U.S. District Court, District of Columbia
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  GRANTED; C.A. No 93-2094 and C.A. No. 93-2189 DISMISSED; defendant's motion for a protective order  DENIED as moot.
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.
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 See United States v. Pons, 5 F.3d 543 (9th Cir. 1993) (Unpublished table opinion); United States v. Pons, 956 F.2d 276 (9th Cir. 1993) (Unpublished table opinion).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.
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 Court will exercise its discretion to decide defendant's motion on the basis of the affidavits and other materials before it.
B. Withholding of Documents
Although plaintiff makes allegations that defendant is hiding relevant documents, he does not present any evidence in support of those allegations. He does not make any showing that defendant has documents that are not addressed in the Vaughn index; instead, plaintiff primarily argues that withheld documents should have been released to him before his trial. In contrast, defendant supplies affidavits that it conducted a diligent search and addressed all relevant documents, and the Vaughn index appears to contain all documents that might reasonably be expected to arise from a Customs investigation. For this reason, the Court finds that plaintiff has not really raised any material question of fact that defendant failed to all the documents in its files. Plaintiff also has not raised a material question of fact that defendant conducted a diligent search to identify all records relevant to plaintiff's FOIA request. Therefore, the Court need only determine whether defendant has released all records that FOIA requires.
The FOIA statute contains a number of exemptions, which permit an agency to withhold from disclosure certain types of documents. 5 U.S.C. at 552(b). Defendant has withheld certain documents, in part or in toto, pursuant to these statutory exemptions. The Court must determine whether defendant has properly withheld these documents under the FOIA statute.
Plaintiff lodges a general objection to defendant's withholding of documents. He alleges that much of the material withheld by defendant-- including interviews with witnesses, surveillance information, and other potentially exculpatory information-- cannot be withheld, because he was entitled to this information as pretrial discovery, in order to prepare his defense. Plaintiff makes some serious allegations of prosecutorial misconduct during his criminal trial; while these allegations may form the basis to a challenge to his conviction, however, they are irrelevant to the present case. In this case, plaintiff seeks release of documents under FOIA, and the Court may only determine whether the government acted properly in responding to his FOIA request. If plaintiff wishes to pursue allegations of misconduct in his criminal trial, he must do so in a different proceeding, and most likely in a different forum.
Defendant has separated its records by subject matter into seventeen groups. Plaintiff has not objected to this grouping. Defendant has submitted a Vaughn index that lists each group of documents, describes the information that has been withheld, and details the reasons for withholding information. Defendant has also submitted the affidavit of Paul E. Wilson, Regional Counsel for the Customs Service, Pacific Region. That affidavit describes in more detail the documents, and the grounds for withholding. In addition, defendant has submitted a supplemental, more detailed list of withheld documents.
In support of its actions, defendant asserts exemptions from seven sections of the FOIA statute: @@ 552(b)(2), (b)(5), (b)(6) (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E). The Court will examine defendant's use of each exemption separately.
1. Exemption (b)(2)
FOIA section (b)(2) excuses from mandatory disclosure those records that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. at 552(b)(2). To use this exemption, the agency must show two things. See Schiller v. N.L.R.B., 296 U.S. App. D.C. 84, 964 F.2d 1205, 1207 (D.C. Cir. 1992). First, the information must meet a threshold standard of "predominant internality." Id. Then, the agency must show that "either (1) disclosure may risk circumnavigation of agency regulation, or (2) the material relates to trivial administrative matters of no genuine public interest." Schwaner v. Department of the Air Force, 283 U.S. App. D.C. 196, 898 F.2d 793, 794 (D.C. Cir. 1990).
Defendant applies this exemption to documents in six groups. It has redacted case numbers, filing codes, and distribution codes on documents in groups three, five, eight, ten, and fifteen, and it has redacted the lab file number in group nine, which is a series of laboratory reports. Each of these codes is predominantly internal to the agency, and each relates to trivial administrative matters. Therefore, defendant has properly withheld information under this exemption.
2. Exemption (b)(5)
Section (b)(5) exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. at 552(b)(5). This section therefore exempts material that is protected by the attorney-client and work product privilege. The exemption also applies to material covered by the "deliberative process privilege," which is intended to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Coastal States Gas Corp. V. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980). This latter privilege applies only to information that is (1) predecisional, and (2) deliberative. Coastal States, 617 F.2d at 866.
Defendant cites this exemption for withholdings in four groups of documents. First, defendant has withheld information in groups ten and seventeen as attorney work product. The documents in group ten relate to Customs officials' thoughts and analysis of their role in forfeiture proceedings; the documents in group seventeen relate to the preparation of pleadings, and of agency comments on those pleadings. Defendant has withheld its agents' thoughts and comments; this information is precisely the type of attorney work product that would not normally be discoverable. For this reason, the exemption is properly applied to these documents.
Defendant withholds information in groups three and five under the deliberative process privilege. According to defendant's Vaughn index and supporting affidavit, these groups include law enforcement reports and notes on plaintiff's investigation and arrest. Defendant has redacted the comments of its officers on these reports, since these comments reflect thoughts and discussions concerning the direction of the investigation and prosecution. Since these comments were made before decisions were made about the investigation and prosecution, and since they deliberated strategy, they are covered by the privilege. Therefore, these records are properly withheld under section (b)(5).
3. Exemption (b)(6)
Section (b)(6) exempts personnel and similar files whose disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. @ 552(b)(6). This section exempts, among other things, the names, addresses, and other personal identifying information of the agents and targets of investigations and prosecutions,. See Carter v. Commerce, 265 U.S. App. D.C. 240, 830 F.2d 388, 389-92.
Defendant invokes this exemption to withhold the identities of its administrative staff who worked on the forfeiture documents in group two. Defendant does not seek to withhold the identities of its field agents, only of "lower level or mid-level federal employees." It is clear that these persons possess an expectation of privacy, and plaintiff presents no public interest in the disclosure of their identities. Therefore, these names are within the type of information exempted by section (b)(6).
4. Exemption (b)(7)(A)
Section (b)(7) generally exempts information complied for law enforcement purposes, when disclosure of that information might be expected to cause one of the harms enumerated in the subsections. 5 U.S.C. at 552(b)(7). Subsection (7)(A) permits withholding of records "to the extent that production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. at 552(b)(7)(A).
In the present case, defendant withholds part of one document in group five, pursuant to this statute. According to defendant's Vaughn index and supporting affidavits, this document contains information that was not used in plaintiff's prior trials, which could concern future prosecutions. Disclosure of this information could therefore interfere with another enforcement proceeding by conveying information prematurely. Therefore, the exemption is properly applied to this information.
5. Exemption (b)(7)(C)
Section (b)(7)(C) exempts "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information...could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. at 552(b)(7)(C). In order to invoke this exemption, the government must demonstrate that (1) the withheld information was compiled for law enforcement purposes, and that (2) release could reasonably be expected to constitute an unreasonable invasion of personal privacy. King v. U.S. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210O 229 (D.C. Cir. 1987).
Defendant has withheld documents in several groups under this exemption. According to defendant's Vaughn index and affidavit, these documents contain the identities, addresses, and personal information of confidential witnesses and informants, of special agents, government employees, and local law enforcement personnel who investigated plaintiff, and of third parties who became involved in the investigation and prosecution of plaintiff. Defendant also withheld additional information provided by or about these persons, to the extent that it would tend to identify these persons.
The identities and personal information of witnesses, informants, and third parties are properly withheld under this exemption. The information was clearly compiled for law enforcement purposes-- these individuals were involved solely for the purpose of investigating and prosecuting plaintiff-- and release of this information could result in a serious invasion of personal privacy, not to mention personal safety. Therefore, defendant has properly withheld these documents.
Defendant has also withheld the identities and personal information of law enforcement personnel, who conducted witness interviews and participated in the preparation of the investigation and the prosecution. Plaintiff objects to this withholding, arguing that these individuals have no expectation of personal privacy. However, while government personnel may have a reduced expectation of privacy, the public interest in exposing the officials who participate in an investigation, particularly in the more private areas of an investigation, such as witness interviews, is minimal. See e.g., Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). Since disclosure of these officials' identities could subject them to harassment and annoyance, and since plaintiff has not identified any substantial public interest in their identities, *fn2 this information is properly exempted.
6. Exemption (b)(7)(D)
Section (b)(7)(D) exempts material that "could reasonably be expected to disclose the identity of a confidential source...which furnished information on a confidential basis." 5 U.S.C. at 552(b)(7)(D). The section also exempts reports
and records compiled by law enforcement authorities that contain information furnished by such a confidential source. Id. The key inquiry is whether a source spoke with the understanding that the conversation would be kept confidential. Department of Justice v. Landano, 508 U.S. 165, 172, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993). This understanding can be any agreement, express or implied, that the furnished information would not be divulged, except to the extent necessary for law enforcement purposes. Id. at 174.
Defendant invokes this exemption to withhold parts of two documents, in groups four and six. Defendant describes these documents to contain information of such specificity that it would identify a confidential source. *fn3 Defendant has demonstrated, through the Vaughn index and Wilson affidavit, that this source provided information concerning plaintiff's drug operation and propensity for violence. The Court can infer an agreement of confidentiality, given the sensitive nature of this information, and given the relationship this source must have had to the investigation and to plaintiff. Therefore, the Court finds that defendant applied the exemption properly.
7. Exemption (b)(7)(E)
Section (b)(7)(E) exempts material that was compiled for law enforcement purposes and that "would disclose the techniques and procedures for law enforcement." Application of this exemption is limited, however, to cases in which disclosure "could reasonably be expected to risk circumvention of the law." 5 U.S.C. at 552(b)(7)(E); PHE, Inc. v. Department of Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 249-50 (D.C. Cir. 1993). Defendant may establish by affidavit that disclosure of this information would risk circumvention of the law. PHE, 983 F.2d at 251.
Defendant uses this exemption to justify withholding of information in eight document groups. Several of these withholdings are already justified by another statutory exemption; the Court need not consider the application of section (b)(7)(E) to these documents.
According to the Vaughn index, there are six instances in which defendant relies solely on this section to withhold information. In document groups two, four, six, eight, and eleven, defendant withholds information that concerns the cooperative arrangements between Customs and other law enforcement agencies. Defendant's evidence demonstrates that Customs does not publicize its cooperation with other agencies. Because Customs relies in part on the secrecy of its cooperative efforts to fulfill its law enforcement purpose, disclosure of these efforts could compromise the effectiveness of the agency, and could facilitate circumvention of the law. For this reason, defendant properly withholds these records.
Similarly, defendant withholds information in groups four, five, and six, because that information describes its law enforcement techniques. Disclosure of these techniques could betray some of the secrets of the agency, and could aid would-be lawbreakers in evading the law. Therefore, these records are properly withheld under this exemption.
Defendant also seeks to withhold information in group fourteen that contains the name and telephone number of a law enforcement officer. Defendant argues that disclosure of this information would again reveal the law enforcement entities with which it cooperates. This would be a legitimate reason to withhold the information; in addition, defendant might withhold the record pursuant to exemption (b)(7)(C), as described above. For these reasons, defendant has properly withheld this information.
There is no question of fact that defendant conducted a diligent search of its files, which identified all records relevant to plaintiff's FOIA request. Pursuant to that request, defendant released, and plaintiff received, 1300 pages of documents, in their entirety, or with partial redactions.
Defendant redacted parts of these documents and withheld other documents in their entirety. There is no material question of fact that defendant has properly justified all withholdings under one or more of the statutory exemptions contained in the FOIA statute. Therefore, defendant is entitled to judgment as a matter of law in these cases.
Defendant also has pending a motion for a protective order. Because the Court has granted judgment in favor of defendant, and because the Court will now dismiss this case, defendant's motion for protective order will be denied as moot.
An order will accompany this opinion.
April 23rd, 1998
Thomas F. Hogan
United States District Judge
For the reasons stated in the Court's Memorandum Opinion, it is hereby
ORDERED that defendant's motion for summary judgment  is GRANTED; it is further
ORDERED that C.A. No 93-2094 and C.A. No. 93-2189 are DISMISSED; it is further
ORDERED that defendant's motion for a protective order  is DENIED as moot.
April 23rd, 1998
Thomas F. Hogan
United States District Judge