The opinion of the court was delivered by: SPORKIN
The issue in this case is whether the Federal Bureau of Investigations (FBI) properly invoked exemptions (b)(7)C), (b)(7)(D), (b)(7)(E), and (b)(7)(F) of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to justify withholding certain documents requested by plaintiff. Plaintiff, a pro se prisoner, seeks to obtain records pertaining to individuals interviewed in the course of the FBI's investigation of plaintiff.
Plaintiff made his original FOIA request in 1992, seeking all documents concerning his conviction on various drug trafficking and narcotics charges. On December 16, 1992, defendant advised plaintiff that material responsive to his request was determined to be exempt from disclosure pursuant to FOIA exemption (b)(7)(A) and section (j)(2) of the Privacy Act, 5 U.S.C. § 552a. Plaintiff filed an administrative appeal to the Office of Information and Privacy. In April, 1993, defendant advised plaintiff that it had determined that FOIA exemption (b)(7)(A) no longer applied, and that it would process his request and release those records not otherwise exempt from disclosure.
Plaintiff filed suit in September, 1993, seeking to compel release of the information. Defendant duly answered. Defendant filed (and plaintiff opposed) various motions for enlargement of time, with the result that on April 19, 1994, the Court stayed the case until June of 1994 to allow the FBI sufficient time to process plaintiffs request.
On May 24, 1994, defendant released 371 of the 444 pages pertinent to plaintiffs case. The remaining pages were withheld pursuant to FOIA exemptions (b)(7)(C), (D),(E) and (F), which concern investigatory records compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7).
Neither party took any legal action between April, 1994, and May 9, 1995. Consequently, this Court dismissed the case without prejudice with permission to reinstate within twenty days. Plaintiff filed an unopposed motion to reinstate the case and moved to compel defendant to release legible copies of all records in its possession relating to plaintiff. Defendant then filed a motion for summary judgment, claiming that there were no material facts in dispute and that as a matter of law it had properly withheld information under FOIA exemptions (b)(7)(C), (b)(7)(D), (b)(7)(E), and (b)(7)(F).
In support of its motion, defendant filed a declaration of John M. Kelso, Jr. Special Agent, FBI ("the Kelso declaration"), which describes defendant's processing of plaintiffs request, its initial determination, and its justification for the application of FOIA exemptions to withhold information. The Kelso declaration included a Vaughn index.
Federal Rule of Civil Procedure 56(e) states that:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... When a motion of summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Section 552(b)(7)(C) of Title 5 [hereinafter "exemption 7(C)"] protects from mandatory disclosure records or information compiled for law enforcement purposes to the extent that disclosure can "reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Defendant relies on this exemption to withhold the names or other identifying information of various individuals.
Plaintiff opposes the application of exemption 7(C) only as applied to the identification of third parties interviewed, mentioned, or of investigative interest to the FBI. The basis for plaintiff's objection, however, is an outdated version of the United States Code, which states that "[information is exempt from disclosure if] the disclosure would constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (1977) (emphasis added). The United States Code was amended in 1986, and protects information that "could reasonably be expected to constitute an unwarranted invasion of privacy." 5 U.S.C. § ...