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COLDIRON v. UNITED STATES DEPARTMENT OF JUSTICE

March 2, 2004.

UN SUK COLDIRON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION

Plaintiff, Un Suk Coldiron ("Coldiron"), brings this action against defendant, United States Department of Justice ("DOJ"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks access to various records from the Federal Bureau of Investigation ("FBI") related to her loss of security clearance in her employment with the former Immigration and Naturalization Service ("INS"), now a bureau in the Department of Homeland Security. In response, defendant seeks to withhold and redact certain documents by invoking certain privileges under FOIA Exemptions 1, 6 and 7. 5 U.S.C. § 552(b)(1), (6) & (7)(c).

Before this court is defendant's motion for summary judgment [Dkt. #11]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that defendant's motion for summary judgment must be granted.

  I. BACKGROUND

  A. FOIA Background

  Congress enacted FOIA "to open up the workings of government to public scrutiny Page 2 through the disclosure of government records." Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) (internal quotation marks omitted). FOIA was intended to `"ensure an informed citizenry, vital to the functioning of a democratic society.'" Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)). In so doing, however, Congress acknowledged that "legitimate governmental and private interests could be harmed by release of certain types of information." Id. In order to balance these competing interests, FOIA contains nine exemptions under which an agency may withhold information. 5 U.S.C. § 552(a)(4)(B) & (b)(1)-(9). Because FOIA creates a policy favoring disclosure, however, the Act's exemptions are to be narrowly construed. Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). Therefore, an agency must "disclos[e] as much information as possible without thwarting the exemption's purpose." King v. Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987).

  When an agency refuses to disclose certain documents pursuant to a FOIA exemption, it must ordinarily produce a "Vaughn Index," a description of each document withheld or redacted and an explanation of the reasons for non-disclosure. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1975) (creating a "system of itemizing and indexing" that requires agencies invoking FOIA exemptions to "correlate statements made in the . . . refusal justification with the actual portions of the document"). The index must permit a court to engage in a meaningful review of the agency's decision. See Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).

  In addition to distinguishing exempt from non-exempt documents, an agency must perform a "segregability analysis": It must also distinguish exempt from non-exempt material within each document. See Vaughn, 484 F.2d at 825 ("[A]n entire document is not exempt Page 3 merely because an isolated portion need not be disclosed. Thus the agency may not sweep a document under a general allegation of exemption, even if that general allegation is correct with regard to part of the information."). An agency must therefore redact exempt information and produce any relevant non-exempt information. See 5 U.S.C. § 552(b) ("Any reasonably 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."). If an agency can show that certain material in a document is exempt but cannot be reasonably segregated from non-exempt information, that agency must also "describe what proportion of the information is non-exempt and how that material is disbursed throughout the document," such that "both litigants and judges will be better positions to test the validity of the agency's claim that the non-exempt material is not segregable." Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

  B. Factual Background

  Coldiron is and, at all relevant times, was an employee of the INS. She alleges that some time in September 1998, the FBI compiled a report on her and subsequently gave it to the INS. In January 2000, the INS informed Coldiron that, based on the information in the report, it would suspend her security clearance and give her 30 days to contest the suspension, after which her security clearance would be permanently revoked. In March 2000, Coldiron requested access to the very records which the INS used to find her ineligible for security clearance. The INS forwarded fifteen pages of documents to the FBI for processing under FOIA and Executive Order 12,968, as well as asking the FBI to respond directly to Coldiron. See Def.'s Ex. A (Wood Ltr. to O'Brien, May 22, 2000). In May 2000, the FBI released six of 15 pages to Coldiron, and to justify its withholdings and redactions invoked FOIA Exceptions 1 and 7(c) as well as the Privacy Page 4 Act, § 5 U.S.C. § 552a(j)(2) and (k)(1). Id.

  In January 2001, Coldiron wrote to the FBI to request, pursuant to FOIA and the Privacy Act, access to all documents involving her it possessed. See Def.'s Ex. D (Ross Ltr. to Colton, Jan. 30, 2001). In addition to the 15 pages from the INS, the FBI located 56 pages on Coldiron from its records, all from a FBI personnel file that included her application for the position of FBI Special Agent. In March 2001, the FBI released 62 of 71 pages to Coldiron. From the 56 pages of FBI's file, Coldiron received 53 pages in their entirety and three pages with redactions, pursuant to FOIA Exemptions 6 and 7(c) only. See Kiefer Decl. ¶ 12. Of the 15 pages referred by the INS to the FBI, six pages were released to Coldiron and nine were withheld. Coldiron timely appealed the FBI's withholding decisions to DOJ's Office of Information and Privacy ("OIP"). In December 2001, OIP informed Coldiron by letter that it had upheld the FBI's actions. See Def.'s Ex. I at 1 (Huff Ltr. to Rose, Dec. 27, 2001). OIP informed Coldiron that it would refer the withheld documents to DOJ's Department Review Committee ("DRC") to determine if certain materials could be declassified. Id. at 2.

  Coldiron filed the present action on May 13, 2002, alleging that the FBI had violated FOIA and the Privacy Act in withholding certain documents. Compl. ¶¶ 11-19. Coldiron's complaint requested that this court "enjoin the Defendants from withholding agency records and to order the production of any agency records improperly withheld from the Plaintiff." Id. at 4. This prayer for relief is less than clear about the exact information Coldiron seeks. But elsewhere, Coldiron makes clear that she wants access to the "information regarding herself," id. ¶ 14, which the INS used to suspend her security clearance. Finally, in September 2002, the FBI informed plaintiff that DRC had completed its classification review and provided seven more pages of Page 5 redacted documents. See Kiefer Decl. ¶ 5(k).

  ...


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