On September 11, 2001 — truly a day of infamy in our national
history — this country was attacked by terrorists in New York
City and at the Pentagon across the river from Washington, D.C.
We will recover from the physical damage inflicted by those
attacks. The psychic damage suffered by the body politic of our
country may take far longer to heal.
Immediately after the terrible events of September 11, the
Government began its massive effort to investigate, identify and
apprehend those who were responsible and to protect the American
public against further attacks of this nature. As part of that
effort the Government arrested and jailed — or in the bloodless
language of the law "detained" — well over 1000 people in
connection with its investigation. Despite demands from members
of Congress, numerous civil liberties and human rights
organizations, and the media, the Government refused to make
public the number of people arrested, their names, their
lawyers, the reasons for their detention, and other information
relating to their where-abouts and circumstances.*fn2
Secret arrests are "a concept odious to a democratic society,"
Morrow v. District of Columbia, 417 F.2d 728, 741-742
(D.C.Cir. 1969), and profoundly antithetical to the bedrock
values that characterize a free and open one such as ours.
Plaintiffs in this case seek to vindicate that fundamental
principle by relying primarily on the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, as well as the First Amendment and
common law. The animating principle behind the Freedom of
Information Act is safeguarding the American public's right to
know what "their Government is up to." United States v.
Reporters Committee for Freedom of the Press, 489 U.S. 749,
773, 109 S.Ct. 1468 (1989) (internal citations omitted). In
enacting that statute, Congress recognized that access to
government records is critical to earning and keeping citizens'
faith in their public institutions and to ensuring that those
institutions operate within the bounds of the law.
Difficult times such as these have always tested our fidelity
to the core democratic values of openness, government
accountability, and the rule of law. The Court fully understands
and appreciates that the first priority of the executive branch
in a time of crisis is to ensure the physical security of its
citizens. By the same token, the first priority of the judicial
branch must be to ensure that our Government always operates
within the statutory and constitutional constraints which
distinguish a democracy from a dictatorship.
With these considerations in mind, the Court now turns to the
parties' motions. This matter is before the Court on Defendant's
Motion for Summary Judgment ("Def.'s Mot.") and Plaintiffs'
Cross-motion for Summary Judgment ("Pls.' Mot."). Upon
consideration of the motions, oppositions, replies, the Motions
Hearing held in this matter on May 29, 2002, the amicus brief
submitted by the Washington Legal Foundation, and the entire
record herein, and for the reasons stated below, the Court
grants in part and denies in part Defendant's Motion for
Judgment and grants in part and denies in part Plaintiffs'
Cross Motion for Summary Judgment.
Following the terrorist attacks of September 11, 2001, the
United States government launched a massive investigation into
the attacks as well as into "threats, conspiracies, and attempts
to perpetrate terrorist acts against [the] United States."
Declaration of James S. Reynolds ("Reynolds Decl.") ¶ 2
(Attached as Ex. 1 to Def.'s Mot.).
On October 25, 2001, Attorney General John Ashcroft announced
that the "antiterrorism offensive has arrested or detained
nearly 1,000 individuals as part of the September 11
investigation." Amended Compl. ¶ 28; Answer ¶ 28; Reynolds Decl.
At the time of that announcement, the Government refused to
reveal the names of those who were arrested or detained, as well
as the circumstances of their arrest and detention, including
dates of arrest or release, locations of arrest and detention,
and the nature of the charges filed.*fn3
A. Plaintiffs' FOIA Request
On October 29, 2001, Plaintiffs submitted three letters to
DOJ, sending one to the FBI, another to the Office of
Information Privacy ("OIP"), and the third to the Immigration
and Naturalization Service ("INS"), requesting information about
those arrested by the Government in connection with its
September 11 investigation. Specifically, they sought disclosure
of the following four categories of information:
1. Identities of each [detainee], the
circumstances of their detention or arrest, and any
charges brought against them. In particular, (1)
their names and citizenship status; (2) the
location where each individual was arrested or
detained initially and the location where they are
currently held; (3) the dates they were detained or
arrested, the dates any charges were filed, and the
dates they were released, if they have been
released; and (4) the nature of any criminal or
immigration charges filed against them or other
basis for detaining them, including material
witness warrants and the disposition of any such
charges or warrants.
2. The identities of any lawyers representing
any of these individuals, including their names and
3. The identities of any courts, which have
been requested to enter orders sealing any
proceeding in connection with any of these
individuals, any such orders that have been
entered, and the legal authorities that the
government has relied upon in seeking any such
4. All policy directives or guidance issued to
officials about making public statements or
disclosures about these individuals or about the
sealing of judicial or immigration proceedings.
Pls.' Mot., Ex. 10. Plaintiffs also requested expedited
processing of their FOIA request.
On November 1, 2001, OIP advised Plaintiffs that their request
for expedited processing had been granted on the ground that the
request involved a "matter of widespread and exceptional media
interest in which there exists possible questions about the
government's integrity which affect public confidence." Def.'s
Mot., Ex. 4, attachment B (citing 28 C.F.R. § 16.5(d)(1)(iv)
The INS responded on November 23, 2001, granting expedited
treatment of Plaintiffs' FOIA request and requesting that
Plaintiffs narrow the scope of their request. See Declaration
of Raymond Holmes ("Holmes Decl.") ¶ 7, attachment F. (attached
as Ex. 3 to Def.'s Mot.).
The FBI responded to Plaintiffs' FOIA request on November 1,
2001, indicating that it had reviewed Plaintiffs' request on an
expedited basis and that all "material responsive to
[plaintiffs'] request was being withheld pursuant to [Exemption
7(a)]" of FOIA. See Declaration of Scott A. Hodes ("Hodes
Decl.") ¶ 4 (attached as Ex. 2 to Def.'s Mot.). Plaintiffs
appealed, and on December 10, the FBI affirmed its denial under
both Exemptions 7(A) and 7(C), 5 U.S.C. § 552(b)(7)(A),(C).
Hodes Dec. ¶ 4
B. Information Disclosed by DOJ
The Government asserts that those it has arrested and detained
fall into one of three categories: (1) persons held on
immigration-related charges by INS; (2) persons charged with
federal crimes; and (3) persons held on material witness
warrants. DOJ has released the following information about each
of the three categories of detainees.
1. Immigration Detainees
The Government has detained a total of 751 individuals on
immigration violations over the course of its investigation.
See Def.'s Response to the Court's Order of May 31, 2002. As
of June 13, 2002, the number of people still being held in INS
custody was 74.*fn4 Id.
For 718 of the 751 individuals detained, DOJ has revealed
their place of birth and citizenship status, as well as the
dates any immigration charges were filed, and the nature of
those charges. See Def.'s Mot., Ex. 6 ("INS Special Interest
List: Joint Terrorism Task Force Working Group"). The Government
has withheld the names of those detained, the dates and
locations of their arrest and detention, the dates of release
for those 677 who were released,*fn5 and the identities of
2. Federally Charged Detainees
A total of 129 people have been detained on federal criminal
charges since September 11, 2001. As of June 11, 2002, 73
individuals remained in detention on criminal charges. Def.'s
Response to the Court's Order of May 31, 2002 at 2. Only one of
these has been charged in connection with the September 11
attacks.*fn6 See Reynolds Decl. ¶ 27.
DOJ has released the names of all individuals federally
charged, with the exception of one defendant whose case is
sealed by court order. See Def.'s Response to this Court's
Order of May 31, 2002. Defendant also released the dates charges
were filed; the nature of the charges filed; the dates any
detainees were released; and their lawyers' identities. The
Government continues to withhold information concerning dates or
locations of arrest as well as the dates and locations of
3. Material Witness Detainees
With respect to those held on material witness warrants, DOJ
has withheld all information, including the number of
individuals detained on material witness warrants, their names,
citizenship status and place of birth, dates and location of
their arrest and detention, and their lawyers' identities.
4. Policy Directives and Guidance
DOJ has released only two documents in response to Plaintiffs'
request for "policy directives or guidance" concerning the
detainees. One is a heavily redacted document entitled "draft
talking points," which contains guidelines that DOJ personnel
must follow when making public statements about the detainees.
See Declaration of Melanie Ann Pustay ¶ 6 ("Pustay Decl.")
(attached as Ex. 8 to Def.'s Reply). The other is a memorandum
from the Chief Immigration Judge to all immigration judges and
court administrators reminding them that immigration hearings
are to be closed to the public. See Pls.' Mot., Ex. 57.
5. Total Numbers of Detainees
Finally, DOJ has withheld the total number of individuals
arrested and detained in connection with its September 11
II. STANDARD OF REVIEW
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, 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. Fed.R.Civ.P. 56(c).
In FOIA cases, the Court may grant summary judgment on the
basis of government affidavits or declarations that explain why
requested information falls within a claimed exemption, as long
as the affidavits or declarations are sufficiently detailed,
non-conclusory, and submitted in good faith, and as long as a
plaintiff has no significant basis for questioning their
reliability. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978);
see also Coastal States Gas Corp. v. United States Dep't of
Energy, 617 F.2d 854, 861 (D.C.Cir. 1980). In determining
whether the government may properly withhold requested
information under any of FOIA's exemptions, the district court
conducts a de novo review of the government's decision.
5 U.S.C. § 552(a)(4)(B).
As of this moment, the public does not know how many persons
the Government has arrested and detained as part of its
September 11 investigation; nor does it know who most of them
are, where they
are, whether they are represented by counsel, and if so, who
their counsel are. Plaintiffs rely on FOIA, as well as the First
Amendment and common law, to obtain this information.
The fundamental purpose of FOIA is to lift the veil of
"secrecy in government." Reporters Committee, 489 U.S. at
772-773, 109 S.Ct. 1468 (internal citations omitted). To that
end, FOIA is designed to "`open up the workings of government
to public scrutiny'" through the disclosure of government
records. McGehee v. CIA, 697 F.2d 1095, 1108 (D.C.Cir. 1983)
(internal citation omitted). In order to accomplish that goal,
the Act mandates "full agency disclosure unless information is
exempted under clearly delineated statutory language."
Reporters Committee, 489 U.S. at 773, 109 S.Ct. 1468 (emphasis
added). In short, the Government bears the burden of proving why
information should not be disclosed to the public.
The Government invokes Exemptions 7A, 7C and 7F of FOIA, which
protect from disclosure any records or information "compiled for
law enforcement purposes" whenever disclosure:
(A) could reasonably be expected to interfere with
enforcement proceedings, . . . (C) could reasonably
be expected to constitute an unwarranted invasion of
personal privacy, . . . or (F) could reasonably be
expected to endanger the life or physical safety of
5 U.S.C. § 552(b)(7)(A), (C), (F). Defendant also relies on
Exemption 3 to withhold the identities of the material
witnesses. That exemption permits the Government to withhold
information that is protected by federal statute.
Before turning to the merits of these exemptions, the Court
observes preliminarily that both parties have argued this case
as if it were an "all or nothing" disclosure decision. The
Government's main affidavits, for example, treat Plaintiffs'
request for the detainees' names, their arrest and detention
history, and their lawyers' names, as if it were an
undifferentiated body of information. FOIA, however, requires a
court to conduct a particularized and focused inquiry for each
discrete category of information withheld by the Government.
See generally Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973);
Manna v. United States Dep't of Justice, 51 F.3d 1158, 1163
(3rd Cir. 1995). The Court therefore will examine whether the
Government's FOIA rationales support its withholding for each
separate category of information in issue.
As explained below, the Court concludes that: (1) the
Government must release the identities of all individuals
detained during the course of its September 11 investigation. To
the extent that the Government contends certain material witness
identities are sealed by court order, it must submit such orders
for in camera inspection or provide supplemental affidavits
clarifying the nature of those orders; (2) the Government has
properly withheld the dates and locations of arrest, detention
and release; (3) the Government must disclose the identities of
counsel representing those detained; and (4) the Government has
conducted an inadequate search with respect to its policy
directives and must conduct an additional search of its records.
A. The Government Must Disclose the Names of The
1. The Government Cannot Withhold the Names of the
Detainees Under Exemption 7A.*fn8
The Government devotes most of its briefing to FOIA Exemption
protects from disclosure any information "compiled for law
enforcement purposes" whenever it "could reasonably be expected
to interfere with enforcement proceedings . . ."*fn9
The Government affidavits provide three rationales in support
of Exemption 7A. First, the detainees may be "knowledgeable
witnesses," and disclosure of their names could "deter them from
cooperating . . . once they are released from custody and impair
their usefulness to the ongoing investigation." Reynolds Decl. ¶¶
14-15; see also Supp. Reynolds Decl. ¶ 6 In particular, the
Government worries that upon learning that their members have
been detained, "terrorist organizations . . . may refuse to deal
further with [the detainees]," or may threaten them, thereby
"eliminat[ing] valuable sources of information." Id.
Second, "releasing the names of the detainees who may be
associated with terrorism . . . would reveal the direction and
progress of the investigations by identifying where DOJ is
focusing its efforts." Reynolds Decl. ¶ 16. This could "allow
terrorist organizations to map the progress of the investigation
and thereby develop the means to impede them." Reynolds Decl. ¶
16; Suppl. Reynolds Decl. ¶ 6; Watson Decl. ¶ 15
Finally, "public release of names . . . could allow terrorist
organizations and others to interfere with the pending
proceedings by creating false or misleading evidence." Reynolds
Decl. ¶ 17.
a. The Government Has Failed to Demonstrate that Disclosure
Could Deter Cooperation.
The Government's first rationale — that disclosure will deter
cooperation because terrorist groups will intimidate or cut off
contact with the detainees — is unpersuasive for several
First, it assumes terrorist groups do not already know that
their cell members have been detained. The Government has
emphasized that the detainees are entitled to inform whomever
they want of their detention. Given this option of
"self-disclosure", and given that more than 10 months have
passed since September 11, it is implausible that terrorist
groups would not have figured out whether their members have
been detained. Defendant has offered no reason to believe that
terrorist groups would not know of the detentions.
Second, the Government's rationale is contradicted by its own
extensive disclosures. The Government has released the names of
individuals it has identified as members of al Qaeda or
connected to that organization.*fn10 See Pls.' Supplemental
Memorandum at 1-4. Moreover, at least 26 individuals held on
material witness warrants have been publicly identified, and the
identities of others held on immigration charges have been
disclosed, some reportedly by the Government. Id; see also
Pls.' Reply at 16, n. 24. The Government does not explain why
its concerns about cooperation apply with respect to some
detainees; but not to other detainees whose identities have been
disclosed. Cf. Lederman v. United States, 291 F.3d 36, 43
(D.C.Cir. May 31, 2002) (rejecting government's professed
security concerns about persons engaged in First Amendment
activity on Capitol Hill in light of its demonstrated lack of
security concerns about tourists and pedestrians in same area).
Third, the Government has not met its burden of establishing a
"rational link" between the harms alleged and disclosure.
Crooker v. Bureau of Alcohol, Tobacco and Firearms,
789 F.2d 64, 67 (D.C.Cir. 1986). Obviously, the release of names would
not deter cooperation or prevent detainees from providing
valuable information to the Government unless those detained
actually had some pre-existing link to or knowledge of terrorist
The Government affidavits assume, but utterly fail to
demonstrate, the existence of this link. The affidavits nowhere
declare that some or all of the detainees have connections to
terrorism. Nor do they provide facts that would permit the Court
to infer links to terrorism. For example, the Government has
provided no information on the standard used to arrest and
detain individuals initially.*fn11 Nor has it provided a
general description of evidence that it obtained confirming any
initial suspicions of links to terrorism. Indeed, when asked by
the Court during the Motions Hearing to explain the standard
used to arrest the detainees, or otherwise to substantiate the
purported connection to terrorism, the Government was unable to
answer. See Mot. Hearing Tr. 24:17-18 ("Your Honor, I don't
have that information . . .").
The Government's only response is that it cannot "rule out"
possible connections to terrorism for every detainee, and that
"dire consequences . . . would flow from even one unnecessary
disclosure." Def.'s Reply at 8, 15-17. The Government's response
is flawed legally and factually.
Legally, it turns FOIA's presumption of disclosure on its
head, requiring Plaintiffs to prove the absence of what the
Government must show affirmatively in order to withhold the
names. 5 U.S.C. § 552(a)(4)(B) ("burden is on the agency to
sustain" its decision to withhold information). Factually, the
record shows that the Government has "ruled out" links to
terrorism for hundreds of detainees. Only 74 of the original 751
INS detainees remain in custody. The remainder, some 677, have
either been released or deported. Not one of these has been
charged with terrorist activity.*fn12 See Def.'s Response
to the Court's Order of May 31, 2002; Def.'s Mot., Ex. 6.
Therefore, in the absence of an allegation of "reasonable
specificity" that detainees have a connection to terrorism, the
Government's concern that disclosure would deter cooperation and
impair its investigation is pure speculation, and, with respect
to the INS detainees, is actually belied by the record.
Campbell v. Department of Justice, 164 F.3d 20, 30 (D.C.Cir.
1998) (speculative or conclusory affidavits do not support
b. The Government Has Failed to Demonstrate that Disclosure
of Names Could Enable Terrorist Groups to Map Its
The Government's second of three rationales for why disclosure
could "interfere with enforcement proceedings" under Exemption
7A is that terrorists might "map the progress of the
investigation, and . . . develop the means to impede it."
Reynolds Decl. ¶ 16. Specifically, the Government advances a
so-called "mosaic theory," and argues that no information may be
disclosed because "bits and pieces of information that may
appear innocuous in isolation, when assimilated with other
information . . . will allow the organization to build a picture
of the investigation and to thwart the government's attempts to
investigate and prevent terrorism." Watson Decl. ¶ 12.
Defendant's reliance on the mosaic theory to withhold the
detainees' names is misplaced for several reasons.
First, there is simply no existing precedent applying the
mosaic theory to Exemption 7. What little precedent does exist
applies to Exemption 1 cases, not Exemption 7 cases. See, e.g.,
Abbotts v. Nuclear Regulatory Commission, 766 F.2d 604
(D.C.Cir. 1985). Exemption 1 protects matters that are
"specifically authorized under criteria established by an
Executive order to be kept secret in the interest of the
national defense or foreign policy." 5 U.S.C. § 552(b)(1).
Exemption 1 cases receive considerable deference from the
courts, which must give "substantial weight" to agency
affidavits on national defense and foreign policy issues. King
v. Department of Justice, 830 F.2d 210, 217 (D.C.Cir.
1987).*fn13 Significantly, the Government does not rely on
Exemption 1 in this case.
Second, application of the mosaic theory would essentially
turn 7A into an exemption dragnet, as it would permit the
Government to lump together all information related to an
ongoing government investigation and withhold it solely because
innocuous parts of data might be pieced together by terrorist
groups. This result is contrary to well-settled Exemption 7A
Exemption 7A does not authorize "blanket exemptions" for "all
records relating to an ongoing investigation" or "merely because
[such information] relates to a pending investigation."
Campbell v. Department of Health and Human Services,
682 F.2d 256, 259, 262 (D.C.Cir. 1982); see also Crooker, 789 F.2d at
66-67. Rather, the Government must divide the undisclosed
information into "categories that are sufficiently distinct to
allow a court to grasp `how each . . . category of [information]
if disclosed, would interfere with the investigation.'" Bevis,
801 F.2d at 1389 (D.C.Cir. 1986) (internal citations omitted).
Application of the mosaic theory would allow the Government to
sidestep this Exemption 7A requirement.
Finally, the key Government affidavit on the mosaic theory was
not even prepared for this case, but rather is a copy of the
affidavit prepared for an unrelated case filed in the Eastern
District of Michigan.*fn14 See generally Watson Decl. That
affidavit discusses the potential risks of opening deportation
hearings and disclosing evidence, not disclosing
identities.*fn15 Virtually all of the evidence discussed in
the affidavit is information not in issue in this case, such as
how or when a given detainee entered the country or what the
detainees have told the Government about the operations of
terrorist cells. See Watson Decl. ¶¶ 12-13.
For these reasons, the Court concludes that the mosaic theory
cannot justify the Government's wholesale withholding of names.
c. The Government Has Failed to Demonstrate that Disclosure
of Names Could Enable Terrorist Groups to Create False and
The third and final rationale the Government offers in support
of the 7A withholdings of identities is that disclosure could
"interfere with pending proceedings" by "creating false or
misleading evidence." The Government's only supporting affidavit
on the subject is the Reynolds Declaration,*fn16 which
contains one conclusory sentence, and totally fails to explain
how disclosure of names per se would lead to the creation of
false evidence. See Reynolds Decl. ¶ 17. Nor is it apparent to
the Court how release of
only the names could possibly lead to evidence tampering.
For all the foregoing reasons, the Court finds that none of
the Government's three rationales supports its withholding of
the detainees' names under Exemption 7A.
2. The Government Cannot Rely on Exemptions 7C and 7F to
Withhold the Identities of the Detainees.
The Government also relies on Exemptions 7C and 7F, arguing
that the detainees' privacy interests and personal safety
require that the names not be disclosed.
With respect to Exemption 7C, the Government argues that the
detainees have a "substantial privacy interest" and that
"release of their names . . . would forever connect them to the
September 11 attacks . . . caus[ing] embarrassment,
humiliation, risk of retaliation, harassment and possibly even
physical harm." Reynolds Decl. ¶ 19.
There is no question that there is a substantial privacy
interest in not being associated with alleged criminal activity.
See, e.g., Stern v. FBI, 737 F.2d 84, 92 (D.C.Cir. 1984).
However, Exemption 7C does not provide blanket protection to all
information that could invade personal privacy. Indeed, if
privacy concerns alone were sufficient, the Government could
arrest and jail any person accused of a heinous crime and refuse
to reveal his or her name to the public.
Instead, Exemption 7C requires a balancing of the "public
interest in disclosure" against the "privacy interests
implicated" so that only information "constitut[ing] an
unwarranted invasion" of privacy will be withheld.
5 U.S.C. § 552(b)(7)(C) (emphasis added); Stern, 737 F.2d at 92. The
public's interest in disclosure lies in "open[ing] agency action
to the light of public scrutiny" and revealing what the
"Government is up to." Reporters Committee, 489 U.S. at 772,
109 S.Ct. 1468; SafeCard Services, Inc. v. SEC, 926 F.2d 1197,
1206 (D.C.Cir. 1991) (evidence of government misconduct cannot
be withheld under 7C).
The federal Government's power to arrest and hold individuals
is an extraordinary one. Here, the Government has used its
arrest power to detain individuals as part of an investigation
that is widespread in its scope and secrecy. Plaintiffs voice
grave concerns about the abuse of this power, ranging from
denial of the right to counsel and consular notification, to
discriminatory and arbitrary detention, to the failure to file
charges for prolonged periods of detention, to mistreatment of
detainees in custody.*fn17 See Pls.'s Reply at 11-13; Pls.'
Mot. at 20-32. The concerns are sufficiently substantial that
DOJ's Office of the Inspector General has initiated an
investigation into the Government's
treatment of the detainees. See Def.'s Reply at 22, n. 10.
Unquestionably, the public's interest in learning the identities
of those arrested and detained is essential to verifying whether
the Government is operating within the bounds of the law.
However, it must be acknowledged that concern about the
privacy and the safety of the detainees — both in this country
and abroad — is not without merit. Specifically, with respect to
Exemption 7F, the Government states that "revealing the
identities could subject them to physical danger both in the
United States and in their home countries." Reynolds Decl. ¶ 37.
Therefore, in view of the detainees' interests in privacy and
legitimate concerns about their personal safety, and in view of
the Court's obligation to balance the privacy interests against
the public's interest, the Court concludes that detainees
wishing to keep their name confidential may "opt out" of public
disclosure by submitting to the Government a signed statement
requesting that their identities remain confidential. For all
other detainees, Exemptions 7C and 7F do not justify the
Government's withholding of names.
3. The Government Cannot Rely on Exemption 3 to Withhold
the Identities of Material Witnesses.
Exemption 3 exempts from disclosure information that is
protected by any federal statute. The Government argues that
Fed.R.Crim.P. 6(e)(2) and (e)(6), which are federal laws that
mandate secrecy in grand jury proceedings, bar disclosure under
As an initial matter, the Court observes that the Government's
treatment of material witness information is deeply troubling. A
person apprehended as a material witness is not accused of any
crime but, instead, has been arrested because it is believed
that his or her "testimony is material in a criminal
proceeding." 18 U.S.C. § 3144. Furthermore, such person may only
be detained until "testimony can adequately be secured by
deposition," after which he or she must be released. Id.
Nevertheless, the Government has kept secret virtually
everything about these individuals, including the number of
people arrested and detained, as well as their identities. The
public has no idea whether there are 40, 400, or possibly more
people in detention on material witness warrants.
The Government's reliance on grand jury secrecy rules to
justify withholding the identities of material witnesses is
fundamentally wrong as a matter of law. First, on its face,
Fed.R.Crim.P. 6(e) does not bar disclosure of the identities of
persons detained as material witnesses. Fed.R.Crim.P. 6(e)(2)
prohibits disclosure of "matters occurring before the grand
jury." Fed.R.Crim.P. 6(e)(6) provides that "records, orders and
subpoenas relating to grand jury proceedings shall be kept under
seal to the extent and for such time as is necessary to prevent
disclosure of matters occurring before a grand jury."
Second, Plaintiffs have asked for the identities of those held
on material witness warrants. They have not asked for the
identities of grand jury witnesses. Nor is there necessarily an
overlap between the two. In fact, the material witness statute
itself refers to criminal proceedings generally; it says nothing
about grand jury proceedings. See 18 U.S.C. § 3144 (referring
generically to persons whose "testimony . . . is material in a
criminal proceeding"). To the extent that there might be
overlap, the Government can reveal the names of material
witnesses without revealing any information about their status
as grand jury witnesses.*fn18
Third, the affidavits do not establish that those held as
material witnesses are in fact grand jury witnesses. There is no
indication in the Government affidavits that the material
witnesses have testified before a grand jury, are scheduled to
testify before a grand jury, or have been subpoenaed or
otherwise ordered to testify.*fn19 In fact, it is publicly
known that at least eight, possibly more, material witnesses who
were apprehended as potential grand jury witnesses were released
and never testified before a grand jury. See Pls.' Reply at
17, n. 25.
Finally, the identities of at least 26 individuals who have
been held on material witness warrants have already been
publicly disclosed. See Pls.' Reply at 16-17. The Government's
own announcements of the identities of material witnesses
undercuts their reliance on Fed.R.Crim.P. 6(e). See In re
Petition of Craig, 131 F.3d 99, 107 (2d Cir. 1997) ("[T]he
extent to which the grand jury material [is] . . . public is
clearly relevant because even partial previous disclosure often
undercuts many of the reasons for secrecy."); see In re: SEALED
CASE NO. 99-3091, 192 F.3d 995 (D.C.Cir. 1999) (name of grand
jury witness not covered by Rule 6(e) because identity as a
witness was publicly known).
Accordingly, for the foregoing reasons, the Government has not
met its burden of showing that disclosure of material witness
identities would reveal some "secret aspect of the grand jury's
investigation" and may therefore not rely on R. 6(e) and
Exemption 3 to justify its across-the-board withholding of the
names of all material witnesses.
4. The Government Cannot Rely on Sealing Orders to Withhold
the Identities of Material Witnesses.*fn20
The Government's final argument in support of its decision to
withhold identities is that certain federal court orders
prohibit it from releasing the identities of some, if not all
material witnesses. The Second Supplemental Reynolds Declaration
states: "the foregoing material witness warrants are governed by
court orders prohibiting the government from releasing any
information about these
proceedings. The exact language of these orders varies but the
Department of Justice interprets such orders to protect from
disclosure not only the contents of the warrants but the very
fact of the existence of the warrants." See Second Supp. Dec.
The meaning of this statement is unclear. For example, does it
mean that: (1) each federal court that issued a material witness
warrant also issued a separate sealing order with respect to
such witness; (2) courts in criminal cases in which material
witnesses have testified have sealed those proceedings; or (3)
DOJ is interpreting material witness warrants themselves as
sealing orders simply because it believed that those individuals
could be grand jury witnesses in the future? Compare Reynolds
Decl. 132 ("The United States District Courts before which the
material witnesses have appeared have issued sealing orders
prohibiting the government from releasing any information about
these proceedings."), with Def.'s Reply at 33 ("A material
witness warrant is issued by a court and therefore qualifies as
an `order' required to remain under seal [pursuant to
Without further clarification of the court orders referred to,
this Court cannot ascertain whether Defendant has properly
withheld the identities of material witnesses on this ground.
Accordingly, insofar as the Government is relying on court
orders, it may either submit those orders in camera or provide
a supplemental affidavit explaining the nature and legal basis
for these sealing orders.
B. The Government Has Properly Withheld the Dates and
Locations of Arrest, Detention, and Release.
With respect to the dates and locations of arrest, detention,
and release, the Court finds that the record is sufficient to
support the Government's withholding under Exemptions 7A and 7F.
First, with respect to Exemption 7A, the Government has argued
that detailed information of this nature could interfere with
the investigation because it would "inform organizations of
routes of investigation that were followed but eventually
abandoned. . . . could provide insights into the past and
current strategies and tactics of law enforcement agencies
conducting the investigation." Supp. Reynolds Decl. ¶ 6.
Defendant has emphasized that dates and locations would be
particularly valuable to anyone attempting to discern patterns
in the Government's investigation and strategy. For example, the
Government states that "revealing that in a certain city, on a
certain date, a certain number of people were detained, could be
extremely useful information to terrorist organizations."
Motions Hearing Tr. at 27:14-17; Id. at 16:22-25 ("Your Honor,
even with those particular [public] indictments, the dates that
the individuals were detained, the locations at which they were
arrested, things of that nature, we have not provided because
that is information that would fit into the mosaic.").
Second, the Government has emphasized that disclosure of
locations would place the "life or physical safety" of many
people at risk because it would make detention facilities
vulnerable to retaliatory attacks, and "place at risk not only
 detainees, but the facilities themselves and their
employees." Reynolds Decl. ¶ 37.
Accordingly, in the absence of any contrary evidence, or any
reason to discredit the Government's representations regarding
this information, the Court finds that the dates and locations
of arrest, detention, and release were properly withheld.
C. The Government Must Disclose the Identities of the
The Government has withheld the identities of counsel for the
detainees held on immigration violations and material witness
warrants under Exemptions 7A, 7C, and 7F.
With respect to 7A, the Government's affidavits are facially
insufficient. The only justification the Government offers is
the following conclusory comment: "the rationale that underlies
the withholding of the names of the detainees similarly supports
the non-disclosure of their lawyers' identities." Reynolds Decl.
¶ 18. Since the Court has rejected the 7A rationales as applied
to the detainees' identities, those rationales will obviously
not support the Government's withholding of the attorneys'
With respect to Exemptions 7C and 7F, the Government asserts
that if the attorneys' identities are revealed, they could be
subject to professional humiliation or physical harm (either
from angry citizens or from terrorist organizations).*fn21
See Reynolds Decl. ¶¶ 25, 38.
First, it is worth noting that lawyers are a hardy brand of
professionals. The legal profession has a long and noble history
of fighting for the civil liberties and civil rights of
unpopular individuals and political causes, ranging from their
advocacy on behalf of WWI dissidents, to their resistance to
McCarthy era abuses, to the defense of persons accused of
heinous capital crimes.
Second, Defendant's rationale erroneously assumes that
lawyers, like suspects or defendants, have an expectation of
anonymity; they do not. Nor has the Government offered any
contrary evidence or suggested that the lawyers representing the
detainees expected that their names would remain confidential.
In fact, the names of many lawyers are already publicly known,
and there is nothing in the record to suggest that any of the
harms prophesied by the Government have occurred.
Third, the Government's recitation of harms is totally
speculative, with no factual basis. For example, Defendant
states that "some might construe the attorneys as working
against the interests of the United States" and therefore "seek
to retaliate." Reynolds Decl. ¶ 25. Not only is there no
evidence of such retaliation, but the Government assumes,
without any support, that citizens do not understand the role of
defense lawyers in the American system of justice.
For the foregoing reasons, the Court finds that Exemptions 7A,
7C, and 7F do not protect the identities of the attorneys.
Defendant must therefore disclose the identities of the
D. The Government Did Not Conduct an Adequate Search for
Finally, Plaintiffs challenge the adequacy of Defendant's
search for documents responsive to their request for "all policy
directives and guidance issued to
officials about making public statements or disclosures" about
the detainees or about "sealing judicial or immigration
proceedings." As noted earlier, the Government released the
following two documents in response to Plaintiffs' request: (1)
a heavily redacted, two-page document from DOJ entitled "draft
talking points" for the Attorney General; and (2) a memorandum
via electronic mail from Chief Immigration Judge Michael Creppy
to "All Judges; Court Administrators" dated September 21, 2001.
Pls.' Reply, Ex. 57.
"`It is elementary that an agency responding to a FOIA request
must conduct a search reasonably calculated to uncover all
relevant documents.'" Truitt v. Dep't of State, 897 F.2d 540,
542 (D.C.Cir. 1990) (internal citations omitted). Affidavits
attesting to the sufficiency of an agency's search must be
detailed and non-conclusory. Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C.Cir. 1990).
Upon review of the affidavits submitted, it is clear that the
Government has failed to satisfy its obligation to search in a
manner "reasonably calculated to uncover" responsive documents.
First, the affidavits indicate that the FBI did not conduct
any search at all, let alone one that was "reasonably
calculated" to uncover responsive documents. The FBI's
declaration states only that after "consultation [with Mr.
Collingwood, an FBI Assistant Director], it was determined
that the FBI did not have documents responsive to this part of
plaintiffs' FOIA request." (emphasis added). See Supp.
Declaration of Scott A. Hodes, ¶ 3 (attached as Ex. 9 to Def.'s
Reply). The declaration says nothing about whether anyone within
the FBI conducted a search; nor does it provide an explanation
as to why no search was conducted.
Second, the declaration that purports to explain searches
conducted within other parts of the Department of Justice also
suffers from major deficiencies. Although the agency declaration
indicates that three offices within DOJ conducted searches,
namely the Office of Information Privacy, the Office of the
Attorney General, and the Office of the Deputy Attorney General,
no details are provided about how these searches were performed.
See Pustay Decl. ¶¶ 1,6; see also Oglesby, 920 F.2d at 68 ("A
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials. . . . were searched, is
necessary"). Incredibly, the only item recovered within the
entire Department of Justice, was a two-page document, entitled
"draft talking points" for the use of the Attorney General. A
redacted copy was provided to Plaintiffs on January 11, 2002.
Third, the other document disclosed to Plaintiffs clearly
indicates the existence of earlier relevant documents, none of
which were disclosed. A memorandum from Chief Immigration Judge
Michael Creppy sent electronically to "All Judges; Court
Administrators" dated September 21, 2001 states that "as [some
of the recipients] already know," the Attorney General "has
implemented . . . procedures [that] require us . . . to close
the hearing[s] to the public, and to avoid discussing the case
or otherwise disclosing any information about the case to anyone
outside the Immigration Court." See Pls.' Mot., Ex. 57.
Defendant had an obligation, after discovery of this document,
to search for additional responsive information about those
"procedures". Campbell, 164 F.3d at 28 (an agency "must revise
its assessment of what is `reasonable' in a particular case to
account for leads that emerge during its inquiry.").
Finally, it is simply not credible that no other documents are
responsive to Plaintiffs' request. Somehow all United States
Attorneys Offices, all FBI offices, all INS offices, and all DOJ
offices throughout the
United States were told that matters related to those
apprehended in connection with September 11, were to remain
secret. How was this directive communicated? The Government
never explains how widespread notification was accomplished
without the use of a single document produced under FOIA.
For the foregoing reasons, the Court concludes that the
Government's search for "all policy directives and guidance
issued to officials about making public statements or
disclosures" with respect to the detainees or about "sealing
judicial or immigration proceedings" was inadequate. The
Government must conduct another search.
To summarize the Court's FOIA conclusions, the Court finds
that: (1) Exemptions 7 and 3 do not protect the identities of
the detainees from disclosure. The Government must therefore
release within fifteen days a comprehensive list of names of
those individuals it has arrested and detained in connection
with its investigation into the events of September 11, 2001
with two exceptions. With respect to the court orders
purportedly barring disclosure, the Government must submit
within fifteen days the orders for in camera review or a
supplemental declaration. Any detainee wishing to keep his or
her name confidential may do so by submitting a signed statement
to the Government requesting such confidentiality; (2)
Exemptions 7A and 7F protect from disclosure the dates and
locations of arrest, detention, and release of the detainees;
(3) Exemptions 7A, 7C and 7F do not protect the identities of
any of the attorneys of the detainees. The Government must
release within fifteen days the names of those attorneys; and
(4) the Government's search with respect to policy directives
and guidance was inadequate. The Government must conduct an
additional search for these documents and file a supplemental
report with the Court within thirty days.
E. The First Amendment and Common Law Do Not Entitle
Plaintiffs to the Remaining Information.*fn22
Plaintiffs also claim that the First Amendment and common law
entitle them to the dates and locations of arrest, detention and
It has long been recognized that the public has a First
Amendment right of access to criminal proceedings,*fn23 civil
proceedings,*fn24 and to "receive information and
ideas" pertaining to the conduct of public affairs. Kleindienst
v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683
(1972). This right derives from the core purpose of the First
Amendment, which is to ensure "freedom of communication on
matters relating to the functioning of government." Richmond
Newspapers, Inc. 448 U.S. at 575, 100 S.Ct. 2814.
However, the First Amendment is not coterminous with FOIA, and
it does not "mandate a right of access" to all "government
information." Richmond Newspapers 448 U.S. at 583, n. 1, 100
S.Ct. 2814 (Stevens, J., concurring); Houchins v. KQED,
438 U.S. 1, 15, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). To determine
whether there is a 1st Amendment right of access, the Supreme
Court has relied upon two complementary considerations: first,
whether there is "a tradition of accessibility" or, in other
words, a historical presumption of access to such information;
and second, whether access to the proceedings or records would
contribute to the self-governing function and further the
democratic process. Richmond Newspapers, 448 U.S. at 589, 100
S.Ct. 2814 (Brennan and Marshall, JJ., concurring).
Applying these principles, the Court finds that while it may
be true that the fact of an individual's arrest has always been
public,*fn25 there is no argument or record evidence
supporting the conclusion that "a tradition of accessibility"
attaches to the dates and location of arrest, detention, or
Furthermore, Defendant has submitted several affidavits
establishing the existence of an important governmental
interest. The information sought may be used to map the progress
of the Government's law enforcement investigation, and place at
risk the detention facilities as well as the physical safety of
the detainees and employees. See Supp. Reynolds Decl. ¶ 6;
Watson Decl. ¶ 12. Finally, Plaintiffs have not offered — and
the Court cannot discern — a "less restrictive" means of
securing this interest, other than to withhold this information.
Globe Newspaper, 457 U.S. at 607-8, 102 S.Ct. 2613.
2. Common Law
Nor does the federal common law right of access to "inspect
and copy public records and documents," Nixon v. Warner Comm.
Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978),
permit release of this information. Even assuming this
information can be considered "public record," the Court finds
that the Government's asserted interest in withholding these
particular categories of information greatly outweighs the
public interest in obtaining it.
The harms the Government forecasts are significant. At the
same time, given that the identities of the detainees will be
disclosed, the Court sees no added benefit to the public
interest in disclosure of the dates and location of arrest and
detention. Plaintiffs have not indicated how the public interest
would be furthered by the additional disclosures of dates and
locations of arrest and detention.
For the foregoing reasons, the Court grants in part and
denies in part Defendant's Motion for Summary Judgment, and
grants in part and denies in part, Plaintiffs' Motion for
First, with respect to the identities of the detainees,
Defendant's Motion is denied, and Plaintiffs' Cross-Motion is
granted. Defendant shall disclose within fifteen days the
names of those it has arrested and detained in connection with
its September 11, 2001 terrorist investigation. With respect to
those detainees for whom the Government contends disclosure is
barred by court order, the Government must submit the orders for
in camera review or provide a supplemental declaration within
fifteen days. Furthermore, any detainee wishing to withhold his
or her name from public disclosure can submit a signed statement
to the Government requesting confidentiality of their identity.
The Government shall provide sealed copies of these statements
to the Court in support of its disclosures to Plaintiffs.
Second, with respect to the dates of arrest, detention, and
release as well as the location of arrest and detention,
Defendant's Motion for Summary Judgment is granted, and
Plaintiffs' Motion for Summary Judgment is denied. Defendant
has properly withheld this information under Exemptions 7A and
7F. Neither the First Amendment nor the common law right of
access entitles Plaintiffs to this information.
Third, with respect to the names of the detainees' lawyers,
Defendant's Motion is denied, and Plaintiffs' Motion is
granted. Defendant shall disclose the names of the detainees'
attorneys within fifteen days.
Finally, Defendant's search for information in response to
Plaintiffs' request for policy directives was inadequate.
Defendant must conduct a new search within thirty days.
The matter is before the Court on Defendant's Motion for
Summary Judgment ("Def.'s Mot.") and Plaintiffs' Cross-motion
for Summary Judgment ("Pls.' Mot."). Upon consideration of the
motions, oppositions, replies, the Motions Hearing held in this
matter on May 29, 2002, the amicus brief submitted by the
Washington Legal Foundation, and the entire record herein, and
for the reasons stated in the accompanying Memorandum Opinion,
it is hereby
ORDERED, that Plaintiffs' Motion is granted and
Defendant's Motion is denied with respect to the identities of
the detainees. Defendant shall disclose within fifteen days
the names of those it has arrested and detained in connection
with its September 11, 2001 terrorist investigation with the
following two exceptions. With respect to the names of detainees
for whom the Government contends court orders prohibit
disclosure, the Government must submit those orders for in
camera review or provide a supplemental declaration within
fifteen days. Any detainee wishing to withhold his or her name
from public disclosure can submit a signed statement to the
Government requesting confidentiality of their identity. The
Government shall provide within fifteen days sealed copies of
these statements to the Court in support of its disclosures to
Plaintiffs; it is further
ORDERED, that with respect to the dates of arrest,
detention, and release as well as the location of arrest and
detention, Defendant's Motion is granted, and Plaintiffs'
Motion is denied. Defendant has properly withheld this
information under Exemptions 7A, 7C and 7F. Neither the First
Amendment nor the common law right of access entitles Plaintiffs
to this information; it is further
ORDERED, that with respect to the names of the detainees'
lawyers, Defendant's Motion is denied, and Plaintiffs' Motion
is granted. Defendant shall
disclose the names of the detainees' attorneys within fifteen
days; it is further
ORDERED, that Defendant's search for information in response
to Plaintiffs' request for policy directives was inadequate.
Defendant must conduct a new search within thirty days.