UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
: JERRY LEWIS-BEY, : : Plaintiff, : : v. : Civil Action No. 05-2241 (GK) : UNITED STATES DEPARTMENT : OF JUSTICE, : : Defendant. : :
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Second Motion
for Summary Judgment.1 Upon consideration of the Motion,
Plaintiff’s Opposition, the Reply and the record herein, the Motion
will be granted.
I. BACKGROUND
Plaintiff brings this civil action under the Freedom of
Information Act (“FOIA”), see 5 U.S.C. § 552, against the United
States Department of Justice (“DOJ”) “to order the production of
1 On August 28, 2007, Defendant submitted a Status Report Regarding Its Disclosure of Segregable Records to Plaintiff [#24], and, arguing that it had fulfilled its obligations under the FOIA, moved to dismiss this action as moot. Based on the then-current record, the Court “den[ied] [Defendant’s] motion to dismiss without prejudice and direct[ed] it to file a proper dispositive motion, with supporting declarations or exhibits as appropriate, to which Plaintiff can respond and on which the Court may rule when fully briefed.” Lewis Bey v. United States Dep’t of Justice, 565 F. Supp. 2d 5, 10 (D.D.C. 2007).
1 Bureau of Alcohol, Tobacco, Firearms and Explosives [“ATF”] records
on [P]laintiff and his organization, the Moorish Science Temple of
America (MSTA).” Compl. ¶ 1. He indicated that the requested
records “can be located in [ATF] file 7665 0683 1501 (01), which .
. . originated out of the [ATF’s] St. Louis field office.” Id.
For convenience, the Court refers to the responsive records as the
“1983 investigation file.”2
2 There are at least four criminal investigation file numbers associated with this matter. The Complaint mentions only one file by number, 7665 0683 1501 (01). Compl. ¶ 1.
ATF’s initial search for records occurred by means of a query of the Treasury Enforcement Communications System (“TECS”) using Plaintiff’s full name as a search term; it was determined that any responsive records would be located at the St. Louis Field Division and would be retrievable under Criminal Investigation Number 33920 88 1510X. Graham I Decl. ¶ 110. A second TECS query using “Moorish Science Temple” as a search term identified another investigation file, 33920 88 1540G, also located at the St. Louis Field Division. Id. Armed with these results, St. Louis Field Division staff “undertook a search that located all criminal case files within their office that were retrievable by the [P]laintiff’s full name and Criminal Investigation Number 33920 88 1510X.” Id. Subsequently, ATF staff identified “criminal investigation 33920 83 1501Y.” Id. ¶ 111. This file, 33920 83 1501Y, did “not appear in the TECS database,” and was located only after making “inquires with [] St. Louis Field Division personnel who had some historical knowledge of that particular Field Division’s investigative cases.” Id. “ATF File No. 7665 0683 1501L (01) is in actuality part of ATF File No. 33920 83 1501Y.” Id. ¶ 45 n.9.
In response to Plaintiff’s Motion in Opposition to Dismiss as Moot [#25], ATF staff “conducted another thorough review of the 1983 case file” and determined that it “contained documents with several different Investigation Numbers including: 33920 83 1501Y and 7665 0683 1501L and additionally some documents from a 1988 case file.” Reply to Plaintiff’s “Motion in Opposition to Dismiss as Moot” [#26], Declaration of Marilyn R. LaBrie (“LaBrie Decl.”) (continued...)
2 Plaintiff’s quest for ATF records extends back to 1997, see
Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. [#14],
Declaration of Averill P. Graham (“Graham I Decl.”) ¶¶ 3-58 & Ex.
A (July 4, 1997 FOIA Request). The particulars of the request have
changed over time, and the ATF has disclosed records in the past.
The FOIA request relevant to this action, see Graham I Decl., Ex.
M (July 17, 2000 FOIA Request), is essentially, Plaintiff’s
response to the disclosure of records responsive to his original
July 4, 1997 request by the ATF on June 2, 2000. See Graham Decl.,
Ex. J (June 2, 2000 letter from A.P. Graham, Disclosure Specialist,
ATF); Compl. ¶ 5. Plaintiff acknowledges receipt of the June 2000
disclosure, explains that the “ATF was the lead agency in [an]
investigation which began in 1983 and was terminated in March or
April 1987,” and specifically requests information pertaining to
himself and to the MSTA, particularly “all pen registers,
2 (...continued) ¶ 3. “It was unclear whether the two 1983 case numbers were interchangeable or whether the file had been rearranged for some other purpose.” Id. It appeared that “the different case file numbers were merged,” and “this particular file which contained documents with these case file numbers . . . is the only known 1983 case file in existence.” Id.
At this stage of the proceedings, it no longer matters whether Plaintiff specifically requested each of the investigation files by number. Defendant does not now claim that Plaintiff is only entitled to segregable records maintained in file 7665 0683 1501. See Response to Plaintiff’s “Reply to Defendant’s ‘Second Motion’ to Dismiss as Moot” [#30] ¶ 2. The relevant files are merged, and Plaintiff has received responsive non-exempt records from both files. Id. n.1.
3 surveillance logs, and toll records” at a particular address, 11882
San Remo, between April 1986 and July 1986, as the ATF “only sent
. . . documents from 1988 to 1997.” Id., Ex. M (July 17, 2000 FOIA
Request).
As Plaintiff indicated, the records in the 1983 investigation
file were compiled in the course of “an investigation conducted by
multiple law enforcement agencies, including ATF, regarding
[P]laintiff’s large-scale criminal drug organization.” Graham I
Decl. ¶ 65; see id. ¶¶ 62, 66-69. The United States Court of
Appeals for the Eighth Circuit summarized the criminal proceedings
against Plaintiff and his co-defendants as follows:
The United States presented evidence at the . . . trial tending to show that Jerry Lee Lewis participated in and became the leader of a powerful criminal racketeering enterprise that for over ten years controlled a large percentage of the market for T’s and Blues (a heroin substitute), heroin, and cocaine in north St. Louis. Lewis obtained and maintained his position by murdering competitors and others who threatened his organization (the Jerry Lewis Organization or JLO). The profitable but bloody activities of the appellants in this case, all members of the JLO, were described by other JLO members who eventually cooperated with the government[.] In essence, the investigation and prosecution of Jerry Lee Lewis and his associates produced evidence of a long-term, violent drug- trafficking enterprise operating behind a facade known as Subordinate Temple No. 1 of the Moorish Science Temple of America (MSTA) . . ..
After a trial lasting almost nine months, one of the longest criminal trials in the history of the Eastern District of Missouri, a jury returned guilty verdicts against all seven appellants on one count of conducting a criminal racketeering enterprise . . ., against six appellants . . . on one count of conspiring to conduct and participate in the same criminal racketeering
4 enterprise . . ., [and] Jerry Lee Lewis on six counts of committing violent crimes (murder, conspiracy to commit murder, and attempted murder) in aid of a racketeering enterprise.
United States v. Darden, 70 F.3d 1507, 1516-17 (8th Cir. 1995)
(footnote omitted), cert. denied, 517 U.S. 1149 (1996). The Eighth
Circuit expressly rejected Plaintiff’s arguments regarding the
sufficiency of the evidence against him, concluding that “[t]he
evidence overwhelmingly support[ed] the jury’s findings that
[Plaintiff] . . . conspired and attempted to murder Rochelle
Bartlett; conspired and attempted to murder ‘Bud’ Green; conspired
to murder and murdered Deputy Sheriff Antar Tiari; conspired to
murder and murdered Bruce ‘Hat’ Henry; conspired to murder and
murdered Count Johnson; and conspired to murder and murdered David
‘Kiki’ Grady. Id. at 1526. Among the murder victims was a Grand
Jury witness. Graham I Decl. ¶ 64. Plaintiff was sentenced to
life in prison. United States v. Darden, 70 F.3d at 1517.
Plaintiff’s history of violent crime is relevant to this FOIA
action. At this point, it is helpful to recall the ATF declarant’s
description of Plaintiff’s activities and background:
[P]laintiff collects intelligence about himself, his co- racketeers, his competitors and law enforcement personnel (an exhibit at his trial was a seized massive compilation of news clippings, police reports/excerpts and like materials that his enterprise relied upon to help advance their crimes). The information [P]laintiff collects is used either to further criminal acts or circumvent the criminal discovery process. Plaintiff has been linked to criminal behavior outside of prison despite his being imprisoned since 1991. For example, [the declarant has] been advised that narcotics investigators developed
5 information . . . that [P]laintiff was involved in a narcotics distribution conspiracy while incarcerated at Leavenworth Federal prison, that allegedly influenced and conducted narcotics sales in the Kansas City and St. Louis areas. Testimony at [P]laintiff’s trial indicated the investigation missed some $400,000 in drug proceeds which have never been found and which were removed from a hiding place by his associates; thus, his control over these funds, or the indebtedness of any who have benefit[t]ed from them since his conviction, helps provide [P]laintiff influence which could enable him to retaliate against witnesses, informants, police and others who he merely believes are responsible for his conviction, whether or not his belief is accurate. For example, he is known to have caused the killing of person(s) he believed to be an informant(s). [The declarant has] been informed by the [prosecutor] that plaintiff’s transparent efforts to serve as a clearing house for information he has previously been provided under the FOIA is misused to the extent that he or his imprisoned peers (and/or his street loyalists) can misuse the information, and not just in his, or their, ill-fated legal proceedings, comports with his proven history of “counterintelligence” gathering to the detriment of his victims and public order. [She] was advised by the [United States Attorney’s Office for the Eastern District of Missouri] that Plaintiff was known to conduct pre- incarceration meetings with his co-racketeers in which they went over what was known or suspected, regarding, for example, who might be "snitches" or how a recent assassination had been conducted and what might be learned from the process, as assessed against other collected information, for future use.
Graham I Decl. ¶ 67.
In the March 30, 2007 Memorandum Order [#19] (“Mem. Order”),
the Court concluded that, based on “the unique set of
circumstances” presented in this case, id. at 15, the ATF’s
decision to withhold the 1983 investigation file was proper under
FOIA Exemption 7(A), which protects law enforcement records “to the
extent that production of such . . . records . . . could reasonably
6 be expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). At that time, Plaintiff’s petition seeking to
overturn his criminal convictions was pending before the United
States Court of Appeals for the Eighth Circuit. Graham I Decl. ¶
64. The Court found that release of information in the 1983
investigation file, particularly the “summaries of agents’
activities, witness names and other identification, witness
background information, [and] information provided by witnesses,”
id., could reasonably be expected to interfere with prospective
enforcement proceedings in light of Plaintiff’s convictions for the
murder of a Grand Jury witness, a Deputy Sheriff, and a person who
Plaintiff believed to be an informant. See Mem. Order at 16.3
Plaintiff’s background strongly suggests that release of this
information “would have a chilling effect on witness testimony at
a subsequent retrial.” Id. at 17.
Defendant’s Second Motion for Summary Judgment pertains to the
portions of the 1983 investigation file previously withheld under
Exemption 7(A). Based on Plaintiff’s representation “that there
3 The Memorandum Order [#19] granted Defendants Motion for Summary Judgment in part. Mem. Order at 23. The Court concluded that non-disclosed portions of the requested records were properly withheld under Exemptions 2, 3, 7(C), 7(D), 7(E), and 7(F). Id. With respect to records withheld under Exemption 7(A), the Court divided these records into three categories; the motion was granted only with respect to category one documents. Id. n.23. The Court held in abeyance its ruling with respect to documents in categories two and three pending submission of a supplemental declaration or report. Id. at 23-24.
7 were no longer any pending criminal appeals,” Mem. of P. & A. in
Supp. of Def.’s Mot. for Summ. J. (“Def.’s 2d Mot.”), Second
Declaration of Averill P. Graham (“Graham II Decl.”) ¶ 6, the ATF
then “dropped the Exemption,” id. ¶ 24, “reviewed 337 pages of
material responsive to [Plaintiff’s] FOIA request,” id. ¶ 6, and on
August 8, 2007 released “approximately 300 pages . . . and withheld
four documents (consisting of 7 pages) in full pursuant to FOIA
[E]xemption 7(C) and Fed. R. Crim. P. 6(e).”4 Defendants’ Status
Report Regarding Its Disclosure of Segregable Records to Plaintiff
[#24] ¶ 4. In addition, the ATF released three additional pages
when it was discovered that Plaintiff’s name appeared at the top of
each page, and it re-released two pages of records on August 13,
2008 from which Plaintiff’s name mistakenly had been redacted.5
Graham II Decl. ¶¶ 7, 9.
4 On January 3, 2008, Plaintiff filed “a new criminal appeal . . . in the 8th Circuit.” Graham II Decl. ¶ 8 & Ex. OOO (Court of Appeals Docket # 08-1022); Mem. of P. & A. in Opp’n to Def.’s Mot. for Summ. J. at 4. For this reason, the ATF argued in the alternative that the 1983 investigation file remains exempt from disclosure under Exemption 7(A). Graham II Decl. ¶¶ 8, 24. Plaintiff already has received the information which had been withheld previously under Exemption 7(A). Therefore, any harm resulting from the ATF’s August 2007 release cannot be avoided at this time and there is no need to address Exemption 7(A) further. 5 The Court will address Plaintiff’s response to the August 8, 2007 release below.
8 II. DISCUSSION
A. Summary Judgment Standard
The Court grants 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 or declarations 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 these
submissions 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
9 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. Plaintiff’s Response to the August 8, 2007 Release6
Plaintiff responded to the ATF’s August 8, 2007 release of
records by pointing out records that were not disclosed. These
items included copies of surveillance photos, toll records of his
residence (12654 Stoneridge), his apartment (11882 San Remo in St.
Louis) and two MSTA locations (4408 Marcus and 3600 Grand), pager
records from Gencom Pager Company, and pen register records from
his residence (12654 Stoneridge) and the MSTA’s locations (4408
Marcus and 3600 Grand). See Plaintiff’s Motion in Opposition to
Dismiss as Moot [#25] ¶¶ 5-10; Reply to Defendant’s “Second Motion”
to Dismiss as Moot [#27] ¶ 3.
In response to these assertions, ATF staff “conducted another
thorough review of the file,” and found no surveillance
photographs. Reply to Plaintiff’s “Motion in Opposition to Dismiss
as Moot” [#26], Declaration of Marilyn R. LaBrie (“LaBrie Decl.”)
¶ 4. A subsequent “review[] [of] the 1983 file which was retrieved
6 Plaintiff’s objection to the deletion of the names of individuals involved in the investigation, see Plaintiff’s Motion in Opposition to Dismiss as Moot [#25] ¶ 11; Reply to Defendant’s “Second Motion” to Dismiss as Moot” [#27] ¶¶ 4-5, is addressed below in the discussion of Exemption 7.
10 pursuant to [Plaintiff’s] FOIA request and this litigation” located
“no pen-register or telephone toll records listing the Moorish
Science Temple, or [Plaintiff], or any of the addresses [Plaintiff]
listed.” Response to Plaintiff’s “Reply to Defendant’s ‘Second
Motion’ to Dismiss as Moot” [#30], Fourth Graham Decl. ¶ 3.
The ATF’s inability to locate all of the records Plaintiff
desires does not defeat summary judgment as long as it
“establish[es] that it located no records responsive to plaintiff’s
request after a reasonable search using ‘methods reasonably
expected to produce the information requested.’” Davidson v.
Envtl. Prot. Agency, 121 F. Supp. 2d 38, 39 (D.D.C. 2000) (quoting
Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990)); see Steinberg v. United States Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994) (noting that the agency’s search for
responsive records depends not on “whether there might exist any
other documents possibly responsive to the request, but rather
whether the search for those documents was adequate”). The Court
already has concluded that the ATF’s search for responsive records
was adequate. See Mem. Order at 10. Furthermore, Plaintiff’s
reaction to the August 8, 2007 release does not require the ATF to
initiate a new search or otherwise to supplement or modify its
release. See Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C.
Cir. 1996) (finding that an agency’s reasonable effort to satisfy
a FOIA request “does not entail an obligation to search anew based
11 upon a subsequent clarification”). The ATF cannot release records
that it does not maintain, and its failure to produce photographs,
pen registers, or toll records does not defeat summary judgment.
C. Plaintiff’s Opposition to Defendant’s Second Summary Judgment Motion
Plaintiff devoted his entire opposition to Defendant’s first
Motion for Summary Judgment to Exemption 7(A) without addressing
the agency’s decision to withhold information under Exemptions 2,
3, 7(C), 7(D), 7(E), and 7(F). For this reason, the Court treated
these matters as conceded. Mem. Order at 18. Defendant explained
that it included arguments as to the withholding of information
under Exemptions 2, 3, 7(C), 7(D), 7(E), and 7(F) in its Second
Motion for Summary Judgment and supporting Memorandum “solely to
inform the Court as to the fact that all redactions and
withholdings fall under those provisions.” Def.’s Reply to Pl.’s
Opp’n to Def.’s Second Mot. for Summ. J. (“Def.’s Reply”) at 2.
Apparently the Defendant’s intention was not clear to Plaintiff,
and now before the Court are Plaintiff’s challenges to the
withholding of information under all of these exemptions. The
Court will address each exemption in turn.
D. Results of Plaintiff’s FOIA Requests to the FBI
The Court first addresses an argument raised by Plaintiff to
oppose the ATF’s decision to withhold information under Exemptions
2, 5, 7(C), and 7(E). It appears that Plaintiff submitted FOIA
requests to the Federal Bureau of Investigation (“FBI”). See Mem.
12 of P. & A. in Opp’n to Def.’s Mot. for Summ. J. [#36] (“Pl.’s
Opp’n”) at 5-9. Plaintiff states that “since February 29, 2000
[he] has obtained over 3000 pages . . . from the FBI 1983 case file
(‘which contains much of the same information in the ATF 1983 case
file’) and there is no evidence that this information was used
other than for litigation purposes relating to his criminal case.”
Id. at 8. Based on past responses by the FBI to his FOIA requests
to that agency, Plaintiff argues that the ATF is not justified in
withholding information that he claims is similar or identical to
information already released by the FBI. See id. at 5-9. Aside
from a handful of attachments to his Opposition, see, e.g., Pl.’s
Opp’n, Ex. BBB, the substance of Plaintiff’s FOIA requests to the
FBI and the actual documents the FBI has released are not known.
The results of Plaintiff’s FOIA requests to the FBI are not
relevant to this case. Here, the only records at issue are those
released to Plaintiff in August 2007 which the ATF previously
withheld under Exemption 7(A). The fact that the FBI disclosed a
similar type of information in a separate case does not mean that
the ATF is obligated to disclose in this case information
maintained in its files. See Salisbury v. United States, 690 F.2d
966, 971 (D.C. Cir. 1982); Halkin v. Helms, 598 F.2d 1, 9 (D.C.
Cir. 1978) (“[T]he government is not estopped from concluding in
one case that disclosure is permissible while in another case it is
not.”). All that is before this Court are Plaintiff’s bare
13 assertions that the ATF and the FBI files contain the same
information. For these reasons, the Court concludes that the ATF
is not bound by the FBI’s past decisions to release or withhold
information in response to Plaintiff’s separate FOIA requests,
whether the information in the FBI’s records is the same as or
similar to information found in the ATF’s records.
E. Exemptions
1. Exemption 2
Exemption 2 protects materials that are “related solely to the
internal personnel rules and practices of an agency.” 5 U.S.C. §
552(b)(2). Exemption 2 applies if the information sought meets two
criteria. First, such information must be “used for predominantly
internal purposes.” Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 670 F.2d. 1051, 1074 (D.C. Cir. 1981); see Nat’l Treasury
Employees Union v. United States Customs Serv., 802 F.2d 525, 528
(D.C. Cir. 1985). Second, the agency must show either that
“disclosure may risk circumvention of agency regulation,” or that
“the material relates to trivial administrative matters of no
genuine public interest.” Schwaner v. Dep’t of the Air Force, 898
F.2d 793, 794 (D.C. Cir. 1990) (citations omitted).
“Predominantly internal documents the disclosure of which
would risk circumvention of agency statutes are protected by the
so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations
Bd., 964 F.2d 1205, 1207 (D.C. Cir. 1992). “High 2” exempt
14 information is “not limited . . . to situations where penal or
enforcement statutes could be circumvented.” Id. at 1208. If the
material at issue merely relates to trivial administrative matters
of no genuine public interest, it is deemed “low 2” exempt
material. See Founding Church of Scientology of Washington, D.C.,
Inc. v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983).
“Low 2” exempt materials include such items as “file numbers,
initials, signature and mail routing stamps, references to
interagency transfers, and data processing references,” Scherer v.
Kelley, 584 F.2d 170, 175-76 (7th Cir. 1978), cert. denied sub nom.
Scherer v. Webster, 440 U.S. 964 (1979), and other “trivial
administrative data such as . . . data processing notations[] and
other administrative markings.” Coleman v. Fed. Bureau of
Investigation, 13 F. Supp. 2d 75, 78 (D.D.C. 1998) (citation
omitted).
The ATF withholds law enforcement codes, internal
administrative codes, and confidential source codes under Exemption
2. Graham II Decl. ¶¶ 13-14. The law enforcement and internal
administrative codes “relate to various personnel, law enforcement,
and firearms tracing databases.” Id. ¶ 13. According to the ATF,
the codes “allow for navigation of law enforcement databases with
ease.” Id. The ATF’s declarant explains that release of these
codes to the public could allow an individual “knowledgeable in
computer mainframes and systems to try to circumvent the database
15 and interfere with enforcement proceedings.” Id. In addition, the
declarant states that use of the codes “could aid in the discovery
of other . . . sensitive data, such as the identities of
confidential informants, law enforcement techniques, and
information which would allow a criminal to evade justice for his
bad acts.” Id.
The Court concludes that the ATF’s decision to redact internal
administrative codes and law enforcement codes was proper. See,
e.g., Singh v. Fed. Bureau of Investigation, 574 F. Supp. 2d 32, 44
(D.D.C. 2008) (withholding internal agency codes appearing on
printouts from the Immigration and Naturalization Services Central
Index System used for the purposes of indexing, storing, locating,
retrieving and distributing information in ICE investigative
files); Boyd v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
496 F. Supp. 2d 167, 171 (D.D.C. 2007) (withholding as “high 2”
exempt information data displayed on screen prints of Treasury
Enforcement Communications System records identifying the terminal
from which a query was made and its connection to the mainframe, as
well as information pertaining to software applications); Ferranti
v. Bureau of Alcohol, Tobacco & Firearms, 177 F. Supp. 2d 41, 45
(D.D.C. 2001) (withholding internal computer codes).
2. Exemption 3
Exemption 3 protects records that are “specifically exempted
from disclosure by statute . . . provided that such statute either
16 . . . [requires withholding] in such a manner as to leave no
discretion on the issue, or . . . establishes particular criteria
for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552 (b)(3). The Federal Rules of Criminal
Procedure prohibit disclosure of “matters occurring before [a]
grand jury.” Fed. R. Crim. P. 6(e)(2); see In re Motions of Dow
Jones & Co., Inc., 142 F.3d 496, 498-501 (D.C. Cir.), cert. denied
sub nom. Dow Jones & Co., Inc. v. Clinton, 525 U.S. 820 (1998).
Rule 6(e) is a statute for purposes of Exemption 3 because Congress
affirmatively enacted it. See Fund for Constitutional Gov’t v.
Nat’l Archives and Records Serv., 656 F.2d 856, 867-68 (D.C. Cir.
1981). In this Circuit, the grand jury exception is limited to
material which, if disclosed, would “tend to reveal some secret
aspect of the grand jury’s investigation, such . . . as the
identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or
questions of jurors, and the like.” Senate of the Commonwealth of
Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 582
(D.C. Cir. 1987).
Under Exemption 3, the ATF withholds “information in letters
from the United States Attorney to the Court,” such as
“investigative techniques and the identities of potential witnesses
related to a Grand Jury inquiry.” Graham II Decl. ¶ 19.
Disclosure, the declarant explains, “would reveal protected inner
17 workings of the Grand Jury proceedings, including, most
significantly, the substance of the Grand Jury’s investigation and
the evidence it considered regarding [Plaintiff].” Id. The ATF
asserts that protection is even more important in this case because
Plaintiff “was convicted of murdering a Grand Jury witness.” Id.
Plaintiff asserts that “evidence in [the ATF’s] 1983 file that
was presented to a grand jury . . . obvious[ly] . . . was not
considered material as the grand jury decided not to indict,”
Pl.’s Opp’n, Affidavit of Jerry Lewis Bey (“Pl.’s Aff.”) ¶ 10. The
Grand Jury’s decision to indict, or not to indict, has no bearing
on the ATF’s decision to withhold evidence presented for the Grand
Jury’s consideration. Defendant demonstrates that the information
in these letters is precisely the type of information that
Exemption 3 is designed to protect. Given that the withheld
portions of these letters reflect “the substance of the Grand
Jury’s investigation and the evidence it considered” about
Plaintiff, Graham II Decl. ¶ 19, the information falls within the
scope of Exemption 3 and properly is withheld.
3. Exemption 5
Exemption 5 protects from disclosure “inter-agency or intra-
agency memorand[a] or letters which would not be available by law
to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are
determined by reference to the protections available to litigants
18 in civil discovery; if material is not ‘available’ in discovery, it
may be withheld from FOIA requesters.” Burka v. United States
Dep’t of Health and Human Servs., 87 F.3d 508, 516 (D.C. Cir.
1996); Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S.
132, 148 (1975).
The deliberative process privilege “shields only government
‘materials which are both predecisional and deliberative.’” Tax
Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C. Cir.
1997) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d
768, 774 (D.C. Cir. 1988) (en banc)). To show that a document is
predecisional, the agency need not identify a specific final agency
decision; it is sufficient to establish “what deliberative process
is involved, and the role played by the documents at issue in the
course of that process.” Heggestad v. United States Dep’t of
Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)).
A document is “deliberative” if it “makes recommendations or
expresses opinions on legal or policy matters.” Vaughn v. Rosen,
523 F.2d 1136, 1143-44 (D.C. Cir. 1975). The deliberative process
privilege is thought to “prevent injury to the quality of agency
decisions.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421
U.S. at 151. Such protection encourages frank discussion of policy
matters, prevents premature disclosure of proposed policies, and
avoids public confusion that may result from disclosure of
19 rationales that were not ultimately grounds for agency action.
See, e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048
(D.C. Cir. 1982).
The ATF withholds “certain sections of Reports of
Investigation,” labeled “Details,” which include recommendations of
an ATF agent to a superior (such as a Special Agent in Charge) or
to a fellow agent. Graham II Decl. ¶ 21. The declarant explains
that these Reports are “submitted along with other documentation to
support ATF’s recommendation that a case be referred for
prosecution, [and] describe alternative avenues of action available
in the ATF’s investigation of an individual.” Id.
In this instance, the Reports “contain candid discussions [of]
the strengths and weaknesses of the ATF’s case against
[Plaintiff].” Graham II Decl. ¶ 21. The declarant asserts that
such information is predecisional “because further action would
have to be taken in order for the recommendations to become
finalized.” Id. It is deliberative in that a Special Agent’s
analysis and recommendations are “offered to the superior to
explore the different routes that could be taken” in an
investigation. Id. ¶ 22. Release of the “Details” sections of
these Reports to the public “would have the effect of inhibiting
the free flow of recommendations and opinions . . . within ATF
during a criminal investigation.” Id.
20 The ATF establishes that the “Details” sections of the Reports
of Investigation contain the opinions and recommendations of ATF
Special Agents submitted either to their superiors or to fellow
agents for the purpose of evaluating the case against Plaintiff and
determining what action, if any, to take. See Graham II Decl. ¶¶
21-22. The Court concludes that the information is predecisional
and deliberative, and, therefore, properly is withheld under
Exemption 5.
4. Exemption 77
a. Exemption 7(C)
Exemption 7(C) protects from disclosure information in law
enforcement records that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552 (b)(7)(C). In determining whether this exemption applies to
particular material, the Court must balance the interest in privacy
of individuals mentioned in the records against the public interest
in disclosure. Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.
Cir. 1993). Individuals have a “strong interest in not being
associated unwarrantedly with alleged criminal activity.” Stern v.
Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir. 1984).
“[T]he only public interest relevant for purposes of Exemption 7(C)
is one that focuses on ‘the citizens’ right to be informed about
7 The Court previously concluded that the records at issue were compiled for law enforcement purposes within the scope of Exemption 7. Mem. Order at 12.
21 what their government is up to.’” Davis v. United States Dep’t of
Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting United
States Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989)).
The ATF withheld “the names, addresses, phone numbers, and
other identifying information related to law enforcement officers
and personnel,” Graham II Decl. ¶ 39, including ATF Special Agents,
state law enforcement agents and personnel, and technical personnel
involved in law enforcement operations. Id. ¶¶ 33, 40-41. The
declarant explains that disclosure of the identities of ATF Special
Agents and other law enforcement personnel “might seriously
prejudice their effectiveness in conducting investigations to which
they are assigned and also could subject them to unwarranted
harassment.” Id. ¶ 40.
Plaintiff’s response to the August 8, 2007 release included
objections to the deletion of the names of persons, both living and
deceased, who were involved in the investigation and surveillance
of Plaintiff, who were identified in open court at his criminal
trial, and who were already known to Plaintiff. See Plaintiff’s
Motion in Opposition to Dismiss as Moot [#25] ¶ 11; Reply to
Defendant’s “Second Motion” to Dismiss as Moot” [#27] ¶¶ 4-5, 6.a.
He explained that he did not seek “the names of any informant,
cooperating witness [or] any witness who testified against him;”
rather, he claims to have sought only “reports [containing] the
22 names of two former MSTA members . . . and . . . a codefendant.”
Reply to Defendant’s “Second Motion” to Dismiss as Moot” [#27] ¶
6.a.
In addition, Plaintiff represents that other Justice
Department components have “disclosed the names of several FBI
agents who were part of the 1983 investigation,” as well as the
names of “several Federal Prosecutors” and the Assistant United
States Attorney who acted as “the Regional Coordinator over the
1983 Task Force investigation . . . conducted by both the ATF and
the FBI.” Pl.’s Opp’n at 8. He presumes, but does not know for a
certainty, that these individuals, which he claims already are
known to him, are the same individuals whose identities the ATF is
protecting, and argues that disclosure at this juncture cannot
violate their privacy interests. There is nothing in the record of
this case to support this conclusion.
Law enforcement personnel “have a legitimate interest in
preserving the secrecy of matters that conceivably could subject
them to annoyance or harassment in either their official or private
lives” Lesar v. United States Dep’t of Justice, 636 F.2d 472, 487
(D.C. Cir. 1980). Similarly, “third parties who may be mentioned
in investigatory files” and “witnesses and informants who provide
information during the course of an investigation” have an
“obvious” and “substantial” privacy interest in their information.
Nation Magazine v. United States Customs Serv., 71 F.3d 885, 894
23 (D.C. Cir. 1995); see Rugiero v. United States Dep’t of Justice,
257 F.3d 534, 552 (6th Cir. 2000) (concluding that agency properly
withheld “identifying information on agents, personnel, and third
parties after balancing the privacy interests against public
disclosure), cert. denied, 534 U.S. 1134 (2002); Computer Prof’ls
for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897,
904 (D.C. Cir. 1996) (noting the “strong interest of individuals,
whether they be suspects, witnesses, or investigators, in not being
associated unwarrantedly with alleged criminal activity”) (quoting
Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir.
1990)).
Individuals involved in law enforcement investigations, “even
if they are not the subject of the investigation[,] have a
substantial interest in seeing that their participation remains
secret.” Willis v. United States Dep’t of Justice, 581 F. Supp. 2d
57, 76 (D.D.C. 2008) (citations and internal quotation marks
omitted). Such privacy interests are no less significant where the
individual has testified at trial. See Jones v. Fed. Bureau of
Investigation, 41 F.3d 238, 247 (6th Cir. 1994) (concluding that
law enforcement employee who chooses or is required to testify does
not waive personal privacy); Lardner v. United States Dep’t of
Justice, No. 03-0180, 2005 WL 758267, *19 (D.D.C. Mar. 31, 2005)
(concluding that name of a witness who testified at public trial
properly was withheld under Exemption 7(C)). Privacy interests do
24 not diminish with the passage of time, see, e.g., Halpern v. Fed.
Bureau of Investigation, 181 F.3d 279, 297 (2d Cir. 1999), and are
not extinguished simply because Plaintiff knows or can guess the
individuals’ identities. See, e.g., Smith v. Bureau of Alcohol,
Tobacco & Firearms, 977 F. Supp. 496, 500 (D.D.C. 1997).
In the face of these recognized privacy interests, Plaintiff
appears to argue in the alternative that government wrongdoing in
connection with his criminal case outweighs these individuals’
privacy interests.8 See Pl.’s Opp’n at 2, 5. Citing Manna v.
United States Dep’t of Justice, 51 F.3d 1158, 1169 n.3 (3d Cir.
8 Plaintiff has argued that there is no connection between the 1983 investigation file and his indictment, arrest, or conviction. Mem. of P. & A. in Opp’n of Def.’s Mot. for Summ. J. [#36] at 3. According to Plaintiff, “the 1983 investigation was closed on April 6, 1987, and that there was [sic] no indictments as a result of the investigation.” Id.; see id., Ex. AAA & BBB. Rather, Plaintiff asserted that his current conviction resulted from “a July 24, 1989 task force investigation that led to a January 9, 1991 indictment.” Id. at 3. On this basis, Plaintiff argued that the 1983 investigation file pertained to “a totally seperate [sic] investigation” the records of which “were concealed at Plaintiff’s trial in violation of a May 15, 1991 court order.” Id. The conclusion to be drawn from this argument is unclear.
These assertions appear to be inconsistent with representations Plaintiff made elsewhere. For example, in his original July 4, 1997 FOIA request, Plaintiff stated that information gathered in the course of the 1983 investigation led to his indictment in 1991 and his subsequent criminal conviction. Graham I Decl., Ex. A at 2. Even if Plaintiff’s indictment were not the culmination of the 1983 investigation, the ATF establishes that the 1983 investigation file was compiled for law enforcement purposes and, therefore, it falls within the scope of Exemption 7. See Mem. Order at 12. Any purported connection, or lack of a connection, between the 1983 investigation and the criminal proceedings against him does not require that the ATF release the 1983 investigation file.
25 1995), he asserts “the public interest in exposing government
corruption and wrong doing [sic] [a]s the primary rationale for
FOIA.” Pl.’s Opp’n at 5. He argues that the prosecutors in his
criminal case not only violated a Magistrate Judge’s Order in his
criminal case directing the disclosure of “information in the 1983
file and any other information that was favorable to [P]laintiff,”
but also thwarted release of the 1983 investigation file under the
FOIA. Id. at 2.
The public interest “sought to be advanced [must be] a
significant one more specific than having the information for
[one’s] own sake.” Nat’l Archives and Records Admin. v. Favish,
541 U.S. 157, 172 (2004). The disclosure of the names of
individuals mentioned in law enforcement files serves a significant
public interest only where “there is compelling evidence that the
agency denying the FOIA request is engaged in illegal activity,”
and where the requested information “is necessary in order to
confirm or refute that evidence.” Davis v. United States Dep’t of
Justice, 968 F.2d at 1282. Plaintiff demonstrates no such public
interest with respect to the law enforcement personnel or the third
parties mentioned in these responsive records.
To the extent that the alleged government misconduct is a
basis for a challenge to Plaintiff’s convictions, and that release
of the 1983 investigation file is necessary to uncover it,
Plaintiff’s claim must fail. “[C]ourts have consistently refused
26 to recognize any public interest in disclosure of information
[under FOIA] to assist a convict in challenging his conviction.”
Burke v. United States Dep’t of Justice, No. 96-1739, 1999 WL
1032814, *4 (D.D.C. Sept. 30, 1999); Taylor v. United States Dep’t
of Justice, 257 F. Supp. 2d 101, 110 (D.D.C. 2003) (disclosure
under the FOIA of potentially exculpatory information that
prosecutors must disclose to criminal defendants pursuant to Brady
v. Maryland, 373 U.S. 83 (1963), is in a plaintiff’s private
interest, not the general public interest), recons. denied, 268 F.
Supp. 2d 34 (D.D.C. 2003).
The Court concludes that the ATF properly withholds the names
of law enforcement personnel and third parties mentioned in the1983
investigation file.
b. Exemption 7(D)
Exemption 7(D) protects from disclosure those records or
information compiled for law enforcement purposes that:
could reasonably be expected to disclose the identity of a confidential source . . . [who] furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation. . ., information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). There is no assumption that a source is
confidential for purposes of Exemption 7(D) whenever a source
provides information to a law enforcement agency in the course of
a criminal investigation. See United States Dep’t of Justice v.
Landano, 508 U.S. 165, 181 (1993). Rather, a source’s
27 confidentiality must determined on a case-by-case basis. Id. at
179-80. “A source is confidential within the meaning of
[Exemption] 7(D) if the source provided information under an
express assurance of confidentiality or in circumstances from which
such an assurance could reasonably be inferred.” Williams v. Fed.
Bureau of Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995)
(citing United States Dep’t of Justice v. Landano, 508 U.S. at 170-
74).
Among the responsive records are “portions of ATF Reports of
Investigation that would reveal the identity of confidential
sources” and “dates which could be used for identification” of
these sources. Graham II Decl. ¶ 43. The Reports contain
“interviews and accounts of interviews of named sources . . . [who]
provided information and interactions regarding specifics about
[Plaintiff’s] criminal activity.” Id. ¶ 45.
Courts have held that the violence and risk of retaliation
attendant to drug trafficking warrant an implied grant of
confidentiality to a source. See Mays v. Drug Enforcement Admin.,
234 F.3d 1324, 1329 (D.C. Cir. 2000) (withholding source supplying
information about conspiracy to distribute crack and powder
cocaine); Shores v. Fed. Bureau of Investigation, No. 98-2728, 2002
WL 230756, at *4 (D.D.C. Feb. 2, 2002) (withholding identities and
identifying information of three cooperating witnesses with
knowledge of the murder of which plaintiff was convicted).
28 The Court agrees with Defendant that, “because [Plaintiff’s]
dangerous criminal history is established and well-known,”
disclosure of information from which Plaintiff could identify a
source “could place the [source] in danger.” Graham II Decl. ¶ 47.
It will be remembered that Plaintiff has been convicted of
murdering a Grand Jury witness and other individuals he thought
were informants or were cooperating in the investigation or
prosecution of the criminal case. See Graham I Decl. ¶ 67. In
these circumstances it is reasonable to conclude that sources
provided information incorporated into these Reports of
Investigation with the expectation that his or her identity would
be remain confidential. The ATF properly withholds under Exemption
7(D) the portions of the Reports the disclosure of which could
reasonably be expected to disclose the identity of a confidential
source.
This rationale also applies to the ATF’s decision to withhold
under both Exemptions 2 and 7(D) “certain internal administrative
information which could reveal a confidential source or undercover
operation.” Graham II Decl. ¶ 14. The ATF therefore properly
redacted “confidential source codes[,] . . . dates and other
identifying information” in order “to create a mosaic of protection
for confidential informants and undercovers.” Id. Release of this
information could place these informants in danger if Plaintiff or
29 his associates were to learn their identities, and redaction of
identifying information about them is proper.
c. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement
records “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).
Courts have held that 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.
30 United States Dep’t of Justice, 772 F. Supp. 7, 12 (D.D.C. 1991)
(upholding 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).
Under Exemption 7(E), the ATF withholds “details of electronic
surveillance techniques, . . . specifically, the circumstances
under which the techniques were used, the specific timing of their
use, and the specific location where they were employed.” Graham
II Decl. ¶ 52. Disclosure of this information, the ATF asserts,
“would illustrate the agency’s strategy in implementing these
specific techniques,” and, in turn, “could lead to decreased
effectiveness in future investigations by allowing potential
subjects to anticipate . . . and identify such techniques as they
are being employed.” Id. In addition, the ATF withholds
“information about techniques for funding law enforcement
investigations” on the ground that disclosure “could aid persons .
. . [in] avoiding certain threshhold offenses or by understanding
how an undercover agent or confidential informant is able to
receive funds” in certain situations. Id. ¶ 53. Lastly, the ATF
redacts from certain Reports of Investigation the Special Agents’
description of “techniques and procedures . . . used during the
investigation” of Plaintiff’s activities. Id. ¶ 54. Disclosure of
31 this information could help “potential suspects to anticipate the
law enforcement techniques and procedures that otherwise would be
foreign to them.” Id.
C. Segregability
If a record contains information that is exempt from
disclosure, any reasonably segregable information must be released
after deleting the exempt portions, unless the non-exempt portions
are inextricably intertwined with exempt portions. Trans-Pacific
Policing Agreement v. United States Customs Serv., 177 F.3d 1022
(D.C. Cir. 1999); 5 U.S.C. § 552(b). The Court errs if it “simply
approve[s] the withholding of an entire document without entering
a finding on segregability, or the lack thereof.” Powell v. United
States Bureau of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991)
(quoting Church of Scientology of California v. United States Dep't
of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).
Having reviewed the declarations and the Vaughn index
submitted in support of the ATF’s motion, the Court concludes that
only the exempt records or portions of records have been withheld,
and that all reasonably segregable material has been released to
Plaintiff. The declarations and Vaughn index related to these
records adequately specify “in detail which portions of the
document[s] are disclosable and which are allegedly exempt.”
Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974).
32 III. CONCLUSION
For the reasons discussed herein, the Court will grant the
ATF’s second motion for summary judgment. An Order is issued
separately.
/s/ GLADYS KESSLER United States District Judge DATE: February 5, 2009