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VOINCHE v. FBI

September 23, 1996

WOODY VOINCHE, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-entitled case are the defendant's Motion for Summary Judgment; *fn1" the plaintiff's Opposition thereto; and the defendant's Reply. This case arises out the defendant's decision to withhold entire documents and portions of documents responsive to the plaintiff's Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request seeking material that had been previously released to Alexander Charns and referenced in Mr. Charns' book, Cloak and Gavel.

 The defendant has moved for summary judgment on the grounds that it has released all material responsive to the plaintiff's request except information properly withheld pursuant to various exceptions to the FOIA. Upon consideration of the filings by the parties, the entire record herein, the law applicable thereto, and for the reasons set forth below, the defendant's Motion for Summary Judgment shall be granted.

 BACKGROUND

 On September 23, 1993, the plaintiff sent a letter to the defendant, the Federal Bureau of Investigation ("FBI"), requesting information concerning alleged FBI wiretaps at the United States Supreme Court, "overhears" of conversations Justices had with third parties, former FBI chief, J. Edgar Hoover's official and confidential ("O & C") files, and other surveillance issues. On May 24, 1994, the defendant released 152 pages of documents to the plaintiff relating to the Supreme Court and the judiciary. The defendant, however, withheld documents and redacted material from the pages released to the plaintiff pursuant to FOIA exemptions (b)(1); (b)(2); (b)(3); (b)(6); (b)(7)(C); (b)(7)(D) and (b)(7)(E). See 5 U.S.C.A. §§ 552(b)(1), (2), (3), (6), (7)(C), (7)(D) and (7)(E) (1996). The plaintiff appealed the decision to withhold and redact portions of documents. On October 16, 1995, having received no decision on his appeal, the plaintiff filed the above-entitled action requesting the Court to order the defendant to produce the withheld records to the plaintiff and to award costs and attorney's fees.

 The parties agreed that the defendant would file Vaughn indices *fn2" explaining the basis for its withholding of documents, the first of which was filed on April 29, 1996. A status conference in the case was held on May 31, 1996, at which time the plaintiff withdrew his request for production the Hoover O & C files, since those documents were available for review at the FBI Headquarters' reading room. Also at that time, the plaintiff stated that he would not contest the defendant's withholdings that were addressed in the declarations of the FBI Special Agents filed on April 29, 1996. The defendant filed further Vaughn indices on June 14, 1996.

 On June 17, 1996, the defendant filed a Motion for Partial Summary Judgment. *fn3" After the nonexempt portions of a final outstanding document -- previously referred to the CIA for review -- were released, the defendant filed a Motion for Summary Judgment on July 1, 1996.

 DISCUSSION

 I. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE PLAINTIFF HAS NOT RAISED ANY GENUINE ISSUES OF MATERIAL FACT AND THE DEFENDANT PROPERLY ASSERTED FOIA EXEMPTIONS (b)(1), (b)(2), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E) TO JUSTIFY ITS WITHHOLDING OF DOCUMENTS.

 Summary judgment must be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the nonmovant, that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In FOIA cases, the burden of justifying nondisclosure lies with the defendant agency, and summary judgment in its favor is appropriate only where the agency can "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements." National Cable Television Ass'n, Inc. v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973).

 The defendant bases its withholding of the records responsive to the plaintiff's FOIA request on Exemptions (b)(1), (b)(2), (b)(3), (b)(6), and (b)(7). When an agency seeks summary judgment on the basis of a FOIA exemption, it can discharge its burden by providing a relatively detailed justification, "specifically identifying the reasons why a particular justification is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977). The Court may grant summary judgment solely on the basis of affidavits or declarations that explain how requested information falls within a claimed exemption if 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); Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981). Still, the Court must review de novo an agency's decision to exempt information. 5 U.S.C.A. § 522(a)(4)(B) (1996).

 Consistent with the liberal treatment generally afforded pro se litigants, the defendant has provided notice to the plaintiff in its Motion for Summary Judgment that any factual assertions contained in the affidavits and other attachments in support of the Motion will be accepted by the Court as true unless the plaintiff submits his own affidavit or other documentary evidence contradicting such assertions. Defendant's Motion for Summary Judgment at 2; see Neal v. Kelly, 295 U.S. App. D.C. 350, 963 F.2d 453, 456 (D.C. Cir. 1992); Local Rule 108; Fed. R. Civ. P. 56(e). Notwithstanding the provision of adequate notice to the plaintiff by the defendant of the operation of the summary judgment rule, the plaintiff's documentary evidence in support of his Opposition to the defendant's Motion fails to contradict many of the factual assertions underlying the various grounds upon which the defendant's Motion rests. Accordingly, the Court must accept as true the uncontroverted allegations.

 A. Exemption (b)(1) was properly asserted.

 Exemption (b)(1) protects materials "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." 5 U.S.C.A. § 552(b)(1). In this instance, the defendant relies on Executive Order 12,958, which became effective on October 14, 1995, and which governs the classification and protection of: (a) information that would reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States; and (b) information that, if revealed, would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States. Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (1995).

 Special Agent Richard D. Davidson, a supervisor in the defendant's Document Classification Unit and designated by the U.S. Attorney General as a classification and declassification authority, was given by the defendant the task of reviewing all classified documents responsive to the plaintiff's FOIA request and justifying the withholding of some of those documents based on ...


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