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Peay v. Dep't of Justice

March 14, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before the Court on the Department of Justice's ("DOJ") motion for summary judgment with respect to its component, the Federal Bureau of Investigation ("FBI"). Upon consideration of the parties' submissions and the relevant portions of the record, the Court will grant defendant's motion in part, deny it in part, direct the release of certain information, and dismiss the case.*fn1


In response to plaintiff's request in May 2004 for FBI records pertaining to him, the FBI released 2,071 pages of material with redactions and withheld 816 pages of material in their entirety. It withheld information under FOIA exemptions 2, 3, 5, 6, 7(C), 7(D) and 7(E). Def.'s Statement of Material Facts ¶ 6 & n.1.


Summary judgment is appropriate when there is "no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The FOIA requires a federal agency to release all records responsive to a request except those protected from disclosure by one or more of nine enumerated exemptions. See 5 U.S.C. § 552(b). This Court has jurisdiction under the FOIA "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The Court may award summary judgment in a FOIA case solely on the information provided in affidavits or declarations when the affidavits or declarations describe "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 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).


Plaintiff challenges defendants' withholding of information under FOIA exemptions 2, 3, 5, 7(C), 7(D) and 7(E). See Memorandum in Opposition to ("FBI") Motion for Summary Judgment ("Pl.'s Opp.") [Dkt. No. 83]; Motion to Expand the Record ("Pl.'s Am. Opp.") [Dkt. No. 86]. As an initial matter, plaintiff appears to challenge defendant's 315-page sample, see Pl.'s Opp. at 4, which defendant contends is "a fair representative of all the FOIA Exemptions cited and [a reflection of] the wide variety of documents contained within the release." Fourth Declaration of David M. Hardy ("4th Hardy Decl.") [Dkt. No. 76] ¶ 6. "Representative sampling is an appropriate procedure to test an agency's FOIA exemption claims when a large number of documents are involved. . . . If the sample is well-chosen, a court can, with some confidence, 'extrapolate its conclusions from the representative sample to the larger group of withheld materials.'" Bonner v. U.S. Dept. of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991) (quoting Fensterwald v. United States Central Intelligence Agency, 443 F. Supp. 667, 669 (D.D.C. 1977)) (other citations omitted). Plaintiff has not stated specifically why the sample is unreliable and the Court discerns no such reason. See id. (approving a sample of 63 of 1,776 documents). The Court therefore will determine the propriety of the FBI's withholdings based on the representative sample of documents.

Exemption 2

Exemption 2 protects from disclosure information that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Typically, 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).

Defendant applied this exemption to "information regarding operational funds that were dispensed during the course" of the criminal investigation of plaintiff, 4th Hardy Decl. ¶ 38, and, in conjunction with exemption 7(E), "information appearing on Form FD-515 . . . used by FBI [special agents] to report investigative accomplishments." Id. ¶ 39. Plaintiff has not disputed, and therefore has conceded, defendant's application of exemption 2 to the latter information, which, as concluded below, was properly withheld under exemption 7(E).

From the funding documents, defendant redacted "total dollar amounts of available funds, [] changing balances . . . and the total dollar amount that was requested and/or authorized to be disbursed. . . ." Id. ¶ 38. Hardy reasons that not only is such information internal administrative information, but its disclosure "would permit the general public to calculate how the FBI funds similar matters," which, in turn, "could impede the FBI's effectiveness in administrating its operations" by revealing "a means by which to exhaust the FBI's funding of a particular investigation." Id. Defendant has shown that such information concerns "investigative techniques, in the form of prescribed rules and practices for agency personnel . . . developed predominantly for internal uses [and that] . . . [its] public disclosure would risk circumvention of agency regulations." Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981).

Plaintiff counters that "it is well known by the public how the FBI spends tax money, paying informants, and the like" and contends that the public has a right to know how the government spends taxpayer money. Pl.'s Opp. at 6. While "any 'internal personnel rules and practices of an agency,' have some effect on the public-at-large," Crooker, 670 F.2d at 1073, Congress has not authorized the weighing of "the public interest in disclosure against any reason for avoiding disclosure" under exemption 2. Id. at 1074. Thus, if, as here, the agency demonstrates that the withheld information "meets the test of 'predominant internality,' and if disclosure significantly risks ...

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