United States District Court, D. Columbia
September 19, 2005.
ROBERT P. DIXON, JR., Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION AND ORDER
This action brought under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, is before the Court on defendant's
motion for summary judgment. Upon consideration of the parties'
submissions and the entire record, the Court will grant the
motion in part and deny it in part.
Plaintiff challenges responses to his FOIA requests made to
three Department of Justice components, namely, the Executive
Office for United States Attornes ("EOUSA"), the Drug Enforcement
Administration ("DEA"), and the Bureau of Prisons ("BOP"). The
following facts are taken from Defendant's Statement of
Undisputed Material Facts ("Deft's Facts") and supporting
By letter of March 9, 2003, plaintiff requested from the EOUSA
records pertaining to the grand jury proceedings in his criminal
case prosecuted in the Eastern District of Louisiana. EOUSA
withheld responsive records in their entirety under FOIA
exemption 3. By letter of March 19, 2003, plaintiff requested from DEA
records "pertaining to his indictment, conviction, and
incarceration, and all investigative information/data and reports
of his alleged involvement in a conspiracy on or before June 4,
1999." Deft's Facts ¶ 8. By letter of May 9, 2003, DEA released
66 redacted pages of information and withheld 24 pages in their
entirety. It cited FOIA exemptions 2, 7(C), 7(D), 7(F), see
5 U.S.C. § 552(b), and Privacy Act exemption (j)(2), see
5 U.S.C. § 552a, as the bases for its withholdings.*fn1 By letter of
November 24, 2003, plaintiff amended his initial request to
include specifically enumerated records, including fingerprint
analysis transcripts, "investigative transcripts" and
"documentation" of the conspiracy "on or before June 4, 1999 to
the present." Deft's Facts ¶ 11. Plaintiff also stated that he
did not want the names of agents, confidential sources, or
unindicted targets or witnesses. By letter of May 20, 2004, DEA
informed plaintiff that it had released all non-exempt records in
response to the March 2003 request. It further informed plaintiff
that its South Central Laboratory was conducting a search for
records responsive to his request for fingerprint analysis
transcripts. By letter dated June 21, 2004, DEA released to
plaintiff six redacted pages. It withheld information under FOIA
exemptions 7(C) and 7(F), and Privacy Act exemption (j)(2).
By letter of February 4, 2004, plaintiff requested from BOP a
copy of his inmate central file, including records contained in
the "FOI Exempt" section. By letter of April 27, 2004, BOP
informed plaintiff that he could arrange with prison staff to
review "the releasable portion of his Central File." Deft's Facts
¶ 52. BOP released eight pages of information in their entirety
and 18 pages with redactions. It withheld 40 pages of information
in their entirety. Id. BOP withheld information under FOIA exemptions 7(C) and 7(F). By letter of
February 19, 2004, plaintiff requested records pertaining to his
complaint to BOP's Office of Internal Affairs about staff
harassment and retaliation. By letter of August 30, 2004, BOP
released 68 pages in their entirety and 21 pages with redactions.
It withheld information under FOIA exemptions 2, 6, 7(C) and
II. STANDARD OF REVIEW
The FOIA requires a federal agency to release all records
responsive to a request. This Court has jurisdiction under the
FOIA "to enjoin [a federal] agency from withholding agency
records or to order the production of any agency records
improperly withheld from the complainant."
5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 139 (1980). On complaint, the agency
has the burden of proving 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."
Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.
Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal
citation and quotation omitted); see also Maydak v. Department
of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (government has
the burden of proving each claimed FOIA exemption).
The Court may award summary judgment to an agency solely on the
basis of information provided in affidavits or declarations when
the affidavits or declarations describe "the documents and 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." Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826
(D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). In
addition, when, as here, documents are withheld in their
entirety, the district court has an "affirmative duty" to
consider whether nonexempt information could have been segregated
from exempt information and released. See Trans-Pacific Policing
Agreement v. United States Customs Service, 177 F.3d 1022, 1027
(D.C. Cir. 1999) (internal citations omitted).
1. Withheld Records
Plaintiff only refutes defendant's withholding of records under
exemption 3. He therefore has conceded defendant's bases for all
other withholdings. Having reviewed defendant's supporting
declarations, the Court finds that it is entitled to judgment as
a matter of law on the uncontested issues except as they relate
to record segregability discussed below.
Defendant applied exemption 3 of the FOIA to withhold in their
entirety records responsive to plaintiff's request for "Grand
Jury Testimony and the Grand Jury Proceedings . . . used to
indict me June 7, 1999." Declaration of David Luczynski
("Luczynski Decl."), Exhibit A. Exemption 3 protects records that
are "specifically exempted from disclosure by statute . . .
provided that such statute either "(A) [requires withholding] in
such a manner as to leave no discretion on the issue," or "(B)
establishes particular criteria for withholding or refers to
particular types of matters to be withheld." 5 U.S.C. § 552
(b)(3); see also Senate of the Commonwealth of Puerto Rico v.
U.S. Department of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure,
upon which defendant relies, qualifies as a statute because it
was affirmatively enacted by Congress. See Fund for
Constitutional Government v. National Archives and Records
Service, 656 F.2d 856, 867-68 (D.C. Cir. 1981). Under this rule,
government attorneys and other listed participants are prohibited
from disclosing "matters occurring before [a] grand jury."
Fed.R.Crim.P. 6(e)(2)(B); see In re: Motions of Dow Jones & Co.,
Inc., 142 F.3d 496, 498-501 (D.C. Cir. 1998). While
acknowledging the existence of a "grand jury exception" to the
general disclosure requirements of the FOIA, the Court of Appeals
for the District of Columbia Circuit has limited the exception to
material, which, if disclosed, would "tend to reveal some secret
aspect of the grand jury's investigation, such matters as the
identities of witnesses or jurors, the substance of testimony,
the strategy or direction of the investigation, the deliberations
or questions of jurors, and the like." Senate of the
Commonwealth of Puerto Rico v. U.S. Department of Justice,
823 F.2d at 582 (quoting SEC v. Dresser Indus., Inc.,
628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). Clearly, transcripts of
grand jury testimony are protected from disclosure. Moreover,
information "used to indict me" would necessarily reveal aspects
of the investigation and deliberations exemption 3 is designed to
protect. Defendant avers that records "identified as grand jury
materials ?, if released, would impermissibly reveal the scope
of the grand jury and the direction of the investigation by
providing the identities of the targets . . . the source of
evidence . . . [and] the actual evidence produced before the
grand jury." Luczinski Decl. ¶ 12.
In his opposition, plaintiff appears to argue a public domain
exception. See Plaintiff's Response to Department of Justice's
Undisputed Material Fact and Executive Office of United States
Attorney Declaration and Request for Stay ("Pltf's Opp.") at 2.
While the government may not rely on a FOIA exemption to withhold information that has
been "officially acknowledged" or is in the "public domain,"
Afshar v. Department of Justice, 702 F.2d 1125, 1130-34 (D.C.
Cir. 1983), the plaintiff has the initial burden of showing prior
disclosure by "point[ing] to `specific' [publicly disclosed]
information identical to that being withheld." Davis v. United
States Department of Justice, 968 F.2d 1276, 1279 (D.C. Cir.
1992) (quoting Afshar at 1130); see accord Cottone v. Reno,
193 F.3d 550, 554 (D.C. Cir. 1999). Plaintiff asserts that the
grand jury "material was totally disclosed in 1999, the year
Plaintiff was indicted." Pltf's Opp. at 2. He has not, however,
proffered any supporting evidence and therefore has failed to
present a triable issue on defendant's otherwise proper
justification for withholding grand jury material in its
2. Segregability of Records
In addition to the grand jury material, which, by its nature,
could not be reasonably segregated, defendant withheld 24 pages
of DEA records and 40 pages of BOP records in their entirety. The
Court therefore must determine the propriety of these
withholdings notwithstanding plaintiff's concessions. See
Trans-Pacific Policing Agreement v. United States Customs
Service, 177 F.3d at 1027. The Court is satisfied from the
descriptions of the withheld DEA records, see Declaration of
Leila I. Wassom ("Wassom Decl.") ¶¶ 44-56, 84, 92, and the
considerations given to redacting them that defendant properly
justified withholding the DEA records in their entirety under the
assigned exemptions. Specifically, Ms. Wassom avers that
redaction was considered but then rejected because "the
information concerning plaintiff was so intertwined with other
exempt information that release of the sentences relating to
plaintiff would likely enable someone with knowledge of the facts to discern the
identities of the confidential sources or the third parties."
Id. ¶ 106.
The BOP records are described as 40 pages of National Crime
Information Center ("NCIC") printouts of third-party individuals.
Declaration of Linda Nutt ¶ 17 (attached to Deft's Ex. 4,
Declaration of Wilson J. Moorer). They were withheld under
exemption 7(C) on the basis that disclosure "would constitut[e]
an unwarranted invasion to whom the documents pertain." Id.
Exemption 7(C) "ordinarily permits the Government to withhold
only the specific information to which it applies [i.e.,
third-party identifying information], not the entire page or
document in which the information appears." Mays v. DEA,
234 F.3d 1324, 1327 (D.C. Cir. 2000). Entire records are exempt from
disclosure only when it is shown that "the exempt and nonexempt
information are `inextricably intertwined,' such that the
excision of exempt information would impose significant costs on
the agency and produce an edited document with little
informational value." Id. (quoting Neufeld v. IRS,
646 F.2d 661, 666 (D.C. Cir. 1981)). Ms. Nutt does not aver that she
reviewed the printouts for segregability and thus has not
explained why any third-party identifying information could not
be redacted and the remaining information released. Mr. Moorer's
general statement about record segregability, see Moorer Decl.
¶ 16, does not suffice under Fed.R.Civ.P. 56(e) with respect
to the NCIC records because it appears that he has no first-hand
knowledge about their processing. The Court therefore will deny
defendant's motion as to its withholding of the BOP records in
their entirety and direct supplementation of the record.
Accordingly, it is this 19th day of September 2005,
ORDERED that defendant's motion for summary judgment [#33] is
granted in part and denied in part; and it is FURTHER ORDERED that within 30 days of this Order, defendant
shall supplement the record with evidence justifying its
withholding of the NCIC documents in their entirety under
exemption 7(C) and, if appropriate, renew their motion for
summary judgment, or release any non-exempt information to
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