The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This matter comes before the Court on both defendant's and plaintiffs
motions to reconsider pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure. Upon consideration of both defendant's and plaintiff's
motions, their oppositions thereto, their replies, and the applicable law
in this case, the Court finds defendant's motion should be granted in
part and denied in part. It further finds plaintiffs motion should be
denied in its entirety.
Also before the Court is defendant's renewed motion for summary
judgment. Upon consideration of defendant's motion, plaintiff's partial
opposition thereto, the record, and the applicable law in this case, the
Court finds defendant's motion should be granted in part and denied in
This case has a long history. Plaintiff first filed her complaint on
February 24, 1992 under the Freedom of Information Act,
5 U.S.C. § 552 (FOIA). Since then, there has been a
steady stream of motions, memoranda and orders. The Court need not
belabor the history here, in what it hopes will be this case's final
disposition. It is assumed the parties know the procedural and factual
history of this litigation.*fn1
As for historical matters of a more recent vintage, this Court granted
defendant's motion for leave to submit declarations in camera
on July 24, 2003. The Court found that the declarations were central to
defendant's argument that the much disputed "Notes on Interview"*fn2
(hereinafter "Notes") were properly withheld under FOIA and that the
journalist author of the "Notes" gave them to the State Department
official, who then gave it to the FBI, with the understanding of
confidentiality, i.e., his or her identity and "Notes" would not become
public. The journalist is also referenced in another document at issue
known as NCLC Document 27 (hereinafter NCLC 27). In addition, defendant
was granted leave to submit an in camera declaration of another
informant identified in NCLC Document 92 (hereinafter NCLC 92).
The Court received defendant's in camera declarations on
August 7, 2003. As instructed by the July 24 opinion, the Government also
filed a detailed statement covering each discrete portion of the
declarations and explained why the portion had to be provided in
Prior to the in camera filing, defendant moved for a renewed
finding of summary judgment on behalf of the FBI on July 15, 2003.
Defendant asserts it reprocessed and released Schiller documents 7 and 9
in relation to information previously withheld under Exemption 7(D);
properly applied Exemption 7(C) to NY-196B-4052; PH-196-1989; and
relation to information previously withheld pursuant to Exemption
7(D); and performed a segregability analysis as to documents
NY-196B-4052; PH-196-1989; and PH-196B-1893. (Def.'s Renew. Summ. J. Mot.
at 9-20.) Plaintiff filed a partial opposition to defendant's renewed
summary judgment motion on July 28, 2003 claiming that nothing
substantive was disclosed after the reprocessing. (Pl's Opp'n Def.'s
Renew. Summ. J. Mot. 2-6.) Therefore, plaintiff concludes summary
judgment would be inappropriate.
Defendant also filed a Rule 60(b) motion to reconsider on April 28,
2003. Defendant prayed the Court reconsider its February 14 ruling that
NCLC 27 and "Notes" were not properly withheld under Exemption 6 and that
the informant identified in NCLC 92 was not protected from public
disclosure under Exemption 7(D). Plaintiff, too, filed a Rule 60(b)
motion to reconsider on May 12, 2003. Plaintiff prayed the court
reconsider a list of individuals who waived their privacy rights in
consideration of plaintiff's FOIA request and the Court amend its ruling
to include disclosure of those individuals' information in the documents.
On August 28, 2003, the D.C. Circuit Court ordered, on its own motion,
that the parties' appeals be held in abeyance pending its further order.
The parties were directed to file motions to govern future proceedings
within 30 days of this Court's disposition of the Rule 60(b) motions to
reconsider. The Court takes up these motions, defendant's renewed motion
for summary judgment and plaintiff's opposition thereto.
A. Motions to Reconsider Pursuant to Rule 60(b)
By order of the D.C. Circuit on August 28, 2003, this Court will decide
both parties' motions for reconsideration pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure.
Defendant moved this Court to reconsider its ruling that document
NCLC 27 and the journalist's "Notes on Interview" were not protected by
Exemption 6 and that the identity of the informant identified in NCLC 92
was not protected by Exemption 7(D). Rule 60(b) allows the district court
to relieve a party from a judgment for several reasons such as "mistake,
inadvertence, surprise, or excusable neglect . . . or any other reason
justifying relief be made from operation of the judgment." The district
court is "vested with a large measure of discretion in deciding whether
to grant a Rule 60(b) motion." Computer Prof'ls for Soc.
Responsibility v. Secret Service, 72 F.3d 897, 903 (D.C. Cir. 1996).
Rule 60(b) preserves "the delicate balance between the sanctity of
final . . . judgments and the incessant command of the court's conscience
that justice by done in the light of all the facts." Good Luck
Nursing Home, Inc., v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)
(quoting Bankers Mortgage Co., v. United States, 423 F.2d 73,
77 (5th Cir. 1970)).
As noted, the parties have been litigating various FOIA issues since
1992. The Court is eager to put this litigation to rest and is not
thrilled about reconsidering its February 14 order. Nevertheless, the
Government asserts it is protecting third party interests. Against this
backdrop, the Court gave both defendant's and plaintiff's motion to
reconsider, and subsequent oppositions thereto, due attention. The
Government argues the Court should not sacrifice third party privacy
interests in ...