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Pons v. U.S. Customs Service

April 27, 1998

JOSE A. PONS, PLAINTIFF, V. U.S. CUSTOMS SERVICE, DEFENDANT.


The opinion of the court was delivered by: Thomas F. Hogan, United States District Judge.

Defendant's motion for summary judgment [27] GRANTED; C.A. No 93-2094 and C.A. No. 93-2189 DISMISSED; defendant's motion for a protective order [38] DENIED as moot.

MEMORANDUM

Pending before the Court is defendant's motion for summary judgment in these two consolidated cases. After considering the submissions of each party, and in consideration of the Vaughn index submitted by defendants, the Court will grant defendant's motion and will dismiss the two cases.

I. Background

In 1988, plaintiff was indicted in the Northern District of California, on two counts of distribution of cocaine and conspiracy to distribute the same. On September 12, 1989, a jury convicted plaintiff of both counts; the convictions were affirmed on appeal. See United States v. Pons, 5 F.3d 543 (9th Cir. 1993) (Unpublished table opinion); United States v. Pons, 956 F.2d 276 (9th Cir. 1993) (Unpublished table opinion). Defendant's agents had participated in the investigation of plaintiff.

In March 1993, plaintiff made a request under the Freedom of Information Act (FOIA) for the entire central file compiled on him. On July 11, 1994, defendant provided plaintiff with 1300 pages of documents, either in their entirety or partially redacted. Plaintiff does not dispute that he received these documents.

Defendant moves for summary judgment, on the grounds that it has made a good faith effort to locate all relevant documents, and that it has released all non-exempt material. In support of its motion, defendant prepared a Vaughn index that groups the documents and that cites statutory exemptions to justify the withholdings. Defendant has also submitted the affidavits of Paul Wilson, who was responsible for responding to plaintiff's FOIA request. These affidavits describe not only the process of searching agency records, but also the grounds for application of each statutory exemption.

Plaintiff opposes defendant's motion. He asserts that withholding documents is improper.

II. Standard for Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A material fact is one that "might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Additionally, in considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

III. Discussion

Under FOIA, the Court is charged with conducting a de novo review of the agency's release of documents, to determine whether statutory exemptions have been properly applied. 5 U.S.C. at 552(a)(4)(B). In the course of this review, the Court may order an in camera review of any or all relevant documents. Id.

Defendant has released 1300 pages of documents, and has chronicled its redactions and withholdings in its Vaughn index and accompanying affidavits. Plaintiff raises two challenges to defendant's motion for summary judgment. First, plaintiff asserts that the Court cannot decide the motion on the basis of the pleadings, the Vaughn index, and the affidavits, but that the Court must conduct an in camera review of the relevant documents. Second, plaintiff asserts that defendant has improperly applied the statutory exemptions.

A. Method of Review

The FOIA statute does not require the in camera review of documents, but merely presents it as one method by which a reviewing court may conduct its inquiry. Thus, the means of review is generally left to the discretion of the district court. See e.g., Carter v. United States Department of Commerce, 265 U.S. App. D.C. 240, 830 F.2d 388, 392 (D.C. Cir. 1987). The ultimate criterion is the whether the district judge believes that in camera inspection is necessary to make a responsible de novo determination on the agency's compliance with the FOIA statute. See Carter, 830 F.2d at 392; Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1195 (D.C. Cir. 1978). However, there may be circumstances in which a district court must conduct its review in camera, in order to ensure a properly accurate review of the agency's compliance with the FOIA request.

The D.C. Circuit has identified three situations in which a district court should conduct an in camera review of documents, in addition to reviewing the pleadings, Vaughn index, and relevant affidavits. First, the Court should review documents in camera if the affidavits submitted by the agency are conclusory-- that is, if they merely parrot the language of the statute and do not describe the withholdings in sufficient detail to demonstrate the application of an exemption. Carter, 830 F.2d at 392; Allen, 636 F.2d at 1298. Second, the Court should conduct an in camera review if there is evidence of bad faith by the agency, such that the agency affidavits lack sufficient credibility. Carter, 830 F.2d at 392; Allen, 636 F.2d at 1298. Finally, the Circuit recommends the use of in camera review when the relevant documents are short or few in number, so that direct review is a more efficient means of arriving at a decision. *fn1 Carter, 830 F.2d at 392.

In the present case, in camera review would not save time or money; the documents are numerous and lengthy-- over 1300 pages. The Vaughn index and accompanying affidavits are certainly a boon to judicial economy, so it is not more efficient to review the documents directly.

In addition, defendant's affidavits and Vaughn index are sufficiently detailed to provide the Court with a basis on which to evaluate the release of documents. Far from a mere parroting of statutory language, defendant's materials describe each group of documents, describe the information found within these documents in adequate detail, and defend the application of relevant exemptions to that material. The affidavits and Vaughn index afford the Court sufficient detail from which to decide whether defendant has properly applied the FOIA exemptions.

Plaintiff does make substantial allegations of bad faith by defendant. Indeed, he alleges that the government has engaged in a massive cover-up, which includes fabrication of evidence, stonewalling on discovery, and suborning perjury. Defendant argues that the withholdings at issue in this case are merely an extension of the conspiracy that the government has crafted against him since the time of his arrest.

The Circuit, however, suggests in camera review in the face of evidence of bad faith by the agency. Plaintiff has made only allegations of bad faith; although he asserts that the record catches defendant in its lies, the Court is unable to find any such examples. Without any more solid proof than unsupported allegations, the Court is loathe to assume bad faith by the government.

Plaintiff has not demonstrated any compelling grounds for in camera review in this case. He does not support his allegations of bad faith by defendant, and defendant's affidavits, Vaughn index, and supporting materials provide a sufficient basis for decision in this case. Furthermore, defendant has not suggested in camera review, and there are no special circumstances that call for such review. Therefore, in light of the volume of documents at issue in this FOIA request, the ...


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