The opinion of the court was delivered by: PAUL L. FRIEDMAN
By letter dated May 17, 1993, the FBI provided plaintiff with 1,062 pages of documents responsive to plaintiff's request, but withheld 686 pages.
On May 24, 1993, the Supreme Court issued its opinion in U.S. Dep't of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993), prompting defendants to re-review plaintiff's FOIA request.
In Landano, the Court held that the FBI is not entitled to a presumption that all sources supplying information in the course of a criminal investigation are confidential within the meaning of Exemption 7(D) of the FOIA. Based upon their re-review, on December 3, 1993, defendants released 131 previously withheld pages, with certain deletions.
The records located by the defendants in response to plaintiff's FOIA request include those in his FBI personnel file, in files pertaining to criminal kidnapping and manslaughter investigations concerning plaintiff, and in a file related to an administrative inquiry concerning plaintiff connected to the criminal investigations. Ultimately, a total of 1,193 pages of documents from these files were released to plaintiff, albeit with some deletions, and 555 pages were withheld in their entirety. Defendants maintain that the withholdings are proper under the FOIA and the Privacy Act.
Defendants move for summary judgment and assert that no agency records have been improperly withheld. Plaintiff opposes defendants' motion for summary judgment and asks this Court to conduct an in camera review of the withheld documents.
I. SUMMARY JUDGMENT STANDARD
Under Rule 56, Fed. R. Civ. P., summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
The FOIA places the burden of justifying nondisclosure on the government. 5 U.S.C. §§ 552(a)(4)(B), (b). In order to obtain summary judgment in an FOIA case, the government must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [the FOIA's] inspection requirements." National Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186, 156 U.S. App. D.C. 91 (D.C. Cir. 1973). The agency 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 part of a withheld document to which they apply." Mead Data Central, Inc. v. U.S. Dep't of 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, so long as 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).
"The central purpose of [the] FOIA is to 'open up the workings of government to public scrutiny' through the disclosure of government records." Stern v. FBI, 237 U.S. App. D.C. 302, 737 F.2d 84, 88 (D.C. Cir. 1984) (quoting McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1108 (D.C. Cir. 1983)). In enacting the FOIA, however, Congress recognized that there are some government records whose public disclosure would interfere with important governmental functions or intrude on the privacy of private parties. This realization prompted Congress to exempt from disclosure nine categories of information. 5 U.S.C. § 552(b); see Stern v. FBI, 737 F.2d at 88. In this case, the government rests its refusal to disclose certain information and documents requested by plaintiff on FOIA Exemptions 2, 5, 6 and 7(A), (C), (D) and (E), 5 U.S.C. §§ 552(b)(2), (5), (6), (7), and on the Privacy Act, 5 U.S.C. §§ 552a(k)(2), (k)(5).
Exemption 2 protects from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). This exemption "applies to 'routine matters' of 'merely internal significance' in which the public lacks any substantial or legitimate interest." Lesar v. U.S. Dep't of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 485 (D.C. Cir. 1980).
The FBI applied Exemption 2 to withhold permanent symbol numbers assigned to confidential sources and informants, file numbers of permanent symbol numbered sources who provide information to the FBI on a routine basis under an express grant of confidentiality and the codes used to access the National Crime Information Center computer.
Declaration of Special Agent Robert A. Moran ("Moran Declaration") PP 22-26. File and symbol numbers are used by the FBI for administrative control of the Bureau's confidential sources and informants. Id. at PP 23, 24. Coded symbol numbers are assigned to FBI sources in order to help protect the source's identity. Id. at P 50. The FBI maintains that disclosure of file numbers assigned uniquely to one symbol numbered source could lead to identification of the symbol numbered source and risk physical harm to the source or render the source ineffective in law enforcement investigations. Id. at P 25. National Crime Information Center computer codes are internal agency matters, the disclosure of which, the FBI maintains, could facilitate unauthorized access to the Center's computer system and interfere with investigations and law enforcement. Id. at P 26.
Exemption 2 may properly be invoked when the information withheld is used predominately for internal purposes and when release of the information risks circumvention of the law. National Treasury Employees Union v. U.S. Customs Service, 255 U.S. App. D.C. 449, 802 F.2d 525, 528-30 (D.C. Cir. 1986); Crooker v. Bureau of Alcohol, Tobacco and Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981). The symbol and file numbers plainly fall within the ambit of Exemption 2. The symbols and numbers by which the FBI refers to informants in its internal files is a matter essentially of internal significance and is of little public interest. Lesar v. U.S. Dep't of Justice, 636 F.2d at 485-86 ("the public has no legitimate interest in gaining information that could lead to the exposure of confidential sources referred to in criminal investigative files . . . ."). The same applies to computer codes used to access the National Crime Information Center's computer. The release of such information creates a significant risk of harm to FBI sources and unauthorized access to the National Crime Information Center computer system. The Court finds that the FBI properly invoked Exemption 2.
Attorney work product consists of materials prepared by an attorney or non-attorney supervised by an attorney in contemplation of litigation. Coastal States Gas Corp. v. U.S. Dep't of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 864 (D.C. Cir. 1980); Nishnic v. U.S. Dep't of Justice, 671 F. Supp. 771 (D.D.C.), aff'd, 264 U.S. App. D.C. 264, 828 F.2d 844 (D.C. Cir. 1987). The purpose of the work product privilege is to "protect the adversary trial process itself." Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d at 864. Since attorney work product is protected from disclosure in civil litigation by Rule 26(b)(3), Fed. R. Civ. P., attorney work product is similarly protected from disclosure under Exemption 5. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); FTC v. Grolier Inc., 462 U.S. 19, 76 L. Ed. 2d 387, 103 S. Ct. 2209 (1983). To meet its burden of demonstrating that attorney work product is protected from disclosure by Exemption 5, the government must establish in its affidavits, declarations or indices that the documents at issue were prepared "in contemplation of litigation and that, at the very least, some articulable claim, likely to lead to litigation [has] arisen." Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d at 865-66.
The documents that were withheld are said to have originated in one of three files: plaintiff's personnel file, a criminal kidnapping and manslaughter investigation file concerning plaintiff, and an ongoing administrative inquiry file concerning plaintiff. Moran Declaration PP 13, 20, 74. Defendants suggest that some of the withheld information also relates to third party individuals' criminal cases. Id. at PP 28, 29. Beyond these assertions, there is nothing in the Moran Declaration that describes the documents said to be subject to the work product privilege or that explains the claims or defenses with respect to which they were prepared or the criminal, civil or administrative litigation that was contemplated. While the descriptions of the files from which the documents came certainly suggest that the documents related to a criminal investigation by the FBI and perhaps to potential litigation, and thus may be the "kind of documents commonly sheltered by the work product doctrine," Senate of Puerto Rico v. U.S. Dep't of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 586 (D.C. Cir. 1987), neither the FBI nor the EOUSA has explained the claims, defenses, investigations or contemplated litigation with respect to which the withheld attorney work product information was generated. On the basis of the information provided thus far, the Court therefore is unable to determine whether the documents withheld are exempt from disclosure as attorney work product under Exemption 5 or whether there is any basis for concluding that there are no segregable, non-exempt portions of the withheld documents that are not subject to the privilege. See Church of Scientology Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 236-37 (1st Cir. 1994).
Defendants assert that the documents withheld pursuant to Exemption 5 contain deliberative processes of the U.S. Attorney's Office and other federal and state agencies regarding possible criminal actions against third-party individuals. Moran Declaration P 29. The EOUSA also contends that the deliberative process information is not segregable from the attorney work product information and is not appropriate for discretionary release. Id. On the basis of the information provided, the Court cannot determine whether the documents withheld were generated by agency personnel responsible for making decisions within the FBI or the EOUSA, whether the documents in question were generated before the adoption of an agency policy or decision, or whether the documents are truly "deliberative." There is nothing in the material submitted that identifies the specific final decisions to which the advice or recommendations contained in the withheld documents may have contributed, thus making it impossible for the Court to determine the applicability of the privilege. See Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d at 585-87; Coastal Gates Corp. v. U.S. Dep't of Energy, 617 F.2d at 866-69. Furthermore, other than a bare assertion, there is no basis on which the Court can conclude whether there are any segregable non-exempt portions of the documents that should be disclosed.
In sum, the Court finds that the government has not met its burden of establishing that the records withheld pursuant to Exemption 5 were properly withheld either under the attorney work product or the deliberative process privilege. For the Court to reach any conclusion with respect to these documents, it requires more precise descriptions of the documents, the purposes for which they were prepared and by whom, and the purposes for which they were used in the context of the agencies' decisions, ...