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SMITH v. EXECUTIVE OFFICE FOR U.S. ATT.
December 10, 2005.
Derrick B. Smith, Plaintiff,
Executive Office for United States Attorneys, Defendant.
The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge
In this Freedom of Information Act ("FOIA") case, defendant
moves for partial summary judgment on the remaining issues
arising from its withholding of information under exemption 7(D)
and the segregability of two documents withheld in their
entirety. See Memorandum Opinion ("Mem. Op.") and Order of June
9, 2005 (granting in part and denying in part defendant's summary
judgment motion). Upon consideration of the motion and the
supporting declaration filed under seal, plaintiff's opposition,
and the entire record, the Court will grant defendant's motion.
Defendant was required to reexamine its justification for
withholding documents, in part or in whole, under exemption 7(D)
based on an implied grant of confidentiality. See Mem. Op. at
6-10. As to all relevant documents except Document Nos. 3
(withheld in part) and 23 (withheld in its entirety), defendant
has withdrawn its exemption 7(D) claim and released additional
material. See Renewed Motion for Partial Summary Judgment and
Supporting Memorandum of Law and Report to the Court at 2-4.
Plaintiff questions defendant's credibility in light of its
change in position and asserts that the Court should reconsider
the previous order and "review all the withholdings (b)(7)(C) and
(b)(7)(D) records in camera, and appoint counsel to conduct discovery." Plaintiff's Opposition at 3. Plaintiff has
not presented any evidence of agency bad faith or pointed to
anything in the record to infer that defendant intentionally
misled the Court. Defendant's subsequent release of information
upon its reexamination suggests the opposite. See, e.g., Carter
v. U.S. Dept. of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)
("in camera inspection may be necessary to insure that agencies
do not misuse the FOIA exemptions to conceal non-exempt
The Court is satisfied from the Declaration of David Luczynski
for In Camera Review that defendant properly redacted from the
newly released documents under exemption 7(C) information
described as third-party identifying information and, in one
document, information about the victim's death. See Mem. Op. at
3-4 (discussing exemption 7(C)). The Court has reviewed in
camera the two outstanding documents containing information that
defendant maintains is protected from disclosure under exemption
7(D) based on an implied grant of confidentiality. It may be
reasonably inferred from the documents' content and the Luczynski
declaration that the information was conveyed upon an assurance
of confidentiality. See Mem. Op. at 6-7 (discussing exemption
The remaining question about segregability, see Mem. Op. at
8-9, applies only to Document No. 23. Exemption 7(D) explicitly
protects from disclosure the identity of a confidential source
and "information furnished by a confidential source."
5 U.S.C. § 552(b) (7)(D). Defendant properly demonstrated that Document No.
23 was not reasonably segregable.
For the preceding reasons, the Court grants defendant's motion
for partial summary judgment. In light of the previous resolution
of all other claims in defendant's favor, the Court will now enter judgment for defendant. A separate final order
accompanies this Memorandum Opinion.
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