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Brown v. U.S. Environmental Protection Agency

August 10, 2005

PAULA D. BROWN, PLAINTIFF,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This case arises out of a Freedom of Information Act ("FOIA") request by plaintiff Paula D. Brown, a special agent in the Office of the Inspector General of the U.S. Environmental Protection Agency, for a copy of the reports prepared by the Office of Inspector General in the course of an investigation into allegations that she had committed perjury in a criminal proceeding. The defendant agencies redacted from the reports the names of federal employee witnesses and informants to protect their personal privacy under Exemption 7(C) of FOIA. The parties have now filed cross-dispositive motions on the issue of whether these names were properly redacted. For the reasons stated below, the Court concludes that the redactions were lawful under Exemption 7(C), and will therefore grant defendants' motion to dismiss and deny plaintiff's motion for summary judgment.

BACKGROUND

During the period relevant here, plaintiff was a Special Agent in the Criminal Investigation Division of the Office of Enforcement and Compliance Assurance at the U.S. Environmental Protection Agency. On or about January 11, 2001, another employee in that office reported to the Department of Justice that she had learned that plaintiff had admitted to another Special Agent that she had perjured herself while testifying at a suppression hearing in a criminal prosecution of a soda-dispensing company for violations of the federal environmental laws. See Bialek Decl., Ex D (Report of Investigation), Synopsis at 1. Shortly thereafter, the Office of the Inspector General of the Environmental Protection Agency (EPA/OIG) opened a criminal investigation into the allegations. See id.

The EPA/OIG interviewed several government employees in the course of the investigation.*fn1 The Special Agent to whom plaintiff allegedly admitted that she perjured herself told the investigators that she did not recall plaintiff using those specific words. The Special Agent explained that plaintiff said only that she could no longer testify in court because of problems she had in the course of the soda-dispensing case, a fact that the Special Agent had assumed meant that she had perjured herself in those proceedings. See Bialek Decl., Ex D (Report of Investigation), Ex. 4 at 1-2. The Special Agent informed the investigators that she did not like plaintiff, and that the other agents in the office disliked her as well. The investigation report notes that the Special Agent's body language and verbal answers were not consistent, and that the Special Agent declined to provide a written statement of the interview. See id. at 4-5.

The director of the Criminal Investigation Division told the investigators that plaintiff's testimony during the soda-dispensing case was weak and inconsistent, but that he could not say that she committed perjury. See Bialek Decl., Ex. D (Report of Investigation), Ex. 1 at 1. He noted that the other employees in the office were not happy about a promotion that plaintiff had received in the aftermath of the testimony. See id. at 2. An attorney in the Environmental Crimes Section of the Department of Justice who worked on the soda-dispensing case told investigators that there were lots of rumors regarding plaintiff, and that although plaintiff was a poor witness who could not answer fundamental questions about the case on the stand, he did not think she perjured herself. See id. at 1-3. He also conveyed to investigators that other agents in plaintiff's office disliked her because she was African-American. See id. at 2.

The investigators interviewed plaintiff on February 8, 2001, and she signed a sworn statement at the end of her interview that she never told anyone that she could not testify in court, or that she perjured herself at the suppression hearing in the soda-dispensing case. The investigators completed and closed the investigation effective May 18, 2001. The report of the investigation indicates that the investigators found the alleged misconduct "unfounded." Bialek Decl., Ex. D (Report of Investigation) at 1 (Closing Status Report); see also id. at 4 (Letter from Emmett D. Dashiell, Jr. to Letterio A. D'Amico), at 1 ("Our investigation did not corroborate the alleged misconduct described above and as a result was not referred for criminal, civil, or administrative action.").

On February 4, 2002, William T. Irelan -- counsel for plaintiff -- wrote a letter to the EPA requesting a copy of the report completed by the EPA/OIG regarding its investigation of plaintiff, or in the event no such report has been prepared or completed, a copy of the entire OIG file compiled in the matter. Irelan explains in the first line of the letter that he is seeking the documents on behalf of plaintiff:

I represent Paula D. Brown, Special Agent in Charge, GS1811-14, currently stationed at the Office of Criminal Enforcement, Forensics and Training Center in Washington, D.C. Ms. Brown has hired me to obtain certain documentation pursuant to the Freedom of Information Act.

Bialek Decl., Ex. A at 1. The second page of the letter contains a signed and dated authorization from Paula D. Brown stating: "Paula D. Brown hereby authorizes William T. Irelan as her attorney-in-fact to obtain the above documents on her behalf." Id. at 2.

By letter dated May 24, 2002, the EPA notified Irelan that the EPA/OIG had located two Reports of Investigations that were responsive to the request.*fn2 The EPA gave Irelan copies of the reports as well as the other materials in the investigative files. The EPA advised Irelan that it had withheld material from the files pursuant to Exemption 5, Exemption 6, and Exemption 7(C) of FOIA, and that Irelan could appeal this partial denial of the request if he wished. The letter also informed Irelan that the EPA had referred documents originating with the DOJ to that agency for review, and that the DOJ would contact him directly with its response. See Bialek Decl., Ex. B.

On July 30, 2002, Irelan filed an appeal with the EPA. By letter dated June 5, 2003, the EPA informed Irelan that it had reversed the initial partial denial with regard to all material previously withheld under Exemption 5, and certain materials withheld under Exemption 7(C),*fn3 but upheld the decision to withhold the names of investigating agents and the names and other identifying information of witnesses under Exemptions 6 and 7(C).

On May 31, 2002, the DOJ notified Ireland that one of the documents referred to it from the EPA was non-responsive to the FOIA request because it did not discuss plaintiff, and the other document would be withheld under Exemption 5. By letter dated July 30, 2002, Ireland appealed the determination. On December 12, 2002, the DOJ notified Ireland that it had upheld the withholding of the document. The DOJ has since released the document, but has redacted information that would reveal the identity of employee witnesses or informants from the document pursuant to Exemption 7(C).

Plaintiff commenced this action on June 3, 2004, challenging the decisions of the EPA and the DOJ to redact from the investigative materials the names and other identifying information of witnesses and investigating agents. The parties have filed cross-dispositive motions, and the briefing of those motions is complete. Plaintiff explains in the papers accompanying her motion that she has withdrawn any challenge to the agencies' redaction of identifying information for EPA/OIG investigators or private citizen-witnesses, and now seeks only information withheld by defendants that relates to government employee-witnesses and informants. Defendants continue to maintain that this information was properly withheld under Exemption 7(C), and provide declarations from Mark Bialek, the Counsel to the Inspector General of the EPA, ...


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