforcement agents knew that the FBI would release their names and the information they divulged, they would not have shared the information for fear of retribution from the alleged criminals, or because the local agents would lose their confidential sources due to the sources' own fears of retribution, which would impede the local agency's investigatory activities. Therefore, the names of the local law enforcement agents were properly withheld.
The FBI also claims that the information submitted by the local law enforcement agency was properly withheld under 7(D) because the second clause of 7(D) provides for withholding of the information provided by a confidential source, if the information was "compiled by criminal law enforcement authority in the course of a criminal investigation."
In Shaw v. FBI, the D.C. Circuit stated that a modified Pratt test applies to the second clause of 7(D) to determine whether the investigation in question meets exemption 7(D).
The test, as stated in Shaw, is as follows:
The agency must "identify  a particular individual or a particular incident as the object of its investigation and  the connection between that individual or incident and a possible security risk or violation of federal law.