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COLEMAN v. FBI

July 31, 1998

ALTON COLEMAN, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This matter comes before the court on defendants' Motion for Summary Judgment pursuant to rule 56 of the Federal Rules of Civil Procedure, plaintiff's opposition thereto, and defendants' reply. Plaintiff Alton Coleman seeks release of numerous documents by the defendants United States Department of Justice and Federal Bureau of Investigation ("FBI") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Coleman has formally requested all FBI documents that pertain to him. The FBI has refused to comply with the request in its entirety and instead has claimed enumerated exemptions under FOIA. Upon consideration of the submissions of the parties, defendants' Motion for Summary Judgment is hereby granted.

 I. FACTUAL BACKGROUND

 On December 27, 1988, Coleman presented the FBI with a FOIA request for release of all documents and information pertaining to him. Coleman hoped to receive these documents on an accelerated basis as he is awaiting four death sentences. Moran Decl. PP 15-18. Because of the sheer quantity of documents the search uncovered, the FBI requested that Coleman narrow the scope of his search to items of more immediate interest, permitting the FBI to expeditiously process the request. Coleman voluntarily agreed and the FBI released 77 of the 318 documents responsive to his request. After the FBI conducted further Vaughn1 indexing as ordered by the court, the court held that defendants satisfied their burden of proof for withholding pertinent documents pursuant to enumerated exceptions under FOIA and the court granted summary judgment. See Coleman v. FBI, 1991 U.S. Dist. LEXIS 20308, No. 89-2773 (D.D.C. 1991) aff'd, 1992 U.S. App. LEXIS 36702, No. 92-5040, 1992 WL 373976 (D.C. Cir. Dec. 4, 1992)(hereinafter "Coleman II").

 On July 17, 1989, Coleman requested the remaining documents that fell beyond the scope of his amended initial request. Over a period of time, the FBI released voluminous documents, redacted some information, and withheld certain documents in their entirety pursuant to FOIA exceptions (b)(1); (b)(2); (b)(3); (b)(6); (b)(7)(C); (b)(7)(D); and (b)(7)(E). 5 U.S.C. § 552 (b)(1),(2),(3),(6),(7)(C), (7)(D), and (7)(E). Coleman properly exhausted his administrative appeals and accordingly brought this action under FOIA § 552 (a)(4)(B) to compel release of the redacted and withheld information.

 Consequently, the FBI filed a Vaughn index, accompanied by the declarations of Robert Moran and Richard D. Davidson *fn2" (collectively, the "Vaughn Index"), addressing the 16,192 pages *fn3" responsive to Coleman's subsequent document request. Included in the Vaughn Index is a description of correspondence between Coleman and defendants (Moran Decl. P 6), an explanation of the records and surveillance systems (id. PP 7-12), identification of the requested information (id. PP 13-48), results of the review of responsive documents pursuant to the Landano4 decision (id. PP 49-51), the format utilized for justification of deleted material (id. PP 53-58), the exemptions asserted and the justifications for those exemptions (id. PP 53-116), and copies of the responsive documents, or where the entire document was withheld, a "Deleted Page Sheet" indicating omission of responsive documents and the basis for that omission (Vaughn Index exhibit 4).

 The court required Coleman to submit a list of the withheld or redacted information he intended to challenge. Order of Sept. 9, 1996. Coleman complied and defendants then filed the instant summary judgment motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. In response, plaintiff moved for further Vaughn indexing and a more specific Vaughn affidavit. On July 31, 1997, this court ordered the FBI to submit a more specific Vaughn index with regard to enumerated documents inadequately described in the Deleted Page Sheets, thereby granting in part and denying in part plaintiff's motion. Coleman v. FBI, 972 F. Supp. 5 (D.D.C. 1997) (hereinafter "Coleman III"). Specifically, the court required that the FBI identify each individual document, the applicable FOIA exemption, and the reason that the FOIA exemption applies *fn5" The court emphasized the relative importance of substance over form in facilitating de novo review of the agency decision to withhold certain documents.

 The FBI complied with the order on September 2, 1997 by submitting supplemental Deleted Page Sheets for each document, identifying the relevant exemption and its application. Furthermore, the FBI filed a declaration of Bobbie S. Olivarri and two supplemental exhibits on January 14, 1998 which disclose additional information in response to Coleman's opposition to summary judgment *fn6" However, this information was still inadequate to facilitate de novo review. On July 13, 1998 this court ordered the defendants to submit certain documents for in camera inspection. Order of July 13, 1998. The FBI submitted the requested documents on July 24, 1998 and this court has since completed the in camera inspection.

 II. ANALYSIS

 A. Introduction

 The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986) establishes a statutory right for citizens to gain access to government information. First enacted in 1966, the Act creates a basic presumption that agency records should be accessible to the public and commands government agencies to make records available upon demand unless the request falls within one of the nine exemptions. As defendants justify nondisclosure on three of the nine exemptions *fn7" , the court will discuss the contested documents by exemption group rather than individually and assess whether defendants have properly invoked each exemption.

 In FOIA suits, the standard of review is de novo. However, the defendant agency withholding requested information bears the burden of justifying its decision. See, e.g., 5 U.S.C. § 552(a)(4)(B); Alyeska Pipeline Serv. Co. v. EPA, 272 U.S. App. D.C. 355, 856 F.2d 309, 311 (D.C.Cir. 1988) As discussed below, the court concludes that the FBI has met its burden to withhold this information from Coleman.

 B. Exemption 2

 The FBI asserts Exemption 2 to protect source symbols and file numbers as well as other records that might disclose FBI techniques and procedures. 5 U.S.C. § 552(b)(2) exempts from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." In Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976), the plaintiff filed an FOIA request to obtain case summaries of the Air Force Academy's ethics hearings. The court interpreted Exemption 2's language as protecting internal agency matters so routine or trivial that they could not be the subject of a genuine and significant public interest. Id. at 369.

 Courts have further interpreted Exemption 2 to include two different categories. See Schiller v. NLRB, 296 U.S. App. D.C. 84, 964 F.2d 1205, 1207 (D.C. Cir 1992). The first of those categories, "Low 2" exemptions, is trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, and other administrative markings which may be withheld under Exemption 2. See Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C.Cir.1980) (informant codes held a matter of internal significance in which the public has no substantial interest [and which] bear no relation to the substantive contents of the records released). See, e.g., Branch v. FBI, 658 F. Supp. 204 (D.D.C. 1987) ("There is no question that [source symbol and file numbers are] trivial and may be withheld as a matter of law under Exemption 2."). The second category, "high 2" exemptions, involves predominately internal documents the disclosure of which would likely circumvent agency regulations and statutes. See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051, 1074 (D.C. Cir. 1981).

 Defendants have asserted Exemption 2 to protect source symbols and file numbers and consider this exemption a "high 2" matter. See Defendants' Motion for Summary Judgment at 7. Coleman does not address source symbols and file numbers in his Opposition. The court agrees that the source symbols and file numbers are exempt.

 Coleman cannot have any possible legitimate interest in the FBI's source symbols and file numbers, especially where they do not relate to any substantive content requested by him. This information clearly qualifies for a "low 2" exemption. The primary function of these numbers is to organize a filing system without using the name of the individuals within the files. Therefore, this information facilitates administrative operation and record-keeping, neither of which aid Coleman in his case.

 Because these symbols and numbers shelter from identification confidential informants who relay information to the FBI on a regular basis, it is reasonable, arguendo, to assert a "high 2" exemption. Disclosing this filing system could potentially reveal a sequence of information including the dates, times, and identities of numerous informant transactions thereby exposing the depth of the FBI's informant coverage. This would allow criminals to redirect their activities and avoid legal intervention, thereby satisfying the "high 2" exemption threshold. Therefore, the source symbols and file numbers were properly withheld by the FBI.

 Moreover, the Bureau invoked Exemption 2 in conjunction with 5 U.S.C. § 552(b)(7)(E) to withhold other records that would disclose techniques and procedures, allowing criminals to thwart investigations. These exemptions ...


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