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KAY v. FCC

August 21, 1997

JAMES A. KAY, JR., Plaintiff,
v.
FEDERAL COMMUNICATIONS COMMISSION, Defendant.



The opinion of the court was delivered by: URBINA

 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

 Plaintiff James A. Kay, Jr., brings this action against defendant Federal Communications Commission ("FCC") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1996), for disclosure of withheld records pertaining to the FCC's investigation of his activities. The present 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.

 The above motions raise three issues for the court to resolve. First, the court must determine whether an in camera inspection of the withheld documents is warranted. Second, the court must decide whether the FCC's Vaughn Indice are sufficiently adequate for the court to conduct a de novo review of the FCC's initial decision to withhold certain documents. Finally, the court must determine whether the FCC properly invoked FOIA Exemption 7(A) to withhold the remaining documents plaintiff seeks.

 Upon consideration of the parties' submissions, the applicable law, and the record herein, the court concludes that an in camera review of the withheld documents is not warranted. The court further concludes that the Vaughn Indices in conjunction with the two declarations submitted by the FCC are adequate for the court to conduct a de novo review. Finally, the court concludes that the FCC properly withheld the documents pursuant to Exemption 7(A). *fn1" As a result, the court grants defendant's motion for summary judgment, grants defendant's motion to quash subpoenas, denies plaintiff's motion for an in camera review and denies defendant's motion to strike.

 I. BACKGROUND

 Plaintiff is currently under investigation by the FCC to determine whether his radio licenses should be revoked. *fn2" By letter dated February 4, 1995, plaintiff submitted a request to the FCC pursuant to the FOIA for documents at the FCC's Los Angeles office in connection with the investigation. *fn3" Plaintiff's request sought interviews, statements, declarations and/or depositions of numerous individuals concerning plaintiff's radio operations. *fn4" By letter dated February 14, 1995, plaintiff submitted a second FOIA request for documents relating to an Official Notice of Violation issued by the FCC to the plaintiff. *fn5" By letter dated February 18, 1995, plaintiff submitted a third FOIA request for documents pertaining to the FCC's inspection of several stations operated by the plaintiff. *fn6"

 Upon receipt of these three requests, the FCC conducted a record search and located a total of 521 pages responsive to plaintiff's requests. *fn7" By letter dated November 6, 1995, the FCC released 507 pages to plaintiff. *fn8" The remaining 14 pages were withheld pursuant to FOIA Exemption (b)(7)(A), to protect ongoing enforcement proceedings concerning plaintiff. *fn9" In particular, the FCC withheld two functional categories of documents to protect the pending investigation. *fn10" The first category contains three pages consisting of confidential complainant/informant exhibits to be used as part of the Show Cause/HDO proceeding. The second category contains eleven pages consisting of attorney work product notes. *fn11"

 By letter dated November 20, 1995, plaintiff submitted a fourth FOIA request for documents pertaining directly to the pending Show Cause/HDO proceeding. *fn12" Plaintiff's fourth request sought several categories of documents that served as the basis for the FCC's allegations in the Show Cause/HDO. *fn13" Upon the FCC's requests, plaintiff made advance payments on two occasions, December 12, 1995 and February 20, 1996, to process plaintiff's requests. *fn14" By letter dated February 7, 1996, the FCC released 650 pages to the plaintiff. *fn15" In that same letter, the FCC informed plaintiff that certain materials were being withheld pursuant to Exemption (b)(7)(A). *fn16" On February 20, 1996, the FCC released an additional 174 pages responsive to plaintiff's request.

 By letter dated February 27, 1996, plaintiff sought a review of the FCC's initial February 7 decision to withhold documents. *fn17" In that letter, plaintiff specifically requested that a Vaughn Index be provided, challenged the production fees assessed, and sought identifying information of the individual who conducted the search. *fn18" On March 25, 1996, the FCC denied plaintiff's application for review. *fn19" The FCC determined that plaintiff was not entitled to a Vaughn Index either at the administrative level or when Exemption 7(A) is invoked. *fn20" The FCC further determined that plaintiff failed to provide any basis for his fees claim. *fn21"

 On March 15, 1996, the FCC released another 933 pages. By letter dated March 18, 1996, the FCC invoked exemption (b)(7)(A) and withheld the remaining documents responsive to plaintiff's fourth FOIA request. *fn22" Specifically, the FCC withheld witness statements, exhibits, and other materials compiled as part of the hearing designated by the Show Cause/HDO for fear that release of such documents would interfere with the FCC's enforcement proceedings against plaintiff. *fn23" Ultimately, of the 2,736 pages responsive to plaintiff's four requests, the FCC released 2,278 pages and withheld 458 pages. *fn24" Moreover, the FCC attests that all reasonably segregable information has been released. *fn25"

 Plaintiff filed the instant action on April 4, 1996 requesting that the court: (1) order the FCC to make the requested records available to plaintiff; (2) expedite proceedings in this action to prevent plaintiff from incurring irreparable harm; (3) enjoin the FCC from improperly withholding the information requested by plaintiff; (4) order the FCC to refund all monies paid by plaintiff to the FCC for processing all FOIA requests subsequent to the issuance of the Show Cause/HDO; (5) award plaintiff his costs and attorneys' fees in this action; and (6) grant such other and further relief as the court may deem just and proper. *fn26"

 II. DISCUSSION

 A. Legal Standard for Summary Judgment in FOIA Cases

 In determining whether summary judgment is appropriate, the court must conduct a de novo review of the record. 5 U.S.C. § 552 (a)(4)(B). Summary judgment is appropriate where "there are no genuine issues as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In FOIA cases, summary judgment may be granted solely on the basis of agency affidavits provided that they are clear, specific and reasonably detailed, and there is no contradictory evidence on the record or evidence of agency bad faith. See Hayden v. Nat'l Sec. Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980). In addition, the burden rests on the agency to justify non-disclosure of any document or portion thereof. See DOJ v. Reporters Committee, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989); see also Voinche v. FBI, 940 F. Supp. 323, 327 (D.D.C. 1996) (citing Nat'l Cable Television Ass'n, Inc. v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973)). In this case, the court concludes that the FCC's Vaughn Indices and declarations are sufficiently adequate for the court to conduct a de novo review, and that the FCC met its burden of justifying non-disclosure. Accordingly, the court grants the FCC's motion for summary judgment.

 Plaintiff requests an in camera review of the withheld documents claiming that the FCC acted in bad faith by not releasing documents responsive to his four FOIA requests. Plaintiff argues that he obtained several documents, in another litigation, which were allegedly responsive to his FOIA requests but were not released to him by the FCC as required under the FOIA.

 The FOIA explicitly authorizes trial courts to conduct in camera review of agency materials to determine the applicablity of the invoked exemptions, thereby allowing trial courts to make case specific determinations. See Quinon v. FBI, 318 U.S. App. D.C. 228, 86 F.3d 1222, 1228 (D.C. Cir. 1996). The court has "broad discretion" to conduct an in camera review, if after examining agency affidavits, the court finds them to be insufficient. See Lam Lek Chong v. DEA, 289 U.S. App. D.C. 136, 929 F.2d 729, 735 (D.C. Cir. 1991) (quoting Carter v. Dep't of Commerce, 265 U.S. App. D.C. 240, 830 F.2d 388, 392 (D.C. Cir. 1987); see also Quinon v. FBI, 86 F.3d at 1227. In some cases, it "will plainly be necessary and appropriate" to conduct an in camera inspection in order to make a thorough de novo review. See Quinon, 86 F.3d at 1227 (citing H.R. Rep. No. 93-1380, 93d Cong., 2d Sess. 8, U.S.C.C.A.N. 1974). Ultimately, the key criterion is "'whether the district judge believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption.'" Carter, 830 F.2d at 392, (quoting Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1195 (D.C. Cir. 1978)); Hayden v. NSA, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1384 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980).

 In Allen v. CIA, the D.C. Circuit set out several criteria for determining the need for in camera review in FOIA cases. 205 U.S. App. D.C. 159, 636 F.2d 1287, 1293 (D.C. Cir. 1980). These criteria do not limit the broad discretion of the trial courts but merely offer some factors trial courts should consider before exercising that discretion. 636 F.2d at 1297. These criteria include: (1) judicial economy; (2) the conclusory nature of the agency affidavits; (3) possible bad faith on the part of the agency; (4) agency proposal of in camera review; (5) disputes concerning the contents of the document; and (6) strong public interest in disclosure. Id. at 1297-99.

 In this case, without providing the court with any concrete evidence, plaintiff alleges that the FCC withheld the documents in bad faith. Agency affidavits, however, generally enjoy a presumption of good faith. See Carter, 830 F.2d at 393. As a result, a mere allegation of agency bad faith, without more tangible evidence supporting that allegation, will not suffice to undermine the sufficiency of agency submissions. Id.; see SafeCard Services, Inc. v. SEC, 288 U.S. App. D.C. 324, 926 F.2d 1197, 1200-1201 (D.C. Cir. 1991); see also Ground Saucer Watch Inc. v. CIA, 224 U.S. App. D.C. 1, 692 F.2d 770, 771 (D.C. Cir. 1981). In FOIA cases, a requester may support an allegation of bad faith by presenting evidence that additional, releasable documents exist. See Ground Saucer Watch, 692 F.2d at 771. Speculative assertions that more documents exist will not cast doubt on the agency's affidavits and assertions. See SafeCard Services, Inc. 926 F.2d at 1201; see also Ground Saucer Watch, 692 F.2d at 771; see also Grove v. DOJ, 802 F. Supp. 506, 518 (D.D.C. 1992); see also Albuquerque Publishing Co. v. DOJ, 726 F. Supp. 851, 859 (D.D.C. 1989). Furthermore, assertions of bad faith must fail where the plaintiff has acquired documents through other means, such as formal discovery, because these procedures may differ from FOIA disclosure procedures. See Campbell v. DOJ, 1996 U.S. Dist. LEXIS 14996, 1996 WL 554511, *1. Finally, if the agency does not possess the documents at the time of the FOIA request, even though the documents may have existed at some earlier point in time, the agency is not improperly withholding them. See SafeCard Services, Inc., 926 F.2d at 1201.

 In the present case, as evidence of bad faith, plaintiff asserts that he acquired five letters and a 1993 FOIA request submitted by Harold Pick ("Pick Request"), which the FCC withheld under various exemptions, through formal discovery in connection with a pending lawsuit in California. *fn27" Based on this assertion, plaintiff argues that the FCC unfairly denied him access to documents he needs to prepare for the pending Show Cause/HDO ...


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