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March 31, 2003


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge



This Freedom of Information Act ("FOIA") matter comes before the court on the parties' motions for summary judgment. Plaintiff Albert Mack, a former Marine and now an inmate under sentence of death in Alabama, seeks disclosure of all agency documents generated by the Naval Criminal Investigative Services ("NCIS") that pertain to him. Over the course of the last three years, the Department of the Navy ("the defendant") released most of the requested information to the plaintiff, but redacted certain information pursuant to FOIA's law-enforcement exemption. The plaintiff challenges the defendant's redactions. Because there is a strong privacy interest in the redacted information that is not counterbalanced by an identifiable public interest in disclosure, the court concludes that the information is exempt from disclosure. Moreover, because the plaintiff has not shown that the defendant's search for information was unreasonable, the court determines that additional discovery is not warranted. Accordingly, the court grants the defendant's motion for summary judgment and denies the plaintiff's motion for summary judgment.


The plaintiff served in the United States Marine Corps from 1986 until his discharge a few years later. Pl.'s Statement of Mat. Facts ("Pl.'s Statement") ¶ 1; Def.'s Resp. to Pl.'s Statement ("Def.'s Resp.") ¶ 1. During his service, the plaintiff assisted NCIS, a criminal law enforcement agency within the Navy, in an NCIS drug-trafficking investigation. Pl.'s Statement ¶¶ 5, 6; Def.'s Statement of Mat. Facts ("Def.'s Statement") ¶ 3; Def.'s Resp. ¶¶ 5, 6. While participating in the NCIS investigation, the plaintiff developed an addiction to crystal methamphetamine. Pl.'s Statement ¶ 7; Def.'s Resp. ¶ 7.

In 1996, the plaintiff was convicted and sentenced to death by the Tuscaloosa County Circuit Court in Alabama. Pl.'s Statement ¶ 2; Def.'s Resp. ¶ 2. In September 2000, the plaintiff filed a petition for state post-conviction relief, alleging ineffective assistance of trial counsel. Pl.'s Statement ¶ 8; Def.'s Resp. ¶ 8. Specifically, the plaintiff alleged that his counsel failed to investigate and present mitigating evidence, including evidence of his assistance to NCIS, at the penalty phase of the proceedings. Pl.'s Statement ¶ 8; Def.'s Resp. ¶ 8.

At the same time, to support his petition for relief, the plaintiff submitted a FOIA request to NCIS for all documents generated by NCIS pertaining to him. Pl.'s Statement ¶ 10; Def.'s Statement ¶ 1. NCIS conducted a search and located 52 pages of responsive information. Def.'s Statement ¶ 2; Pl.'s Resp. to Def. 's Statement ("Pl.'s Resp.") ¶ 2. In October 2000, NCIS released to the plaintiff 38 pages that it had redacted pursuant to certain FOIA exemptions. Compl. App. A; Pl.'s Statement ¶ 11; Def.'s Statement ¶ 4. NCIS withheld the remaining 14 pages in their entirety on the grounds that the pages consisted of "source utilization records" detailing the manner and circumstances of the plaintiff's involvement with NCIS as a confidential source and cooperating witness. Pl.'s Statement ¶ 11; Def.'s Statement ¶ 5.

Dissatisfied with the NCIS response, the plaintiff filed an administrative appeal of the agency's decision in December 2000. Pl.'s Statement ¶ 12; Def.'s Statement ¶ 6. In August 2001, the Office of the Judge Advocate General ("JAG") responded by agreeing to disclose four references*fn1 previously redacted from the 38 released pages. Compl. App. B; Pl.'s Statement ¶ 13; Def.'s Statement ¶ 7. JAG rejected the plaintiff's request for the 14 withheld pages, however. Pl.'s Statement ¶ 13; Def.'s Statement ¶ 7.

On December 18, 2001, having exhausted all administrative remedies under FOIA, the plaintiff filed suit in this court to obtain the redacted information plus the 14 withheld pages. Pl.'s Statement ¶¶ 14-15; Def.'s Statement ¶¶ 14-15. On June 7, 2002, NCIS disclosed four more previously redacted references from the 38 released pages,*fn2 and released redacted versions of the 14 withheld pages. Supplemental Disclosure ("Supp. Discl."); Pl.'s Statement ¶ 17; Def.'s Statement ¶ 8. As a result of these events, the plaintiff now is in possession of all 52 pages, albeit in redacted form. On June 26, 2002, the defendant filed a motion for summary judgment. On August 21, 2002, the plaintiff filed a motion for summary judgment. The court now turns to the parties' motions.


A. Legal Standard for Summary Judgment in a FOIA Case

Summary judgment is appropriate 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 a judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency may meet this burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the exemption's relevance. Summers, 140 F.3d at 1080; Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a "Vaughn index").

The court may grant summary judgment to an agency on the basis of its affidavits if they:

[(a)] describe the documents and the justifications for nondisclosure with reasonably specific detail, [(b)] demonstrate that the information withheld logically falls within the claimed exemption, and [(c)] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d ...

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