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BILLINGTON v. U.S. DEPARTMENT OF JUSTICE

February 14, 2003

GAIL G. BILLINGTON, PLAINTIFF
V.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



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

      MEMORANDUM OPINION

This matter comes before the Court on remand from the D.C. Circuit. See Billington v. U.S. Dep't of Justice, 233 F.3d 581 (D.C. Cir. 2000) ("Billington III"). Pursuant to the D.C. Circuit's directions on remand, this Court has reviewed in camera two Internal Revenue Service documents and two State Department documents, and now finds that defendant must disclose substantial portions of information previously withheld from these documents.

Also before the Court is defendant's motion for summary judgment [166-1]. Upon consideration of the D.C. Circuit's decision, defendant's motion, plaintiff's opposition [167-1], defendant's reply [169-1], and the record in this case, the Court finds that defendant's motion should be granted in part and denied in part.

I. BACKGROUND

At the conclusion of the second phase, the Court denied plaintiff's motion for partial summary judgment. Billington v. Dep't of Justice, 69 F. Supp.2d 128, 141 (D.D.C. 1999) ("Billington II"). It granted defendant's motion for summary judgment with respect to documents in the "Internal Security Files" that had been withheld under exemptions 1, 2, 7(C), and 7(D). Id. The Court also granted summary judgment for defendant on plaintiff's remaining claims concerning the "referral agency" documents. Id. Plaintiff appealed both decisions of this Court.

The D.C. Circuit reversed this Court's grant of summary judgment regarding documents withheld under exemption 7(D), and remanded to permit the government to "make a stronger showing" of its reasons for withholding the documents. Billington III, 233 F.3d at 585. In addition, the D.C. Circuit found that declarations submitted by the State Department and the Internal Revenue Service lacked a sufficient segregability analysis. It remanded to this Court for findings regarding the segregability of withholdings from two documents by the Internal Revenue Service, and from two documents by the State Department. Finally, the D.C. Circuit required this Court to determine the applicability of exemption 6 to the two State Department documents and decide whether any non-exempt portions of the documents should be released.

On November 28, 2001, defendant submitted the four documents at issue for in camera review. On January 7, 2002, defendant filed a declaration containing additional justification for withholding documents under exemption 7(D). Defendant filed its motion for summary judgment on the remaining issues in this case on March 14, 2002.

II. ANALYSIS

A. The Two State Department Documents

1. Applicability of Exemption 6

Defendant has withheld information from two documents referred by the FBI to the Department of State. The first document, FBIHQ 100-457751-1350, a fourteen-page document entitled "Notes on Interview," was withheld in its entirety under FOIA exemption 6. The second document, NCLC Document 27, was released to plaintiff with several lines redacted. Defendant cited exemption 6 as its reason for redacting these lines. This Court previously determined that the State Department's declaration lacked sufficient information for the Court to determine the propriety of withholding the two documents. Billington I, 11 F. Supp.2d at 71. Defendant has provided no additional information on this issue. Having reviewed both documents in camera, this Court finds that defendant must release substantial portions of the withheld information to plaintiff.

Exemption 6 of FOIA permits the government to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (1994). The phrase "similar files" has been "broadly defined to include any Government records on an individual which can be identified as applying to that individual." Judicial Watch of Florida v. U.S. Dep't of Justice, 102 F. Supp.2d 8, 16 (D.D.C. 2000) (citing U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 601-02 (1982)) (internal punctuation omitted). However, exemption 6 should only be employed when the privacy interest at stake outweighs the public interest in disclosure. Therefore, the district court must "balance the individual's right of privacy against the basic policy of opening agency action to the light of public scrutiny." U.S. Dep't of State v. Ray, 502 U.S. 164, 175 (1991) (citing Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976)) (internal punctuation omitted). In performing this analysis, courts in this circuit are to "tilt the balance (of disclosure interests against privacy interests) in favor of disclosure." Washington Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252, 261 (1982) (punctuation and internal citations omitted). The court must also take into account that "[t]he weight of the public's interest in disclosure depends on the degree to which disclosure would shed light on an agency's performance of its statutory duties and its compliance with the law." Judicial Watch, 102 F. Supp.2d at 17 (citing Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991)).

This Court remains unpersuaded that the greater part of the omitted portions of the two documents falls within the purview of exemption 6. The fourteen-page document "Notes on Interview" consists of typed notes by a journalist for a nationally-recognized American magazine made in connection with an interview with two NCLC members. The interview focused on the political philosophy of the NCLC during the 1970s. The second document explains how the first document was distributed to the FBI, and the portion redacted under exemption 6 simply names the interviewer and two interviewed individuals. The disclosure of both documents would shed light on the State Department and FBI's performance of statutory duties and compliance with the law. Moreover, it is difficult to see how the release of such information would constitute an unwarranted invasion of privacy. The two NCLC members interviewed knew that they were speaking to a reporter on the record and therefore could not expect to keep private the substance of the interview. Although it is true that the reporter might not have contemplated that his unedited notes from the interview would be made public, the disclosure of these notes hardly constitutes a "clearly unwarranted invasion of personal privacy." Rather, the minimal invasion of privacy is outweighed by "the extent to which disclosure would serve the core purpose of the FOIA, which is contribut[ing] significantly to public ...


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