an FBI employee, where these individuals were mentioned under circumstances outside of their official duties, is unlikely to "open public business to public view." U.S. Dep't of Air Force v. Rose, 425 U.S. at 381. The same is even more true with respect to the names of relatives and acquaintances of plaintiff mentioned in the personnel file. There is no public interest served by disclosing this information. The Court, therefore, determines that the privacy interest of the persons whose identities have been protected outweighs the public interest in disclosure of the information withheld pursuant to Exemption 6.
D. Exemption 7
Exemption 7 protects from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records" would cause one of six enumerated harms. 5 U.S.C. § 552(b)(7). Information related to both civil and criminal judicial and administrative proceedings qualifies for protection under Exemption 7 so long as an investigation remains ongoing or future law enforcement proceedings would be jeopardized by disclosure. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 235, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); see Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d at 870; Stern v. FBI, 737 F.2d at 88. Foremost among the purposes of Exemption 7 is to protect investigatory files in order to prevent "harm [to] the government's case in court." NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 224 (citations omitted). Exemption 7 does not permit the withholding of information merely because it consists of investigatory records compiled for law enforcement purposes; the burden is on the government to demonstrate that release of the withheld information would cause one or more of the enumerated harms contemplated by Exemption 7. Stern v. FBI, 773 F.2d at 88.
Plaintiff asserts that there are not "any matters presently under review which would entitle the defendants to continue to withhold records and documents pertaining to the Plaintiff from him." Putnam Aff. P 5. Not surprisingly, however, plaintiff is unable to contradict defendants' assertion that an investigation remains ongoing, because the subjects of an investigation rarely are aware of its pendency, at least during its earliest stages. In the absence of a substantial reason to call into question the good faith of the agency's claims, the Court accepts the government's representations that there is an ongoing investigation and that the documents the FBI has withheld were compiled for law enforcement purposes. See Barney v. IRS, 618 F.2d 1268 (8th Cir. 1980).
1. Exemption 7(A)
Exemption 7(A) of the FOIA protects from mandatory disclosure records compiled for law enforcement purposes whose production could "reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). In this case, the FBI applied Exemption 7(A) to withhold the entire file of an ongoing administrative inquiry and certain records in plaintiff's kidnapping investigation file that were garnered from the administrative inquiry pertaining to plaintiff. Moran Declaration PP 31, 74. The harm asserted by the FBI is that the release of those documents could alert the subjects of the investigation that it is taking place and interfere with the investigation or any subsequent law enforcement proceedings. Moran Declaration P 31.
The government has the burden of demonstrating the ways in which disclosure of the information would interfere with prospective law enforcement proceedings. Campbell v. U.S. Dep't of Health and Human Services, 221 U.S. App. D.C. 1, 682 F.2d 256 (D.C. Cir. 1982). In Bevis v. U.S. Dep't of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389 (D.C. Cir. 1986), the court explained, however, that to meet its burden the government does not have to provide the court with a document-by-document description and analysis, but may carry its burden by "grouping documents into relevant categories that are 'sufficiently distinct to allow a court to grasp how each . . . category of documents, if disclosed, would interfere with the investigation.'" Citing Crooker v. BATF, 789 F.2d 64, 67, 252 U.S. App. D.C. 232 (D.C. Cir. 1986) (citation omitted); see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 214. Bevis imposes a three-part procedure requiring the government (1) to review each document withheld on a document-by-document basis, (2) to group the documents into functional categories and describe the categories and (3) to explain why release of each category would interfere with enforcement proceedings. Bevis v. U.S. Dep't of State, 801 F.2d at 1398-90. The government "must demonstrate specifically how each document or category of documents, if disclosed, would interfere with the investigation. . . ." Campbell v. U.S. Dep't of Health and Human Services, 682 F.2d at 265.
Plaintiff asserts that defendants "[are] somewhat vague as to what records and documents have been withheld and as a result plaintiff is unable to comment as to the merits of defendants' motion." Putnam Aff. P 6. Plaintiff requests the Court to conduct an in camera inspection of the withheld documents in order to ascertain whether they have been properly withheld. Such review is permitted under 5 U.S.C. § 552(a)(4)(B), if the government has not met its burden or if the government is unable to make the necessary showing without revealing information that could interfere with enforcement proceedings. Bevis v. U.S. Dep't of State, 801 F.2d at 1390; Crooker v. BATF, 789 F.2d at 67.
Defendants oppose in camera review because, they say, plaintiff has already been provided with a Vaughn index identifying the withheld documents and the applicable exemptions. Defendants concede, however, that no such information has been provided for documents withheld under Exemption 7(A). Def. Reply at 2. They assert that, as to those documents, the government has met its burden by describing categories of documents withheld and the reasons that disclosure of those documents threaten law enforcement proceedings.
The Court is mystified as to where defendants might have provided the required description of the categories of information withheld. The most detailed descriptions of the materials withheld pursuant to Exemption 7(A) are found in the phrases "an administrative inquiry file which is currently pending" and "records or information [in the kidnapping investigation file] that were garnered from an administrative inquiry pertaining to the plaintiff which is still pending." Moran Declaration PP 31, 74; see Def. Memorandum of Points and Authorities at 9; Def. Statement of Material Facts PP 9, 13; Def. Reply at 3.
The FBI's "descriptions" of the materials withheld are patently inadequate to permit the Court to determine whether Exemption 7(A) was properly invoked. The Court finds, therefore, that the FBI has not met its burden of conducting a document-by-document review of the documents withheld pursuant to Exemption 7(A), defining functional categories of the documents contained in the investigatory file and explaining how the release of each category of documents would interfere with law enforcement proceedings. Bevis v. U.S. Dep't of State, 801 F.2d at 1398-90.
2. Exemption 7(C)
Exemption 7(C) protects from mandatory disclosure records compiled for law enforcement purposes to the extent that disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). To determine whether plaintiff is entitled to the information withheld by the FBI pursuant to Exemption 7(C) requires a balancing between the privacy interests of those individuals whose identities might be disclosed and the public's interest in disclosure of that information. Stern v. FBI, 737 F.2d at 91.
The FBI invoked Exemption 7(C) to withhold information relating to the identities of FBI agents and personnel; of persons who, by reason of their employment, were in a position to furnish the FBI with information; of non-federal law enforcement officers and personnel; of cooperating employees from the state of Kentucky; of informants; of third parties mentioned in FBI files; of witnesses; and of individuals who provided information during the course of the FBI's investigation of plaintiff. Moran Declaration PP 32-44. The FBI did not withhold the names or initials of high level FBI officials. Id. at P 33.
The FBI asserts that the disclosure of the names of federal, state and local law enforcement and non-law enforcement personnel serve no public interest and could subject them to unnecessary public attention, harassment or criticism, so the release of such information would constitute an unwarranted invasion of their privacy. Moran Declaration PP 32, 33, 34, 36, 37. Similarly, the FBI maintains that individuals who supplied the FBI with information as a result of their employment have a privacy interest in non-disclosure because the release of their identities could subject them to unnecessary public attention. Moran Declaration P 35. The FBI also argues that individuals who cooperated with the FBI, such as informants, witnesses and other individuals who provided information during the course of the FBI's investigation, have a strong privacy interest in not being associated unwarrantedly with criminal activity. Moran Declaration PP 38, 39, 40.
Investigating agents, informants and other people involved in law enforcement investigations have been held to have strong privacy interests worthy of protection. Stone v. Defense Investigative Service, 816 F. Supp. 782, 786 (D.D.C. 1993). Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. See, e.g., Davis v. U.S. Dep't of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1281 (D.C. Cir. 1992); Stern v. FBI, 737 F.2d at 92; Lesar v. U.S. Dep't of Justice, 636 F.2d at 488; Stone v. FBI, 727 F. Supp. 662 (D.D.C. 1990); Branch v. FBI, 658 F. Supp. 204, 208-09 (D.D.C. 1987).
Plaintiff has not asserted, nor does the Court find, that there is any public interest in disclosure of the identities of individuals in the groups identified above. While there is a public interest in being informed about government activities, the identities of federal, state and local law enforcement personnel, or other individuals assisting in criminal investigations, would not shed light on the government's conduct with respect to any ongoing investigation. Davis v. U.S. Dep't of Justice, 968 F.2d at 1282. In fact, disclosure could interfere with future cooperation by the individuals whose names were disclosed and others similarly situated. See Fitzgibbon v. CIA, 286 U.S. App. D.C. 13, 911 F.2d 755, 768 (D.C. Cir. 1990); Albuquerque Publishing Co. v. U.S. Dep't of Justice, 726 F. Supp. 851, 855-56 (D.D.C. 1989). The deletion of the names and other identifying data of federal, state and local law enforcement personnel and other individuals involved in the ongoing investigation respects the privacy interests embodied in Exemption 7(C) without interfering unduly with plaintiff's access to information under the FOIA. See U.S. Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 768, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). The Court finds that the legitimate privacy interests of the individuals whose identities have been withheld pursuant to Exemption 7(C) outweighs the public interest in disclosure of their identities.
3. Exemption 7(D)
Exemption 7(D) protects from mandatory disclosure records compiled for law enforcement purposes to the extent that disclosure
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 a criminal law enforcement authority in the course of a criminal instigation . . . information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). "Under Exemption 7(D), the question is . . . whether the particular source spoke with an understanding that the communication would remain confidential." U.S. Dep't of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014, 2019 (1993) (emphasis in original). The FBI has invoked this exemption to withhold the identities of and information provided by individuals who gave information to the FBI under express assurances of confidentiality and by individuals for whom the FBI maintains that an assurance of confidentiality may be implied because of the nature of the crime and the individual's relation to it. Moran Declaration PP 44-59.
Specifically, Exemption 7(D) was invoked to protect the permanent symbol numbers assigned to confidential sources and informants who were provided with express promises of confidentiality by the FBI, the file numbers of those sources and the information provided by sources, where the information could reveal the identity of the source. Moran Declaration PP 49, 51, 53-55. The FBI notes that it relies on information provided by informants and other sources in many of its law enforcement efforts. It maintains that the release of coded identification numbers, file numbers assigned uniquely to one source or information that could be used to identify a source could result in the identification of the source, thereby harming FBI operations and violating the Bureau's express assurance of confidentiality.
Id. P 50, 52. The Court finds that disclosure of the identity of a source who spoke to the FBI under an express assurance of confidentiality could interfere with further cooperation by that source and could chill the cooperation of other potential sources. The Court concludes that coded identification numbers, file numbers and information that could be used to identify sources were properly withheld.
The FBI also invoked Exemption 7(D) to withhold the names and information provided by relatives and close associates of the victim and of the plaintiff. The FBI asserts that the information they provided would reveal their identities and subject them to risk of retribution; thus confidentiality should be inferred. Moran Declaration PP 56-57. Plaintiff is a former FBI agent who pled guilty to first degree manslaughter and confessed to murdering an informant. Given the nature of plaintiff's crimes, it can be inferred that the relatives and close associates of plaintiff and of the victim would only have spoken to the FBI under an implied promise of confidentiality. See U.S. Dep't of Justice v. Landano, 113 S. Ct. at 2023 (explaining that confidentiality would be implied for the identity and statements of a witness to gang related violence). The Court finds that because of the close relationship of these sources to the plaintiff, to the victim or to the underlying events, the disclosure of information provided by these sources would risk disclosure of their identities and subject them to risk of harm.
The FBI contends that there is also an implied promise of confidentiality which justifies withholding under Exemption 7(D) information the FBI obtained from a doctor and nurse with a relationship to the victim, which information would normally be available only to the patient. Moran Declaration P 59. Medical professionals generally do not release information about their patients in the absence of the patient's consent. The release of confidential medical information about a murder victim to law enforcement personnel is a unique situation. The Court finds that it can be inferred that such information would only have been released if the victim's doctor and nurse believed that it was being disclosed to the FBI under an implied promise of confidentiality.
Documents provided by the Kentucky State Police were also withheld under Exemption 7(D). Moran Declaration P 58. Such information provided by a cooperating law enforcement agency may be withheld under Exemption 7(D). Lesar v. U.S. Dep't of Justice, 636 F.2d at 491. Because the documents provided by the Kentucky State Police are not accessible to the public absent authorization from the state law enforcement agency, the Court can reasonably infer that the Kentucky State Police provided the information, and the FBI accepted the information, with the understanding that it would remain confidential. See U.S. Dep't of Justice v. Landano, 113 S. Ct. at 2019; Londrigan v. FBI, 216 U.S. App. D.C. 345, 670 F.2d 1164, 1174 (D.C. Cir. 1981). State and local law enforcement agencies frequently cooperate with federal law enforcement agencies on investigations, and state and local law enforcement agencies are encouraged to share information with federal authorities. In order to avoid impairing the FBI's ability to carry out its investigations, information provided by a state law enforcement agency therefore should be kept confidential if there is a previous or implicit understanding that confidentiality will occur. See Rojem v. U.S. Dep't of Justice, 775 F. Supp. 6, 12 (D.D.C. 1991).
Plaintiff has not disputed the FBI's explanation for the information and documents withheld pursuant to Exemption 7(D). The Court finds that the sources of information identified by the FBI would not have released the information without an express or implied promise of confidentiality and, therefore, that Exemption 7(D) was properly invoked.
4. Exemption 7(E)
Exemption 7(E) protects from mandatory disclosure records compiled for law enforcement purposes to the extent that disclosure
would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). The FBI withheld a FD-515/Accomplishment Report under Exemption 7(E). Moran Declaration PP 60-62. The FBI argues that the release of techniques, procedures or guidelines contained in the report, as relates to a particular investigation, goes beyond the legitimate public interest. The FBI also contends that the release of information regarding particular investigative techniques and their effectiveness could enable criminals to employ countermeasures that neutralize the effectiveness of the investigative techniques. Id. at P 62. Plaintiff has not disputed the FBI's assertions. The Court finds that Exemption 7(E) was properly invoked to withhold the FD-515/Accomplishment Report.
E. Privacy Act
Privacy Act Exemption (k)(2), 5 U.S.C. § 552a(k)(2), provides for the withholding of investigatory material compiled for law enforcement reasons, including a pre-employment investigation upon application for a position with a law enforcement agency. Doe v. U.S. Dep't of Justice, 790 F. Supp. 17, 19-21 (D.D.C. 1992). Investigatory material compiled for pre-employment purposes is exempt to the extent that "disclosure of such material would reveal the identity of a source who furnished information to the government under an express promise that the identity of the source would be held in confidence. . . ." 5 U.S.C. § 552a(k)(2). The Court finds that Privacy Act Exemption (k)(2) was properly invoked to withhold information that would reveal the identities of individuals who provided information in connection with Plaintiff's pre-employment investigation.
On the basis of the motions papers and opposition, the supporting memoranda and affidavits, and the governing law, the Court finds that there are no genuine issues of material fact as to the information and documents withheld pursuant to FOIA Exemptions 2, 6 and 7(C), (D) and (E), 5 U.S.C. §§ 552(b)(2), (6), (7)(C), (7)(D) and (7)(E), and the Privacy Act, 5 U.S.C. §§ 552a(k)(2), (k)(5), and that defendants are entitled to judgment as a matter of law with respect to this information and these documents. The Court finds, however, that defendants have not met their burden of demonstrating the applicability of FOIA Exemptions (5) and 7(A), 5 U.S.C. §§ 552(b)(5) and (7)(A). Defendants' motion for summary judgment therefore is GRANTED in part and DENIED in part.
The FBI and EOUSA shall either file a supplemental motion for summary judgment, accompanied by affidavits, declarations or indices, with respect to FOIA Exemptions (5) and 7(A), 5 U.S.C. §§ 552(b)(5) and (7)(A), or release the documents withheld pursuant to Exemptions 5 and 7(A) to plaintiff within 30 days of the issuance of this Opinion and accompanying Order. An Order consistent with this Opinion is entered this same day.
PAUL L. FRIEDMAN
United States District Judge
Upon consideration of Defendants' Motion for Summary Judgment, Plaintiff's Opposition thereto, Defendants' Reply and Plaintiff's Motion For In Camera Review, and for the reasons stated in the separate Opinion issued this 30th day of January 1995, the Court finds that there are no genuine issues as to any material facts as to the information and documents withheld pursuant to FOIA Exemptions 2, 6, and 7(C), (D) and (E), 5 U.S.C. §§ 552(b)(2), (6), and (7)(C), (D) and (E), and the Privacy Act, 5 U.S.C. §§ 552a(k)(2), (k)(5), and that Defendants are entitled to judgment as a matter of law with respect to this information and these documents. The Court finds, however, that Defendants have not met their burden of demonstrating the applicability of FOIA Exemptions (5) and 7(A), 5 U.S.C. §§ 552(b)(5) and (7)(A). Accordingly, it is hereby
ORDERED that Plaintiff's Motion For In Camera Review is DENIED; it is
FURTHER ORDERED that Defendants' Motion For Summary Judgment is GRANTED in part; it is
FURTHER ORDERED that Defendants' Motion For Summary Judgment is DENIED in part; it is
FURTHER ORDERED that, within 30 days of the issuance of this Order, the Defendants shall either file a supplemental motion for summary judgment, with an affidavit, declaration or index consistent with the accompanying Opinion, with respect to the reasons for withholding documents pursuant to FOIA Exemptions 5 and 7(A), 5 U.S.C. § 552(b)(5) and (7)(A), or release to Plaintiff the documents withheld pursuant to Exemption 5 and the documents withheld pursuant to Exemption 7(A); and it is
FURTHER ORDERED that Plaintiff shall have 30 days after the filing of any supplemental motion for summary judgment within which to respond to the assertions therein.
PAUL L. FRIEDMAN
United States District Judge