Accordingly, the Court finds that the government's reliance on exemption 7(D) was proper.
C. Exemption (b)(7)(E)
Exemption (b)(7)(E) [hereinafter "exemption 7(E)"] provides for withholding investigative records compiled for law enforcement purposes to the extent that the release of such records "would disclose techniques and procedures for law enforcement investigations or prosecutions if disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 553(b)(7)(E).
In order to properly invoke exemption 7(E), the government bears the burden of establishing that the requested record was compiled "for law enforcement purposes" and that disclosure of the record will result in the harm exemption 7(E) seeks to avoid. Cowsen-El v. U.S. Dep't of Justice, 826 F. Supp. 532, 533 (D.D.C. 1992).
In this case, defendant utilized exemption 7(E) to withhold the type of polygraph test and machines used by the FBI during the course of its criminal and national security cases. Defendant indicates that release of this information would enable criminals to educate themselves about the capabilities of such equipment and take countermeasures to neutralize the effectiveness of the polygraph. The Kelso declaration, PP 113-14.
Defendant also withheld the list of questions appearing on FBI form FD-497, a polygraph examination worksheet utilized during a polygraph. Defendant notes that it is important to the effectiveness of a polygraph examination that the exact questions to be asked and their sequence not be known by the examinee.
In addition, defendant withheld an FBI FD-515 form, which reports statistical results of investigations. The form contains a list of twenty techniques which, when used, are rated numerically as to their effectiveness. Defendant asserts that disclosure of this information would help plaintiff or potential criminals predict future investigative actions by the FBI and consequently employ countermeasures to neutralize those techniques.
Plaintiff offers only a vague assertion that defendant has failed to comply with the requirements of the statute. Defendant in contrast has provided specific, articulable reasons for relying on exemption 7(E) in withholding this information. The Court finds defendant's reasoning persuasive. Accordingly, the Court finds that defendant properly withheld information pursuant to exemption 7(E).
D. Exemption (b)(7)(F)
Exemption (b)(7)(F) [hereinafter "exemption 7(F)"] protects from mandatory disclosure information compiled for law enforcement purposes if disclosure would reasonably be expected to endanger the life or physical safety of any individual. 5 U.S.C. § 552(b)(7)(F). Defendant invokes exemption 7(E) -- in conjunction with exemption 7(C)-- to withhold the names and/or idertifying information of third parties who furnished information to the FBI, who are of investigative interest to the FBI, or who are mentioned in FBI files.
Plaintiff objects to this action, but has not raised any genuine question of material fact which would negate defendant's reliance on exemption 7(F). Plaintiff has simply made a vague assertion that, since he has received certain documents in discovery which reveal the names of several individuals previously unknown to plaintiff, there is evidence of bad faith by defendant in not revealing other names. Such an argument does not meet the standard of "specific facts" required in Rule 56.
In its motion for summary judgment, defendant FBI has stated in explicit detail its reasons for withholding certain information from plaintiff, pursuant to § 552(b)(7) of the Freedom of Information Act. Plaintiff has failed to meet the burden set forth in Federal Rule of Civil Procedure 56, that is, he has not set forth specific facts showing that there is a genuine issue for trial. Accordingly, defendant's motion for summary judgment is granted. An appropriate order follows.
United States District Judge
Having considered the submissions of the parties, the Court hereby ORDERS, for the reasons set forth in the foregoing opinion, that defendant's motion for summary judgment is GRANTED.
United States District Court