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June 30, 2000


The opinion of the court was delivered by: Hogan, District Judge.


This case is brought by Robert Heggestad ("plaintiff" or "Heggestad") against the United States Department of Justice ("defendant" or "DOJ") to compel the DOJ to disclose documents relating to the decision to prosecute in United States v. Moon, et al. pursuant to the Freedom of Information Act ("FOIA"). Defendant filed a Motion for Summary Judgment on the ground that the DOJ disclosed to plaintiff all information which is not exempt under the FOIA. Upon careful consideration of the briefs and the entire record herein, this Court finds no evidence that defendant improperly withheld information under the enumerated exemptions of the FOIA.*fn1 The Court also finds no basis to grant plaintiff's request for further discovery in this case. Accordingly, the Court will grant defendant's Motion for Summary Judgment.


This is a lawsuit under the FOIA, 5 U.S.C. § 552, in which plaintiff is seeking documents relating to the criminal investigation of the Reverend Sun Myung Moon ("Reverend Moon") and Mr. Takeru Kamiyama ("Mr. Kamiyama") for alleged violations of the federal tax laws.

By a letter dated March 7, 1997, Heggestad requested all documents relating to the decision to prosecute in the case of United States v. Moon, et al., including but not limited to five documents specifically listed in the request: (1) the Tax Division's initial memorandum dated August 4, 1981, recommending that prosecution be declined; (2) the memorandum dated August 17, 1981, prepared by a Senior Reviewer in the Criminal Section of the Tax Division concurring with the August 4, 1981 memorandum; (3) the August 20, 1981 decision of the Chief of the Tax Division's Criminal Section that prosecution should be declined; (4) the August 21, 1981 recommendation by Mr. Martin Flumenbaum, Assistant U.S. Attorney for the Southern District of New York, to Acting Assistant Deputy Attorney General for the Tax Division that Mr. Kamiyama and Reverend Moon be prosecuted; and (5) the September 10, 1981 memorandum decision of the Acting Deputy Assistant Attorney General for the Tax Division, Mr. Gilbert Andrews ("Andrews"), approving criminal proceedings. Complaint ¶ 5; Ferrel Decl. ¶ 3. On August 27, 1997, the DOJ responded to plaintiffs request by releasing three documents in full, withholding five documents in part, and withholding two documents in their entirety. Complaint ¶ 6; Ferrel Decl. ¶ 14. These documents were withheld on the grounds that the materials were exempt from disclosure under the FOIA pursuant to Exemption 3, in conjunction with Fed.R.Civ.P. 6(e) and 26 U.S.C. § 6103, relating to confidential grand jury information; Exemption 5, in conjunction with the attorney work product and deliberative process privileges; and Exemption 7(C) relating to the unwarranted invasion of the privacy of third parties. Complaint, Attachment 2 (8/27/97 letter from Ferrel to plaintiff).

On November 14, 1997, plaintiff appealed the denial of his request and cited three documents allegedly falling within the scope of the request that had not been produced: (1) the August 17, 1981 Reviewer's concurrence in the August 4, 1981 recommendation that prosecution should be declined; (2) the August 20, 1981 memorandum opinion by the Chief of the Criminal Section, Stanley Krysa ("Krysa"), that prosecution should be declined; and (3) an August 9, 1984 letter from the Assistant Attorney General to Senator Orin Hatch regarding the Tax Division's subsequent authorization to prosecute Reverend Moon and Mr. Kamiyama. The August 9, 1984 letter to Senator Orin Hatch ("Hatch letter") was not construed by the DOJ as falling within plaintiffs March 7, 1997 FOIA request. Ferrel Decl. ¶ 3. Plaintiff filed another FOIA request on May 4, 1998 for this letter. Id. On September 11, 1998, the Hatch letter was released in part to plaintiff. Ferrel Supp. Decl. ¶ 5.

On January 9, 1998, plaintiff filed the instant action to compel production of the withheld agency records. On July 23, 1998, plaintiff submitted an additional FOIA request to the DOJ along with a power of attorney for Reverend Moon. Ferrel Supp. Decl. ¶ 2. Because the July 23, 1998 FOIA request sought several of the same documents at issue in this lawsuit and provided a power of attorney for the Reverend Moon, the parties agreed to stay this proceeding so that defendant could process the July 23, 1998 request in an attempt to narrow the issues for the Court. Pursuant to a Consent Order entered by the Court on September 10, 1998, this matter was stayed pending the DOJ's processing of the new FOIA request.*fn2

On September 15, 1998, the DOJ responded to plaintiffs July 23, 1998 FOIA request. Ferrel Supp. Dec. ¶ 3. The DOJ released portions of three documents which contain tax return information relating to Reverend Moon; this information was previously withheld pursuant to 26 U.S.C. § 1603 in conjunction with FOIA Exemption 3, but was released as a result of the power of attorney provided for Reverend Moon. Ferrel Supp. Dec. ¶ 4. Therefore, the lawsuit is moot with respect to page 7 of document 1, the released portions of pages 2 and 3 of document 2, and the released portions of pages 2 through 5 of document 10.


A. The Freedom of Information Act

Plaintiff's claims arise under the FOIA, 5 U.S.C. § 552. The FOIA provides a rule of general disclosure by government agencies upon request. Mandatory disclosure enables the public to gain access to government information so that it can review the government's performance of its statutory duties, thereby promoting governmental honesty. United States Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495-96, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). Accordingly, district courts have the authority to order the production of agency records where the agency improperly withholds their records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 141, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); see also Katz v. Nat'l Archives & Records Admin., 862 F. Supp. 476, 478 (D.C. 1994). However, an agency may withhold agency records which fall under one of the nine enumerated exemptions under the FOIA. See 5 U.S.C. § 552(b). The government has the burden of justifying its withholding of documents pursuant to one or more of these exemptions. Katz, 862 F. Supp. at 478.

B. Summary Judgment

Under the FOIA, a district court conducts de novo review to determine whether the government may properly withhold the requested records under any of FOIA's nine exemptions. 5 U.S.C. § 552(a)(4)(B) & (b)(1)-(9). To sustain its burden of justifying nondisclosure of records under the FOIA, the government must submit affidavits or declarations describing the withheld material with reasonable specificity and the grounds for exemption. PHE, Inc. v. Dept. of Justice, 983 F.2d 248, 250 (D.C.Cir. 1993). In order to withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed.R.Civ.P. 56(e). Where the pleadings and affidavits show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. See id.; see also Alyeska Pipeline Serv. Co. v. Envtl. Protection Agency, 856 F.2d 309, 313-14 (D.C.Cir. 1988).


The defendant is withholding two documents in full and five documents in part, based on Exemption 3 in conjunction with Fed.R.Crim.P. 6(e), Exemption 5 in conjunction with the attorney work-product and ...

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