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Boyd v. Bureau of Alcohol

August 15, 2008

WILLIE E. BOYD, PLAINTIFF,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document. No.: 46

MEMORANDUM OPINION GRANTING THE DEFENDANT'S SECOND RENEWEDMOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The plaintiff brings this action against the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("BATFE"), United States Department of Justice, under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552. This matter is before the Court on BATFE's second renewed motion for summary judgment. Based on its review of BATFE's motion, the plaintiff's opposition, and the entire record of this case, the court grants the motion and enters judgment in the defendant's favor.

II. BACKGROUND

Two issues remain for decision: (1) whether BATFE properly withheld information in Document Numbers 9-12 and 31 from Disclosure File # 05-336 under Exemption 7(E), and (2) whether BATFE has released to plaintiff all reasonably segregable information.

III. ANALYSIS

A. Exemption 7(E)

Exemption 7(E) protects law enforcement records from disclosure "to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Information pertaining to law enforcement techniques and procedures properly is withheld under Exemption 7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g., Morley v. Cent. Intelligence Agency, 453 F. Supp. 2d 137, 156 (D.D.C. 2006) (withholding information pertaining to security clearances and background investigations on the ground that "disclosure of CIA security clearance and investigatory processes would risk circumvention of those processes in the future"); Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (withholding polygraph test information on the ground that disclosure "has the potential to allow a cunning criminal to extrapolate a pattern or method to the FBI's questioning technique," and anticipate or thwart FBI's strategy); Fisher v. United States Dep't of Justice, 772 F. Supp. 7, 12 (D.D.C. 1991) (upholding the FBI's decision to withhold information about law enforcement techniques where disclosure would impair effectiveness and, within context of documents, "could alert subjects in drug investigations about techniques used to aid the FBI"), aff'd, 968 F.2d 92 (D.C. Cir. 1992).

1. Document Nos. 9-12

The defendant has described Document Nos. 9-12 as "Consensual Monitoring Approval." See Def.'s Supp. Mem. in Support of Mot. for Summ. J., Ex. 1 ("October 5, 2005 Vaughn Index (Disclosure File # 05-336)"). From these documents, BATFE has "redacted all of the boxes which show if an 'X' was checked for the method of installation of monitoring equipment."

Def.'s Mem. in Support of its Second Renewed Mot. for Summ. J. ("Def.'s Mot."), Fourth Declaration of Peter J. Chisholm ("Chisholm Decl. IV") ¶ 5. Peter Chisholm, a Senior Disclosure Specialist, described this approach as "standard operating procedure so that requesters cannot discern if [BATFE] installed monitoring equipment on an undercover Special Agent, a confidential informant, telephone, or on a fixed location." Id. If only the checked box was redacted, a requester could "determine how [BATFE] used the monitoring equipment." Id.

Chisholm further explains:

Although these listed techniques are known to suspects generally, the actual implementation of the techniques is highly important to the success of the consensual monitoring. If the specific law enforcement techniques were disclosed, they would allow suspects to draw conclusions about which monitoring techniques law enforcement routinely implements, and thus provide them with potential countermeasures to circumvent such techniques. Additionally[,] in cases where a combination of techniques are used, it would be detrimental to the investigation to have suspects guessing the most frequently used combination -- particularly when the act of combining techniques is itself a manner of avoiding detection. [BATFE] ...


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