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Canning v. U.S. Dep't of Justice

July 16, 2008

GEORGE CANNING, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

George Canning ("Plaintiff" or "Canning") filed this case under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1996), seeking disclosure of various records from the Bureau of Alcohol, Tobacco and Firearms ("BATF" or "the Bureau"). Defendants are the United States Department of Justice and the United States Department of Treasury. This matter is now before the Court on the parties' Renewed Motions for Summary Judgment. Upon consideration of the Motions, Oppositions, Defendants' Reply, and the entire record herein, Defendants' Motion for Summary Judgment, [#135], is granted in part and denied in part, and Plaintiff's Motion for Summary Judgment, [#136], is denied.

I. BACKGROUND*fn1

Plaintiff's FOIA request seeks various BATF records related to Lyndon LaRouche, Jr., Paul Goldstein, Jeffrey Steinberg, and fifteen named organizations linked to LaRouche ("the requested subjects"). Plaintiff also requested "cross-reference" information concerning the requested subjects in any files maintained concerning fourteen other named organizations, and information related to an alleged investigation of DanBar Farm in Pulaski, Virginia. See Pl.'s Renewed Mot. for Summ. Judgment ("Pl.'s Mot.") at 2. Lyndon LaRouche, Paul Goldstein, and Jeffrey Steinberg, who were requested subjects, each submitted a privacy waiver.

After the Bureau produced various responsive materials several years ago, the parties filed cross-motions for summary judgment. The Bureau argued that it had produced all reasonably segregable, non-exempt records that were responsive to Plaintiff's request. Plaintiff claimed that BATF's search was inadequate, mainly because it did not include agent notes, interview reports, correspondence and other "raw intelligence" material. He also argued that Defendant's redactions pursuant to FOIA exemptions were too broad, and asked that the Court order Defendant to provide a supplemental Vaughn index and release all reasonably segregable information. Pl.'s First Cross Mot. for Summ. Judgment, Docket #15, at 17-25.

On June 24, 1999, the Court granted in part and denied in part Defendant's*fn2 motion for summary judgment. The Court held that Defendant's search was inadequate, and ordered it to "conduct a full search of its files and record keeping systems for agent notes, interview notes, and other forms of 'raw intelligence' related to Plaintiff's request. The Bureau was also ordered to submit a further filing to the Court setting forth the nature of the search conducted, releasing the non-exempt segregable portions of any located documents, or stating why, under the law of this Circuit, any such materials the Agency locates are exempt from production." Canning, No. 95-2029 (GK), slip op. at 5. The search was to include "any additional record keeping systems [other than the "TECS II" system] which may contain information responsive to Plaintiff's request." Id. at 6.

The Bureau was also directed to include in its filing "its procedures regarding the creation and retention of documents" where an investigation is initiated, but insufficient information is developed to merit the opening of a BATF file, so that the Court could determine the adequacy of the search with respect to the alleged investigation of the DanBar Farm in Pulaski, Virginia. Id. at 7. The Court further ordered Defendant to produce any documents related to the DanBar Farm.

In response to Plaintiff's argument that Defendant had wrongfully withheld information that was already in the public domain, and for which Plaintiff had submitted transcripts of testimony, the Court ordered the Agency to release "any withheld information which is the same as that contained in the transcripts Plaintiff has provided." Id. at 9.

The Court granted summary judgment to the Bureau on its withholdings pursuant to 5 U.S.C. § 552(b)(7)(D) ("Exemption 7(D)") (records compiled for law enforcement purposes), and 5 U.S.C. § 552(b)(3) (information for which disclosure is prohibited by another statute). Id. at 12-15.

On July 13, 1999, Plaintiff filed a Motion to Amend the Court's June 24, 1999 Order, in which he argued that Defendant should produce a segregability analysis of information withheld under 5 U.S.C. § 552(b)(7)(C) ("Exemption 7(C)"), or in the alternative, that the Court conduct an in camera review of redactions made under Exemption 7(C). Pl.'s Mot. to Amend, Docket #63, at 1. The Court denied that motion on September 15, 1999.

On August 6, 1999, in response to the Court's June 24, 1999 Order ("June 1999 Order") on the parties' initial cross-motions for summary judgment, Defendant filed the Declaration of Peter J. Chisholm, Acting Chief, Disclosure Division, BATF.*fn3 With respect to the adequacy of the search, Chisholm stated that "[a]lthough TECS II is the only system of records that is likely to produce records responsive to Plaintiff's request, in response to the Court's Order, ATF's Disclosure Division conducted an additional search of three other ATF databases . . . [t]he federal firearms licensee database . . . ATF's Internal Security database . . . and the Correspondence Record System was attempted to be searched but it only contains records dating to 1997." Chisholm Decl. ¶ 4. However, searches of these databases produced no additional responsive documents. Chisholm also explained why various other databases were not searched. Id.

Chisholm declared that BATF also searched for "agent notes, interview notes, and other forms of 'raw intelligence'," "by retrieving the original file on possible firearms or explosives violations by employees of Lyndon La Rouche from the Federal Records Center," but that the information in that file had already been produced to Plaintiff. Id. ¶ 6. Chisholm stated that "[h]ad any notes or other raw intelligence existed, they would . . . be in the official file." Id.

Finally, attached to Chisholm's Declaration was ATF Order 3100.6C, "Law Enforcement Management Information System ("LEMIS")," which addresses, in part, how investigatory material is preserved when an actual BATF file is not opened. It provides that in some instances, such as where an agent interviews a potential informant whose information is not useful, a "general case" may be opened. Id. ¶ 7. Investigative files on general cases are "maintained for filing investigative reports and related documents." Id.

With respect to the DanBar Farm, Chisholm stated that the Washington Field Division's general investigative files for 1985-1986, totaling seven boxes, were retrieved from the Federal Records Center, and that he, along with members of his staff, searched through the files for any mention of "DanBar Farm." Id. "Additionally, because DanBar Farms is located within the jurisdiction of ATF's Roanoke, Virginia field office, [Chisholm] searched that office's investigative log, which contains the titles of all investigations, for 1985 and 1986." Id. Chisholm attested that these searches did not locate any additional information related to the DanBar Farm.

These searches did, however, uncover an additional file which contained documents responsive to Plaintiff's request. That information was attached to Chisholm's Declaration, with exempt information redacted. Chisholm asserts that this file could not have been located previously because Plaintiff did not provide the name of the investigation's subject in his FOIA request. Id.

On October 1, 2003, Plaintiff was granted leave to file an Amended Complaint. The Amended Complaint was substantively the same as Plaintiff's original complaint, except that it added the Department of Justice as a Defendant, because "functions of BATF had been recently transferred to DOJ." Pl.'s Mot. at 3.

Defendants filed the instant Renewed Motion for Summary Judgment on January 3, 2005, and Plaintiff responded with a Renewed Cross Motion for Partial Summary Judgment. Defendants argued that they had fully complied with the Court's June 1999 Order by conducting new searches for responsive information, releasing new information with redactions pursuant to Exemption (7)(C), and releasing certain information that Plaintiff had established was in the public domain. Defs.' Mot. at 3. Defendants also moved to dismiss the Department of Treasury as a Defendant. Plaintiff's Motion challenged Defendants' withholding of certain information under Exemption 7(C), and re-asserted the ...


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