United States District Court for the District of Columbia
Feb 4 2004
GAIL G. BILLINGTON, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant
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 this litigation because the Government's explanation for its
exemptions were inadequate. (Def.'s Mot. Recon. under Rule 60(b) at 5.)
1. "Notes on Interview" and NCLC 27
In Computer Prof'ls for Soc. Responsibility v. Secret
Service, 72 F.3d 897, 903 (D.C. Cir. 1996), the D.C. Circuit took up
a Rule 60(b) motion concerning the interests of a third party whose
identity and information were protected under FOIA. The D.C.
Circuit found that it was "incumbent on the [district] court to examine
the second in camera submission in order to determine whether
its ruling on the Exemption 7(D) issue had been based on a correct
understanding of the underlying facts." Id. The instant case
presents a similar issue. The Court's February 14 opinion was clear about
the public interest involved with respect to the "Notes" and NCLC 27, and
that analysis is incorporated here by reference. However, that opinion
was prepared prior to the "Notes" author submitting an in
camera affidavit. The journalist declares cooperation with the State
Department and FBI was done with the understanding that the "Notes" and
his or her identity would be kept confidential. This language speaks
directly to Exemption 7(D), yet the Government invoked Exemption 6 with
respect to the journalist and the "Notes." Under the facts of this case,
the distinction is immaterial. Upon reconsideration, the Court finds the
Government did properly invoke Exemption 6.*fn3 However, the protection
offered by this Exemption is limited and does not cover the "Notes" in
Exemption 6 protects information about individuals contained in
"personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. §(b)(6). All information that relates to an individual
qualifies for consideration under this Exemption. Dep't of State v.
Washington Post Co., 456 U.S. 595, 602 (1982). This Exemption should
only be employed when the privacy interest at stake outweighs the public
interest in disclosure. Accordingly, the courts 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 Air Force v. Rose, 425 U.S. 352, 372 (1976)) (internal
punctuation omitted). The February 14 opinion made clear that the Court
was unpersuaded by the Government's assertions that the journalist's
identity and the "Notes" in their entirety were properly withheld under
Exemption 6. For a good portion of the "Notes", this remains true.
However, in light of the journalist's in camera affidavit, the
Court reconsiders its position.
The journalist asserts the "Notes" were personal notes, which were
taken at a private meeting. As the Government points out, and the
document confirms, the "Notes" contain substantial commentary that
reflect the personal thoughts and ideas of the journalist. When handing
the "Notes" to a State Department official, the journalist did not intend
nor expect them to become public. The journalist further asserts that
when the FBI was furnished with the "Notes", it was permissible provided
that they were not disclosed outside the FBI. This indicates the
journalist would not have furnished copies of the "Notes" had there
existed the possibility of public disclosure. The journalist's private
thoughts contained in the "Notes" and his or her understanding that the
"Notes" would not be made public implicate a strong privacy interest.
Cf. Bureau of National Affairs, Inc., v. DOJ, 742 F.2d 1484,
1494 (D.C. Cir. 1984) (examining the nature of agency records within the
purview of FOIA's policy goals and holding that disclosing hand-written
personal notes in a FOIA action "would invade the privacy of and
impede the working habits of individual staff members . . .)(quoting
Porter County Chapter of the Izaak Walton League, v. AEC,
380 F. Supp. 630, 633 (N.D. Ind. 1974)) (emphasis added). The legitimacy of
the journalist's privacy interest, bolstered by the expectation of
confidentiality, is sufficient for this Court to find that the
journalist's identity, and information that
could lead to his or her identity, not be revealed.*fn4 See
Lesar v. DOJ, 636 F.2d 472, 488 (D.C. Cir. 1980) (stating those who
cooperate with law enforcement should not be punished by releasing their
Furthermore, the journalist fears that if his or her identity becomes
public there will be retaliation by the Lyndon LaRouche organization or
its followers. The journalist is not the first informant to harbor such
fears. More importantly, the journalist's fear of reprisal is not merely
speculative but substantial. The declaration speaks of the journalist's
personal experience with a LaRouche follower indicating there is more
than enough cause for concern. FOIA does not compel disclosure when there
is a "substantial probability that disclosure will cause an interference
with personal privacy." Linn v. DOJ, No. CIV.A.92-1406, 1995 WL
631847, at *20 (D.D.C. Aug. 22, 1995) (quoting Dep't of Air Force v.
Rose, 425 U.S. 352, 380 n.19 (1976)) (internal quotations omitted).
Therefore, revealing the journalist's identity would constitute a
"clearly unwarranted invasion of personal privacy."*fn5
5 U.S.C. §(b)(6).
Although the journalist maintains a strong privacy interest, the
Court's February 14 opinion does not wither away, lonely and isolated, in
the bounded annals of the Federal Supplement because of these
new facts. The public interest announced remains: The "Notes" shed light
on the State
Department and FBI's performance of statutory duties and compliance
with the law. The Court has reviewed the "Notes" again, conducted a
segregability analysis and redacted that which could identify the
journalist. The Court has given the Government back the "Notes" with
segments stricken. All the parenthetical information that represents the
journalist's personal thoughts on the interview has been stricken, as
well as names and dates which could lead to the journalist's identity.
The blacked out portions of the "Notes" represent material properly
withheld under Exemption 6. The Government will disclose all other
portions to plaintiff.*fn6 Steinberg v. DOJ, 179 F.R.D. 366,
372 (D.D.C. 1998) (upon in camera review striking segments
properly withheld under FOIA exemptions and releasing all other materials
With regard to the FBI cover memorandum labeled NCLC 27, the Government
properly withheld it under Exemption 6. Upon in camera review
of the full documents and the redacted versions thereof, the Court is
satisfied the Government properly withheld the redacted information. The
redactions comport with the reasoning of this opinion.
2. NCLC Document 92
NCLC 92 is a six page memorandum describing two individuals at FBI
headquarters regarding the activities of the NCLC. (Def.'s Renew. Summ.
J. Mot. at 17.) The FBI applied Exemption 7(D) to
this document. In its July 24 opinion, this Court allowed defendant
to submit declarations in camera of the sources identified in
NCLC 92. The in camera submissions are central to defendant's
argument that the three documents were properly exempt under Exemption
Exemption 7(D) protects from disclosure those "records or information
compiled for law enforcement purposes that could reasonably be expected
to disclose the identity of a confidential source, including a State,
local, or foreign agency or authority or any private institution which
furnished information on a confidential basis, and, in the case of a
record or information compiled by a criminal law enforcement authority in
the course of a criminal investigation . . . information furnished by a
confidential source." 5 U.S.C. § 552(b)(7)(D). To invoke Exemption
7(D), an agency must show either that a source provided the information
to the agency under express assurances of confidentiality or that the
circumstances support an inference of confidentiality. DOJ v.
Landano, 508 U.S. 165, 172 (1993). The relevant inquiry is "not
whether the requested document is of the type that the agency usually
treats as confidential, but whether the particular source spoke with an
understanding that the communication would remain confidential."
Id. at 172. Exemption 7(D) has long been recognized as
affording the most comprehensive protection of all of FOIA's law
enforcement exemptions. Voinche v. FBI, 940 F. Supp. 323, 331
(D.D.C. 1996) (citing Irons v. FBI, 880 F.2d 1446, 1452 (1st
Cir. 1989) (en bane)). After reviewing the affidavit of the informant
referenced in NCLC 92 in camera, the Court finds that the
Government has properly invoked Exemption 7(D) with respect to this
document. The in camera submission confirms that the source
implicated in NCLC 92 was assured an express grant of confidentiality
when he spoke with the FBI. The source unequivocally avers that speaking
with the FBI was done with the full understanding the meetings would be
treated as confidential. Therefore, the Government properly withheld the
source's identity under Exemption
7(D).*fn7 Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir.
1998) (evidence of an express grant of confidentiality can take the form
of a statement by the source). The discussion, however, does not end with
The D.C. Circuit in Armstrong v. Executive Office of the
President, 97 F.3d 575, 580 (D.C. Cir. 1996), stated that "when a
district court uses an in camera affidavit, it must makes its reasons for
doing so clear and make as much as possible of the in camera submission
available to the opposing party." This ensures the use of affidavits
in camera have "the smallest possible negative impact on the
effective functioning of the adversarial system." Id. at
580-81. The Court's July 24 opinion on defendant's motion for leave to
submit declarations in camera enumerates its reasons for
granting the motion. Now the Court takes up the issue of minimizing harm
to the adversarial system by making as much available to the opposing
party as possible. The Court has given the Government back its statement
concerning the in camera declaration of the source implicated
in NCLC 92 with segments stricken. (See fn 6, supra).
The blacked out portions of the Government's detailed statements
represent material properly withheld under Exemption 7(D). The Government
will disclose all other portions to plaintiff. Steinberg,
179 F.R.D. at 372.
B. Renewed Motion for Summary Judgment
Defendant asserts it is entitled to summary judgment because it
complied with this Court's February 14 order. 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;
196-1989; and PH-196B-1893 in 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.)
1. Standard of Review
Summary judgment in a FOIA action is appropriate when the pleadings,
together with the declarations, show 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); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986): see also Alveska 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. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980). If the
agency proves that it has fully discharged its FOIA obligations by
showing "that each document that falls within the class requested either
has been produced, is unidentifiable, or is wholly exempt from the Act's
inspection requirements", then summary judgment is warranted.
National Cable Television Ass'n. Inc., v. FCC, 479 F.2d 183,
186 (D.C. Cir. 1973). Agencies may rely on the declarations of their
officials in order to sustain their burden of proof in a FOIA case.
Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
A plaintiff must proffer proper evidence to support a claim that an
exemption has been improperly asserted in order to have a triable issue
of material fact that will preclude awarding summary judgment to the
defendant. See Bennett v. Spear, 520 U.S. 154, 168 (1997).
2. Segregability Discussion
The Government maintains that it conducted a proper segregability
analysis of the documents at issue by engaging in a line by line review
of the material. (Def.'s Renew. Summ. J. Mot. at 19.) Plaintiff, not
surprisingly, disagrees and contends that the Government has not been
responsive to this
Court's February 14 order and produced little, if anything, of
value in terms of releasable material. (Pl's Opp'n Def.'s Summ. J. Mot.
at 3-4.) Plaintiff further contends that the Government's overall
segregability analysis is inadequate to meet its burden. Id. at
FOIA commands that "[a]ny reasonable segregable portion of a record
shall be provided to any person requesting such record after deletion of
the portions which are exempt under this subsection."
5 U.S.C. § 522(b). The B.C. Circuit firmly established that "non-exempt
portions of a document must be disclosed unless they are inextricably
intertwined with exemption portions." Trans-Pacific Policing Agreement v.
U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999) (citing
Mead Data Cent., Inc., v. U.S. Dep't of the Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977)). The agency must provide a "detailed
justification" for its non-segregability in order to evidence that all
reasonably segregable material has indeed been released. Mead
Data, 566 F.2d at 261. The agency's justification, however, need not
be so detailed so as to render the exempt information essentially
disclosed. Id. If the agency can show with reasonable
specificity why material could not be segregated, it meets its burden
under FOIA. Armstrong v. Executive Office of the President,
97 F.3d 575, 579 (D.C. Cir. 1996). Here, plaintiff contends that the
documents labeled N.Y. 196B4052, document 3, PH 196-1989, document 1,*fn8
and PH 196B-1893, document 4, all reprocessed by the FBI, reveal nothing
but words and phrases that are essentially useless and thus do not
comport with the spirit of this Court's February 14 order. In
light of plaintiff's assertions, the Court inspected the documents
initially released to plaintiff and compared them with the reprocessed
After completing its inspection, the Court agreed with plaintiff that,
in effect, nothing was released. The document labeled NY196B-4052 is
representative of the Government's reprocessing efforts. All the FBI
chose to release was "According to . . . a . . . of . . . also . . . in
the . . . of . . . regarding . . . the. . . ." This is meaningless
dribble. A sentence adverb and some unredacted articles and prepositions
add nothing substantive to the document at issue. While this is
technically "new" material, the segment of the document remains
incomprehensible and discloses, as plaintiff contends, nothing. It is
possible, however, that the documents are properly redacted and the
Government has again inadequately described why the redactions are
necessary. Rather than order the documents released to compensate for the
collective judicial frustration this enduring action has caused, the
Court ordered the Government to submit the disputed documents for in
The Government submitted N.Y. 196B-4052 in its entirety to the Court. As
to PH 196-1989, the Government informed the Court that the original was
destroyed on November 3, 1988. With respect to PH 196-1893, the
Government has not been able to locate the original since 1997.*fn9 The
Government submitted copies of the documents accompanied by the
redactions that were released to plaintiff. However, both documents PH
196-1893 and PH196-1989 each contain a page that has not been
redacted. The Court reviewed this material, which was essentially
redacted in its entirety when reprocessed and released to plaintiff, and
conducted a segregability analysis. The Court also conducted a
segregability analysis of Document N.Y. 196B-4052.
After reviewing the documents in camera, the Court finds
there is additional information that should be released to plaintiff. All
personal identifying information, such as names, addresses, and certain
dates, that the Government redacted remains redacted under Exemption 7(C)
and comports with the Court's February 14 opinion. The additional
information not properly withheld under Exemption 7(C) illustrates the
kind of information the FBI had a probing interest in while investigating
the LaRouche organization. Releasing this material serves FOIA's purpose
of "contribut[ing] significantly to public understanding of the
operations or activities of the government." Barholdi Cable Co. v.
FCC, 114 F.3d 274, 282 (D.C. Cir. 1997) (citing U.S. Dep't of
Defense v. FLRA, 510 U.S. 487, 495 (1994)). Therefore, the Court has
stricken the segments that were properly withheld under Exemption 7(C).
All other information shall be released to plaintiff.
Steinberg, 179 F.R.D. at 372.
3. PGM Document 2 (serial 196B-SI-43487-1A-2)
Plaintiff asserts the Government has made improper redactions under
Exemption 7(C) with regard to PGM Document 2 (serial 196B-SI-43487-1A-2).
The two Dun & Bradstreet reports contained in this document reference
companies and services. The Government redacted their names, addresses,
telephone numbers and other information about them. (PL's Opp'n Def.'s
Summ. J. Mot. at 5.) The issue is now moot. Upon re-review, the
Government determined that the information plaintiff sought here no
longer warranted protection. The Government filed the three page document
with the Court on August 27, 2003 and likewise sent it to plaintiff. The
information plaintiff sought was
released to her. The only redactions left on the Dun &
Bradstreet report are those protecting third party names and the name of
one FBI Special Agent. Plaintiff does not object to these redactions.
(PL's Opp'n Def.'s Summ. J. Mot. at 5.) Therefore, this document is no
longer in dispute.
For the reasons stated above, the Court will grant defendant's
Rule 60(b) motion to reconsider in part and deny it in part. Plaintiff's
Rule 60(b) motion is denied. Defendant will release to plaintiff the "Notes"
in their entirety, save for the Court's redactions. Defendant's
affidavits concerning the journalist of the "Notes" and the source
implicated in NCLC 92 will also be released to plaintiff with the Court's
redactions. As for NCLC 27, defendant properly withheld the information
under Exemption 6 and no further material need be released to plaintiff.
With regard to defendant's renewed motion for summary judgment, the Court
finds defendant is entitled to summary judgment with respect to the
identifying information of persons named in N.Y. 196B-4052, PH 196-1989,
and PH196B-189; the Court's redactions reflect this judgment. Defendant's
motion regarding all other material in these documents is denied. All
other available information from these documents shall be released to
plaintiff. A separate order consistent with this opinion shall issue this