United States District Court, D. Columbia
December 5, 2005.
ALVIN B. TRUESDALE, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiff, a federal inmate proceeding pro se, brought this
action pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552. In a previous Order, the Court granted summary
judgment in favor of Defendant on Plaintiff's challenges to the
disposition of his FOIA requests by the Bureau of Alcohol,
Tobacco and Firearms ("ATF") and the Executive Office for United
States Attorneys ("EOUSA"), and the disposition of document
referrals by the Federal Bureau of Investigation ("FBI"), the
Drug Enforcement Administration ("DEA"), the Internal Revenue
Service ("IRS"), and ATF.*fn1 The remaining FOIA claim
involves Plaintiff's 1996 request to the FBI. Defendant has moved
for summary judgment and Plaintiff has filed a cross-motion for
summary judgment or partial summary judgment. Background
On August 15, 1996, pursuant to the FOIA, Plaintiff sent a
letter to the FBI
All files concerning my case or cases, including any
and all records pertaining to the requestor, kept,
stored, or filed in any of the agency's
record-keeping systems, whether they be manually
filed, electronically-filed, or computerized
retrieval systems. Records sought include, but are
not limited to, all Confidential Informant(s)
Statements made during debriefing sessions with
government and local agents, FBI investigative
reports, Property Sheets, Lab Reports, Files
Documents, Agents (sic) Notes, Dossier, Tapes and
other recordings, Transcripts, Reports Statements,
Notes Memos and any other Informative Materials or
Data that may be [available] including all
Investigative Records compiled for Law Enforcement
Purposes not exempt as per Amendments in force at the
time; relative to State and Federal investigations
that led to the Federal Case # Misc 2450-P and
Federal Indictment # 3:92CR34-1-P, Letters written
and received with the requestor as the subject, All
correspondence from all law enforcement agencies is
incorporated by reference.
Plaintiff's Response to Defendant's Motion for Partial Summary
Judgment and Counter Motion for Summary Judgment or Partial
Summary Judgment ("Pl.'s Resp."), Exhibit ("Ex.") 1.
On October 30, 1996, the FBI's Charlotte Field Office ("CFO")
advised Plaintiff that it had located records responsive to his
request in main file 245-CE-61794, and that the CFO had concluded
that the records were exempt from disclosure under the FOIA.
Defendant's Motion for Further Enlargement of Time to Complete
Record and Briefing on Summary Judgment ("Deft.'s Extension
Mot."), Second Declaration of David M. Hardy ("Hardy Second
Decl."), ¶ 6 & Ex. B. Plaintiff appealed this decision to the
Office of Information and Privacy ("OIP") at DOJ. Id., Ex. C.
In its disposition of Plaintiff's appeal, OIP advised Plaintiff
that the FBI would make a supplemental release of documents, but
that OIP otherwise upheld the FBI's decision on his FOIA request.
Id., Ex. D. As a result of OIP's decision, the CFO released to
plaintiff 41 pages of public source materials and a witness statement. Hardy Second
Decl., ¶ 9. The CFO withheld certain information from these
records pursuant to FOIA Exemption 7(C). Id.
In addition to this direct request to the FBI, the EOUSA
referred 434 pages of materials responsive to Plaintiff's FOIA
request to that office to the FBI on May 24, 2002. Deft.'s Part.
Mot., Declaration of David M. Hardy ("Hardy Decl."), Ex. B. After
processing the request, the FBI released to Plaintiff 2 pages in
full, 25 pages in part, and withheld 63 pages in full. Id., Ex.
C. The FBI withheld certain records pursuant to FOIA Exemptions
2, 7 (C), (D), and (F). Id. The agency determined that 337
pages of the materials were duplicates. Id., Ex. F. Plaintiff
appealed the FBI's decision on September 4, 2002 to the OIP.
Id., Ex. D. The FBI's action was affirmed by OIP on May 20,
2003. Id., Ex. F.*fn2
The CFO forwarded main file 245F-CE-61794 to FBI Headquarters
("FBIHQ") for a determination of whether the file contained
responsive documents in addition to those referred to the FBI by
the EOUSA. Defendant's Reply in Support of Motion for Partial
Summary Judgment ("Deft.'s Reply"), Declaration of Nancy L.
Steward ("Steward Decl."), ¶ 4. The file is the result of an
investigation involving a number of individuals and contains
approximately 5300 pages of documents. Id. The FBIHQ conducted
a search on March 31, 2005, and determined that 511 pages of the
materials specifically pertained to Plaintiff. Id., ¶ 8. The
FBIHQ concluded that 351 pages with redactions were releasable to
Plaintiff, 11 pages were to be withheld in full, and 149 pages
were duplicative to records previously released to Plaintiff.
Id. 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 the 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 when the
affidavits or declarations describe "the documents and the
justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within
the claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith." Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28
(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
Adequacy of the Search
To obtain summary judgment on the issue of the adequacy of the
search for records under FOIA, 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). In determining the
adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Oglesby, 920 F.2d at 68.
The Court's inquiry regarding the adequacy of the search
focuses on the search itself, not its results. Weisberg,
745 F.2d at 1485. An agency's failure to find a particular document
does not undermine the determination that the search was
adequate. Wilber v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004);
Nation Magazine v. United States Customs Serv., 71 F.3d 885,
892 n. 7 (D.C. Cir. 1987).
The FBI searched for records responsive to Plaintiff's FOIA
request through the use of the Central Records System ("CRS"). Steward Decl., ¶ 7. The
records maintained in CRS consist of administrative, applicant,
criminal, personnel, and other files compiled for law enforcement
purposes. Id. & n. 2. 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 FBIHQ, and records pertinent to specific field
offices are maintained at those sites. Id. In this case, the
FBI searched the CRS indices and located one main file regarding
It is apparent from the two declarations submitted by the FBI
that it 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).
As such, the searches for Plaintiff's requested records were
adequate to fulfill Defendant's obligations under the FOIA. The
Court will now consider whether Defendant properly withheld
records under the FOIA's exemptions.
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 FBI withheld the temporary source
symbol numbers of confidential informants who provide information
to the FBI on a regular basis under an implied promise of
confidentiality. See Stewart Decl., ¶ 16. Release of these
numbers would enable an individual to know the scope and location
of FBI informant coverage within a specific geographical area.
Id., ¶ 17. In addition, the FBI asserts, disclosure of this
information would have a chilling effect on other informants.
Id., ¶ 18. The Court agrees that this information is
legitimately withheld under Exemption 2. See Piper v. U.S. Dep't
of Justice, 374 F.Supp. 2d 73, 80-81 (D.D.C. 2005); Brunetti v.
FBI, 357 F.Supp. 2d 97, 105 (D.D.C. 2004).
Defendant has also invoked Exemption 2 to withhold telephone
and facsimile numbers of FBI offices and special agents. See
Steward Decl., ¶ 19. All of this information is related to the
internal practices of the FBI, disclosure of which would disrupt
official business and could subject the FBI's employees to
harassing telephone calls. Id. Moreover, disclosure of this
information would serve no public benefit. Id. For these
reasons, the FBI properly withheld these records.
Under this exemption, the FBI withheld the names and
identifying information of individuals that were subpoenaed to
appear before a federal grand jury. See Steward Decl., ¶ 21.
FOIA Exemption 3 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). Rule 6(e) qualifies as a 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)). For this reason, grand jury subpoenas are also exempt
from disclosure. See Lopez v. Dep't of Justice, 393 F.3d 1345,
1350 (D.C. Cir. 2005); Dipietro v. Executive Office for U.S.
Attorneys, 357 F.Supp. 2d 177, 183 (D.D.C. 2004). The FBI
properly withheld these records.
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 Dep't of Justice v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 773 (1989)).
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. National Archives and Records Admin.
v. Favish, 541 U.S. 157, 172 (2004). 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 Servs., Inc., v.
SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991).
The FBI withheld the following information under this
exemption: (1) names and identifying information of FBI Special
Agents and support personnel; (2) names and identifying
information of third parties who were interviewed during the
investigation of Plaintiff's case; (3) names and identifying
information of state and local law enforcement personnel; (4)
names and identifying information of third parties mentioned in
FBI records, but who were not of investigative interest; (5) third parties mentioned in the
records who were of investigatory interest; and (6) names and
identifying information of non-FBI federal government agents and
employees. See Steward Decl., ¶¶ 41-51. The FBI asserts that
release of this information would subject the named individuals
to hostility, harassment, and intimidation. Id., ¶¶ 42-43, 45,
50. The agency further asserts that the privacy interests of
these individuals is especially compelling because Plaintiff's
criminal activities involved drug trafficking and the use of
violence. Id., ¶¶ 44, 47.
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 for the reasons Defendant
asserts here. See Perrone v. FBI, 908 F.Supp. 24, 26 (D.D.C.
1995) (citing Dep't of Justice v. 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, our court of appeals has stated: "`[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)").
Defendant has proffered a legitimate individual privacy
interest in non-disclosure. Conversely, Plaintiff has not
identified a public benefit to disclosure. The Court concludes
that the FBI properly invoked Exemption 7(C) to protect the
identities of these categories of individuals.*fn3
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 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. Id. at 175. 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. Id. at 181; Computer Professionals
for Social Responsibility, 72 F.3d at 905-06.
Under this exemption, the FBI withheld identifying information
about or provided by confidential sources. See Stewart Decl.,
¶¶ 59-60. The confidential sources had first-hand knowledge of
Plaintiff's drug trafficking operation. Id., ¶ 60. The FBI
contends that these sources are entitled to an implied grant of
Plaintiff was convicted of engaging in a continuing criminal
enterprise, a conspiracy to distribute cocaine, and firearms
offenses. See United States v. McManus, 23 F.3d 878, 880 (4th
Cir. 1994). Plaintiff's criminal conduct included drug-related
murders and attempted murders. Id. at 881; Steward Decl., ¶ 60.
A conspiracy to distribute cocaine is "typically a violent
enterprise, in which a reputation for retaliating against
informants is a valuable asset . . ." Mays v. DEA,
234 F.3d 1324, 1331 (D.C. Cir. 2000). In such cases, there is an inference
of implied confidentiality for those who provide information
about the conspiracy. Id. Given the nature of the criminal
actions in this case and that fact that the informants were
witnesses to Plaintiff's drug trafficking, the documents were
properly withheld by the FBI under 7(D) based on an implied grant of confidentiality.*fn4
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 FBI's declaration, the Court concludes that
the agency has withheld only the records or portions of records
exempt under FOIA's provisions, and that all reasonably
segregable material has been released. See Steward Decl., ¶ 64.
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.
The Court finds that Defendant's search for responsive records
was adequate and that Defendant properly withheld certain records
from disclosure to Plaintiff. Therefore, the Court will grant
Defendant summary judgment on Plaintiff's 1996 FOIA request to
the FBI. Plaintiff's counter motion for summary judgment or partial summary judgment
will be denied. An appropriate order accompanies this Memorandum
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