Demartino v. F.B.I.

• Court: District Court, District of Columbia
• Decided: January 13, 2009
• Docket: Civil Action No. 2006-0879
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VINCENT DEMARTINO, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-0879 (RJL) ) F .B.I. et al., ) ) Defendants. )

r---- MEMORANDUM OPINION January 1.2-, 2009

Pending before the Court is the Federal Bureau ofInvestigation's ("FBI") renewed

motion for summary judgment [Dkt. No. 55] filed in response to the Order of September 15,

2008, directing supplementation of the record in this Freedom of Information Act ("FOIA") case.

The FBI proffers the Sixth Declaration of David M. Hardy ("6 th Hardy Decl.") to justify FBI

Headquarters's withholding of seven pages of records in their entirety. See Memorandum

Opinion of September 15, 2008 ("Mem. Op.") [Dkt. No. 49] at 5 (finding insufficient evidence to

resolve record segregability question). Upon consideration of the FBI's renewed motion and

plaintiffs supplemental responses [Dkt. Nos. 59, 60-2], the Court grants the FBI's renewed

motion for summary judgment on the remaining issue of the case. I

Mr. Hardy has adequately described the seven withheld pages, Hardy Decl. ~~ 7-9, and

explained the applicability of FOIA exemptions 2, 7(C) 7(D) and 7(E) to those pages. Id. ~~ 15,

20, 21, 24-26. Moreover, he states that the disclosure of any "nonexempt words and phrases"

contained therein "would provide only a patchwork of unintelligible text." Id. ~ 30. In his

I See Orders of September 15,2008 and September 27, 2007 (resolving all other claims). opposing declaration [Dkt. No. 60-2], plaintiff does not directly address the current motion but

rather claims that "newly discovered evidence" supports his innocence of the crimes for which he

is serving time. At best, plaintiffs opposition relates only to defendant's invocation of

exemption 7(C). See Crooker v. Bureau ofAlcohol, Tobacco and Firearms, 670 F.2d 1051,1074

n. 61 (D.C. Cir. 1981) (noting "that in two [] exemptions, 7(C) and 6, 'the court is called upon to

balance the conflicting interests and values involved; in other exemptions Congress has struck

the balance and the duty of the court is limited to finding whether the material is within the

defined category. "') (quoting Lesar v. United States Dep't of Justice, 636 F.2d 472, 486 n.80

(D.C. Cir.1980)) (other citation omitted).

Defendant invoked exemption 7(C), in conjunction with exemption 6, to withhold

identifying information of FBI Special Agents and third-party individuals of investigative interest

to the FBI and other law enforcement agencies. 6th Hardy Decl. ~~ 20-21. Third-party

information contained in law enforcement files is "categorically exempt" from disclosure under

exemption 7(C) in the absence of an overriding public interest in its disclosure. 2 Nation

Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir.

1995). In order to demonstrate a public interest warranting disclosure of the otherwise protected

information, plaintiff must show that the withheld information is necessary to "shed any light on

the [unlawful] conduct of any Government agency or official." United States Dep 't of Justice v.

Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard

Services, Inc., v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). "Where the privacy concerns

addressed by Exemption 7(C) are present, ... [the requester] must show that the public interest

2 See Mem. Op. at 6 (finding exemption 7's threshold requirement of law enforcement records satisfied).

2 sought to be advanced is a significant one, an interest more specific than having the information

for its own sake [and that] ... the information is likely to advance that interest." National

Archives and Records Administration v. Favish, 541 U.S. 157, 172 (2004). In making such a

showing, plaintiff must assert "more than a bare suspicion" of official misconduct. Id. at 174. He

"must produce evidence that would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred." !d. Otherwise, the balancing requirement does

not come into play. See id. at 175. Plaintiffs suggestion that the withheld information would

somehow prove his innocence provides no basis for balancing the interests at stake because the

public interest in disclosure "does not include helping an individual obtain information for his

personal use" to overturn a conviction. Oguaju v. Us., 288 F.3d 448, 450 (D.C. Cir. 2002),

vacated and remanded on other grounds, 124 S.Ct. 1903 (2004), reinstated, 378 F.3d 1115 (D.C.

Cir. 2004) (citation omitted).

Based on the sixth Hardy declaration, which plaintiff has not adequately refuted, the

Court finds FBI Headquarters's withholding of seven pages to be properly justified and

concludes that the FBI is now entitled to judgment as a matter of law. See Mays v. DEA, 234

F.3d 1324, 1327 (D.C. Cir. 2000) (permitting an agency to withhold entire documents when the

'''exempt and nonexempt information are 'inextricably intertwined,' such that the excision of

exempt information would ... produce an edited document with little informational value. "')

(quoting Neufeldv. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)). A separate final Order

accompanies this Memorandum Opinion.

United States District Judge