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Concepcion v. Federal Bureau of Investigation

March 30, 2010

ALBERTO CONCEPCION, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION ET AL., DEFENDANTS.



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

Re Document No.: 38

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff, a federal prisoner, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") and two DOJ agencies, the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys. On March 27, 2009, the court granted in part and denied in part the defendants' first motion for summary judgment, resolving all issues but one: the FBI's decision to withhold in full under FOIA Exemption 5 a draft affidavit supporting an application for a warrant to seize vehicles in connection with a criminal investigation of the plaintiff and others. The FBI's*fn1 renewed motion for summary judgment addresses its justification for this withholding, and for the reasons set forth below, the court grants in part and denies in part the motion.

II. FACTUAL & PROCEDURAL BACKGROUND

A detailed factual and procedural history of this case was provided in the court's previous memorandum opinion. See Mem. Op. (Mar. 27, 2009) at 1-8. The draft affidavit at issue in the defendant's renewed motion for summary judgment is a nine-page document "designated as Bates-stamped pages 183-191 in Exhibit F to the Second Declaration of David M. Hardy*fn2 dated May 16, 2008."*fn3 Def.'s Renewed Mot. for Summ. J. ("Def.'s Mot."), Ex. 1 ("5th Hardy Decl.") ¶ 6; see also Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. 1 ("2d Hardy Decl.") ¶ 31; Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. F ("Vaughn Index") at 183-91. Its contents are described as follows:

On Bates-stamped pages 183 and 191, the Affidavit contains the name and identifying information of the FBI Special Agent in charge of the criminal investigation of plaintiff and his co-conspirators. On Bates-stamped pages 185-190, the Affidavit contains a substantial amount of detailed information about various confidential sources who provided information to the FBI in connection with the criminal investigation of plaintiff and his co-conspirators. For example, the Affidavit contains specific dates on which confidential sources interacted with plaintiff and/or his co-conspirators and the precise nature of those interactions. This information was provided by unnamed confidential sources. Disclosure of this information could allow plaintiff and/or his co-conspirators to readily identify the confidential sources and retaliate against them.

5th Hardy Decl. ¶ 6. The draft affidavit was prepared for filing in the United States District Court for the District of New Jersey. Id. ¶ 7. It "had not yet been approved or signed as a final version of the document," 2d Hardy Decl. ¶ 31, and it was undated, see 5th Hardy Decl. ¶ 7.

The defendant asserts that it asked the United States Attorney's Office for the District of New Jersey for a copy of the final, signed affidavit, id. ¶ 9, to compare the draft affidavit to the final affidavit on the assumption that a comparison "would show that the text of the two documents is different, and thus, would support its prior invocation of exemption 5," the deliberative process privilege, Def.'s Mot. at 3 n.3. The defendant asserts that the United States Attorney's Office did not have a copy of the final affidavit, but was able to obtain one from the United States District Court for the District of New Jersey. 5th Hardy Decl. ¶ 9. A comparison of the two documents, Hardy avers, shows that "[t]he text of the signed version of the Affidavit is identical to the text of the unsigned version found at Bates-stamped pages 183-91." Id.

Only upon review of the final affidavit did the defendant become aware that "[t]he signed version... was filed under seal pursuant to a Sealing Order dated December 9, 1999." Id. ¶ 10. In relevant part, that Sealing Order stated:

Upon the application of the United States of America... for seizure warrant; and the application upon which this Court should order the documents submitted in support of its issuance be filed under seal; and for good cause shown; [it is]... ORDERED that, with the exception of copies of the seizure warrant, the documents upon which its issuance is based and all other papers related to the above captioned matter be filed under, and are hereby sealed, until further order of this Court.

Id., Ex. A ("Sealing Order") at 1-2. In light of this new information, the defendant now asserts that the Sealing Order justifies its withholding of the draft affidavit. Def.'s Mot. at 3-5. In the alternative, the defendant contends that Exemption 7 justifies withholding certain portions of the draft affidavit. Id. at ...


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