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Roth v. United States Dep't of Justice

September 23, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


In this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Plaintiff Anthony Roth challenges the response of the Federal Bureau of Investigation ("FBI") to his request for records on behalf of his client, Lester Leroy Bower, Jr. Having produced numerous documents to Mr. Roth, the FBI now moves for summary judgment as to those documents which it has withheld in part or in their entirety [Dkt. No. 15]. The issues before the Court are: 1) whether the FBI properly invoked various exemptions under FOIA to withhold and redact certain responsive documents; and 2) whether the FBI properly refused to process certain of Mr. Roth's requests regarding third parties. Upon consideration of the parties' submissions and the entire record, including the Court's in camera review of the documents at issue, the Court will grant in part and deny in part the FBI's motion for summary judgment.


Mr. Roth is an attorney representing Mr. Bower, who was convicted in April 1984 of four murders committed in Texas in 1983 and is on death row. (Compl. ¶¶ 4, 6.) The FOIA requests at issue*fn1 were made on January 3, 2008, and sought information related to the murders and subsequent investigation.*fn2 (Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. J. and In Support of Cross Mot. for a More Particularized Vaughn Index or In Camera Review of Withheld and Redacted Documents ["Pl.'s Opp."] at 7.)

One of Mr. Roth's January 3, 2008 requests sought documents relating to persons who have been identified by witnesses as having committed the 1983 murders, and the other called for documents containing information about the FBI investigation that led to Mr. Bower's arrest, conviction, and sentencing. (Pl.'s Opp. at 4, 7.) Mr. Roth also served a FOIA request on the Executive Office for United States Attorneys ("EOUSA"), seeking documents related to the investigation of Mr. Bower. (Pl.'s Opp at 7.)

The FBI responded to Mr. Roth's first January 2008 FOIA request, concerning individuals identified by witnesses as having committed the 1983 murders, by stating that the request could not be processed without proof of death of or a privacy waiver from the named individuals. (June 12, 2008 Status Rep. at 6.) Subsequently, Mr. Roth provided the FBI with proof of death of one of the individuals, Mr. Leckie, and the FBI processed the request as to him. (Aug. 14, 2009 Joint Status Rep. at 7.) Mr. Roth has since narrowed his request to documents relating to only three of the remaining individuals: Ford, Langford, and Gordon. (Id.) The FBI has conducted death searches for each of these individuals, and it appears that all are alive or may be presumed to be alive. (Id. at 8.) The FBI therefore refused to process any searches for documents concerning these individuals, citing their privacy interests. (Second Decl. of David M. Hardy ["Second Hardy Decl."] ¶¶ 22-26.) Count I of Mr. Roth's complaint alleges that the FBI has improperly refused to process this request. (Compl. ¶¶ 32-35.)

In response to Mr. Roth's second January 2008 FOIA request, which sought documents regarding the FBI investigation of the 1983 murders, the FBI agreed to conduct a search for responsive documents but had not released any such documents at the time Mr. Roth filed his complaint. (Pl.'s Opp. at 8; June 12, 2008 Status Rep. at 8.) After a meeting between the parties and status conferences with the Court, the parties agreed that the FBI would reprocess all of the records pertaining to FBI Files HQ 163-18573, DL 179B-97, and DL 62D-5174. (Pl.'s Opp. at 9; Compl. ¶¶ 36-39.) In October 2008, the FBI released to Mr. Roth 1,370 pages of documents (many in redacted form) from the 1,948 pages which had been reviewed. (Hardy Decl. ¶ 34 n.7; Pl.'s Opp. at 9-10.) Mr. Roth then requested the FBI to provide a Vaughn index for any documents the agency had withheld in their entirety, as well as for 19 additional documents that the FBI had previously produced. (Hardy Decl. ¶35.) The FBI provided Mr. Roth with a list of withheld material and corresponding descriptions in the declaration of David M. Hardy of the FBI. (Mem. of P. & A. in Support of Def.'s Mot. for Summ. J. ["Def.'s Mem."] at 4; Pl.'s Opp. at 14-15.) At the same time, the FBI filed for summary judgment, arguing that it had properly redacted and withheld information pursuant to various Privacy Act and FOIA exemptions and that all reasonably segregable, non-exempt material had been released. (Id. at 11-32; 44.)

After the filing of the FBI's motion for summary judgment and subsequent briefing by both parties, the FBI released an additional 179 pages of responsive documents, as well as four pages of sample documents representative of another 92 pages. (Aug. 14, 2009 Joint Status Rep. at 1.) Following a series of meetings between the parties and status conferences with the Court, the parties narrowed the current dispute to: 1) 40 pages of responsive documents withheld by the FBI in their entirety; 2) redactions on two pages of documents released by the FBI to Mr. Roth on August 10, 2009; and 3) redactions on 24 pages of documents previously released to Mr. Roth. (Id. at 1.) Mr. Roth requested an in camera review by the Court to ensure that the FBI has properly redacted or withheld information pursuant to FOIA. (Id. at 1.) On August 19, 2009, this Court ordered the FBI to produce the documents still at issue for in camera review.*fn3

Having now reviewed the 66 documents produced by the FBI, the Court finds that, with minor exceptions, the FBI has properly withheld the documents under FOIA. The Court further finds that the FBI has properly invoked FOIA Exemptions 6 and 7(C) in refusing to conduct searches for documents pertaining to third parties without proof of death or privacy waivers. Therefore, the Court grants the FBI's motion for summary judgment in part.


I. FOIA: General Principles and Standard of Review

FOIA reflects a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 890813 (1965)). Thus, federal agencies must make their records promptly available to any person who makes a proper request for them unless the agency establishes that the information is appropriately withheld under one or more of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(a)-(b). The nine exemptions are exclusive and should be narrowly construed. Rose, 425 U.S. at 361. When a challenge is made to an agency's decision to withhold information, the "burden is on the agency to sustain its action," and the district court is instructed to "determine the matter de novo." 5 U.S.C. § 552(a)(4)(B). Even if some of the requested records contain exempt information, "the agency must still release 'any reasonably segregable portion' after deletion of the nondisclosable portions." Oglesby v. U.S. Dep't. of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (quoting 5 U.S.C. § 552(b)).

"At the same time, of course, it must be recognized that FOIA represents a carefully considered balance between the right of the public to know what their government is up to and the often compelling interest that the government has in keeping certain information private, whether to protect particular individuals or the national interest as a whole." Am. Civil Liberties Union v. FBI, 429 F. Supp. 2d 179, 186-87 (D.D.C. 2006). "As such, the exemptions must be given 'meaningful reach and application,'" id. at 187 (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)), as they "represent[] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses." Rose, 425 U.S. at 361.

"FOIA cases appropriately may be decided on motions for summary judgment." Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In deciding whether information has been properly withheld under FOIA exemptions, the Court may rely on affidavits or declarations from the agency. See SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). Alternatively or in addition to such affidavits, the reviewing court "may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions." 5 U.S.C. ยง 552(a)(4)(B). But "whether the Court relies on affidavits or declarations, an in camera review of the documents, or . . . both, an agency must demonstrate that 'each document that falls within the class requested either has been produced, is ...

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