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Miller v. United States Dep't of Justice

June 24, 2008


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


This action, which is brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before the court on defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted in part and denied in part.


On or about March 16, 2003, plaintiff sent a FOIA request to the Federal Bureau of Investigation headquarters office in Washington, D.C. ("FBIHQ") seeking information about himself including, but not limited to: "(1) arrest records, (2) investigation and/or investigatory reports, (3) reports or evidentiary and/or scientific information findings, (4) wants, warrants, and/or detainers, (5) final and closing investigation reports; and (6) any and/or all information, data, or reports not otherwise exempt by statute." Complaint ("Compl."), Exhibit ("Ex.") A (FOIA Request). In response, on September 8, 2004, FBIHQ released 191 pages of redacted records and indicated that the redactions had been made pursuant to FOIA Exemptions 7(C) and 7(D). In addition, FBIHQ notified plaintiff that it withheld another 62 pages of records pursuant to FOIA Exemption 3. Plaintiff unsuccessfully appealed FBIHQ's decision to the Justice Department's Office of Information and Privacy ("OIP").

Plaintiff filed the instant civil action in June 2005. His response to defendant's motion for summary judgment prompted FBIHQ to conduct a second search for records responsive to his FOIA request. As a result of the second search, FBIHQ located a Legal Attache ("Legat") Bridgetown main file, and from this file promptly released 63 pages of redacted public source documents, indicating that the redactions had been made pursuant to FOIA Exemptions 1, 2, 5, 6, 7(A), 7(C), 7(D), and 7(F). Later, FBIHQ released 323 pages, out of 1,440 pages reviewed, indicating that the redactions had been made pursuant to FOIA Exemptions 1, 2, 5, 6, 7(C), 7(D), 7(E) and 7(F).

Among the responsive FBIHQ records located were documents which originated in full or in part with other government agencies or other components of the United States Department of Justice ("DOJ"). Documents were referred to the DOJ's Criminal Division,*fn1 the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE"),*fn2 the Defense Intelligence Agency ("DIA"),*fn3 the Drug Enforcement Administration ("DEA"),*fn4 the Department of Defense

("DOD"),*fn5 the Department of State ("State Department"),*fn6 and to the Department of the Army ("Army")*fn7 for direct response to plaintiff. In addition, FBIHQ forwarded 312 pages of records to "another government agency for direct response to plaintiff." Hardy IV Decl. ¶ 108. FBIHQ, however, did not identify the agency and the record of this case does not explain the disposition of these records.

By this action, plaintiff challenges the responses to his FOIA request.*fn8


A. Summary Judgment in a FOIA Case

The court should grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the court may grant summary judgment based on the information provided 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 Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). 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.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. FBIHQ's Searches for Responsive Records

"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" ValenciaLucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (requiring agency to conduct its search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail 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. But if the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt, 897 F.2d at 542.

1. FBIHQ's Central Records System

In its Central Records System ("CRS"), the FBI maintains its "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of David M. Hardy ("Hardy I Decl.") ¶ 11. The records are organized by subject matter, and a file's subject matter may relate to an individual, organization, company, publication, activity, or foreign intelligence matter. General indices, which consist of index cards arranged in alphabetical order, are the means by which CRS records are retrieved. Entries in the general indices are either "main" entries or "reference" entries. Id. ¶ 13. The former "carr[y] the name corresponding with a subject of a file contained in the CRS;" the latter "are generally only a mere mention or reference to an individual, organization, etc., contained in a document located in another 'main' file." Id. FBIHQ's policy "is to search for and identify only 'main' files responsive to [FOIA] requests," unless a requester specifically asks for a search of cross-references. Defendant's Fourth Motion for Enlargement of Time, Second Declaration of David M. Hardy ("Hardy II Decl.") ¶ 5.

The decision to index names other than subjects, suspects, and victims is left to the discretion of the assigned Special Agent, the Supervisory Special Agent at the field office conducting the investigation, and the Supervisory Special Agent at FBIHQ. Hardy I Decl. ¶ 16. Without an index, "information essential to ongoing investigations could not be readily retrieved. The FBI files would be merely archival in nature and could not be effectively used to serve the mandated mission of the FBI." Id. ¶ 17. Thus, general indices to the CRS files "are the means by which the FBI can determine what retrievable information, if any," its files may contain on a particular subject. Id.

2. File Number 245-HQ-657

To locate records pertaining to a particular subject, such as plaintiff, FBIHQ staff search by the subject's name in the CRS index. Hardy I Decl. ¶ 14. In this case, the search located one main file, 245-HQ-657, which "contain[s] information regarding a multi-subject drug investigation of numerous co-conspirators." Id. ¶ 18. Its universal case file number indicates that the Organized Crime Drug Enforcement Task Force (245) conducted the investigation, that FBIHQ was the investigation's office of origin (HQ), and that it was assigned an individual case file number (657). Id. ¶ 15(a).

Plaintiff challenged the adequacy of FBIHQ's initial search for responsive records asserting that he "had contact with certain agents of the FBI since [the] early 1990'[s] and [had] information based on reliable sources that the FBI was involved with investigative operations related to [him] throughout the 1990's." Affidavit of Charles E. Miller in Support of Opposition to Summary Judgment ("Pl.'s Aff.") ¶ 5. These investigations pertained to drug trafficking on the island of St. Kitts and events occurring while plaintiff was incarcerated at a United States Penitentiary. See id. ¶¶ 6-11. According to plaintiff, FBIHQ "should have [] additional records related to [him] considering [his] extensive history and association with international figures deeply involved in both illegal activity as well as law enforcement activities." Id. ¶ 13. He argued that FBIHQ was not "acting in good faith by claiming that no other records exist on [him] at FBI that post-date" his prosecution resulting from the investigation of his activities in Rochester, New York. Id.

3. File Number 163A-BB-610

Plaintiff's challenge to the first search prompted FBIHQ to conduct a "second search of the indices to the headquarters CRS, to include both main files and cross-references." Hardy II Decl. ¶ 5. Staff used variants of plaintiff's name and alias, Cecil Connors, as search terms, and used his "date of birth to facilitate the identification of responsive records." Id. In this manner, FBIHQ staff located a Legal Attache ("Legat") Bridgetown main file, 163A-BB-610, entitled "Foreign Police Cooperation," id. ¶ 6, and several cross-references which ultimately led to the discovery of "documents . . . in files classified as Foreign Political Matters, Administrative Matters and Racketeering Enterprise Investigation." Hardy IV Decl. ¶ 12. File Number 163ABB-610 "[i]nadvertently [was] serialized in CRS as a cross-reference on plaintiff." Id n.8.

FBIHQ cured any defect in its first search by conducting a second search. The court concludes that, taken together, the searches of FBIHQ were reasonable and calculated to uncover all relevant records.

C. Exemptions

Each agency bears the burden of justifying its decision to withhold records or portions of records. See 5 U.S.C. § 552(a)(4)(B). Its declarant must describe the records withheld and show that the records fall within the claimed exemption or exemptions. Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1043 (D.D.C. 1994). FBIHQ addresses this obligation by submitting declarations and Vaughn indices from which the court may "derive . . . a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." Manna v. United States Dep't of Justice, 832 F. Supp. 866, 873 (D.N.J. 1993) (internal quotation marks and citation omitted).

1. Exemption 1

Exemption 1 protects matters that are: specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]

5 U.S.C. § 552(b)(1)(A). Pursuant to Executive Order 13292, 68 Fed. Reg. 15,315 (Mar. 28, 2003), information may be classified only if all of the following conditions are met:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Exec. Order No. 13292 § 1.1(a).*fn9 The phrase "damage to the national security" means "harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information." Exec. Order. No. 13292 § 6.1(j). Information may be classified either at the "top secret," "secret" or "confidential" level, id. § 1.2(a), and such classified information must fall within one of the following categories:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; or

(h) weapons of mass destruction.

Id. § 1.4.

In a FOIA case, the court determines de novo whether an agency properly withholds information under a claimed exemption. See, e.g., King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). This is true even if national security matters are at issue. See Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C. Cir. 1980). Courts generally defer to agency expertise in national security matters, however. See, e.g., Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (according "utmost deference" to classification affidavits); Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); see also Krikorian v. Dep't of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993) (acknowledging "unique insights" of executive agencies responsible for national defense and foreign relations).

a. Military Plans, Weapons Systems, or Operations -- Section 1.4(a)

Among the records responsive to plaintiff's FOIA request are documents discussing a possible noncombatant evacuation operation ("NEO"). Def.'s Reply, Declaration of Richard Ellis ("Ellis Decl.") ¶ 12.*fn10 Although the events giving rise to the discussion of the NEO have passed, "disclosure of this information today would give great insight to individuals who could exploit that information to frustrate the future attempts by our military and U.S. Government to protect its citizens abroad and to evacuate them safely in the event it becomes necessary." Id. ¶ 13. For these reasons, the Army redacts information regarding "[NEO] plans and security operations, plans for government personnel movements and responsibilities during a NEO, as well as host nation security forces involvement during a NEO and intelligence used to support a military plan." Id. ¶ 12.

The court concludes that the declarant's explanation adequately supports the Army's decision to withhold information pertaining to military operations under Exemption 1 as its release "could reasonably be expected to seriously damage national security." Ellis Decl. ¶ 20.

b. Foreign Government Information -- Section 1.4(b)*fn11

i. Army

Of the two classified documents falling "under the cognizance of the Operations Directorate," Def.'s Reply, Declaration of Salvatore F. Cambria ("Cambria Decl.") ¶ 4, the Army released one classified document in full. See id. ¶ 5 & Ex. 1.*fn12 It declassified the second classified document in part and redacted it to protect certain portions under Exemption 1 as foreign government information. Id. ¶ 6 & Ex. 2. The disclosure of this information, the Army stated, "could reasonably be expected to cause serious damage to the national security." Id. ¶ 11.

The Army explains that the activities of the Operations Directorate of the United States Southern Command ("USSOUTHCOM") depend "heavily on the cooperation of host nation countries and their forces in providing [USSOUTHCOM] with information that both helps [USSOUTHCOM] understand their vulnerabilities and capabilities, but also builds and maintains a level of trust that provides [] a source of information for a variety of purposes." Cambria Decl. ¶ 13. "Disclosure of information gathered by the United States either about or by a foreign country could have negative diplomatic consequences between the two countries and may jeopardize reciprocal confidentiality between the two." Id. ¶ 12. If information sharing between countries were hindered, the United States' "ability to assess a situation and act accordingly in carrying out [its] mission [by] respond[ing] to a crisis that threatens our national interest" may be limited severely. Id.

The Court concludes that the Army properly withheld this classified foreign government information under Exemption 1 as its release reasonably could be expected to damage the national security.

ii. State Department

The State Department first remarks that confidentiality and mutual trust are essential to successful diplomatic exchanges. Def.'s Reply, Declaration of Margaret P. Grafeld ("Grafeld Decl.") ¶ 19.*fn13 "Unwillingness or inability to maintain confidentiality in diplomatic exchanges would inevitably chill our relations with other countries" and "diminish [] access to sources of information important to the successful implementation of U.S. foreign policy." Id. If confidential information were disclosed, foreign officials likely would believe that "U.S. officials are not able or willing to observe the confidentiality expected in such exchanges." Id. This belief, in turn, would lead foreign governments to be "less willing in the future to furnish information important to the conduct of U.S. foreign relations, and in general less disposed to cooperate with the United States in the achievement of foreign policy objectives of common interest." Id. In this way, disclosure of information "reasonably could be expected to result in damage to the national security." Id.

The State Department also relies on confidential sources, who may be private individuals or foreign government officials, in conducting foreign affairs. Grafeld Decl. ¶ 23. "Sources often provide information only because they are confident that their identities will be protected," and a breach of this trust "undoubtedly will result in the unwillingness or inability of the source to provide further information." Id. If the United States were to disclose the identities of confidential sources, the declarant explains that "damage to the climate of confidence that facilitates the conduct of relations beneficial to vital U.S. interests" would result. Id. The State Department's explanations provide adequate support for its decisions to withhold information obtained by the United States government in confidence from foreign government officials deemed "essential to the formulation and successful implementation of U.S. foreign policy." Id. ¶ 19. The records relevant to this discussion are telegrams from Embassy Bridgetown to the State Department containing foreign government information classified either at the secret or confidential level.

First, the State Department withholds in full or in part portions of a series of telegrams (Docs. F36, F37, F47, F50 and F51) from Embassy Bridgetown to the State Department to the extent that they contain foreign government information. See Grafeld Decl. ¶¶ 62-66. One telegram (Doc. F36) "recounts a candid exchange between an Embassy official and a high-level St. Kitts government official" regarding "the extradition case of three drug kingpins." Id. ¶ 68. Another (Doc. F37) includes information provided to Embassy officials by high-level Kittian officials regarding extradition proceedings of plaintiff and his co-defendants. Id. ¶ 69. A third telegram (Doc. F47) is redacted to protect an analysis of "the meaning of a flawed Kittian court order in plaintiff's extradition case[] addressing the possibility of judicial corruption." Id. ¶ 70. All of a fourth telegram (Doc. F51) and portions of a fifth telegram (Doc. F50) are withheld to protect a discussion of "possible corruption and drug traffickers' influence in St. Kitts." Id. ¶ 71.

A second series of telegrams (Docs. F31, F34, F39, F40, F42 and F43), "analyze[s] in detail threats to the physical safety of American citizens on St. Kitts, the U.S. government's planned response, . . . and the St. Kitts police response and capabilities." Grafeld Decl. ¶ 81. Included in these telegrams is information "provided by St. Kitts officials and indicate involvement at important levels of the island's government." Id.

From a third set of telegrams (Docs. F25, F35, and F52), the State Department withholds confidential information obtained from foreign governments in a description of the United States' "judicial strategy and tactics of prosecuting [plaintiff's] extradition case." Grafeld Decl. ¶ 93. Disclosure of this information, the declarant asserts, "would anger government officials and cause damage to our bilateral relationship" with St. Kitts. Id. Two telegrams (Docs. F27A and F48) include "candid assessments of St. Kitts' top officials, reported in confidence to U.S. officials, including the situation in the context of upcoming Kittian elections," id. ¶ 99, and four other telegrams (Docs. F33, F40A, F46 and F49) include information pertaining to "a discussion between a U.S. and a high level Kittian government official about next steps in plaintiff's extradition case." Id. ¶ 107.

The court concludes that the State Department properly withholds these telegrams in full or in part under Exemption 1 because they contain foreign government information, the release of which reasonably could be expected to result in damage to national security. See, e.g., Krikorian, 984 F.2d at 465 (holding that a telegram reporting discussion between agency official and high-ranking foreign diplomat regarding terrorism ...

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