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September 19, 1997

BRIAN E. SMITH, Plaintiff,

The opinion of the court was delivered by: FRIEDMAN

In response to plaintiff's Freedom of Information Act request, defendant produced 60 pages of documents, most with portions deleted. Thereafter, plaintiff brought this action pro se and defendant moved for summary judgment, arguing that it has fulfilled its statutory duty to disclose all documents responsive to plaintiff's request located after a reasonable search and that the deletions it made were proper under one or more exemptions to the FOIA. Plaintiff filed an opposition to defendant's motion and a separate motion for an in camera inspection of withheld documents.


 In 1995, Brian Smith was indicted, along with a co-defendant, on two federal weapons charges. See Memorandum in Support of Plaintiff's Motion Opposing Defendant's Motion for Summary Judgment ("Plaintiff's Opp.") at 1. At the conclusion of a jury trial in April 1995, Smith was convicted and sentenced to 120 months' imprisonment. Id. According to plaintiff, the only witness to identify him, Mark Duggan, testified at trial that he provided information to a BATF agent without any compensation or plea agreement with regard to his own pending charges. Id. at 5. Since then, plaintiff has sought documents in order to challenge Duggan's testimony and other evidence against him by way of a post-trial motion to vacate his conviction.

 By letter dated April 1, 1996, Smith requested documents from the BATF. See Amended Complaint P 5 and Exhibit 1 (Plaintiff's FOIA Request Letter). His letter contained seventeen separate requests. The first request sought a specific document ("Report/interview conducted by B.A.T.F. Special Agent Timothy Wyse involving Mark Duggan"). Five requests sought all documents of a particular type made in connection with the investigation that resulted in his conviction (warrants, reports, transcripts of tape recordings, documents containing plaintiff's handwriting, and "any 302 Forms, 'inserts', write-ups, fieldnotes etc."). The remaining eleven requests sought information rather than records, primarily related to the agents involved in and witnesses interviewed during the investigation resulting in his conviction. Id. at Exhibit 1. In a response dated April 12, 1996, BATF produced 53 pages of documents with portions deleted pursuant to FOIA Exemptions 2 and 7. Id. P 6 and Exhibit 2 (Response to Plaintiff's FOIA Request Letter). As for Mr. Smith's specific requests, BATF stated that "the individual named in item 1 [Agent Wyse], did not appear in our records." Id. at Exhibit 2. BATF's response also appeared to provide no documents at all with respect to certain numbered requests.

 Plaintiff appealed this partial denial and the appeal was denied. In its letter of denial, BATF did not provide a request-by-request review of its response, but instead characterized plaintiff's request as "pertaining to the Federal investigation of you, including among other things, documents pertaining to search warrants, confidential informants, and names of and information pertaining to witnesses and agents and agencies involved in your case." Amended Complaint P 8 and Exhibit 4 (Denial of Plaintiff's Appeal).

 After plaintiff instituted this lawsuit, Robert L. Pritchett, Chief of BATF's Disclosure Branch, reviewed the 53 documents previously disclosed and located an additional seven pages that he forwarded to plaintiff with portions deleted. See Declaration of Robert L. Pritchett ("Pritchett Decl.") P 9 (April 7, 1997) and Exhibit 4. Mr. Pritchett also prepared an index of each document produced containing. a description of the document, the information withheld from the document and the exemption that provides the basis for the withholding. Id. at Exhibit 5. Plaintiff does not dispute the accuracy of the index, but challenges the adequacy of defendant's search for records responsive to his request and defendant's bases for deleting portions of the documents produced. Plaintiff has requested the Court to conduct an inspection of documents in camera.


 Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the non-movant, that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; see Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All reasonable inferences that may be drawn from the facts must be drawn in favor of the non-moving party. Id. at 255.

 In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981).


 A. Exemption 7(C)

 Deleted from the majority of documents disclosed by BATF were the names of BATF agents, other state and federal law enforcement officers and third parties, on the grounds that disclosure of their names "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). According to Mr. Pritchett, the names of law enforcement officers were deleted because "disclosure might seriously prejudice their effectiveness in the conduct of other investigations to which they are assigned" and may "increase the potential of physical harm to their persons." Pritchett Decl. P 14.

 Deletion of the names of federal, state and local law enforcement personnel under similar circumstances is routinely upheld. See Lesar v. United States Dep't of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 487 (D.C. Cir. 1980) (finding legitimate interest in preserving the identities of government officials where disclosure could subject them to annoyance or harassment in either their official or private lives); Pray v. Department of Justice, 902 F. Supp. 1, 3 (D.D.C. 1995), aff'd in relevant part, 1996 U.S. App. LEXIS 33607, 1996 WL 734142 (D.C. Cir. 1996) (finding possibility of animosity toward FBI agents outweighed any possible benefit from disclosure).

 Names and identifying information of private individuals were withheld to avoid revealing their connection with the criminal investigation of plaintiff and to protect them from "unnecessary public attention, embarrassment, harassment, or criticism." Pritchett Decl. P 17. Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773-75, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989); SafeCard Services Inc. v. Securities and Exchange Comm'n, 288 U.S. App. D.C. 324, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991). The disclosure of the names of private individuals mentioned in law enforcement files would serve a significant public interest only where "there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity" and that the information sought "is necessary in order to confirm or refute that evidence." Davis v. United States Dep't of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting SafeCard Services, 926 F.2d at 1205-06).

 Plaintiff argues that the public interest outweighs the concern for personal privacy here because he is seeking exculpatory statements that should have been produced by the prosecution at his criminal trial under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). That fact, however, does not give plaintiff any greater rights under the FOIA than any other person would have. The merits of an agency's FOIA determinations do not rest on the identity of the requester or the purpose for which the information is intended to be used. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. at 770-71. Rather, records, if not properly exempt, must be made available to "any person." 5 U.S.C. § 552(a)(3). Moreover, even if the purpose for the request were considered, requests for Brady material are "outside the proper role of FOIA." Johnson v. United States Dep't of Justice, 758 F. Supp. 2, 5 (D.D.C. 1991). As Judge Gesell pointed out in Johnson :

[The FBI] has neither the competence nor the authority to make Brady-type judgments. The FBI is not required to determine whether or not a paper sought by a FOIA requester is or is not a paper that presently constitutes or retroactively would have constituted Brady material in one or more state or federal prosecutions. Nor is the FBI required by FOIA to forego a statutory exemption for a document in its possession because the document has been ...

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