law enforcement purposes under Exemption 7. The FCC has also properly invoked Exemption 7(A) to withhold documents concerning an enforcement proceeding. The court concludes that the FCC released all reasonably segregable material responsive to plaintiff's FOIA requests. The court will now address the threshold inquiry of Exemption 7 and then the invoked subcategory 7(A).
1. Exemption 7 -- The Law Enforcement Exemption
The FCC invokes Exemption 7 to withhold documents relating to law enforcement proceedings. Exemption 7 protects "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). In order to withhold documents under Exemption 7, the agency must, as a preliminary matter, demonstrate that the records were compiled for a law enforcement purpose. In order to meet this threshold, an agency must establish the existence of a "nexus between [its] investigation [of the individual] and one of [its] law enforcement duties." Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 420-21 (D.C. Cir. 1982); see also Keys v. DOJ, 830 F.2d at 340. This nexus necessarily requires an agency to establish a connection between the individual under investigation and a possible violation of a federal law. See Pratt, 673 F.2d at 420. Once a law enforcement purpose is established, access to law enforcement records may be limited by any of the six subcategories delineated under Exemption 7.
In the present case, the FCC has met the threshold requirement by showing that the documents withheld pursuant to Exemption 7 were indeed compiled for law enforcement purposes. The FCC submitted a declaration which attests to the connection between its investigation of plaintiff and its law enforcement duties. This declaration confirms that the FCC's law enforcement duties stem from its established purpose "of regulating interstate and foreign commerce in communication by wire and radio . . ."
Ultimately, the FCC bears the responsibility of investigating violations of the Communication Act as well as other FCC rules.
In carrying out its duties, the FCC initiated an investigation into plaintiff's activities in 1993 to determine whether he had violated the FCC's rules regarding the number of frequencies to which plaintiff was entitled, and whether he had made misrepresentations in his FCC applications and correspondence.
This investigation alone clearly demonstrates that the FCC has established the necessary nexus between its investigation of plaintiff and one of its law enforcement duties. Accordingly, the court concludes that the information withheld under Exemption 7 does in fact contain information created for law enforcement purposes. The court will now determine whether the FCC has satisfied the requirements of Exemption 7(A).
2. Exemption 7(A) -- Interference with Investigation or Enforcement Proceedings
An agency may invoke Exemption 7(A) when release of the requested information "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The applicability of Exemption 7(A) involves a two-step analysis: (1) whether a law enforcement proceeding is pending or prospective; and (2) whether release of information about it could reasonably be expected to cause some articulable harm. See Bevis, 801 F.2d at 1388.
a. Pending Enforcement Proceeding
An agency may invoke Exemption 7(A) to protect regulatory proceedings as well as criminal and civil actions. See Alyeska Pipeline Serv. Co. v. EPA, 272 U.S. App. D.C. 355, 856 F.2d 309, 310 (D.C. Cir. 1988). Regardless of the type of enforcement proceeding an agency aims to protect, an agency may not simply withhold records found in an investigatory file. See Robbins Tire, 437 U.S. at 232. However, an agency may invoke Exemption 7(A) to protect pending investigations or actual enforcement proceedings. Id. at 220; Campbell v. HHS, 682 F.2d at 264, n.20 (citing Carson v. DOJ, 203 U.S. App. D.C. 426, 631 F.2d 1008, 1018 (D.C. Cir. 1980); see also Kilroy v. NLRB, 633 F. Supp. 136, 142-143 (S.D. Ohio 1985), aff'd, 823 F.2d 553 (6th Cir. 1987). In addition, if the agency invokes Exemption 7(A) to withhold witness statements, the agency may continue to withhold those statements until the completion of all reasonably foreseeable administrative and judicial proceedings. See Robbins Tire, 437 U.S. at 220. Moreover, if the proceeding is not pending, an agency may continue to invoke Exemption 7(A) so long as the proceeding is regarded as prospective. See Ehringhaus v. FTC, 525 F. Supp. 21, 23 (D.D.C. 1980) (quoting Nat'l Public Radio v. Bell, 431 F. Supp. 509, 514 (D.D.C. 1977)).
In the present case, the FCC invoked Exemption 7(A) to withhold records relating to an ongoing investigation of plaintiff's alleged violation of the FCC's rules and regulations.
Plaintiff, however, asserts that the investigation has been completed and that the case is in its trial phase.
Plaintiff argues, therefore, that the FCC must release the records he requested.
The court disagrees. Plaintiff fails to recognize the extent of the protection of Exemption 7(A). Although the FCC's investigation of plaintiff's activities may be completed, the FCC may continue to withhold those records until all reasonably foreseeable proceedings stemming from that investigation are closed. Specifically, the FCC may continue to invoke Exemption 7(A) to withhold the requested documents until the Show Cause/HDO proceeding regarding the revocation of plaintiff's licenses comes to a conclusion. The record indicates that plaintiff is waiting for a full evidentiary hearing before an ALJ regarding the revocation of his radio licenses. Initially, the ALJ recommended that plaintiff's licenses be revoked but the FCC overruled that decision and remanded the matter back to the ALJ for an evidentiary hearing. To date, that hearing has not yet concluded. As such, the FCC's enforcement proceeding against plaintiff is considered pending. Accordingly, the court concludes that the FCC properly invoked Exemption 7(A) to withhold the records at issue.
Once an agency establishes that an enforcement proceeding is pending, the agency must further demonstrate that release of the withheld documents is likely to cause some distinct harm. See Campbell, 682 F.2d at 258. An agency may invoke Exemption 7(A) when either the government's case in court could be harmed or the investigation for an imminent proceeding may be harmed. Id.; see also North v. Walsh, 279 U.S. App. D.C. 373, 881 F.2d 1088, 1097 (D.C. Cir. 1989). Thus, an agency may not withhold responsive documents merely because they are related to an enforcement proceeding. See Campbell, 682 F.2d at 259. Moreover, the agency needs to establish a direct relationship between the agency records and the pending investigation to evidence the possible interference. Id. As a result, the agency must demonstrate that disclosure would "disrupt, impede or otherwise harm the enforcement proceeding or the investigation." North, 881 F.2d at 1097.
Generally, an agency may establish interference by showing that release of the records would reveal the scope, direction and nature of the its investigation. See North, 881 F.2d at 1097 (citing Alyeska Pipeline Service, 856 F.2d at 309). Further, interference may be established by demonstrating that release of the records may give the requester earlier and greater access than otherwise possible. See Robbins Tire, 437 U.S. at 241; see also North, 881 F.2d at 1097. In this regard, FOIA cannot be used as a discovery tool. See Robbins Tire, 437 U.S. at 242, n.23 (citing EPA v. Mink, 410 U.S. 73, 86, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973)). Specifically, a requester's rights in the withheld documents are neither diminished nor enhanced by any litigation-generated need for the documents. Id. An agency may further establish interference by demonstrating that premature release of the records could give a litigant the ability to construct defenses to avoid the charges entirely. Id. at 241-242; see also North, 881 F.2d at 1097. Finally, where an agency withholds witness statements, the agency may demonstrate interference by showing that premature release of witness statements could lead to possible witness intimidation, thereby chilling potential witnesses. See Robbins Tire, 437 U.S. at 239-241.
In the instant case, the FCC invokes Exemption 7(A) for fear that disclosure of the four categories of documents would significantly harm the Show Cause/HDO proceeding.
Plaintiff, however, argues that the FCC has improperly invoked Exemption 7(A) by denying him access to information necessary to defend against the Show Cause/HDO proceeding.
Plaintiff further argues that the FCC's concerns regarding witness intimidation are unfounded.
Specifically, plaintiff asserts that the "FCC has not even alleged that [plaintiff] has harassed or threatened any of the FCC's witnesses."
Plaintiff's assertions, however, must fail because the FCC amply demonstrated that release of the withheld records would interfere with the pending Show Cause/HDO proceeding. The FCC specifically established that release of any of the above four categories would give rise to the following harms: (1) give plaintiff insight into the FCC's evidence against him; (2) allow plaintiff to discern the narrow focus of the FCC's investigation; (3) potentially assist plaintiff in circumventing the investigation; and (4) potentially create witness intimidation and further discourage future witness cooperation.
In particular, the FCC attests that the notarized statements of prospective witnesses, the complainant/informant exhibits and the forest service documents were prepared precisely to be used as part of the Show Cause/HDO proceeding, either as testimony or exhibits.
As such, release of these categories could allow plaintiff to assess the FCC's evidence against him, revealing the scope, nature and focus of the FCC's investigation. As a result, plaintiff could potentially circumvent the Show Cause/HDO proceeding.
Furthermore, the FCC's fears regarding witness intimidation are not unfounded. The FCC has established that the possibility of witness intimidation exists by attesting that prospective witnesses have expressed their fear to the FCC.
The FCC need not establish that witness intimidation is certain to occur, only that it is a possibility. See Robbins Tire, 437 U.S. at 239-241. Accordingly, the court concludes that the FCC properly invoked Exemption 7(A) to withhold the records at issue.
For the reasons stated above, the court denies plaintiff's motion for in camera review; denies plaintiff's motion to strike; grants the FCC's motion to quash; grants the FCC's motion for leave to file under seal; and grants the FCC's motion for summary judgment.
Accordingly, it is this 21 day of August 1997,
A separate Order for Entry of Judgment accompanies this Memorandum Opinion and Order.
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE
Denying Plaintiff's Motion for In Camera Review, Denying Plaintiff's Motion to Strike, Granting Defendant's Motion to Quash, Granting Defendant's Motion for Leave to File Under Seal, and Granting Defendant's Motion for Summary Judgment
This matter comes before the court on the following motions: (1) plaintiff's motion for in camera review; (2) plaintiff's motion to strike the third Wypijewski declaration; (3) the FCC's motion to quash subpoenas; (4) the FCC's motion for leave to file second declaration under seal; and (5) the FCC's motion for summary judgment. Upon consideration of the parties' submissions, the applicable law, and the record herein, the court denies plaintiff's motion for in camera review; denies plaintiff's motion to strike the third Wypijewski declaration; grants the FCC's motion to quash subpoenas; grants the FCC's motion for leave to file second declaration under seal; and grants the FCC's motion for summary judgment for reasons set forth in a Memorandum Opinion and Order issued on the 21st day of August, 1997.
Accordingly, it is this 21st day of August, 1997,
ORDERED that Plaintiff's Motion for In Camera Review be and is hereby DENIED ; it is
ORDERED that Plaintiff's Motion to Strike be and is hereby DENIED ; it is
ORDERED that FCC's Motion to Quash be and is hereby GRANTED ; it is
ORDERED that FCC's Motion for Leave to File Under Seal be and is hereby GRANTED ; it is
FURTHER ORDERED that FCC's Motion for Summary Judgment be and is hereby GRANTED ; and it is
ORDERED that judgment be and is hereby entered in favor of defendant FCC; and it is
FURTHER ORDERED that the above-captioned case be and is hereby DISMISSED.
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE