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FERRANTI v. BUREAU OF ALCOHOL

December 10, 2001

JACK FERRANTI PLAINTIFF,
V.
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEFENDANT.



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

  MEMORANDUM and ORDER

This matter comes before the Court on defendant Bureau of Alcohol, Tobacco and Firearms' ("BATF") motion for summary judgment, pursuant to Fed.R.Civ.P. 56(c), plaintiff Jack Ferranti's opposition thereto and motion to require detailed indexing, justification and itemization. Based upon the memoranda in support of and in opposition to the motions, the entire record herein and the applicable law, the plaintiffs motion to require detailed indexing will be denied and defendant's motion for summary judgment will be granted.

I. Factual and Procedural History

Plaintiff Jack Ferranti, currently incarcerated in a federal prison after having been convicted of a federal firearms violation, initiated this action under the Freedom of Information Act ("FOIA"), in March 2001. Plaintiff challenges BATF's response to his FOIA request for documents in its possession relating to several criminal investigations of plaintiff, in 1989, 1994 and 1995.

Plaintiff made his initial FOIA request to BATF by letter in August of 1999. In November of 1999 BATF released 41 pages of documents to plaintiff, with certain information redacted. In December 1999 plaintiff appealed the BATF's disclosure by letter, asserting that not all responsive documents had been released and challenging the redacted information. This administrative appeal was denied by BATF on the grounds that an adequate search had been conducted for any responsive documents and that all redacted information had been properly withheld pursuant to Exemptions (b)(2) and (b)(7)(C) of the FOIA. In response to that denial plaintiff initiated this action arguing again that defendant had not released all responsive documents and that some of the redacted information had been improperly withheld. Defendant has moved for summary judgment on the grounds that it has conducted an adequate search and has released all responsive documents (the 41 pages) including all reasonably segregable non-exempt information contained therein. Plaintiff has opposed the motion for summary judgment and has moved the Court to require the defendant to submit a detailed Vaughn Index to further justify its claimed FOIA exemptions.

II. The Freedom of Information Act and the Standard of Review

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), provides citizens a statutory right of access to government information. Underlying this right to access is the principle that "the public is entitled to know what its government is doing and why." See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C.Cir. 1980). Consequently, FOIA instructs government agencies to disclose agency records, unless the requested records fall within one of the Act's nine enumerated exemptions. See 5 U.S.C. § 552 (b)(1)-(9). Accordingly, a FOIA requester usually challenges agency non-disclosure of documentation by demonstrating either, that the search conducted was inadequate, or that the claimed exemption has been improperly asserted. Summary judgment in a FOIA action is appropriate when the pleadings together with the declarations show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202; Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C.Cir. 1988) (mere conflict in affidavits not sufficient to preclude an award of summary judgment); Weisberg v. Department of Justice, 627 F.2d 365, 368 (D.C.Cir. 1980). Courts review FOIA suits de novo. However, the agency carries the burden of justifying nondisclosure, See 5 U.S.C. § 552 (a)(4)(B); U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

Agencies may rely on the declarations of its officials in order to sustain their burden of proof in a FOIA case. See Oglesby v. U.S. Department of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990); Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978). The agency's declarations are accorded a presumption of expertise. Pharmaceutical Manufacturer, Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1976.). However, the declarations must be clear, specific and adequately detailed; they must describe the withheld information and the reason for nondisclosure in a factual and non-conclusory manner; and they must be submitted in good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir. 1979). Unless the affidavits are deficient, the court need not conduct further inquiry into their veracity. Id. at 1387. A plaintiff must show that the claimed exemption is improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant.

A. Information Redacted in the 41 Pages

Defendant released 41 pages of material to the plaintiff with certain information redacted. Defendant claims that all redacted information has been properly withheld pursuant to Exemptions 2 and 7(C) to the FOIA, as explained in the declaration of Dorothy Chambers, a BATF official responsible for processing all FOIA requests ("Chambers Decl.").

The declaration describes the information withheld under Exemption 2 to as internal BATF computer codes. (Chambers Decl. at ¶¶ 3, 6). Such codes clearly fall within Exemption 2, and as such have been properly redacted from the released documents. The declaration also specifies that the information that has been withheld pursuant to Exemption 7(C) is comprised of the names of various law enforcement officials and third party individuals. (Chambers Decl. at ¶¶ 3, 7-9). The names of all such individuals are plainly covered by the privacy exemption that 7(C) affords. Accordingly, a categorical redaction of this information, as described in the declaration, is also valid.

Plaintiff argues that even though such withholdings might generally be justified, the defendant is required to specifically correlate every piece of redacted information in the 41 pages with one of the two claimed exemptions, and that BATF's failure to do so precludes summary judgment. (See Plaintiff's Motion Under Vaughn; Plaintiff's Opposition at p. 6). The Court disagrees.

Courts have reasoned that in assessing the adequacy of a Vaughn Index, it is the function served, rather than form, that is crucial. See Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994) ("[I]t is the function, not the form, which is important."); Coleman v. FBI, 13 F. Supp.2d 75, 78 (D.D.C. 1998) (requiring "substance over form" in preparation of Vaughn Index to facilitate de novo review). The degree of specificity is therefore dependent upon the nature of the case, the document at issue, and the exemption claimed. See Information Acquisition Corp. v. Dep't of Justice, 444 F. Supp. 458, 462 (D.D.C. 1978).

Therefore, there is no requirement that the BATF label each redaction with the asserted exemption, in contradiction to Ferranti's argument. See Davis v. United States Dep't of Justice, 968 F.2d 1276, 1282 n. 4 (D.C.Cir. 1992) (concluding that the precise matching of exemptions with particular withheld items was not necessary for the trial court's disposition as all the government's claims were meritorious). Such correlation may indeed be required in many cases where the information being withheld is extensive enough, i.e. more than just names and codes, such that the applicable exemption would not be clear from the face of the redacted document, and is obviously required when a document has been withheld in its entirety. However, in this case the defendant's affidavit specifically declares that only two narrowly limited categories of information, individual's names and internal codes, have been redacted. As discussed above, both claimed exemptions are clearly valid as a matter of law. Plaintiff concedes as much by acknowledging that some of the redactions "rather obviously" fall within one exemption or another, and does not argue that individual names are outside the scope of Exemption 7(C) nor that internal computer codes are outside the scope of Exemption 2. (See Plaintiff's Opposition at p. 8). It is also clear to ...


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