United States District Court, D. Columbia
September 30, 2005.
JOHN FENTON WHEELER Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, et al.[fn1] Defendants.
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
*fn1 The Central Intelligence Agency ("CIA") was initially the
first-named defendant in this suit. By memorandum opinion dated
June 4, 2003, the Court dismissed the FOIA complaint against the
CIA. Wheeler v. CIA, No. 02-0604 (RMC), Memorandum Opinion
(D.D.C. June 4, 2003). The parallel allegations against the FBI
were finally briefed in full on June 5, 2005, and are now ready
In this suit under the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a, John
Fenton Wheeler challenges the adequacy of the response of the
Federal Bureau of Investigation ("FBI") to his FOIA request. Mr.
Wheeler responds to the Government's motion for summary judgment
with a cross motion for summary judgment. The Court will grant
the Government's motion in part and deny it in part, and deny Mr.
Wheeler's motion as moot.
John Fenton Wheeler is a retired journalist who had extensive
experience reporting from Spanish-speaking countries. He is
contemplating writing a book about his career. Declaration of
Christine Kiefer, Sept. 12, 2002 ("1st Kiefer Decl."), Ex. A
(Wheeler FOIA Request). Mr. Wheeler served as the correspondent in Cuba for the Associated
Press ("AP") from February 13, 1967 until September 8, 1969. On
that date, he was expelled by order of the Cuban government, and
he and his wife were escorted aboard a Cuban plane to Mexico
City. Humberto Carillo, press aide at the Mexican embassy in
Havana, was also aboard the plane; Mr. Carillo had been formally
accused by the Cuban government of being a spy for the United
States Central Intelligence Agency ("CIA"). Mr. Wheeler was told
that his expulsion was based upon his news stories concerning Mr.
Carillo and on the Cuban government's accusation that he, too,
was a CIA spy.
Mr. Wheeler traveled from Mexico City to Houston, where he
talked by telephone with the late Wes Gallagher, the AP's
president and general manager. Mr. Gallagher advised that both
the FBI and the CIA wanted to talk with Mr. Wheeler but Mr.
Wheeler stated that he had no interest in talking with either
Thereafter, in February 1971, a Cuban defector, Francisco
Antonio Teira Alfonso, testified to the U.S. Senate Judiciary
Committee's Subcommittee on Internal Security that Castro had
been very interested in proving that Mr. Wheeler had been a CIA
agent or had been co-opted by the CIA. Mr. Alfonso had worked for
the Cuban Directorate of State Security at the time and testified
that he had been ordered by a superior to frame Mr. Wheeler.
Mr. Wheeler submitted a FOIA/PA request to the FBI by letter
dated June 18, 2001, seeking records concerning himself.
Specifically, he requested that the FBI:
1. [S]earch the General Indices to [the] Central
Records System for all main files and "see"
2. [S]earch the ELSUR indices and any appropriate
indices maintained by any division, section or other
component of the FBI.
3. [Search for] ticklers, numbered and lettered
subfiles, 1A envelopes, enclosures behind files ("EBFs"), file covers, Bulky Exhibits
("Bulkies"), control files, "JUNE" records or files.
Mr. Wheeler want[ed] all records produced with the
administrative markings and all reports to include
the administrative pages. He want[ed] all pages
released regardless of the extent of excising, even
if all that remains are the date, stationary [sic]
headings or administrative markings.
4. [S]earch [the] subfiles on Cuba (from February
1967 to September 1969), Spain and Portugal (from
November 1969 to September 1982), and Peru (from
September 1982 to 1985).
5. Mr. Wheeler also [sought]: (a) the worksheets or
other documents generated in processing which list or
inventory the records; and (b) all searchslips [sic]
or other records used in searching this request.
1st Kiefer Decl., Ex. A at 1-2. By letter dated September 29,
2001, the FBI informed Mr. Wheeler that his request had been
received by FBI Headquarters ("FBIHQ") and, on May 7, 2002, it
denied his request for a fee waiver. Id. at 2. Thereafter, on
August 8, 2002, the FBI processed the documents identified below
and released the non-exempt documents to Mr. Wheeler. Id.
FBIHQ searched the indices of the FBI Central Records System
("CRS") for responsive records.*fn2 The FBI also searched
its Electronic Surveillance Indices ("ELSUR"), through which the FBI maintains information on all subjects whose
electronic and/or voice communications have been intercepted by
the FBI since January 1, 1960.*fn3 As a result of the CRS
search, three main files, 105-HQ-165399, 105-HQ-203884, and
105-HQ-241850, were located. Id. ¶ 5. The ELSUR indices were
searched by use of Mr. Wheeler's full name, "John Fenton
Wheeler," and by his date of birth, place of birth and social
security number. No records were located as a result of the ELSUR
The FBI reviewed a total of 56 pages located as a result of the
CRS search. Id. at ¶ 5 n. 3. Five of these were duplicates and
51 pages were processed. Id. Information was withheld in
reliance on PA Exemption (j)(2) and FOIA Exemptions (b)(1),
(b)(2), (b)(7)(C), and (b)(7)(D).*fn4 In addition, at the
request of a First [non-FBI] Government Agency, the FBI also
withheld, in full, classified information in certain documents,
in reliance on FOIA Exemption (b)(1). Mr. Wheeler then requested a search for cross references in
which thirteen (13) cross references appeared to be responsive to
his request. Eleven of these cross references were reviewed and
it was determined that they contained information concerning him.
The FBI is withholding in full, on the basis of FOIA Exemption
(b)(1), classified information in certain of these
cross-references originating with or referring to other agencies
at the requests of a First and a Second Government Agency,
i.e., WHEELER pages 66, 76, 77; and WHEELER pages 52-53
respectively. Id. Of the two remaining cross references, one
contains no identifying information (date of birth, social
security number) to identify the document as relating to Mr.
Wheeler and the second was destroyed in 1974. A total of
twenty-three (23) pages of cross references were released to Mr.
Wheeler.*fn5 The FBI relied on PA Exemption (j)(2) and FOIA
Exemptions (b)(1), (b)(2), (b)(7)(C), and (b)(7)(D).
Dissatisfied with this response, Mr. Wheeler filed suit on
March 29, 2002.
The FBI filed a public version of its motion for summary
judgment on July 14, 2004. It has also filed an ex parte/in
camera version of the brief, with accompanying materials to
explain further the bases for withholding certain documents by
the First and Second Government Agencies. Having reviewed these
materials in detail, the Court will order that the claims against
the FBI for records referred by the First and Second Government
Agencies are now resolved, withholding the documents was
appropriate under FOIA Exemption (b)(1), 5 U.S.C. § 552(b)(1),
and those claims will be dismissed with prejudice. II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is the routine vehicle by which most FOIA
actions are resolved where there are no material facts genuinely
at issue. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309,
314-15 (D.C. Cir. 1988); Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). FOIA requires agencies of the
federal government to release records to the public upon request,
unless one of nine statutory exemptions applies. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 136 (1975). "Disclosure, not
secrecy, is the dominant purpose of the Act." Dep't of the Air
Force v. Rose, 425 U.S. 352, 361 (1976); DOI v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8 (2001).
"In a suit brought to compel production [of records], an agency
is entitled to summary judgment if no material facts are in
dispute and if it demonstrates `that each document that falls
within the class requested either has been produced . . . or is
wholly exempt from [FOIA's] inspection requirements.'" Students
Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir.
2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978)). A district court conducts a de novo review of an
agency's determination to withhold information under FOIA or the
PA. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a (g)(3)(A). The
agency bears the burden of sustaining its decision to claim an
exemption from disclosure. Id.
"Summary judgment is warranted on the basis of agency
affidavits when the affidavits 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.'" Miller v.
Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) (quoting Military Audit Project,
656 F.2d at 738). The court is to "accord substantial weight to an
agency's affidavit concerning the details of the classified
status of the disputed record." Military Audit Project,
656 F.2d at 738 (quoting S. REP. No. 93-1200, 93rd Cong. (2nd Sess.
1974), reprinted in 1974 U.S.C.C.A.N. 6290), and should remain
"[m]indful that [it has] little expertise in either international
diplomacy or counterintelligence operations, [and thus is] in no
position to dismiss the [government's] facially reasonable
concerns." Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).
B. FOIA and PA Exemptions
1. FOIA Exemption 1
Classified information that has been properly designated as
secret is exempt from disclosure under FOIA Exemption 1,
5 U.S.C. § 552(b)(1). This exemption protects information that is
"specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and . . . [is] in fact properly
classified pursuant to such Executive order[.]" Id. Sections
1.5(c) and 1.5(d) of Executive Order ("E.O.") 12,958 authorize
the classification of information that concerns intelligence
activities, sources, methods, or foreign relations. See Exec.
Order No. 12,958, 60 Fed. Reg 19, 825 (April 17, 1995). Pursuant
to section 1.2(a)(4) of the E.O., information in these categories
may be classified when the appropriate original classification
authority determines that unauthorized disclosure reasonably
could be expected to cause damage to national security in a
manner that the classification authority is able to identify and
describe.*fn6 When, as in this case, information is more
than 25 years old, it must be exempt from automatic declassification under one or more of the categories
listed in Section 3.4(b) of E.O. 12,958.
Information that could be expected to cause damage to national
security*fn7 is marked "Confidential" and information that
could be expected to cause serious damage to national security is
marked "Secret." 2nd Keeley Decl. ¶ 32. Ms. Keeley first
determined that the documents in question were initially
classified properly and so marked. These classification
determinations were subsequently reviewed by the Department of
Justice's ("DOJ") Department Review Committee ("DRC"), which
concurred. Id. ¶ 33.
Upon this review, however, Ms. Keeley determined that portions
of the information contained in responsive documents no longer
warranted classification; she declassified and released those
portions unless they were exempt under a different FOIA
Exemption. Id. ¶ 34. Further analysis of the information was
performed in connection with the submission of the FBI's
Vaughn*fn8 index and additional portions of the responsive
documents were declassified and released to Mr. Wheeler.*fn9
However, portions of the records at issue, all of which are
over 25 years old, were determined to warrant continued
classification and withholding from release. Such information is
contained on pages 3, 5, 6, 15-17, 19, 25, 30, 33, 49, 51, 52,
62-65, 67, 69, 71, 74, and 75. Id. ¶ 36. The FBI determined
[T]hese pages are exempt from automatic
declassification pursuant to E.O. 12,958, as amended,
§§ 3.3(b)(1) and (6), as the release of which could
be expected to: (1) reveal the identity of a
confidential human source, or a human intelligence
source, or reveal information about the application
of an intelligence source or method; and (6) reveal
information, including foreign government
information, that would seriously and demonstrably
impair relations between the United States and a
foreign government, or seriously and demonstrably
undermine ongoing diplomatic activities of the United
States. . . . [T]he national security information
withheld is neither vulnerable to, nor has been
desensitized by, the passage of time. The foreign
relations matters remain delicate and sensitive and
the revelation of source information will have a
negative impact on the FBI's ability to continuously
recruit sources for current and future use.
2nd Keeley Decl. ¶¶ 36, 37.
2. PA Exemption (j)(1)
Exemption (j)(1) of the Privacy Act, upon which the FBI also
relies to withhold certain information, authorizes the head of an
agency to promulgate rules to exempt:
records maintained by an agency or component thereof
which performs as its principal function any activity
pertaining to the enforcement of criminal laws,
including police efforts to prevent, control, or
reduce crime or to apprehend criminals, and the
activities of prosecutors, courts, correctional,
probation, pardon, or parole authorities, and which
consists of . . . (B) information compiled for the
purpose of a criminal investigation, including
reports of informants and investigators, and
associated with an identifiable individual; or (C)
reports identifiable to an individual compiled at any
stage of the process of enforcement of the criminal laws
from arrest or indictment through release from
5 U.S.C. § 552a (j)(2). The investigatory records at issue here
are part of the CRS and involve national security investigations
of Mr. Wheeler's activities conducted in accordance with
18 U.S.C. § 951 and E.O. 12,333 and its successor orders. 2nd Keeley
Decl. ¶ 28. Access to the records concerning Mr. Wheeler were
denied under the PA but nonetheless processed under the access
provisions of FOIA. Id.
3. FOIA Exemption 2
Records that are "related solely to the internal personnel
rules and practices of an agency" are exempt from disclosure by
FOIA Exemption 2, 5 U.S.C. § 552(b)(2). This exemption covers
internal agency matters so routine or insignificant that they
could not be "subject to . . . a genuine and significant public
interest," as well as internal agency matters that could be of
public interest but disclosure of which "may risk circumvention"
of statutes or agency regulations. Rose, 425 U.S. at 369-70;
National Treasury Employees Union v. U.S. Customs Service,
802 F.2d 525, 528-30 (D.C. Cir. 1986); Crooker v. Bureau of Alcohol,
Tobacco and Firearms, 670 F.2d 1051 (D.C. Cir. 1981). In the
arcane world of FOIA, these are referred to "low (b)(2)" and
"high (b)(2)" exemptions.
Low (b)(2) information refers to internal procedures and
practices where the burden of disclosure would outweigh any
genuine public benefit. Martin v. Lauer, 686 F.2d 24, 34 (D.C.
Cir. 1982). Protection from disclosure exists for information
that qualifies as a personnel rule or internal practice of an
agency. Schwaner v. Dep't of the Air Force, 898 F. 2d 793, 395
(D.C. Cir. 1990). High (b)(2) exempts more substantive internal
matters, such as techniques and procedures for law enforcement investigations or prosecutions, Schiller v.
NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992), and information that
would risk circumvention of an agency statute or impede its law
enforcement activities. See Crooker, 670 F.2d at 1051.
The FBI relied on "high (b)(2)" in withholding two kinds of
information: one source symbol number and two informant file
numbers assigned to confidential sources. 2nd Keeley Decl. ¶ 60.
"Both source symbol numbers and informant file numbers are unique
identifiers for a source. . . . Source symbol numbers are
assigned to confidential sources who report information to the
FBI on a regular basis pursuant to an `express' grant of
confidentiality." Id. It is used in all documents in lieu of
the source's name to protect identities. Id. The source symbol
number is comprised of a two-letter abbreviation which
identifies the relevant FBI field office and a sequential
number. Id. The informant file number "consists of a
three-number classification which is assigned according to the
nature of the information normally provided by the source. The
second part of the file consists of a case number, which is a
sequentially assigned number unique to only one source of a
particular FBI field office." Id. ¶ 65.
Portions of the responsive information were also withheld
pursuant to a "low (b)(2)" exemption. The FBI refused to release
"specific administrative information concerning the distribution
of copies of documents to a first government agency that has
requested not to be named." Def.'s Mot. at 19 (citing 2nd Keeley
Decl. ¶ 66). This exemption was applied to pages 3, 8, 24, 33, 68
4. FOIA Exemption (7)(C)
FOIA exempts from disclosure "records or information compiled
for law enforcement purposes . . . [to the extent production] (C)
could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ."
5 U.S.C. § 552(b)(7). This exemption protects the identities of suspects and
other persons who are investigated and are identified in agency
records in connection with law enforcement activities. Computer
Prof'ls for Social Responsibility v. U.S. Secret Serv.,
72 F.3d 897, 904 (D.C. Cir. 1996); Reporters Comm. for Freedom of the
Press v. U.S. Dep't of Justice, 816 F.2d 730, 780 (D.C. Cir.
1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir.
1987), rev'd on other grounds, 489 U.S. 749 (1989). The names
of law enforcement officers who work on criminal investigations
may be protected by Exemption 7(C), Davis v. U.S. Dep't of
Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992), as may the
identities of persons who provide information to law enforcement
officers. Computer Prof'ls for Social Responsibility,
72 F.3d at 904; Farese v. U.S. Dep't of Justice, 683 F. Supp. 273, 275
Once a privacy interest has been established, it must be
balanced against the public interest to be served by disclosure.
Albuquerque Publ'g Co. v. Dep't of Justice, 726 F. Supp. 851,
855 (D.D.C. 1989). The fundamental purpose of FOIA is to allow
citizens to know "what their government is up to." Fitzgibbon v.
CIA, 911 F.2d 755, 768 (D.C. Cir. 1990) (quotations omitted);
see Reporters Comm. for Freedom of the Press, 489 U.S. at 773
(FOIA's "core purpose" is to "shed light on an agency's
performance of its statutory duties"). Given this purpose, the
D.C. Circuit has opined that there "is no reasonably conceivable
way in which the release of one individual's name . . . would
allow citizens to know what their government is up to."
Fitzgibbon, 911 F.2d at 768 (quotations omitted). Only if a
requester can demonstrate a public interest that is significant
and compelling might s/he overcome legitimate privacy interests.
Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 588
(D.C. Cir. 1987); Stone v. FBI, 727 F. Supp. 662, 667-69
Relying upon Exemption 7(C), the FBI withheld names and/or
identifying data of FBI Special Agents and support personnel;*fn10 names and/or
identifying information concerning third-party individuals who
were of investigative interest;*fn11 names and/or
identifying information concerning third-party individuals who
were merely mentioned;*fn12 and the name of an individual
who was interviewed by the FBI regarding a person other than Mr.
Wheeler. See 2nd Keeley Decl. ¶¶ 68, 69, 70, 71 & 72; id.,
Ex. B. at 76.
5. FOIA Exemption 7(D)
At 5 U.S.C. § 552(b)(7)(D), FOIA allows an agency to refuse to
records or information compiled for law enforcement
purposes, but only to the extent that the production
of such law enforcement records or information . . .
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
or by an agency conducting a lawful national security
intelligence investigation, information furnished by
a confidential source. . . .
The FBI relied on FOIA Exemption 7(D) to withhold information
provided by, as well as the identities of, FBI sources. 2nd
Keeley Decl. ¶ 74. Specifically, the FBI has withheld one source
symbol number and two informant file numbers. Id. ¶¶ 75-78.
Mr. Wheeler remains dissatisfied with the scope of the FBI's
search for records and its conclusions that some of these
documents could have a present bearing on the national security
of the United States. With few exceptions, the Court finds that
his arguments lack merit. A. Scope of Search
The immensity of the task of responding to the thousands of
FOIA requests submitted to the government on a daily basis
requires a rule of reason: the issue is not whether documents
might (or do) exist that are responsive to a request but rather
whether the search conducted by the agency was "adequate,"
Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984) (emphasis omitted), under a general standard of
"reasonableness." Oglesby v. Dep't of the Army, 920 F.2d 57, 67
n. 13 (D.C. Cir. 1990). "[A] search need not be perfect, only
adequate, and adequacy is measured by the reasonableness of the
effort in light of the specific request." Meeropol v. Meese,
790 F.2d 942, 956 (D.C. Cir. 1986).
It is elementary that an agency responding to a FOIA
request must conduct? a search reasonably calculated
to uncover all relevant documents,' and, if
challenged, must demonstrate beyond material doubt
that the search was reasonable. . . . The adequacy of
an agency's search is measured by a standard of
reasonableness, and is dependent upon the
circumstances of the case.'"
Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)
Mr. Wheeler challenges the adequacy of the search for documents
responsive to his request on two bases. First, he argues that the
search was clearly inadequate because the FBI searched only under
his full name of "John Fenton Wheeler" and not on any of its
natural variants, such as "John F. Wheeler" and "John Wheeler."
Plaintiff's Cross-Motion for Summary Judgment ("Pl.'s Mot.") at
5. Second, his request asked that the FBI also search its "109
files on Cuba (from February 1967 to September 1969), Spain and
Portugal (from November 1969 to September 1982), and Peru (from
September 1982 to 1985)." Id. (citing Compl., Ex. 1). He
asserts that there is no indication supported by declaration that
any such search was conducted. As to the first of these objections, the record indicates that
the FBI's search was sufficiently broad to locate and identify
documents that referred to "John Fenton Wheeler," see
WHEELER-40-FBIHQ, "Fenton Wheeler," see WHEELER-74-FBIHQ,
WHEELER-78-FBIHQ., and "John Wheeler," see WHEELER-51-FBIHQ.
The Court finds that the FBI conducted an adequate search for
records concerning Mr. Wheeler. A search "need only be
reasonable; it does not have to be exhaustive." Miller v. Dep't
of State, 779 F.2d 1378, 1383 (8th Cir. 1985) (citing Nat'l
Cable Television Ass'n v. FCC, 479 F. 2d 183, 186 (D.C. Cir.
The record is unclear as to whether the FBI searched its 109
files for Cuba, Spain, Portugal, and Peru for the requested time
periods. On the one hand, the FBI states that its search for
cross references satisfied this request. However, it specifically
relies on the Second Declaration of Christine Kiefer as support
for the statement that "[t]he search for cross references
included a search for the `109' files." Reply in Further Support
of Defendants' Motion for Summary Judgment and Opposition to
Plaintiff's Cross-Motion for Summary Judgment ("Def.'s Reply") at
3. The Court can find no second declaration of Christine Kiefer
in the record and cannot find in Ms. Keeley's two declarations
specific reference to any "109" files. It may well be that the
search for cross references fulfilled this part of Mr. Wheeler's
FOIA request but it cannot be said with any certainty that that
is so. On this point, the Court will deny the FBI's motion for
summary judgment without prejudice.
In addition, Mr. Wheeler asserts that the FBI production of
records was inadequate because the FBI did not release its search
worksheets, as specifically requested in his FOIA request. Pl.'s
Mot. at 5-6. The FBI has not responded to this point.
Accordingly, summary judgment will be denied to the FBI without prejudice.*fn13
B. Documents More Than 25 Years Old
Mr. Wheeler makes his strongest objection to the FBI's failure
to release documents that are more than 25 years old. He notes
that Executive Order 12,958 provides for automatic
declassification of information that is more than 25 years old,
although he acknowledges that the FBI is exempt from this
requirement. However, Mr. Wheeler asserts that "[i]n return for
this exemption, the FBI agreed that it would establish a
mechanism for dealing with the declassification of records of
historical importance." Pl.'s Mot. at 7. To make this argument,
Mr. Wheeler relies on an October 12, 1995 memorandum, issued by
former Attorney General Janet Reno, that stated that "the FBI
will establish an additional team of analysts to systematically
review and declassify information determined to be of historical
interest." Id. Mr. Wheeler argues that the FBI must refer the
withheld records to this team of analysts for review and release
unless such release "will cause substantial harm." Pl.'s Mot. at
8 (emphasis omitted).
To the contrary, the FBI clearly applied the procedures
required under the relevant version of E.O. 12,958, as amended on
March 25, 2003. See 2nd Keeley Decl. at ¶ 30. Attorney General
Reno's 1995 memorandum is no longer the applicable document or
In the alternative, Mr. Wheeler challenges the FBI's adherence
to E.O. 12,958. Mr. Wheeler notes that, pursuant to that
Executive Order, information can be withheld when its disclosure "reasonably could be expected to cause damage to the
national security that the original classification authority is
able to identify or describe." Pl.'s Mot. at 9 (citing Exec.
Order No. 12,958 § 1.5(3) (emphasis omitted)). He argues that the
FBI has merely made conclusory statements that release of the
withheld information would damage national security. Relying on
the D.C. Circuit's decision in King v. U.S. Dep't of Justice,
830 F.2d 210 (D.C. Cir. 1987), he assails the FBI's alleged
failure to "explain how disclosure of the material in question
would cause the requisite degree of harm to the national
security." Pl.'s Mot. at 8 (quoting King, 830 F.2d at 224)
(emphasis added in Pl.'s Mot.). He adds,
Whether disclosure could reasonably be expected to
identify sources is disputed by Wheeler except in the
actual instance where the real name of the source is
disclosed. Given the age of the documents at issue
and the end of the Cold War, it is not reasonable to
expect that any other disclosure would result in the
identification of a source.
Id. at 15. "The FBI's failure to take the passage of three
decades or more into account is inconsistent with E.O. 12958's
emphasis on the declassification of antiquated materials stemming
from the Cold War era." Id. at 17.
The Court disagrees. First, despite the passage of time,
foreign relations between Cuba and the United States remain
tenuous at best. Each country remains intensely interested in
obtaining and preventing the flow of information from Cuba to the
U.S. Thus, persons in Cuba who once (or now) have provided
information to the United States could be in danger of
embarrassment or imprisonment, if not death, if knowledge of
their cooperation became known to the Cuban government. Second,
the end of the Cold War in Europe is irrelevant to conditions on
this half of the globe. Cuba remains a communist country, hostile
to the United States and its interests. Third, the Second Keeley
Declaration explains that the detailed information supplied by
FBI sources in Cuba is specific in nature or of unique character; that the
information pinpoints a specific time frame or a specific vantage
point; that the information is such that only a few parties would
have had access to it; and, therefore, that a hostile analyst
could have sufficient clues to identify the contributing source
and/or methods. See 2nd Keeley Decl. ¶ 41. Her points are
demonstrated by the documents withheld by the First and Second
Government Agencies, which the Court has reviewed in camera.
The FBI went through multiple reviews of the requested
information and declassified portions of it for release. Some
information, however, the FBI concluded must remain classified.
The Department Review Committee at DOJ agreed with these analyses
and conclusions. Under FOIA Exemption (b)(1), the FBI refused to
release the identities of classified resources and/or
intelligence methods. Mr. Wheeler's fundamental challenge relies
only on the age of the documents. The Court finds that the FBI
has adequately and sufficiently explained why time alone has not
cured all risks from the release of this specific information.
C. Information Related to Internal Personnel Rules and
The FBI withheld one source symbol number, two informant file
numbers, and information concerning the distribution of copies of
documents to a First Government Agency in reliance on FOIA
Exemptions 2 and 7. See id. ¶¶ 60, 65. Mr. Wheeler challenges
this reliance, arguing that FBI sources are not employees and the
distribution of materials to other agencies cannot qualify as an
internal personnel practice.
The FBI answers that the source symbol number is used as an
administrative reporting tool within the scope of Exemption 2
that could not be "subject to . . . a genuine and significant
public interest." See Rose, 425 U.S. at 369-70. It also argues
that the release of such information would indicate the scope and
location of the FBI informant, and connections of the informant
to dates, times, places, events and names that could reveal his or
"The means by which the FBI refers to informants in its
investigative files is a matter of internal significance in which
the public has no substantial interest." Lesar v. U.S. Dep't of
Justice, 636 F.2d at 486. It is wholly irrelevant that
informants are not considered agency employees. See Jordan v.
U.S. Dep't of Justice, 591 F.2d 753, 763-770 (D.C. Cir. 1978)
(en banc). Mr. Wheeler offers no evidence or argument that
source symbols and informant file numbers are matters of
substantial interest to the public, and the Court conceives of
none. Therefore, it finds that the FBI legitimately relied on
Exemption 2 to refuse to release these pieces of information.
As to Exemption 7, Mr. Wheeler argues that the FBI has not met
its burden of showing that the information at issue was
"`compiled for law enforcement purposes,' a threshold requirement
for Exemption 7." Pl.'s Reply at 6 (quoting Def.'s Reply at 9).
In context, this argument is seriously flawed. Exemption 7(D)
exempts from disclosure two kinds of information: (1) the
identity of a confidential source who is promised confidentiality
and (2) information provided by a confidential source when that
information is gathered as part of a criminal law investigation
or a lawful national security intelligence investigation.
5 U.S.C. § 552(b)(7)(D). The FBI relies upon the former, stating
that these confidential sources were promised confidentiality,
and explains how release of the source symbol number could be
used to ascertain the times, locations, and dates on which the
source provided information, which could then be used to discern
the identity of the source. Accordingly, the Court finds that the
FBI legitimately relied on Exemption 7(D) to refuse to release
the source symbol number.
Finally, the FBI relied on Exemption 2 to withhold information
concerning the distribution of copies of documents to a First
Government Agency. Mr. Wheeler argues that the public has an interest in disclosure because "[i]nformation
indicating that another agency has been sent a copy of an FBI
document tells the public which other agencies are involved in
the investigation, thereby permitting the public to inquire about
and evaluate the role played by the other agency or agencies."
Pl.'s Mot. at 22. This argument might give pause if there were
any indication of a lack of good faith in the FBI's handling of
Mr. Wheeler's FOIA request. The Court finds that there is none.
This perfectly unremarkable FOIA request has been handled in the
appropriate fashion, with cross-checking and review by more than
one set of eyes. Mr. Wheeler might have a personal interest in
what agencies were interested in the FBI's investigation
concerning him, but that alone does not amount to a public
interest. The Court finds that the FBI legitimately relied on
Exemption 2 to withhold information concerning the distribution
of copies of documents to a First Government Agency.
D. Information Compiled for Law Enforcement Purposes That
Could Constitute An Unwarranted Invasion of Personal Privacy
The FBI relied on Exemption 7(C) to withhold certain
information challenged by Mr. Wheeler as lacking proof of any
connection to a law enforcement purpose or an unwarranted
invasion of personal privacy. He cites Pratt v. Webster,
673 F.2d 408 (D.C. Cir. 1982), for requiring two conditions that must
be present in every Exemption 7 claim and that are allegedly
First, the agency's investigatory activities that
reveal the documents sought must be related to the
enforcement of federal laws or to the maintenance of
national security. To satisfy this requirement of a
"nexus," the agency should be able to identify a
particular individual or a particular incident as the
object of its investigation and the connection
between that individual or incident and a possible
security risk or violation of federal law. . . .
Second, the nexus between the investigation and one
of the agency's law enforcement duties must be based
on information sufficient to support at least a
"colorable claim" of its rationality. Id. at 23 (citing Pratt 673 F.2d at 420-21)
Undoubtedly, it was no surprise to Mr. Wheeler, who asked both
the CIA and the FBI for documents concerning himself, that he
was the subject of an FBI investigation. 2nd Keeley Decl. ¶ 20
("FBIHQ file 105-HQ-165399 (WHEELER pages 1-42) concerns a trip
that plaintiff took to Havana, Cuba."); see also id. at ¶¶ 21,
22 ("The subject of this investigation [FBI files 105-HQ2-03884
and 105-HQ-241850] is plaintiff."). Thus, consistent with
Pratt, the agency has clearly identified the particular
individual who was the object of its investigation. Id. The FBI
has also clearly stated that it "was authorized to conduct this
investigation pursuant to 18 U.S.C. § 951 and E.O. 12,333 and
successor orders." Id. at ¶¶ 20, 21, 22.*fn14
words, since Mr. Wheeler had ready access to Cuba and the United
States at a time of significant tension between the governments
of both countries (and was presumably not working for the CIA or
FBI), the FBI investigated him to see if he were acting on behalf
of the Cuban government when he visited Cuba and then returned
home. The Court finds that the FBI has provided "information
sufficient to support at least a `colorable claim' of its
rationality." Pratt, 673 F. 2d at 421. Notably, Cuba was just
as suspicious and kicked Mr. Wheeler out of the country on
charges that he was a CIA spy. Whether one or both countries were
just plain wrong and Mr. Wheeler was indeed a neutral AP reporter
who spied for no one, the Court cannot say that an FBI
investigation of his access to the Cuban government was
irrational. The FBI redacted information, in reliance on Exemption 7(C),
that referred to persons other than Mr. Wheeler. He challenges
redactions of information he believes is not private at all, such
as the fact that his former wife accompanied him on the plane
flight to Mexico City after he was expelled from Havana. However,
Mr. Wheeler did not submit notarized authorizations for anyone
other than himself, nor proof of death. 2nd Keeley Decl. ¶ 67.
Without those privacy waivers, information concerning third
parties who are not requesters is properly withheld under
Exemption 7(C) as an unwarranted invasion of that person's
privacy. See 5 U.S.C. § 552(b)(7)(C).
While the Court must balance the public interest with the
privacy interest, it finds little of public interest here in the
identities of third persons. Mr. Wheeler argues that "[w]henever
an authoritarian government expels a couple and one member of
that couple is a representative of the free press, there is a
great public interest in knowing all the circumstances of that
expulsion." Pl.'s Reply at 7-8. This argument is difficult to
apply to these circumstances. Mr. Wheeler, the "representative of
the free press," was expelled from Cuba and information relating
to him that is otherwise not exempt under FOIA has been produced.
His former wife was apparently not a "representative of the free
press" and retains her own privacy interests. Presuming for these
purposes that the public retains a great interest in the
circumstances of Mr. Wheeler's expulsion from Cuba back in 1969,
it is not at all clear why or how such an interest applies to
third persons, such as his former wife. The Court finds that the
FBI applied Exemption 7(C) appropriately to protect the privacy
interests of Mr. Wheeler's former wife.
In addition, Mr. Wheeler specifically contests withholding the
identity of a third person mentioned in WHEELER p. 79. The
relevant paragraph from that page states:
On August 1, 1967, MM T-1, a Cuban exile who has been
involved in Cuban Revolutionary activities for the past eight
years, advised that the individual identified as
[redacted] is [redacted] who came to the Miami area
from Cuba in 1959, having been sent bythe CASTRO
Government to check on the activities of certain
supporters of ex-Cuban President FULGENCIO BATISTA.
In early 1961, [redacted] returned to Miami as an
exile. . . .
2nd Keeley Decl., Ex. B, WHEELER p. 79. Mr. Wheeler argues that
the redacted information "relates to a significant Cuban exile
engaged in political activities and thus there is a strong public
interest in disclosing information regarding him [w]hether or not
he is still alive. . . ." Pl.'s Reply at 4. While he does not
challenge this withholding as unrelated to a legitimate
investigation, Mr. Wheeler does ask the Court to require the FBI
to weigh the public interest in disclosure and to consider
whether the information has already been released "under the vast
disclosures of information about such Cuban exiles that has been
made under the JFK Act," Pub.L. No. 102-526, § 2(b),
106 Stat. 3442 (1992) (codified at 44 U.S.C. § 2107).
It would appear from WHEELER p. 79 that the unnamed person was
of investigatory interest to the FBI. His or her identity is
protected from release by Exemption 7(C). Reporters Comm. for
Freedom of the Press, 816 F.2d at 780; Computer Prof'ls for
Social Responsibility, 72 F.3d at 904. The fact that this
person's identity may have been disclosed elsewhere does not
diminish his or her privacy interest in regard to WHEELER p. 79.
See Fitzgibbon, 911 F.2d at 768; Weisberg, 745 F.2d at 1491.
Mr. Wheeler correctly notes, however, that the FBI must balance
the personal privacy interest against the public interest that
would be served by disclosure. Albuquerque Publ'g Co. v. Dep't
of Justice, 726 F. Supp. 851, 855 (D.D.C. 1989).
The public interest in disclosure under FOIA relates to
allowing the citizenry to see how their government is performing.
Reporters Comm. for Freedom of the Press, 489 U.S. at 773.
There "is no reasonably conceivable way in which the release of
one individual's name . . . would allow citizens to know `what their government is up to.'"
Fitzgibbon, 911 F.2d at 768 (quoting Reporters Comm. for
Freedom of the Press, 489 U.S. at 773). Even less has Mr.
Wheeler demonstrated that the public interest is both significant
and compelling. See Senate of Puerto Rico, 823 F.2d at 588. In
the face of this high bar, the FBI's explanations are more than
sufficient to demonstrate that it considered, and balanced, the
public interests and private interests at stake:
Being linked with any law enforcement investigation
carries with it a strong negative connotation.
To release the identities of persons as subjects of
FBI interest could subject them to harassment or
embarrassment or result in undue public attention.
To release the identities of persons who are merely
mentioned in these records and of no investigatory
interest to the FBI could cause unsolicited and
unnecessary attention to be focused on them.
2nd Keeley Decl. ¶ 70. Mr. Wheeler's asserted public interest
arises from the assumed interest of the public in the activities
of a known Cuban exile. However, this approach applies the wrong
test. The public interest in disclosure is determined by whether
the information would inform Mr. Wheeler or the general public
about the FBI's performance of its mission to enforce federal
criminal and national security statutes and/or how the FBI
actually conducts its operations and investigations. The Court
can find no such public interest in the disclosure of the
redacted identity in WHEELER p. 79.
E. Confidential Sources to Whom a Promise of Confidentiality
Exemption 7(D), quoted above, protects the identity of a
confidential source who "furnished information on a confidential
basis." 5 U.S.C. § 552(b)(7)(D). Mr. Wheeler asserts that the FBI
has failed to muster the requisite proof that an express promise
of confidentiality was made to those sources whose identities it
refuses to reveal because it has no documentary proof of such a promise and its declarant does not state that she has personal
knowledge. The information in question is the one source symbol
number and two informant file numbers.
Mr. Wheeler mis-reads Ms. Keeley's Declaration. Ms. Keeley
informs the Court that the FBI does not assign source symbol
numbers to all FBI informants but only to those who have been
developed, instructed, closely monitored and, in many cases, paid
for their services. 2nd Keeley Decl. ¶ 76. Such sources "report
information to the FBI under an express grant of
confidentiality." Id. Ms. Keeley reports this information
"based upon [her] personal knowledge, upon information provided
to [her] in [her] official capacity, and upon conclusions and
determinations reached and made in accordance therewith." Id. ¶
2. Thus, the kind of informant who receives a source symbol
number is a special person, one with whom the FBI has a close
relationship likely to continue over time. All informants of
sufficient importance to have been developed, instructed,
monitored, and possibly paid for their services have been
expressly promised confidentiality, which is why they are given
source symbol numbers. All those with source symbol numbers have
been developed, instructed, monitored, and possibly paid for
their services under an express promise of confidentiality. Ms.
Keeley's statement that the informant behind the source symbol
number received an express grant of confidentiality is,
therefore, offered with sufficient knowledge. Since the two
informant file numbers are otherwise protected from disclosure
under Exemption 2, supra, there is no need to analyze them
separately under Exemption 7.
Having carefully considered the cross motions for summary
judgment, the oppositions thereto, and the entire record, the
Court will GRANT the FBI's motion for summary judgment in part
and DENY it in part. The Court will DENY Mr. Wheeler's motion as
moot. The FBI's motion will be granted as to all FOIA/PA requests except for the requests
that the FBI search its "109 files" and that it release its
search worksheets, as to which summary judgment will be denied
without prejudice. A memorializing order accompanies this
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