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MIR AIMAL KANSI v. U.S. DOJ

July 16, 1998

MIR AIMAL KANSI, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.



The opinion of the court was delivered by: ROBERTSON

MEMORANDUM

 Plaintiff was convicted of the murder of two CIA agents in the Commonwealth of Virginia and now sues under the Freedom of Information Act to compel production by the Department of Justice and the Federal Bureau of Investigation of documents pertaining to himself. The FBI searched at its Headquarters and its Washington Field Office for documents responsive to plaintiff's FOIA request and identified 14,281 pages, including sub-files, exhibits, cassettes and optical disks.

 The FBI initially released 26 pages of public source materials to the plaintiff, and it released 74 additional pages with the Davis declaration. Davis Decl., Ex. I. Six hundred fifty-seven pages categorized as public source materials have not been released because the plaintiff has not paid the duplicating fee of $ 65.70 pursuant to 28 C.F.R. §§ 16.10, 16.47. Davis Decl. P 59. The FBI claims protection under FOIA Exemption 7(A) with respect to the remaining 13,524. Id. at P4

 Plaintiff demands the release of the remaining documents. Both parties have moved for summary judgment. *fn1" For the reasons stated below, summary judgment will be awarded to the defendant.

 Analysis

 Fee status

 Plaintiff asserts that he is entitled to a fee waiver under 5 U.S.C. § 552 (a)(4)(iii). But plaintiff failed to raise this issue in his complaint and failed to explain, in his original FOIA request, what public interest would be served by a fee waiver. His demand for a fee waiver is too late. See National Treasury Employees Union v. Griffin, 258 U.S. App. D.C. 302, 811 F.2d 644, 648 (D.C. Cir. 1987).

 Exemption 7 (A)

 FOIA Exemption 7(A) allows a government agency to withhold requested documents if they are investigatory files compiled for law enforcement purposes whose release "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552 (b)(7)(A). Plaintiff's submission is that some of the withheld documents were not compiled for law enforcement purposes, and that none of them presents a threat to pending or future enforcement proceedings.

 a. Compiled for law enforcement purposes

 Plaintiff contends that documents created before the crime was committed (January 25, 1993) could not have been "compiled for law enforcement purposes." Pltf. Resp. at 10. He asserts further that documents created by the Department of State could not have been compiled for law enforcement purpose because that agency has no independent law enforcement authority. But once they are assembled by the FBI for its law enforcement purposes, all documents qualify for protection under Exemption 7 regardless of their original source. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 148-149, 155, 107 L. Ed. 2d 462, 110 S. Ct. 471 (1989).

 b. Law enforcement proceeding

 Plaintiff asserts that, because his trial has already taken place, there is no pending "law enforcement proceeding." Pltf. Resp. at 6-7. But Exemption 7(A) applies to law enforcement proceedings that are pending or prospective. See Butler v. Department of the Air Force, 888 F. Supp. 174, 183) (D.D.C. 1995). Plaintiff's case is still on appeal. The potential for interference with witnesses and highly sensitive evidence that drives the 7(A) exemption, see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); North v. Walsh, 279 U.S. App. D.C. 373, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (listing cases), exists at least until plaintiff's conviction is final. See Helmsley v. ...


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