Smith v. Federal Bureau of Investigation

• Court: District Court, District of Columbia
• Decided: October 19, 2009
• Docket: Civil Action No. 2007-1183
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) GARY L. SMITH, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1183 (RWR) ) FEDERAL BUREAU OF INVESTIGATION, ) ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

In this Freedom of Information Act (“FOIA”) case, defendant was ordered to supplement

the record with regard to (1) its withholding of certain information under FOIA exemption 7(D),

(2) its withholding of entire documents, (3) its search for records in the FBI Tampa field office

and (4) plaintiff’s request for disciplinary records pertaining to Agent Cameron D. Roe. See

Memorandum Opinion and Order (“Mem. Op.”) of April 27, 2009 [Dkt. No. 58] at 13-14.

Defendant now renews its motion for summary judgment [Dkt. No. 62], which plaintiff has

opposed [Dkt. No. 64]. Upon consideration of the parties’ supplemental submissions and the

entire record, the renewed motion will be granted.

1. FOIA Exemption 7(D)

Defendant had not justified withholding information under Exemption 7(D) based on an

implied grant of confidentiality. See Mem. Op. at 10-11. Defendant further explains that

“plaintiff has a propensity for violence,” as evidenced by a pretrial detention motion filed in the

criminal case that “highlights the fact that the plaintiff was indicted on three violent offenses[,] and “raises concerns that the plaintiff would obstruct or attempt to obstruct justice by threatening

or intimidating witnesses,” and by the FBI’s receipt of “information that plaintiff threatened the

victim and a witness in relation to his criminal trial.” Sixth Declaration of David M. Hardy

(“Hardy 6th Decl.”) [Dkt. No. 62-2] ¶ 68. Given these additional facts and the nature of the

investigated crime, i.e., child sexual exploitation, defendant has now adequately justified

withholding information based on an implied grant of confidentiality.

Plaintiff counters that “any information testified to by any of the witnesses at the

Plaintiff’s criminal trial” is not confidential and, thus, should have been disclosed. Plaintiff’s

Opposition to Defendant’s Renewed Motion for Summary Judgment (“Pl.’s Opp’n”) [Dkt. No.

64] ¶ 12. But “[p]rior disclosure of similar information does not suffice as a general waiver of a

FOIA exemption; instead, it must be proven that the information requested has been officially

released into the public domain.” Center for Intern. Environmental Law v. Office of U.S. Trade

Rep., 505 F. Supp.2d 150, 158 (D.D.C. 2007) (citation omitted). “ ‘[A] plaintiff asserting a claim

of prior disclosure must bear the initial burden of pointing to specific information in the public

domain that appears to duplicate that being withheld.’ ” Wolf v. CIA, 473 F.3d 370, 378 (D.C.

Cir. 2007) (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir.1983)). In the case

of testimony, the government is then obligated “to disclose only the ‘exact information’ to which

the source actually testified.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir.

1992) (quoting Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 577 (D.C. Cir. 1990)). Thus,

“even when [a confidential] source testifies in open court . . . he does not thereby ‘waive the

[government's] right to invoke Exemption 7(D) to withhold . . . information furnished by a

confidential source not actually revealed in public.’ ” Davis, 968 F.2d at 1281 (quoting Parker v.

2 Dep’t of Justice, 934 F.2d 375, 379-80 (D.C. Cir. 1991)). Plaintiff’s general claim of prior

disclosure through trial testimony fails to carry his burden of identifying with specificity the

exact testimony that is duplicated in withheld materials. He has therefore not established his

entitlement to the confidential source material properly withheld under Exemption 7(D).

2. Record Segregability

Defendant had not provided any evidence to support a finding about record segregability.

See Mem. Op. at 11. It subsequently determined that parts of two previously withheld pages

could be released, Hardy 6th Decl., Ex. A., but continues to withhold 216 pages in their entirety

under FOIA exemptions 2, 6, 7(C), 7(D) and 7(E). Hardy 6th Decl. .¶¶ 7-63. In addition,

defendant identifies three pages that were properly withheld as duplicates of released pages. Id.

¶ 64. Mr. Hardy’s descriptions of the withheld pages, id. ¶¶ 8-63, establish their content as third-

party identifying information exempt from disclosure under Exemption 7(C) and confidential

source information exempt from disclosure under Exemption 7(D). See Mem. Op. at 7-11.

Moreover, Mr. Hardy confirms that the withheld pages were “carefully examined” for the

specific purpose of determining whether they contained excisable material -- an examination that

resulted in the supplemental release of two redacted pages. Id. ¶ 73.

Plaintiff challenges defendant’s withholding of document 255 (a business card) because it

allegedly belonged to him. Pl.’s Opp’n ¶ 21. Because a FOIA disclosure is made “to the public

as a whole,” Stonehill v. I.R.S., 558 F.3d 534, 539 (D.C. Cir. 2009), plaintiff’s possession of the

document is irrelevant to the analysis. See Swan v. S.E.C., 96 F.3d 498, 499-500 (D.C. Cir.

1996) (finding the identity of the FOIA requester to be generally “of no significance”) (citing

cases). The withheld page “is a photocopy of what appears to be the back of a business card,”

containing exempt information, namely, a third-party address and the “names and identifying

3 information of third parties merely mentioned.” Hardy 6th Decl. ¶ 12. Defendant has now

properly justified its withholding of 216 responsive pages in their entirety.

Plaintiff contends that defendant “over-redacted” pages that were released to him and

proffers as a comparison an unredacted copy of a document that the FBI had released with

redactions, Pl.’s Opp’n at 6 & Exs. E-F, and a redacted document from the United States Postal

Service, Pl.’s Ex. D. The latter document is irrelevant because it appears to have come from a

non-party and has nothing to do with this case. As for the former two documents, plaintiff does

not reveal the source of the unredacted document but assuming that he obtained it during

discovery in the criminal proceedings, “a constitutionally compelled disclosure to a single party

simply does not enter the public domain.” Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999).

Moreover, “the fact that information exists in some form in the public domain does not

necessarily mean that official disclosure will not cause harm cognizable under a FOIA

exemption.” Wolf, 473 F.3d at 238 (citation omitted). Thus, an agency responding to a FOIA

request is not foreclosed from asserting exemptions to withhold information that it had

previously disclosed to a party in a non-FOIA proceeding. See Stonehill, 558 F.3d at 539

(rejecting challenge to agency’s separate FOIA review of documents previously reviewed in

response to civil discovery request in part because “the stakes of disclosure [to the public at

large] are greater in the FOIA context”).

When, as here, the agency has shown that it released all reasonably segregable responsive

records, no issue remains to be resolved under the FOIA. See Perry v. Block, 684 F.2d 121, 125

(D.C. Cir. 1982) (“[O]nce all requested records are surrendered, federal courts have no further

4 statutory function to perform.”).1 Defendant is now entitled to judgment on its withholding of

responsive material.

3. The Search for Records in the Tampa Field Office

A released memorandum that was purportedly sent to the FBI’s Tampa Field Office

raised a question about the adequacy of defendant’s search, which had located no records there.

See Mem. Op. at 13. Defendant conducted “a second search” of files in the Tampa Field Office

“that [were] likely to yield records responsive to plaintiff’s request,” including “four obtainable

cross-references,” but located no responsive records. Hardy 6th Decl. ¶ 72. It therefore “has

determined that the memorandum . . . may have been improperly indexed in our filing system[.]”

Id. Defendant’s failure to uncover the memorandum from this otherwise adequate search “does

not demonstrate the inadequacy of [the] search.” Boyd v. Criminal Div. of U.S. Dept. of Justice,

475 F.3d 381, 390 -391 (D.C. Cir. 2007) (citations omitted). In the absence of any signs of bad

faith in the agency’s search, defendant is now entitled to judgment on its search for responsive

records. See Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981) (“In order

to prevail on this appeal [involving the agency’s search], . . . appellant must point to evidence

sufficient to put the Agency's good faith into doubt.”).

4. Records Pertaining to Agent Roe

Defendant had not responded to plaintiff’s request made to the Atlanta Field Office and

FBI Headquarters for disciplinary records pertaining to Agent Cameron D. Roe. See Mem. Op.

1 Plaintiff claims for the first time that defendant has failed to release records that were referred to the FBI from the Executive Office for United States Attorneys. Pl.’s Opp’n ¶ 23 & Ex. A. Any claim based on the FBI’s processing of the referred records is not only beyond the scope of this litigation, see Mem. Op. at 1-2, but is also premature because “the FBI is currently processing the[] referred records.” Pl.’s Ex. A (agency response to administrative appeal).

5 at 1 n.1. Defendant is neither confirming nor denying the existence of such records as per FBI

policy “when requests have been made for access to information pertaining to third parties[.]” 6th

Hardy Decl. ¶ 69. Such a response is commonly known as a “Glomar” response, see Phillippi v.

Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) (involving a CIA response to a

FOIA request for records pertaining to a ship, the “Hughes Glomar Explorer”), and is typically

invoked to protect the privacy interests of third-party individuals under FOIA exemptions 6 and

7(C), see Barbosa v. Drug Enforcement Admin., 541 F. Supp. 2d 108, 110-11 (D.D.C. 2008)

(noting agency explanation “that DEA employs Glomar responses to protect the privacy interests

of third-party individuals pursuant to FOIA exemptions 6 and 7(C) and to prevent the drawing of

adverse inferences from its responses to requests for confidential informant records”).

Although Mr. Hardy has not cited any FOIA exemptions, he explains that any responsive

“information [] would be exempt from disclosure in all instances where the personal privacy

interests outweighs [sic] the public interest in disclosure.” Hardy 6th Decl. ¶ 69. Mr. Hardy also

contends, assuming the existence of responsive records, that the Glomar response avoids “the

damage to the individual’s personal privacy [that] would have already occurred by the mere

confirmation of the existence of responsive records,” id., and that if, as plaintiff suggests, Agent

Roe is an FBI employee, “then he would have substantial privacy interests in his name and

identifying information not being released.” Id. ¶ 70.

FOIA Exemption 6 protects information about individuals in “personnel and medical files

and similar files the disclosure of which would constitute a clearly unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(6). All information that “applies to a particular individual”

would qualify for consideration under this exemption. U.S. Dep't of State v. Washington Post

Co., 456 U.S. 595, 602 (1982); see also New York Times Co. v. NASA, 920 F.2d 1002, 1005

6 (D.C. Cir. 1990) (en banc). Although Exemption 7(C) may be equally applicable, see Mem. Op.

at 7-8, the requested records fall squarely within the type, i.e. “personnel” files, that Exemption 6

is designed to protect. See also Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 390 n.6 (D.C.

Cir. 1987) (“The Supreme Court has held specifically that records of disciplinary proceedings are

‘similar files’ within the meaning of the statute.”) (citing Dep’t of the Air Force v. Rose, 425 U.S.

352, 376-77 (1976)). The District of Columbia Circuit has identified “a [] general interest in

protecting the privacy of [one’s] employment records against public disclosure . . . [and] at least

a minimal interest in not having it known whether those records contain or do not contain

[disciplinary action].” Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990).

Plaintiff’s reasons for seeking Agent Roe’s disciplinary records were previously found

insufficient to warrant disclosure of the exempt records based on an overriding public interest,

Mem. Op. at 8-9, and “something, even a modest privacy interest, outweighs nothing every

time.” Nat’l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989);

accord Consumers’ Checkbook Center for the Study of Services v. U.S. Dep’t of Health and

Human Services, 554 F.3d 1046, 1056 (D.C. Cir. 2009). Because defendant’s confirmation of

records concerning “[a]ny adverse action or disciplinary reports on Agent Cameron D. Roe”

would necessarily reveal the precise information Exemption 6 shields, the Glomar response was

proper. See Dunkelberger, 906 F.2d at 781 (holding with respect to request for agent’s records

“that Exemption 7(C) was properly invoked and the FBI's refusal to confirm or deny the

existence of letters of reprimand or suspension [was] fully justified”).2

2 “We do not address the applicability of Exemption 6 because the district court did not rule on that issue.” Dunkelberger, 906 F.2d at 781.

7 CONCLUSION

For the foregoing reasons, the FBI’s final motion for summary judgment is granted. A

separate final Order accompanies this Memorandum Opinion.

_________/s/_____________ RICHARD W. ROBERTS DATE: October 19th, 2009 United States District Judge