pleadings submitted in response to the Court's March 20, 1995 Order in addition to the Defendant's dispositive Motion and the Plaintiff's Opposition thereto.
1. The Search for Documents
The Declaration submitted in response to this Court's March 9, 1995 Order indicates that a search was conducted for the "records of any open or interim investigations pending for which plaintiff was a subject." Warren Decl. at PP 9, 12. With respect to that search, the Court finds that the Defendants have met their burden of proving that they conducted a good faith search for the requested records, using methods reasonably expected to produce the information requested. Department of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014, 2019 (1993); Oglesby v. U.S. Dep't of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990).
However, in addition to "open or interim investigations," Plaintiff requested internal inquiry reports, spot reports, security determination statements, and other files, notes, or other documents formally or informally maintained. The evidence submitted by Defendants does not indicate any type of search for the additional items requested by Plaintiff on May 12, 1994.
Thus, the Defendants have failed to meet their burden with respect to the additional items. Landano, 113 S. Ct. at 2019; Oglesby, 920 F.2d at 68.
The Court further notes that it emphasized the additional items in Plaintiff's May 12, 1994 request in the March 9, 1994 Order directing Defendants to Show Cause or otherwise respond to Plaintiff's allegations regarding the search. Accordingly, the Court will DENY the Defendants' Motion for Summary Judgment with regard to the May 12, 1994 request and ORDER the Defendants to conduct a proper search for the additional items listed in Plaintiff's May 12, 1994 request, said search to be completed and documents disclosed or Exemptions claimed by June 16, 1995.
2. Exemption 7(A)
The good-faith search that was conducted for the "records of any open or interim investigations pending for which plaintiff was a subject" resulted in the location of two files: 94HQD6-6,969 and 94HQD26-13,861. Batten Decl. at P 3, Exh. C; Warren Decl. at P 11. File 94HQD6-6,969 concerns the status of the murder investigation of Plaintiff's fiance and her daughter being conducted by the PGCPD of which the Plaintiff was a prime suspect. Batten Decl. at P 8. This file is a 7 page report of investigation compiled by the Investigative Operations Center of the AFOSI. Id. at P 11. Virtually all the information in the file was provided by the PGCPD and the file contains specific language indicating that the PGCPD would provide information if the AFOSI agreed to not release the information received while the PGCPD investigation was pending. Id. at P 12. File 94HQD26-13,861 pertains to "Plaintiff's actions following the murders . . . which resulted in his arrest for stalking an individual who Plaintiff reportedly believed was responsible for the murders." Id. at P 8. This file is a 16 page report of investigation compiled by Region 3, Detachment 302, AFOSI. Id. at P 11.
Defendants claim that Exemption 7(A) applies to these files. Clearly the threshold Exemption 7 requirement is met. The USAF/AFOSI's investigation focused on the specific activities of the Plaintiff as an alleged murder suspect and as an alleged stalker and both acts, if proved, could result in criminal sanctions. See Birch, 256 U.S. App. D.C. 128, 803 F.2d 1206; Rural Housing Alliance, 162 U.S. App. D.C. 122, 498 F.2d 73. Defendant contends that his retirement from the Air Force deprives the Plaintiffs of jurisdiction to investigate or court marshall him. Plaintiff's Opp. at 13. It also appears from the evidence submitted by Plaintiff that the Defendants did not take action to decertify the Plaintiff as a special agent prior to his retirement. Plaintiff's Opp. at 13, Exh. 11. However, both investigations are considered pending by the AFOSI because the PGCPD investigation is "open and actively investigated by PGCPD authorities." Batten Decl. at P 8; cf. Plaintiff's Opp. at 13 ("the case is two years old"). Plaintiff has not presented any evidence indicating the contrary. The PGCPD murder investigation could result in criminal sanctions, so it is irrelevant that the AFOSI investigation cannot. See Shaw v. F.B.I., 242 U.S. App. D.C. 36, 749 F.2d 58; Hopkinson v. Shillinger, 866 F.2d 1185; Wojtczak v. Department of Justice, 548 F. Supp. 143. Thus, it is clear that the two files were "compiled for law enforcement purposes."
Exemption 7(A) permits the withholding of records or information compiled for law enforcement purposes, "but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552b (7)(A) (1988). Because the Defendants have demonstrated that release of the requested documents would interfere with pending investigations, Exemption 7(A) was a proper basis upon which to deny Plaintiff access to the requested information.
The applicability of Exemption 7(A) hinges on a two-part test. As a threshold matter, the government must establish that a law enforcement proceeding is pending or prospective; second, the Defendants must show that some distinct harm is likely to result if the record or information requested is disclosed. N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 252 U.S. App. D.C. 232, 789 F.2d 64, 65-67 (D.C. Cir. 1986); Campbell v. Dep't of Health and Human Serv., 221 U.S. App. D.C. 1, 682 F.2d 256, 263 (D.C. Cir. 1982). Defendants have made such a showing.
Generally, to prevail under Exemption 7(A), the government must establish, by more than conclusory statement, how particular kinds of records requested would interfere with a pending enforcement proceeding. See Campbell, 682 F.2d at 263. As shown above, the PGCPD investigation is pending against the Plaintiff. Thus, Defendants need only explain how the release of the two files would interfere with enforcement proceedings. The Court is satisfied that their explanation is adequate.
Defendants identify the two files as containing information regarding the PGCPD's murder investigation. Batten Decl. at P 8. Defendants detail the type of information contained in the files and the potential harm of disclosure to an investigative target. Id. at PP 8, 11, 12, 13, 14. Under Exemption 7(A), a court may take into account a requestor's identity. See Robbins Tire & Rubber, 437 U.S. at 239-40; Grasso v. I.R.S., 785 F.2d 70, 76-77 (3d Cir. 986). In light of the Plaintiff's identity as a murder suspect and the nature of the information sought, the Court is satisfied that Defendants have adequately explained how the release of information contained in the investigatory files would interfere with pending enforcement proceedings. Accordingly, the Court will GRANT the Defendants' Motion for Summary Judgment with regard to their assertion of Exemption 7(A) to justify the withholding of the requested information contained in files 94HQD6-6,969 and 94HQD26-13,861.
III. PLAINTIFF'S MOTION FOR VAUGHN INDEX
On February 6, 1995, Plaintiff filed a Motion under the Vaughn decision to require detailed indexing of the documents Defendants claim are exempt from disclosure. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Defendants in their response to this Court's March 9, 1995 Order submitted that the Batten Declaration satisfied their Vaughn obligation. Def. Response at n.1.
Under Vaughn, agencies are required to prepare an itemized index that couples a withheld document or portion of document with a specific FOIA Exemption, and that justifies the application of the Exemption. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820. The Court finds the information contained in the Batten Declaration is "sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 949 (D.C. Cir. 1979). The Batten Declaration provides as much information as possible without revealing the substance for which the Defendants are claiming Exemptions. See Vaughn, 484 F.2d at 826-7. Accordingly, the Plaintiff's Motion Under Vaughn shall be, and hereby is, DENIED.
Upon consideration of the pleadings before the Court, and for all of the foregoing reasons, the Court finds that Defendants are entitled to judgment in their favor as a matter of law with regard to the June 2, 1994 request and with regard to the withholding of files 94HQD6-6,969 and 94HQD26-13,861, and the Court finds that Plaintiff has raised a genuine issue of material fact with regard to the remainder of the May 12, 1994 request. As such, the Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
May 30, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon consideration of the Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, the Plaintiff's Opposition, the Defendant's Reply, the Plaintiff's Motion Under Vaughn v. Rosen to Require Detailed Justification, Itemization, and Indexing, Defendant's Response to the Court's March 9, 1995 Order and Opposition to Plaintiff's Motion Under Vaughn, and Plaintiff's Reply, the applicable law, the record herein, and for the reasons articulated in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 30th day of May, 1995,
ORDERED that the Defendants' Motion to Dismiss shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, GRANTED with regard to Defendants' assertion of 5 U.S.C. § 552a (j)(2) to justify the withholding of information; Defendants' assertion of 5 U.S.C. § 552b (7)(D) to justify the withholding of the addressee of the background report; and Defendants' assertion of 5 U.S.C. § 552b (7)(A) to justify the withholding of files 94HQD6-6,969 and 94HQD26-13,861; and it is
FURTHER ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, DENIED, WITHOUT PREJUDICE, with regard to the May 12, 1994 request for internal inquiry reports, spot reports, security determination statements, and other files, notes, or other documents formally or informally maintained regarding the Plaintiff; and it is
FURTHER ORDERED that the Defendants shall conduct a proper search for the items listed in the preceding paragraph, said search to be completed and documents disclosed or Exemptions claimed by 4:00 p.m. on June 16, 1995; and it is
FURTHER ORDERED that the Plaintiff's Motion Under Vaughn shall be, and hereby is, DENIED.
May 30, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE