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Owens v. United States Dep't of Justice

March 9, 2007


The opinion of the court was delivered by: John D. Bates United States District Judge


This is a suit under the Freedom of Information Act ("FOIA") filed by the plaintiffs in Civ. A. No. 01-2244 (JDB), who are victims and relatives of victims of terrorist attacks perpetrated against two United States embassies in East Africa in 1998. Plaintiffs are seeking documentary materials that the Federal Bureau of Investigation ("FBI") and other government agencies (collectively "defendants") have compiled during the investigation of the terrorist attacks and that would have been subject to discovery in the criminal prosecution of terrorist suspects in the Southern District of New York. On December 1, 2006, this Court issued a Memorandum Opinion and Order deferring a ruling on the parties' cross-motions for summary judgment and requiring defendants to submit supplemental materials in support of the FOIA exemption on which they principally relied. Defendants have submitted those materials, and plaintiffs have declined the opportunity to file a response. Having considered the supplemental materials and the parties' previous submissions, the Court will grant defendants' motion for summary judgment and deny plaintiffs' motion.


The Court will assume familiarity with the factual background set forth in its December 1, 2006 Memorandum Opinion and the two published opinions that have been issued in Civ. A. No. 01-2244. See Owens v. U.S. Dep't of Justice, Civ. A. No. 04-1701, 2006 WL 3490790, at *1-*3 (D.D.C. Dec. 1, 2006) ("Owens III"); Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 102-03 (D.D.C. 2006); Owens v. Republic of Sudan, 374 F. Supp. 2d 1, 4-7 (D.D.C. 2005). What follows is a brief summary of this FOIA litigation. In order to establish the liability of the foreign state defendants in their civil suit, plaintiffs intend to show that the technique and materials used by the terrorists in the Tanzania and Kenya embassy bombings were the same ones developed by Iranian agents in the 1980's and used to attack a U.S. Marine Corps barracks in Beirut, Lebanon in 1983. Compl. ¶¶ 3, 9; Pls.' Exh. B (1/12/2004 Letter). Plaintiffs thus filed a FOIA request seeking information about the Tanzania and Kenya bombings - - specifically, seven categories of "items already provided by the United States in the course of discovery, or subject to discovery," in the criminal prosecution of suspected terrorists in federal court in New York. Pls.' Exh. A; Defs.' Stmt. ¶ 1. A document attached to the FOIA request indicated that the requested items were "further identified in FBI files under file references 'Tanbom' and 'Kenbom.'" Pls.' Exh. A. Plaintiffs' FOIA request was received by the FBI in December of 2003. Defs.' Stmt. ¶ 2.

The FBI denied the FOIA request on May 5, 2004. Defs.' Exh. 1, Part D (5/5/2004 Letter). After their administrative appeals proved fruitless, plaintiffs filed the present suit seeking judicial review of the FBI's decision. In response, the FBI reviewed the 667 pages of material deemed responsive to plaintiffs' request and released 638 of those pages in completely redacted form.

Owens III, 2006 WL 3490790, at *3. Defendants then filed a motion for summary judgment, arguing that the withheld documents and portions thereof were subject to Exemptions 1, 2, 6, 7(A), 7(C), 7(D), and 7(E) of FOIA. Although they invoked seven statutory exemptions, defendants relied principally on Exemption 7(A), which allows agencies to withhold "records and information compiled for law enforcement purposes" where the release of those records "could reasonably be expected to interfere with enforcement proceedings." See 5 U.S.C. § 552(b)(7)(A). Defendants maintained that all of the responsive materials were properly withheld under Exemption 7(A), but advanced the other exemptions to avoid waiving them. See Defs.' Memorandum in Support of Motion for Summary Judgment ("Defs.' Mem.") at 5 (citing Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 765-66 (D.C. Cir. 2000)). Plaintiffs countered with a single eighteen-page document opposing defendants' motion and serving as their memorandum in support of summary judgment. Their cross-motion for summary judgment asked the Court to order "in camera inspection of the items requested by Plaintiffs pursuant to the Freedom Of Information Act and upon inspection [to] Order production of those items, subject to redactions as the Court deems appropriate." Pls.' Motion for Summary Judgment at 1.

The Court deferred ruling on the parties cross-motions for summary judgment and ordered defendants to provide supplemental materials. Owens III, 2006 WL 3490790, at *8. Evaluating defendants' across-the-board invocation of Exemption 7(A), the Court explained that defendants had to make two showings in order to obtain summary judgment: "(1) that the records were compiled for law enforcement purposes, and (2) that release of the records could reasonably be expected to interfere with a concrete, prospective law enforcement proceeding." Id. at *5 (citing Bevis v. Dep't of State, 801 F.2d 1386, 1388-89 (D.C. Cir. 1986)). While the first of these two showings was not in dispute, the Court concluded that defendants had failed to make the second showing because they had not divided the responsive documents into "functional" categories that allowed this Court "'to trace a rational link between the nature of the document and the alleged likely interference'" with a prospective enforcement proceeding. Id. at *5 (quoting Crooker v. Bureau of Alcohol, Tobacco, and Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986)). Some of the categories, the Court noted, were identical to ones that the D.C. Circuit in Bevis had found insufficient to satisfy the Crooker requirement. See Bevis, 801 F.2d at 1390.

The Court then examined whether it should proceed to consider the other exemptions claimed by defendants. The Court answered that question in the negative for two reasons. For one thing, the D.C. Circuit's decision in Bevis suggested that a remand to the agency with instructions to comply with Crooker's functionalism requirement was a sound course to follow. Owens III, 2006 WL 3490790, at *6. For another, the Court would eventually have to reach the Exemption 7(A) claim - - because it was the only ground for withholding some of the documents - - and should do so with the best materials available to it, rather than reaching claims that plaintiffs had challenged only in a glib or incomplete manner. Id. at *7. Finally, the Court rejected plaintiffs' request that it conduct in camera review of the withheld documents, noting that D.C. Circuit precedents viewed in camera review as a "last resort" to be used when the documents are few in number or there is some indication of bad faith on the part of the agency. Id. at *8 (citations omitted). The Court thus ordered defendants "to submit additional materials on the Exemption 7(A) claims in accordance with Bevis and th[e] Memorandum Opinion," and offered plaintiffs "an opportunity to respond to those materials and defendants' arguments in support thereof." Id.

Defendants responded to the Court's order in two ways. First, they re-reviewed the withheld documents and released to plaintiffs portions of approximately seventeen pages to which defendants no longer believe that Exemption 7(A) applies. Defs.' Supp. Exh. 2. Defendants maintained, however, that the portions of those pages still redacted were exempt from disclosure under other provisions of FOIA. Id. Second, defendants timely filed supplemental materials, which consisted of a second declaration from David M. Hardy, the official charged with FOIA and Privacy Act compliance at the FBI, and a memorandum renewing their motion for summary judgment on both their Exemption 7(A) claim and their other exemption claims. The memorandum informed the Court that defendants had withdrawn in part their Exemption 7(A) claim as to seventeen documents, and that the Court would therefore need to consider the applicability of the other exemptions claimed for those documents. Defs.' Supp. Mem. at 2 n.1. Plaintiffs, for their part, had until February 16, 2007 to file a response to the supplemental materials submitted by defendants. Having received no response from plaintiffs, the Court will undertake its statutory responsibility to conduct a de novo review of the claimed exemptions on the basis of the supplemental materials provided by defendants and the parties' previous submissions.


A. Summary Judgment Standard

"Summary judgment is the preferred method of resolving cases brought under FOIA." Evans v. U.S. Office of Personnel Management, 276 F. Supp. 2d 34, 37 (D.D.C. 2003); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The standard is a familiar one: summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 'which it believes demonstrate the absence of a genuine issue of material fact.'" Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

In the FOIA context, 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). Agency affidavits or declarations must be "relatively detailed and non-conclusory," and are accorded "a presumption of good faith, which cannot be rebutted by purely speculative ...

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