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Summers v. United States Dep't of Justice

May 24, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff Anthony Summers brings this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents from the Federal Bureau of Investigation ("FBI") regarding Louis J. Russell, a former FBI agent.*fn1 Currently pending before the Court are defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court determines that defendants have complied with FOIA by adequately searching for responsive records and properly invoking FOIA exemptions. Therefore, for the reasons stated herein, defendant's motion for summary judgment is GRANTED, and plaintiff's motion for summary judgment is DENIED.


In July 1995, plaintiff, an author on history and politics, filed a FOIA request with the FBI seeking all records pertaining to Louis James Russell, a former Special Agent of the FBI and an investigator for the House UnAmerican Activities Committee. Having failed to obtain the records he sought, plaintiff filed suit in this Court in July 1997. In response to plaintiff's request, the FBI produced over 1100 pages of the requested material in December 1997, though portions of many documents were withheld pursuant to FOIA exemptions.

The parties continue the dispute the propriety of the claimed exemptions. By agreement of the parties, and by stipulation approved by the Court, plaintiff selected a sample of fifty pages to be the subject of defendants' Vaughn Index in order for the Court to evaluate the usage of the FOIA exemptions. For those pages, defendants are claiming FOIA Exemptions 1, 2, 6, 7 (C) and 7(D) to justify redactions made in the processed documents. See 5 U.S.C. § 552(b). The parties' original motions for summary judgment were denied without prejudice in March 1999. Following plaintiff's filing of his amended complaint in April 1999, defendants renewed their motion for summary judgment and plaintiff renewed his cross-motion for summary judgment.*fn2 In 2002, the parties filed supplemental memoranda concerning the impact of Schrecker v. United States Department of Justice, 254 F.3d 162 (D.C. Cir. 2001). In their latest joint report, the parties informed the Court that document 17 was no longer in dispute, but that all other matters required resolution by the Court.


Summary judgment is appropriate in a FOIA case when the "pleadings, depositions, answers to interrogatories, and admissions 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a suit brought to compel production under FOIA, an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates "that each document that falls within the class requested either has been produced . . . or is wholly exempt from the Act's inspection requirements." Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001).

FOIA requires that federal agencies release all documents requested by members of the public unless the information contained within such documents falls within one of nine exemptions. 5 U.S.C. § 522(a),(b). These statutory exemptions must be narrowly construed in favor of disclosure. Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). The government bears the burden of justifying the withholding of any requested documents through agency affidavits, an index of withheld documents, or both. U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980).

To sustain its burden, an agency may rely on declarations of government officials, which courts normally accord a presumption of expertise in FOIA as long as the declarations are sufficiently clear and detailed and submitted in good faith. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Although this Court reviews agency FOIA determinations de novo, it must "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). However, summary judgment is appropriate for a FOIA plaintiff when the requested material, "even on the agency's version of the facts, falls outside the proffered exemption." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).


I. Exemption 1

FOIA Exemption 1 exempts from disclosure documents that are "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense and foreign policy" and "are in fact properly classified pursuant to such order." 5 U.S.C. § 552(b)(1). An original classification authority is permitted to classify information only if it "determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security . . . and . . . is able to identify or describe the damage." Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007) (quoting Exec. Order No. 12958 § 1.2(a)(4)). The Court "must accord substantial weight" to agency affidavits regarding national security concerns under Exemption 1. Id. at 374. Summary judgment is warranted on the basis of such affidavits "when the affidavits describe the justifications for nondisclosure with reasonably specific detail . . . and are not controverted by . . . contrary evidence in the record." Id.

Defendants have applied Exemption 1 to portions of documents 1, 2, 7, and 8, using declarations from qualified officials to explain the basis for each decision. In documents 1 and 2, the redacted portion contains the name of a specific foreign government who was cooperating with the FBI. Defendants assert that the cooperating foreign government does not wish its name to be revealed, and doing so would "constitute a serious breach to the long standing and productive association between" the agencies. Defs.' Mot. for Summ. J., Statement of Facts ¶ 24(a). In documents 7 and 8, the FBI redacted the file number of a target of an intelligence investigation, claiming that revealing the number would threaten national security by revealing a specific intelligence method. Information from document 7 that identifies the character of the case and reveals the identity of a specific target of an investigation has also been redacted. Defendants contend that this information would compromise national security interests by disclosing the investigation, the "nature, scope or thrust" of the investigation, or the method of gaining intelligence information, which in turn would allow countermeasures to be implemented by hostile services, and make future intelligence investigations more difficult. Defs.' Mot. for Summ. J., Ex. H-7.

Plaintiff challenges the Exemption 1 withholdings on two grounds. First, he argues that the defendants' justification of the redactions is vague and insufficiently detailed. Second, plaintiff contends that contrary evidence exists that discredits any real national security threat from the release of the redacted information.

The FBI presented the declaration of FBI Special Agent Sherry L. Davis as justification for withholding portions of documents 1, 2, 7, and 8 under Exemption 1. Plaintiff argues that the Davis declaration does not meet the standard for sufficient detail set in forth Campbell v. Deptment of Justice, 164 F.3d 20 (D.C. Cir. 1998). As defendant points out, however, the court in Campbell rejected the FBI's declarations because they were apparently boilerplate rejection letters, without so much as reference to the actual subject of the search. See id. at 30-31. In contrast, the Davis Declaration provides, among other things, an extremely detailed description of each document, its classification level, the location on the document of each deletion made, and a description (to the extent possible) of the content of the deleted material. The declaration also details the FBI's contacts made with a foreign government concerning release of the information in documents 1 and 2. Finally, the Department of Justice's Department Review Committee also reviewed and affirmed all Exemption 1 classifications.

Plaintiff also argues that there is insufficient detail in explaining the potential damage that would be caused by disclosure of the information. The Court, however, "must take into account that any affidavit . . . of threatened harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm." Wolf, 473 F.3d at 374. "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. at 374-75. Under this standard, the affidavit is sufficiently specific. See id. at 376-77.

Plaintiff contends that the government's declarations are insufficient because contrary evidence refutes the claim of a threat to national security. Plaintiff argues that similar information to that withheld from documents 1, 2, 7 and 8 has already been released by the FBI, and therefore releasing this information could not reasonably be expected to cause damage to national security or foreign relations. However, "the fact that some information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods and operations." Students Against Genocide v. Dept. of State, 257 F.3d 828, 835 (D.C. Cir. 2001). Assessing harm to intelligence sources is the duty of the agency, and not the court. Id. Moreover, the agency's prior disclosures bolster its position that it has withheld only that information which it must. See id.; Whalen v. U.S. Marine Corps, 407 F. Supp. 2d 54, 57 (D.D.C. 2005). Therefore, defendants' usage of Exemption 1 was proper.

II. Exemption 2

FOIA Exemption 2 exempts from disclosure information that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. §552(b)(2). The threshold inquiry for this exemption is whether the material withheld is "used for predominantly internal purposes." Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). If that condition is met, an agency may withhold the material "by proving that either (1) disclosure may risk circumvention of agency regulation, or (2) the material relates to trivial administrative matters of no genuine public interest." Schwaner v. Dep't of Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990).

The FBI invoked Exemption 2 to protect permanent source symbol numbers in documents 7, 12, 14, and 18 pertaining to confidential sources and a file number of such a source in document 4. Plaintiff contends that neither file numbers nor source symbol numbers are sufficiently related to the internal ...

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