United States District Court for the District of Columbia
May 2, 2005.
EDWARD V. DIPIETRO, Plaintiff,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.
The opinion of the court was delivered by: RICHARD LEON, District Judge
The Court issued a Memorandum Opinion and Order on August 19,
2004, concluding that defendant adequately demonstrated
compliance with the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, regarding the adequacy of the agency's search for
responsive records and the applicability of Exemptions 3, 5, and
7(C). Now before the Court is defendant's renewed motion to
dismiss or, in the alternative, for summary judgment, addressing
only the applicability of Exemptions 2 and 7(D). Having
considered defendant's renewed motion, plaintiff's opposition,
and the entire record of this case, the Court will grant summary
judgment for defendant.
A. Standard of Review
Summary judgment must be granted if the movant shows, when the
facts are viewed in the light most favorable to the non-movant, that there are no
genuine issues of material fact in dispute and the movant is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Fed.R.Civ.P. 56(c). The Court
may award summary judgment in a FOIA case solely on the
information provided in an agency's affidavits or declarations
when its affidavits or declarations describe "the justifications
for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence
in the record nor by evidence of agency bad faith."*fn1
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
When evaluating a summary judgment motion, the Court must view
the evidence in the light most favorable to the non-moving party,
and draw all reasonable inferences in her favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The party
opposing a motion for summary judgment "may not rest upon the
mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for
trial." Id. at 248; see also Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).
Plaintiff filed an opposition to defendant's renewed
motion.*fn2 Rather than addressing the remaining issues in
the case, plaintiff instead chose to challenge the adequacy of
defendant's search for records responsive to his FOIA request.
The Court will not revisit the issue, in light of the prior conclusion that the agency's search was adequate and
reasonable. By failing to address the applicability of Exemptions
2 and 7(D), plaintiff in effect concedes the motion.
Notwithstanding plaintiff's concession, the Court briefly
addresses defendant's renewed motion and supporting declaration.
1. Exemption 2
Exemption 2 protects materials that are "related solely to the
internal personnel rules and practices of an agency."
5 U.S.C. § 552(b)(2). Generally, courts limit Exemption 2 protection to
"trivial administrative matters of no genuine public interest"
("low 2" exempt information), and to information that, if
disclosed, "may risk circumvention of agency regulation" ("high
2" exempt information). Schiller v. NLRB, 964 F.2d 1205, 1206
(D.C. Cir. 1992); see Schwaner v. Dep't of the Air Force,
898 F.2d 793, 795 (D.C. Cir. 1990).
The EOUSA invokes Exemption 2 ("low 2") to protect material
that is trivial administrative information, the disclosure of
which is lacking in any genuine or significant public benefit.
Boseker Decl., ¶ 17. Specifically, defendant clarifies that
Exemption 2 applies to portions of documents that properly are
withheld in full under Exemption 5. Boseker II Decl., ¶¶ 3, 4, 6.
The information withheld includes an internal checklist of
clerical actions, code numbers on a form for attorney time
devoted to a task, a record of transmittals and receipts of
records, a form used for inputting attorney work product data
into a computer system, and identification and file numbers. See
id. & Vaughn Index (Document Nos. 4, 6 & 9). Defendant
adequately justifies its decision to withhold information under
Exemption 2. 2. Exemption 7(D)
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 . . . [who] 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
5 U.S.C. § 552(b)(7)(D). There is no assumption that a source is
confidential for purposes of Exemption 7(D) whenever a source
provides information to a law enforcement agency in the course of
a criminal investigation. See United States Dep't of Justice v.
Landano, 508 U.S. 165, 181 (1993). Rather, a source's
confidentiality is determined on a case-by-case basis. Id. at
179-80. "A source is confidential within the meaning of 7(D) if
the source provided information under an express assurance of
confidentiality or in circumstances from which such an assurance
could reasonably be inferred." Williams v. Federal Bureau of
Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citing
Landano, 508 U.S. at 170-74).
In its supplemental declaration, the EOUSA clarifies that the
information withheld under Exemption 7(D) is a portion of a
document which properly was withheld in full under Exemption 5 as
attorney work product. Boseker II Decl., ¶ 5 & Vaughn Index
(Document No. 8). The "Statement of the Evidence" portion of this
prosecutorial memorandum discusses "the source of evidence
supporting the proposed indictment charges recommended (namely a
specifically identified `confidential informant,' who was an
eyewitness to illegal narcotics transactions)." Boseker II Decl.,
¶ 5. Defendant adequately justifies its decision to withhold
information under Exemption 7(D). C. Segregability
Having reviewed defendant's declarations and attachments, the
Court concludes that defendant has withheld only the records or
portions of records exempt under Exemption 2, 3, 5, 7(C) and
7(D), and that all reasonably segregable material has been
released. With respect to these records, the agency's
declarations and attachments adequately specify "in detail which
portions of the document[s] are disclosable and which are
allegedly exempt." Vaughn v. Rosen, 484 F.2d 820, 827 (1973).
For the reasons stated above, the Court concludes that
defendant fulfilled its obligations under the FOIA. The agency
properly invoked Exemptions 2 and 7(D), and released all
reasonably segregable information. Accordingly, the Court will
grant defendant's renewed motion for summary judgment. An Order
consistent with this Memorandum Opinion will be issued separately
on this same date.