United States District Court, D. Columbia
October 13, 2005.
MICHAEL SUSSMAN, Plaintiff,
UNITED STATES MARSHALL SERVICE, Defendant.
The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge
Plaintiff, proceeding pro se, bings this action pursuant to the
Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, and the
Privacy Act, 5 U.S.C. § 552a. This court previously granted
defendant's motion for summary judgment on plaintiff's Privacy
Act claim and denied summary judgment on his FOIA claim because
defendant's search for records was inadequate. Defendant has
filed a renewed motion for summary judgment and plaintiff has
filed a cross-motion for summary judgment. Based on the parties'
filings and the applicable law, defendant's motion will be
granted and plaintiff's cross-motion denied.
On July 19, 2002, plaintiff sent a letter to the United States
Marshal Service ("USMS"), pursuant to FOIA and the Privacy Act,
Any and all records relating to me, mention me, or
otherwise pertain to me. The records should include,
but not be limited to, documents, files,
investigative reports, communications, electronic
data, voice mail recordings (or other voice storage
files), facsimiles, teletypes, memoranda, briefs,
orders, directives, notes, field notes, videos, logs, telephone logs, letters, data files, interoffice
memoranda, intraoffice memoranda, interagency
communications, requests, etc.
Declaration of Florastine P. Graham ("Graham Decl."), Exhibit
Plaintiff provided the USMS with his
identifying data and specified the areas where the documents were
most likely to be located.
The USMS processed plaintiff's request by searching for records
indexed to his name. Id., ¶ 4. The USMS located a file which
contained a four-page document entitled, "NOTICE OF INVOCATION OF
RIGHTS BY INJURED PARTY, MICHAEL SUSSMAN." Id. Plaintiff had
sent this document to the residence of United States District
Court Judge Alan Bloch in the Western District of Pennsylvania,
and to the office addresses of the Clerk of the United States
District Court, the United States Attorney and United States
Marshal in that judicial district. Id. The USMS released this
document to plaintiff with one deletion, the address of an
individual, citing Exemption 6 of FOIA. Id., ¶ 5. The USMS did
not locate any other documents responsive to plaintiff's request.
Id., ¶ 4.
On November 7, 2002, plaintiff appealed the USMS's action to
the Office of Information and Privacy ("OIP"). Id., ¶ 7. In his
appeal, plaintiff contended the USMS records search was
inadequate. He identified the following as information not
disclosed: a "wanted poster" for Keith Maydak, alleging Michael
Sussman as an alias; records of Deputy U.S. Marshal Joseph
Morehead's inquiries about plaintiff's business affairs to third
parties; subpoenas for plaintiff's business records obtained by
Deputy Marshal Morehead; and the records received in response to
those subpoenas. Id., Attachment, Nov. 7, 2002 letter. After
plaintiff filed the present action, OIP closed its file on plaintiff's administrative appeal. Id., ¶ 8.
Following this Court's August 3, 2004 Order, the USMS searched
Keith Maydak's files for records related or pertaining to
plaintiff or that mentioned plaintiff by name. Defendant's Motion
for Summary Judgment ("Deft's Mot."), Supplemental Declaration of
Shaaron L. Keys ("Keys Decl."), ¶ 3. On February 28, 2005, the
USMS informed plaintiff that the agency had located approximately
330 pages of documents responsive to his request. Id., Ex. A.
Duplicate copies of certain documents were included. Id. The
USMS also informed plaintiff that ten of the pages had originated
with other agencies the United States Postal Service ("USPS"),
the Bureau of Citizenship and Immigration Services ("CIS"), and
the Federal Bureau of Investigation ("FBI"). Id. The USMS
disclosed 81 pages of documents to plaintiff, 80 of them in their
entirety and one page withholding the name of a USMS employee
pursuant to FOIA Exemption 7 (C). Id. The USMS advised
plaintiff that it was still processing his request and would
contact him again. Id.
On March 14, 2005, the USMS informed plaintiff that it had
completed the processing of his FOIA request and had located an
additional 722 pages of responsive documents. Id., Ex. B. The
USMS advised that 123 pages had originated with the Commodities
Futures Trading Commission ("CFTC") and the Executive Office for
United States Attorneys ("EOUSA") and had been referred to those
agencies for disclosure determinations. Id. The USMS disclosed
552 pages of documents to plaintiff, 76 pages in their entirety,
476 pages with information withheld pursuant to Exemptions 2, 3,
7(C), 7(D), and 7(E), and the remaining 47 pages withheld in
their entirety pursuant to the same exemptions. Id. On March
18, 2005, the USMS disclosed to plaintiff an additional one-page
document that had been inadvertently withheld. Id., Ex. C.
The agencies that had been referred documents by the USMS
provided responses to plaintiff's FOIA request. On August 30, 2005, the EOUSA released
to plaintiff 111 pages in full and 10 pages in part, with
information withheld pursuant to Exemption 7(C). Defendant's
Opposition to Cross Motion for Summary Judgment and Reply to
Plaintiff's Opposition to Summary Judgment ("Deft's Opp."),
Declaration of John W. Kornmeier ("Kornmeier Decl."), ¶ 5 & Ex.
C. The FBI disclosed its one page document in full. Deft's Opp.,
Ex. B. On April 18, 2005, the CFTC disclosed in full three pages.
Id., Ex. C. On March 17, 2005, the USPS withheld in full seven
pages pursuant to Exemptions 6 and 7(C). Id., Ex. D. The CIS
released one page in its entirety and withheld no material.
Id., Ex. E.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. Rule 56(c). Material
facts are those that "might affect the outcome of the suit under
the governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party seeking summary judgment bears the
initial burden of demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the
court must draw all reasonable inferences in favor of the
non-moving party. Anderson, 477 U.S. at 255; see also
Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "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." Anderson, 477 U.S. at 248. The
nonmoving party must do more than simply "show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, "any factual assertions in the movant's affidavits will
be accepted as being true unless [the opposing party] submits his
own affidavits or other documentary evidence contradicting the
assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)
(quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.
1982)). The mere existence of a factual dispute by itself,
however, is not enough to bar summary judgment. The party
opposing the motion must show that there is a genuine issue of
material fact. See Anderson, 477 U.S. at 247-48. To be
material, the fact must be capable of affecting the outcome of
the litigation; to be genuine, the issue must be supported by
admissible evidence sufficient for a reasonable trier-of-fact to
find in favor of the nonmoving party. See id.; Laningham v.
United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
Adequacy of Search
To obtain summary judgment of the issue of the adequacy of
search, an agency must show "viewing the facts in the light most
favorable to the requester, that . . . [it] `has conducted a
search reasonably calculated to uncover all relevant documents.'"
Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552
(D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its
burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a
non-conclusory fashion the scope and method of the agency's
search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In
the absence of contrary evidence, such affidavits or declarations
are sufficient to demonstrate an agency's compliance with the
FOIA. Id. at 127. The agency must show that it made a "good
faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested." Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990)); see Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the
adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Oglesby, 920 F.2d at 68.
Because the agency is the possessor of the records and is
responsible for conducting the search, the Court may rely on "[a]
reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of
the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczyk v. Dep't
of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v.
Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
In processing plaintiff's FOIA request, the USMS searched for
records in his name at the offices in the district specified by
plaintiff as well as the Investigative Division and the Judicial
Security Division at USMS headquarters. Graham Decl., ¶ 4. The
search included the Prison/Processing and Population
Management/Prisoner Tracking System ("PPM/PTS"), the
Inappropriate Communications/Threat Information ("IC/TI") system
of records and the Warrant Information Network ("WIN"). Id. WIN
records are indexed by the names of persons for whom arrest warrants have been issued and for associates who may
provide information, assistance or leads in an USMS
investigation. Id., ¶ 10. The USMS found no records indicating
that plaintiff was the subject of an arrest warrant or a fugitive
investigation. Id. The WIN file regarding Keith Maydak was not
searched because plaintiff did not inform the USMS that
plaintiff's name would be in Mr. Maydak's file. Id.
In response to this Court's August 3, 2004, the USMS conducted
a search of Mr. Maydak's files for records or information
regarding plaintiff. Keys Decl., ¶ 3. The USMS searched for
records in the USMS district office's identified in Mr. Maydak's
FOIA request. Id., ¶ 4. The USMS also conducted a search of
files located in the USMS' headquarters Investigative Services
and Judicial Services Division and the Office of General Counsel.
It is plaintiff's burden in a challenge to the adequacy of an
agency's search to present evidence rebutting the agency's
initial showing of a good faith search. See Maynard v. CIA,
986 F.2d 547, 560 (2d Cir. 1993); Weisberg, 705 F.2d at 1351-52.
Plaintiff has not alleged that defendant's supplemental records
search was inadequate and it is apparent from the declaration
submitted by the agency representative that the USMS has made a
"good faith effort to conduct a search for the requested records,
using methods which reasonably can be expected to produce the
information requested." Moore v. Aspin, 916 F.Supp. 32, 35
(D.D.C. 1996) (citing Oglesby, 920 F.2d at 68). Therefore,
defendant's search for plaintiff's requested records was adequate
to fulfill defendant's obligations under FOIA.
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). It applies to two
categories of material: (1) internal agency matters so routine or
trivial that they could not be "subject to . . . a genuine and
significant public interest;" and (2) internal agency matters of
some public interest "where disclosure may risk circumvention" of
statutes or agency regulations. Dep't of the Air Force v. Rose,
425 U.S. 352, 369-70 (1976); see Crooker v. Bureau of Alcohol,
Tobacco and Firearms, 670 F.2d. 1051, 1073-74 (D.C. Cir. 1981).
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).
Under this exemption, the USMS withheld the location of a Word
Perfect file and the information databases utilized by the
agency. Keys Decl., ¶ 7. The agency asserts that disclosure of
this information would allow fugitives to circumvent
investigative procedures and avoid detection and apprehension by
the USMS. Id. The USMS also withheld information regarding
communications between agencies and the guidelines for threat
investigations and threat assessments. Id.
Plaintiff challenges the agency's withholding of information
under this exemption. He contends communications between the USMS
and other agencies are "necessarily external" and the information
databases utilized by defendant were publicly accessible Internet
websites. Plaintiff's Cross-Motion for Summary Judgment and Brief
in Opposition to the Defendant's Motion for Summary Judgment
("Pl's Opp."), at 2-3.
To qualify as "high 2" exempt information, the requested
document must be "predominantly internal" and its disclosure "significantly risk
circumvention of agency regulations or statutes." Crooker,
670 F.2d at 1074. Under this category, an agency may withhold
documents that would reveal techniques and procedures for law
enforcement investigations, guidelines for investigations, or
impede the effectiveness of an agency's law enforcement function.
Schiller, 964 F.2d at 1207. The focus is on whether disclosure
will "benefit those attempting to violate the law and avoid
detection." Crooker, 670 F.2d at 1054.
Defendant reasonably and credibly asserts that disclosure of
information about the databases would reveal how the USMS used
the databases and conducted the search through those databases.
Keys Decl., ¶ 7. In addition, although some of these databases
and materials may be publicly available, how the agency uses that
information to conduct further investigation is a "predominately
internal" matter. Therefore, the Court finds that the information
was properly not disclosed to plaintiff.
Exemption 3 of FOIA covers 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. Dep't of Justice,
823 F.2d 574, 582 (D.C. Cir. 1987).
Defendant cites this exemption in conjunction with Rule 6(e) of
the Federal Rules of Criminal Procedure. Rule 6(e) qualifies as
statute under this exemption because it was affirmatively enacted
by Congress. Fund for Constitutional Gov't v. National Archives
and Records Serv., 656 F.2d 856, 867-68 (D.C. Cir. 1981);
Maydak v. Dep't of Justice, 254 F.Supp.2d 23, 42 (D.D.C. 2003). Federal Rule of Criminal Procedure 6(e)(2)
prohibits disclosure of matters occurring before a grand jury.
In re Motions of Dow Jones & Co., 142 F.3d 496, 498-501 (D.C.
Cir. 1998). FOIA Exemption 3 permits the withholding of materials
that, 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
directions of the investigation, the deliberations or questions
of jurors, and the like." Senate of the Commonwealth of Puerto
Rico, 823 F.2d at 582 (quoting SEC v. Dresser Indus., Inc.,
628 F.2d 1368, 1382 (D.C. Cir.) (en banc), cert. denied,
449 U.S. 993 (1980). Defendant withheld material that is being
reviewed in an ongoing federal grand jury investigation into the
activities of plaintiff's associates. Keys Decl., ¶ 8. The Court
finds that disclosure of these materials would violate Rule 6(e)
of the Federal Rules of Criminal Procedure. The documents were
properly withheld under Exemption 3.*fn2
FOIA exempts from disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency."
5 U.S.C. § 552(b)(5). The exemption allows an agency to withhold
materials that would be privileged from discovery in civil
litigation. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975); Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).
The exemption encompasses the deliberative process privilege. Id. That privilege protects
from disclosure "documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by
which government decisions and policies are formulated." Dep't
of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,
The documents defendant withheld under this exemption concerned
the deliberative process used by the USMS in threat
investigations. Keys Decl., ¶ 9. These documents contain
communications regarding the determination of the existence of an
actual or potential threat, the extent of the threat, and the
likelihood of the threat being carried out against an individual
under the protection of the USMS. Id. According to the USMS,
disclosure of this information would reveal the thought processes
and preliminary opinions of data analysts conducting threat
assessments and would adversely affect the candid discussions of
these opinions. Id.
The Court finds that the documents withheld by the USMS fall
within the ambit of the deliberative process privilege. The
decision not to disclose this material, therefore, was proper.
Exemption 7(C) of FOIA exempts from mandatory disclosure
records compiled for law enforcement purposes to the extent that
disclosure "could reasonably be expected to constitute an
unwarranted invasion of personal privacy."
5 U.S.C. § 522(b)(7)(C). In determining whether these exemptions apply to
particular material, the Court must balance the interest in
privacy of the individual mentioned in the record against the
public's interest in disclosure. Beck v. Dep't of Justice,
997 F.2d 1489, 1491 (D.C. Cir. 1993); Davis v. United States Dep't
of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). It is the
"interest of the general public, and not that of the private
litigant" that the court considers in this analysis. Brown v.
FBI, 658 F.2d 71, 75 (2d Cir. 1981) (citing Ditlow v. Shultz, 517 F.2d 166, 171-72 (D.C. Cir.
1975)). "[T]he only public interest relevant for purposes of
Exemption 7(C) is one that focuses on `the citizens' right to be
informed about what their government is up to.'" Davis,
968 F.2d at 1282 (quoting Dep't of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 773 (1989)). The privacy
interests of third parties mentioned in law enforcement files are
"substantial," while "[t]he public interest in disclosure [of
third-party identities] is not just less substantial, it is
insubstantial." SafeCard Servs., Inc., 926 F.2d at 1205.
The USMS invokes Exemption 7(C) to protect the names, telephone
numbers, and other personal information regarding law enforcement
officers and other government employees, the name and information
of a judge protected by the USMS and threatened by Mr. Maydak,
and the names, social security numbers and other personal
information pertaining to third parties. See Keys Decl., ¶ 11.
The deletion of the names and identifying information of federal,
state and local law enforcement personnel has been routinely
upheld by the courts. See Schrecker v. U.S. Dep't of Justice,
349 F.3d 657, 661 (D.C. Cir. 2003); see also Lesar v. United
States Dep't of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)
(finding legitimate interest in preserving identities of
government officials where disclosure could subject them to
annoyance or harassment in either their official or private
lives); Pray v. Dep't of Justice, 902 F.Supp. 1, 3 (D.D.C.
1995) (possibility of animosity toward FBI agents outweighed any
possible benefit of disclosure), aff'd in relevant part, 1996
WL 734142 (D.C. Cir. Nov. 20, 1996). In addition, the names and
identities of individuals of investigatory interest to law
enforcement agencies and those merely mentioned in law
enforcement files have been consistently protected from
disclosure. See Perrone v. FBI, 908 F.Supp. 24, 26 (D.D.C.
1995) (citing Reporters Committee for Freedom of the Press,
489 U.S. at 779); Baez v. Dep't of Justice, 647 F.2d 1328, 1338 (D.C. Cir.
1980); Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C. 1987). With
respect to a cooperating witness, "`[e]xemption 7(C) takes
particular note of the strong interest of individuals, whether
they be suspects, witnesses, or investigators, in not being
associated unwarrantedly with alleged criminal activity.'"
Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (quoting
Dunkelberger v. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir.
1990)) (other citation and internal quotation marks omitted);
see also Computer Professionals for Social Responsibility v.
United States Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996)
("records contain[ing] the names of informants, witnesses, and
potential suspects who are relevant to its criminal investigation
. . . clearly fall within the scope of Exemption 7(C)").
Once a privacy interest is identified under Exemption 7 (C),
the FOIA records requestor must establish that (1) the public
interest is a significant one; and (2) the information is likely
to advance that interest. Favish, 541 U.S. at 172. When alleged
government impropriety is at issue, the requestor must provide
evidence that would warrant a belief by a reasonable person that
the alleged government impropriety might have occurred. Id. at
174. The privacy interests of third parties mentioned in law
enforcement files are "substantial," while "[t]he public interest
in disclosure [of third-party identities] is not just less
substantial, it is insubstantial." SafeCard Services,
926 F.2d at 1205.
Plaintiff alleges that there is a public interest in disclosure
of information about the alleged threat may by Mr. Maydak to a
federal judge because Mr. Maydak is a "public figure." Pl's
Opp., p. 7. Disclosure of the withheld materials, plaintiff
contends, "will shed light on the dispute about whether a real
threat existed." Id.
"[T]he only public interest relevant for purposes of Exemption
7 (C) is one that focuses on `the citizens' right to be informed about what their
government is up to.'" Davis, 968 F.2d at 1282 (quoting
Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989)). Details that "reveal little or
nothing about an agency's own conduct" are not part of the public
interest for purposes of Exemption 7 (C). Blanton v. U.S. Dep't
of Justice, 63 F.Supp.2d 35, 45 (D.D.C. 1999) (quoting Davis v.
Dep't of Justice, 968 F.2d at 1282). In the absence of any
compelling evidence that the government agency has engaged in
illegal activity, this type of information is exempt from
disclosure. See SPARC v. United States Postal Service,
147 F.3d 992, 999 (D.C. Cir. 1998); Vance v. FBI, 46 F.Supp.2d 26, 33
Since Plaintiff does not allege that the USMS engaged in
misconduct, there is no public interest in disclosure that
outweighs the privacy interests of law enforcement officials,
government employees, the federal judge, and third parties.
Defendant properly withheld the records under Exemption 7 (C).
Exemption 7(D) of FOIA 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, 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 . . .
information furnished by a confidential source.
5 U.S.C. § 552 (b)(7)(D).
To invoke Exemption 7(D), an agency must show either that a
source provided the information to the agency under express
assurances of confidentiality or that the circumstances support an inference of confidentiality. See U.S. Dep't of
Justice v. Landano, 508 U.S. 165, 179-81 (1993). When
determining the latter, the proper inquiry is "whether the
particular source spoke with an understanding that the
communication would remain confidential." Id. at 172. The
government is not entitled to a presumption that all sources
supplying information in the course of a criminal investigation
are confidential sources. An implied grant of confidentiality may
be inferred, however, from the circumstances surrounding the
imparting of the information, including the nature of the
criminal investigation and the informant's relationship to the
target. See id; see also Computer Professionals for Social
Responsibility, 72 F.3d at 905-06.
Defendant asserts this exemption to protect the identity of
confidential sources who had an express grant of confidentiality.
See Keys Decl., ¶ 13. The confidential sources who cooperated
with the USMS's investigation feared that disclosure of their
identities would endanger their lives. Id. The names of
confidential sources and the information they provided to law
enforcement were thus properly withheld under Exemption 7(D).
Exemption 7(E) protects from disclosure information compiled
for law enforcement purposes where release of the information
"would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law."
5 U.S.C. § 552(b)(7)(E). Thus, for information to be properly
withheld under this exemption, a court must find that (1) the
information was compiled for law enforcement purposes; and (2)
release of the information could reasonably be expected to
circumvent the law. FBI v. Abramson, 456 U.S. 615, 622 (1982);
Edmonds, 272 F.Supp.2d at 56. Under this exemption, the USMS withheld information regarding
its administrative and operational guidelines and procedures
utilized in investigation threats against federal court
employees. See Keys Decl., ¶ 14. The agency asserts that
disclosure of this information would allow the general public to
determine the specific investigative guidelines and procedures
applied in a specific case, such as the one at issue here, and
would allow threatening individuals to circumvent the law and
avoid detection. Id., ¶¶ 15-16.
The agency's declaration clearly sets out the type of documents
involved and how disclosure of these techniques and practices
could create a risk of circumvention of the law. The Court,
therefore, concludes that the records were properly withheld
under Exemption 7(E).
Exemption 7(F) protects from disclosure information contained
in law enforcement records that "could reasonably be expected to
endanger the life or physical safety of any individual."
5 U.S.C. § 552(b)(7)(F). The USMS withheld investigative reports and
records from the agency's Warrant Information Network under this
exemption. See Keys Decl., ¶ 17. The agency asserts that
disclosure of the information would endanger the life and
physical safety of a judge protected by the USMS, law enforcement
officials, and members of the public. Id.
The investigation at issue here is a physical threat to the
life of a federal judge. By its very nature, then, disclosure of
information from the law enforcement files has the reasonable
potential to endanger the life or safety of individuals. The
records were properly withheld.
Referrals to Other Agencies
While USMS was processing plaintiff's FOIA request, the agency
discovered documents originating from other federal government
agencies. Keys Decl., ¶¶ 5-6. The USMS referred these documents to each appropriate agency for a determination of
whether the records should be released under FOIA. Id. The
documents were referred to the following agencies: the United
States Postal Service, the Bureau of Citizenship and Immigration
Services, the FBI, the Commodity Futures Trading Commission, and
the EOUSA. Id.
In situations such as this, the Court must determine if the
referral was justified or whether the referral resulted in the
improper withholding of documents. Peralta v. United States
Attorney's Office, 136 F.3d 169, 175 (D.C. Cir. 1998); Maydak,
254 F.Supp.2d at 40. An agency possessing records that originated
with another agency is ultimately responsible for processing the
records. McGhee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983);
Maydak, 254 F.Supp.2d at 40. However, the agency may refer the
records to the originating agency for "consultation" as to
whether certain exemptions apply. McGhee, 697 F.2d at 1110 n.
71; see also 5 U.S.C. § 552(a)(6)(B)(iii).
The USMS referred documents to the EOUSA, the FBI, the CTFC,
the USPS, and the CIS. The FBI, CTFC and CIS disclosed all
responsive documents to plaintiff and did not withhold any
records. See Deft's Opp., Exs. B, C, E. On August 30, 2005, the
EOUSA released to plaintiff 110 pages in full and 10 pages in
part. Id., Ex. A, Declaration of John W. Kornmeier ("Kornmeier
Decl."), ¶ 5. The EOUSA asserted Exemption 7(C) as a basis for
withholding certain records. Id., ¶¶ 7-11. The agency withheld
the identities and personal information about third-party
individuals, and the identities of federal agents and government
investigation and prosecution of plaintiff and Mr. Maydak. Id.
For the same reasons stated above for the withholding under this exemption by the USMS, the Court finds that the EOUSA properly
withheld the records.*fn3
The remaining issue is the disposition of the seven pages of
documents referred to the United States Postal Service by the
USMS. On March 17, 2005, the USPS informed plaintiff that it was
withholding the records pursuant to Exemption 6 and 7 (C) because
disclosure of the information would constitute an invasion of
personal privacy. Deft's Opp., Ex. D. Plaintiff has not appealed
this decision and has not otherwise argued that the withholding
by the USPS was improper. Therefore, the Court will uphold the
If a record contains information that is exempt from
disclosure, any reasonably segregable information must be
released after deleting the exempt portions, unless the
non-exempt portions are inextricably intertwined with exempt
portions. See Trans-Pacific Policing Agreement v. United States
Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999);
5 U.S.C. § 552(b). A Court errs if it "simply approve[s] the withholding
of an entire document without entering a finding on
segregability, or the lack thereof." Powell v. United States
Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1991)
(quoting Church of Scientology v. Dep't of the Army,
611 F.2d 738, 744 (9th Cir. 1979)). Having reviewed the declarations of the USMS and the EOUSA, the
Court concludes that defendant has withheld only the records or
portions of records exempt under FOIA's provisions, and that all
reasonably segregable material has been released. See Keys
Decl., ¶¶ 18-19, 21; Kornmeier Decl., ¶ 10 & Ex. D. With respect
to these records, the agency declarations and attachments
adequately specify "in detail which portions of the document[s]
are disclosable and which are allegedly exempt." Vaughn,
484 F.2d at 827.
Based on the foregoing, defendant's motion for summary judgment
is granted and plaintiff's cross-motion for summary judgment is
denied. A separate order accompanies this Memorandum Opinion.
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