United States District Court, D. Columbia
November 9, 2005.
NELSON GONZALEZ, Plaintiff,
BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, et al., Defendants.
The opinion of the court was delivered by: JOHN BATES, District Judge
Pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, plaintiff, a federal inmate proceeding pro se, filed FOIA
requests to the Executive Office of United States Attorneys
("EOUSA"), the Bureau of Alcohol, Tobacco, and Firearms ("ATF"),
the Federal Bureau of Investigation ("FBI"), the United States
Marshals Service ("USMS"), the Criminal Division of the
Department of Justice ("DOJ"), and the Drug Enforcement
Administration ("DEA"). The present action seeks review of these
agencies' dispositions of plaintiff's FOIA requests. Defendants
have filed motions for summary judgment. Based on the factual
record and the applicable law, the Court will grant defendants'
On May 26, 1999, in the United States District Court for the
Western District of Texas, plaintiff was sentenced to 365 months
imprisonment. Complaint ("Compl."), Attachment, Judgment.
Plaintiff subsequently filed FOIA requests with a number of
federal agencies, seeking documents related to the criminal
investigation that led to his conviction. Plaintiff seeks the information in order to challenge his conviction on the ground
that the prosecution withheld exculpatory evidence at his trial.
Compl., ¶¶ 1, 3.
On February 23, 2004, plaintiff sent a FOIA request to DOJ for
all records in his name. Defendants' Motion for Summary Judgment
("Defts.' Mot."), Declaration of Kathy Hsu ("Hsu Decl."), Exhibit
("Ex.") 1.*fn1 DOJ notified plaintiff on February 10, 2005
that the agency had not located any records responsive to his
request. Id., Ex. 7. On June 7, 2005, DOJ informed plaintiff
that it had performed an additional search in the Asset
Forfeiture and Money Laundering Section. Id., ¶ 9. DOJ located
a single-page document listing ten seized assets, and requested
plaintiff to identify which assets had previously been owned by
him. Id., ¶ 10. In response, plaintiff stated that he was not
the individual identified on the asset list and had never had a
possessory interest in any of the assets. Id., Ex. 9.
On February 18, 2004, plaintiff sent a FOIA request to the
USMS. Defts.' Mot., Declaration of William E. Bordley ("Bordley
Decl."), Ex. A. The USMS responded to plaintiff's FOIA request on
March 31, 2004. Id., Ex. C. The USMS located 47 pages
responsive to plaintiff's request. Id. Four pages were referred
to the DEA for processing, 29 pages were released to plaintiff in
their entirety, 11 pages were released with redactions, and 3
pages were withheld from disclosure. Id. The USMS cited FOIA
Exemption 7 (C) to justify its decision to withhold information.
Id. The USMS released an additional one-page document on July
5, 2005. Id., Ex. G. Plaintiff appealed the USMS's response to
the Office of Information and Privacy ("OIP"). Id., Ex. D. On
July 19, 2004, the OIP affirmed the USMS's action. Id., Ex. F. Plaintiff also submitted a FOIA request to the DEA on February
18, 2004 seeking "all criminal investigatory and forfeiture"
records "in any way connected to, related to, or even remotely in
reference to my name." Defts.' Mot., Declaration of Adele Odegard
("Odegard Decl."), Ex. A. On May 23, 2004, the DEA forwarded to
plaintiff 52 pages of records and withheld 151 pages pursuant to
FOIA Exemptions 2, 7 (C) and 7(D) and a Privacy Act provision,
5 U.S.C. § 552a(j)(2). Odegard Decl., ¶ 6. On June 8, 2004, the DEA
sent plaintiff a supplemental release of 9 pages of documents and
withheld 9 pages pursuant to the Exemptions 7 (C),7 (D) and 7(F),
and the Privacy Act. Id., Ex. B. Plaintiff appealed the
agency's action to OIP. Compl., Attachment, 7/23/04 Letter of
Richard L. Huff. On July 23, 2004, the OIP affirmed the DEA's
action on plaintiff's FOIA request. Id.
In conducting the search for records responsive to plaintiff's
request, the DEA had only identified records by "title," i.e.,
where plaintiff was the principal subject of an investigation.
Odegard Decl., ¶¶ 11-12. At plaintiff's request, the DEA
conducted a supplemental search for plaintiff's name in "related
files," that is, investigative records that made any reference to
plaintiff. Id., ¶ 13 & Ex. C. As a result of this search, on
July 15, 2005, the DEA disclosed to plaintiff 74 pages in their
entirety and 76 pages with redactions, and withheld 10 pages.
Id., Ex. D.
On February 18, 2004, plaintiff filed a FOIA request with the
ATF for all records of any criminal investigation of plaintiff.
Defts.' Mot., Declaration of Averill P. Graham ("Graham Decl."),
Ex. A. The ATF informed plaintiff that the agency did not possess
any records responsive to his request. Id., Ex. B. On June 28,
2004, OIP affirmed ATF's decision on appeal. Id., Ex. E. Plaintiff sent a FOIA request to the FBI on February 18, 2004.
Defts.' Mot., Declaration of Nancy L. Steward ("Steward Decl."),
¶ 5. Plaintiff sought any and all documents, records and
information that the FBI had in its possession that were in any
way connected to, related to, or even remotely in reference to
him. Id. On August 9, 2004, the FBI sent plaintiff 11 partial
pages of records, withholding material from the records under
FOIA exemptions 7 (C), (D), and (E) and section 552a(j)(2) of the
Privacy Act. Id., ¶ 11. Plaintiff appealed the FBI's action on
August 25, 2004. Id., ¶ 12. OIP has yet to issue a decision on
Plaintiff filed a number of FOIA requests with the EOUSA. With
one exception, the EOUSA did not locate any records responsive to
the requests. See Defendant EOUSA's Motion for Summary Judgment
("Deft. EOUSA's Mot."), Declaration of David Luczynski
("Luczynski Decl."), ¶ 4. Plaintiff sought all records pertaining
to him in the United States Attorney's Offices located in the
states of Texas and Ohio, Rochester, Minnesota, Springfield,
Missouri and Oklahoma City, Oklahoma. Id., Ex. A. Plaintiff
appealed this action to the OIP. Id., Ex. B. On August 16,
2004, OIP notified plaintiff that his request was being remanded
for a search of the United States Attorney's offices in Texas and
On June 30, 2005, the EOUSA sent plaintiff notice of its
decision on his request. Id., Ex. F. The EOUSA stated that it
would release 49 pages in full and 9 pages in part, and withhold
in their entirety 306 pages. Id. The EOUSA informed plaintiff
that it would disclose the records once he paid a $49.00 search
fee. Id. The EOUSA also informed plaintiff that 103 pages had
been referred to the Bureau of Prisons ("BOP"), 33 pages to the
FBI, 39 pages to the Immigration and Naturalization Service
("INS"), and 113 pages to the DEA. Id. The EOUSA denied
plaintiff's request for a fee waiver. Id., Ex. G. Plaintiff did
not appeal this determination by the EOUSA. Luczynski Decl., ¶ 12.
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. 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 non-moving 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).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th
Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13
(D.D.C. 1980). In a FOIA case, the court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations that 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, 826-28 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974). Agency affidavits or declarations must be "relatively
detailed and non-conclusory." SafeCard Services v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations
are accorded "a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and
discoverability of other documents." Id. (internal citation and
quotation omitted). An agency must demonstrate that "each
document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt
from the Act's inspection requirements." Goland v. CIA,
607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation
A. Adequacy of the Agency Searches
In order to obtain summary judgment on the issue of the
adequacy of a 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 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). When determining the
adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Oglesby, 920 F.2d at 68.
In processing plaintiff's request, DOJ first searched its
centralized records index and found no responsive documents. Hsu
Decl., ¶¶ 12, 13. DOJ then searched its Privacy Act systems and
offices for individuals subject to electronic surveillance, the
General Litigation and Advice Section, the Organized Crime and
Racketeering Section, foreign agents' registration records,
espionage registration records, requests for electronic
interceptions, tax files, prisoner transfer records, a listing of
displaced persons, the Narcotic and Dangerous Drug Section, and
the Asset Forfeiture and Money Laundering Section. Id., ¶ 15. These
searches were undertaken by DOJ in the same manner as if it were
seeking the information for its own official purposes. Id.
The USMS searched for records at the agency's offices in the
judicial districts that were identified in plaintiff's request.
Bordley Decl., ¶ 4. The agency utilized the Prisoner Processing
and Population Management/Prisoner Tracking System and the
Warrant Information Network systems of records. Id., ¶ 5. The
USMS maintains records in these systems in connection with the
receipt, processing, transportation and custody of prisoners, the
execution of arrest warrants, and the investigation of fugitive
cases. Id., ¶ 6.
According to the declaration provided by DEA, all documents
responsive to plaintiff's FOIA request were likely to be found in
the DEA's Investigative Reporting and Filing System (IRFS).
Odegard Decl., ¶ 8. The IRFS contains all investigative reports
files compiled for law enforcement purposes. Id. The IRFS is
accessed through the DEA Narcotics and Dangerous Drug Information
System (NADDIS). Id., ¶ 9. Individuals are indexed and
identified in NADDIS by name, social security number, and/or date
of birth. Id., ¶ 10. In this case, a NADDIS inquiry was
conducted in response to plaintiff's request for information
about himself. Id. The search yielded two files that contained
plaintiff's name or otherwise referred to him. Id., ¶ 13.
The ATF conducted a search for documents responsive to
plaintiff's FOIA request in the Treasury Enforcement
Communications System ("TECS"). Graham Decl., ¶ 10. ATF records
located within TECS include wanted persons and fugitives, known
and suspected violators of firearms laws, felons and dishonorably
discharged veterans who have filed for relief from their firearms
disabilities, violent felons, gangs, and terrorists. Id. The
TECS system contains seven record subsections: People,
Businesses, Aircraft, Firearms, Vehicles, Vessels, and Things.
Id. Since the TECS database also contains the names of individuals
ATF has investigated, it was the most likely place to locate
records regarding plaintiff. Id.
Utilizing the TECS database, ATF searched for documents in
several queries using plaintiff's name, date of birth, and social
security number. Id., ¶ 11. All of ATF's queries resulted in
negative responses. Id., ¶ 11, 12. ATF did not find any
documents responsive to plaintiff's request. Id.
The FBI searches for records responsive to a FOIA request
through the use of the Central Records System ("CRS"). Steward
Decl., ¶ 14. The records maintained in CRS consist of
administrative, applicant, criminal, personnel, and other files
compiled for law enforcement purposes. Id. The system is a
numerical sequence of files broken down according to subject
matter, which includes an individual's name. Id. Certain
records in this system are maintained at FBI Headquarters, and
records pertinent to specific field offices are maintained at
those sites. Id., ¶ 15.
In this case, the FBI searched the CRS indices for the records
in the eleven field offices that were identified in plaintiff's
request. Id., ¶ 20. As a result of these searches, the FBI
located one main file regarding plaintiff. Id. The FBI released
documents in this file either in whole or part. Id.
Plaintiff's FOIA request filed with EOUSA sought disclosure of
documents from a number of United States Attorney's Offices.
See Luczynski Decl., ¶ 5. The EOUSA notified plaintiff that one
of the offices, the Western District of Texas, had found over
2550 pages responsive to his request. Id., ¶ 8. After plaintiff
narrowed his request because of the amount of search time
involved in processing his request, the EOUSA informed plaintiff
that it would not disclose the records until plaintiff paid a search fee. Id., ¶ 10. Plaintiff
did not appeal this determination or pay the fee. Id.
It is apparent from the declarations submitted by the agency
representatives that defendants have 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). No more is required. Therefore,
defendants' searches for plaintiff's requested records were
adequate to fulfill defendants' obligations under the
B. Exhaustion of Administrative Remedies
The EOUSA moves for summary judgment on the grounds that
plaintiff has failed to exhaust his administrative remedies. A
party must exhaust the available administrative remedies under
FOIA prior to seeking relief in federal court. Oglesby,
920 F.2d at 61-62; Nurse v. Sec'y of Air Force, 231 F.Supp.2d 323,
327 (D.D.C. 2002). FOIA's exhaustion requirement, however, is not
jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
2003). Failure to exhaust only precludes judicial review if "the
purposes of exhaustion" and the "particular administrative
scheme" support such a bar. Id. at 1258-59 (quoting Oglesby,
920 F.2d at 61). FOIA's administrative scheme favors treating
failure to exhaust as a bar to judicial review. Wilbur v. CIA,
355 F.3d 675, 677 (D.C. Cir. 2004); Hidalgo, 344 F.3d at 1259.
Defendants contend plaintiff has not complied with the
exhaustion requirement because he has not provided a payment for
processing his records. Generally, requestors must pay reasonable
charges associated with processing their FOIA requests. See
Judicial Watch, Inc. v. Rossotti, 326 F.2d 1309, 1310 (D.C. Cir. 2003); see also 5 U.S.C. § 552(a).
Agencies, however, are required to waive fees if a requestor
demonstrates that "disclosure of the information is in the public
interest." 5 U.S.C. § 552(a)(4)(A)(iii). Failure to pay the
requested fees or to appeal the denial from a refusal to waive
fees constitutes a failure to exhaust administrative remedies.
Oglesby, 920 F.2d at 66; Judicial Watch, 190 F.Supp.2d at 33.
Moreover, judicial review of an agency's denial of a fee waiver
request cannot be sought until a plaintiff appeals that decision
or pays the assessed fee. Judicial Watch, 326 F.3d at 1310;
Trulock v. U.S. Dep't of Justice, 257 F.Supp.2d 48, 52 (D.D.C.
Exhaustion of remedies is generally required "so that the
agency has an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support
its decision." Oglesby, 920 F.2d at 61. The purposes and
policies of the exhaustion requirement are to prevent premature
interference with agency processes, to give the parties and the
courts the benefit of the agency's experience and expertise, and
to compile an adequate record for review. Wilbur,
355 F.3d at 677; Hidalgo, 344 F.3d at 1259. It is an undisputed fact that
plaintiff never paid the assessed fee in response to the letter
from EOUSA or appealed EOUSA's decision not to grant him a fee
waiver. Due to plaintiff's inaction, the EOUSA has not completed
the processing of plaintiff's FOIA request or made a
determination regarding the disclosure of records. For these
reasons, plaintiff's failure to exhaust precludes judicial review
of his FOIA request to the EOUSA.
C. Exemption 2
Exemption 2 protects materials that are "related solely to the
internal personnel rules and practices of an agency."
5 U.S.C. § 552(b)(2). 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 DEA refused to disclose "violator
identifiers" called G-DEP codes and NADDIS numbers. Odegard
Decl., ¶ 31. The codes and numbers are part of DEA's internal
system of identifying information, the disclosure of which would
help identify the priority given to particular investigations,
the types of criminal activities involved, and violator ratings.
Id., ¶¶ 32, 45-49. DEA also withheld information provided by a
"coded informant." Id., ¶ 33. Such codes provide sensitive
information about individuals who cooperated with the DEA under a
promise of confidentiality. Id. Courts have found that there is
no significant public interest in the disclosure of such
identifying information. See Lesar v. United States Dep't of
Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); Coleman v.
FBI, 13 F.Supp.2d 75, 79 (D.D.C. 1998); Manna v. United States
Dep't of Justice, 832 F.Supp. 866, 872 (D.N.J. 1993); Watson v.
United States Dep't of Justice, 799 F.Supp. 193, 195 (D.D.C.
1992). The same holds true here. Since there is no apparent
public interest in the information, the DEA's interest in
maintaining the integrity of its informant program outweighs any
personal benefit to plaintiff.
This rationale applies equally to the withholding of records by
the FBI. The agency withheld the permanent source symbol numbers of confidential
informants who provide information to the FBI on a regular basis
under an express promise of confidentiality. Stewart Decl., ¶ 28.
Release of these numbers would enable an individual to know the
scope and location of FBI informant coverage within a specific
geographical area. Id., ¶ 29. Therefore, this information is
legitimately withheld under Exemption 2. See Delta Ltd. v. U.S.
Customs and Border Protection Bureau, 384 F.Supp. 2d 138, 147
(D.D.C. 2005); Piper v. U.S. Dep't of Justice,
374 F.Supp. 2d 73, 80-81 (D.D.C. 2005).
The Court finds that there is not a public interest sufficient
to override the DEA and FBI's appropriate interest in maintaining
the confidentiality of their internal procedures. Therefore, the
information was properly withheld from plaintiff under Exemption
D. Exemption 6
The FBI relies on FOIA Exemption 6 to justify its redactions of
the names of FBI agents, professional support personnel, a
non-FBI federal employee, state and local law enforcement
personnel, and third parties of investigative interest to the
FBI. Steward Decl., ¶¶ 32-36. This exemption concerns the
privacy interests of third parties and requires the Court to
balance their privacy interests against the public interest in
disclosure. See National Archives and Records Admin. v. Favish,
541 U.S. 157, 171 (2004); United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773-75
(1989). Exemption 6 prohibits the release of "personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of privacy." See
5 U.S.C. § 552(b)(6). This exemption protects from disclosure all
information that "applies to a particular individual" in the
absence of a public interest in disclosure. United States Dep't
of State v. Washington Post Co., 456 U.S. 595, 602 (1980). Courts
have broadly interpreted the term "similar files" to include
most information applying to a particular individual. Kidd v.
United States Dep't of Justice, 362 F.Supp. 2d 291, 296 (D.D.C.
The privacy interests identified by the FBI are clear.
Plaintiff has offered no public interest to counterbalance these
privacy considerations. Therefore, the FBI's redactions on
Exemption 6 grounds were proper.
E. Exemption 7(C)
Exemption 7(C) of the FOIA protects 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 this exemption applies 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); Stern v. FBI, 737 F.2d 84, 91
(D.C. Cir. 1984). 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 v. U.S.
Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting
Reporters Comm. for Freedom of the Press, 489 U.S. at 773). 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., v.
SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991). Defendants USMS, DEA, and FBI invoke Exemption 7(C) to protect
third-parties in the custody of the USMS, third-parties of
investigative interest to the agents, and the names of agents,
other government employees, and local law enforcement personnel
who participated in the investigation and prosecution of
plaintiff. See Bordley Decl., ¶¶ 12-14; Odegard Decl., ¶¶
34-36; Steward Decl., ¶¶ 41-45. The deletion of the names and
identifying information of federal, state and local law
enforcement personnel has been routinely upheld. See Lesar,
636 F.2d at 487 (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 Comm. 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). For these reasons, the Court concludes that defendants
USMS, DEA, and FBI have properly invoked Exemption 7(C) to
protect the identities of these various categories of
F. Exemption 7(D)
Exemption 7(D) of the 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
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.
Defendants DEA and FBI assert this exemption to protect the
identity of confidential sources who had an express guarantee of
confidentiality and those to whom a grant of confidentiality
should be implied under the circumstances of the investigation.
See Odegard Decl., ¶¶ 38-40; Steward Decl., ¶¶ 47-48. DEA
asserts that in the type of prosecution involved here drug
trafficking it is reasonable to infer that the confidential
source would fear reprisal. Steward Decl., ¶ 38. Violence and
danger are inherent in drug trafficking activity. Mays v. DEA,
234 F.3d 1324, 1329-30 (D.C. Cir. 2000). Because of the nature of
this crime, the Court can reasonably infer that the informants
cooperated under an implied assurance of confidentiality. See
Jones v. DEA, 2005 WL 1902880 at *4 (D.D.C. July 13, 2005).
Therefore, the names of confidential sources and the information they provided to law
enforcement in this case were properly withheld under Exemption
G. Exemption 7(E)
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.
The FBI asserted Exemption 7(E) to protect documents about a
specific law enforcement technique. Steward Decl., ¶ 53.
Disclosure of this investigative technique, according to the FBI,
could limit its future effectiveness. Id. In addition,
disclosure would allow criminals to develop countermeasures
against the technique. Id. The Court, therefore, concludes that
the records were properly withheld under Exemption 7(E).
H. Exemption 7(F)
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). Under this exemption, the DEA seeks to withhold
the identities of DEA agents. Odegard Decl., ¶¶ 41-43. The
protection from disclosure under this exemption has been extended
to the identities of federal agents. See Bennett v. DEA, 55 F.Supp.2d 36, 41 (D.D.C. 1999); Jiminez v. FBI, 938 F.Supp. 21,
30-31 (D.D.C. 1996). Given the nature of the crimes they
investigate and the undercover work they often undertake, the
identities of DEA agents are exempt from disclosure under the
circumstances presented here.
If a record contains information that is exempt from
disclosure, any reasonably segregable information still 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). The 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 agencies' declarations, the Court concludes
that those defendants that found records responsive to
plaintiff's FOIA requests have withheld only the records or
portions of records exempt under FOIA's provisions, and that all
reasonably segregable material has been released. See Bordley
Decl., ¶¶ 13-15; Odegard Decl., ¶¶ 62-63; Steward Decl., ¶ 56.
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 v. Rosen, 484 F.2d at 827.
For the reasons stated above, defendants' motions for summary
judgment will be granted. An appropriate order accompanies this Memorandum Opinion.
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