Lopez v. Executive Office of the United States Attorneys ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS LOPEZ, :
:
Plaintiff, : Civil Action No.: 07-2002 (RMU)
:
v. : Document No.: 11
:
EXECUTIVE OFFICE FOR THE :
UNITED STATES ATTORNEYS, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff, Carlos Lopez, filed this suit under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The defendant, the Executive Office of the U.S. Attorneys
(“EOUSA”), filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure, which the plaintiff has opposed. Because there is no genuine issue of material fact
and the defendant is entitled to judgment as a matter of law, the court grants the defendant
summary judgment.
II. BACKGROUND
Lopez was arrested in 2001 on federal narcotics and firearms charges, having been
identified by a confidential informant, Jennifer Webber, who later testified against him at his trial
in 2003. Lopez, who is currently incarcerated after having been convicted of the charges
stemming from that arrest, submitted a FOIA request to EOUSA asking for “all and any records .
. . relating to my arrest and prosecution on federal narcotic and firearm violations in the State of
New Hampshire[,]” and in particular seeking “copies of Special Agent (SA) Steven Story, SA
Norman Houle, and SA Edward Bals’ investigation reports made on this matter.” See Def.’s
Mot. for Summ. J. (“Def.’s Mot.”), Ex. B. The purpose of his FOIA request was to obtain
information that would provide answers to the following questions about Webber:
(1) Was the government aware that their main witness, Jennifer Webber, had a
felony drug case pending while she served as their confidential informant?
(2) Did the government, or any of its employees, have contact with any State of
New Hampshire employee regarding Ms. Webber or her then-pending felony
cases in Strafford County Superior Court? and (3) Whether Ms. Webber was the
recipient of favorable treatment on behest of the government for cooperating as
their witness and/or serving as a confidential informant.
Pl.’s Opp’n at 7. Lopez asserts that Webber gave false testimony about the status of state
criminal charges pending against her at the time she testified against Lopez. Affidavit of Carlos
Lopez (“Lopez Aff.”) ¶ 13. He further asserts that the government failed to disclose to the
defense an alleged “‘deal’ made with Ms. Webber to secure her assistance and testimony.” Id.
¶ 14.
Lopez made his FOIA request by letter in August 2006. In November 2007, having
received no documents in response to his request, Lopez initiated this action. By letter dated
December 21, 2007, the defendant reported to the plaintiff that it had identified 980 pages of
responsive material, released 311 pages in full, released another 72 pages with redactions and
withheld 276 pages under stated statutory exemptions enumerated in the FOIA and the Privacy
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Act. See Declaration of Karen Finnegan (“Finnegan Decl.”) ¶¶ 13, 16.1 In addition, 327 pages
were referred to other agencies for review and potential release to the plaintiff. Id. ¶ 15.
The defendant filed this motion for summary judgment along with exhibits, the Finnegan
Declaration, and a Vaughn index indicating the statutory basis for any information not released to
the plaintiff. See generally Def.’s Mot. The plaintiff filed an opposition in which he challenges
the defendant’s decision to apply personal privacy exemptions to information about Webber. See
Pl.’s Opp’n at 6-7. In support, the plaintiff alleges that Webber gave perjured testimony at the
plaintiff’s criminal trial and that the government’s conduct constituted a Brady violation insofar
as his defense was deprived of impeachment material to use against Webber. See id. at 5; see
also Lopez Aff. & Exhibits. Throughout his submissions, the plaintiff emphasizes that because
the alleged Brady violation involves rights of constitutional dimension, the personal privacy
rights of third parties must give way. See Pl.’s Opp’n at 7; Pl.’s Request for Production of
Documents to EOUSA ¶ 7 (stating that “[t]he Defendants have cited numerous FOIA exemptions
based on third party privacy interests to justify their decision to withhold documents from the
Plaintiff. It is respectfully submitted that those exemptions cannot circumvent your Plaintiff’s
constitutional rights”).
1
The report and release were originally sent to a prior address. This error was corrected when
discovered, and the package re-sent to plaintiff’s correct address on January 30, 2008. Finnegan
Decl. ¶ 15.
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III. ANALYSIS
A. Legal Standard for Summary Judgment in a FOIA Case
Summary judgment may be granted only where the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one
that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). A genuine issue is one where the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party,” id., as opposed to evidence that “is so one-sided that
one party must prevail as a matter of law.” Id. at 252. A court considering a motion for
summary judgment must draw all “justifiable inferences” from the evidence in favor of the
nonmovant. Id. at 255.
In a FOIA suit, an agency is entitled to summary judgment once it bears its burden of
demonstrating that no material facts are in dispute and that it has conducted a search reasonably
calculated to uncover all relevant information, Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984), which either has been released to the requestor or is exempt from disclosure,
Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). A court may
award summary judgment to a FOIA defendant solely on the basis of information provided by the
department or agency in sworn statements with reasonably specific detail that justify the
nondisclosures, 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). To
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successfully challenge such a showing by the defendant agency, the plaintiff party must do more
than merely establish some “metaphysical doubt;” rather, the plaintiff must come forward with
“specific facts” demonstrating a genuine issue. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
B. Because There are No Material Facts at Issue,
the Court Grants Summary Judgment to the Defendant
The defendant has filed a sworn statement describing the search for responsive records.
See Def.’s Mot. at 4-6 (citing Finnegan Decl.). The plaintiff does not dispute that the search was
adequate. The defendant’s Vaughn index, which is commendably detailed, informative and
comprehensible, describes the nature and content of each document that was not released in full
to the plaintiff and both cites a statutory exemption and provides a narrative specific to the
document that explains the application of the asserted exemptions to that particular document.
All documents that were withheld in full or in part were withheld for multiple reasons. See
Vaughn Index. The defendant explained the statutory exemptions and each exemption’s
application to specific categories of information. See Def.’s Mot. at 17-31 (explaining the
application of Exemptions 6 and 7(C), which protects the identities and privacy of third parties),2
12-17 (explaining the application of Exemption 5, which protect both attorney work product and
information created as part of the deliberative process), and 8-12 (explaining the application of
2
FOIA Exemption 7(C) exempts “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). Because the defendant asserted Exemption 6 in every instance that it
asserted Exemption 7(C) and because the privacy inquiry in the two exemptions is essentially the
same, see Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004), the
applicability of Exemption 6 need not be, and is not here, separately analyzed.
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Exemption 3, which was used to withhold secret grand jury information in accord with Federal
Rule of Criminal Procedure 6(e) and to withhold confidential conflict of interest forms in accord
with 5 U.S.C. App. 4 § 107(a)(1)). Where information was withheld in full, there was a specific
determination made that no information could reasonably be segregated. See Def.’s Mot. at 31-
32. The Vaughn index and the Finnegan Declaration provide sufficient information, absent a
genuine issue of material fact raised by the defendant, to conclude that the decision to withhold
information was properly justified in each case.
Focusing on Webber’s trial testimony and what he believes to be a Brady violation by the
government, he has identified a list of 26 documents he asks the Court to inspect “to learn if any
of them contain information relevant to Ms. Webber and/or the State of New Hampshire.” Pl.’s
Opp’n at 8. A court is neither required nor well-advised to undertake in camera inspection of
documents at issue in a FOIA case absent some compelling reason. Mead Data Central, Inc. v.
U.S. Dep’t of Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977) (noting that routine reliance on in
camera inspection is neither consistent with the FOIA nor a wise use of judicial resources). In
this case the Vaughn index demonstrates that there is no need for an in camera inspection of the
26 documents of interest to the plaintiff. The defendant claims Exemption 5, 5 U.S.C.
§ 552(b)(5), as to 18 of those 26 documents, asserting that the withheld information is either
attorney work product or was created as part of the deliberative process. Compare Finnegan
Decl. ¶ 29 (listing documents as to which the defendant asserts Exemption 5) with Pl.’s Opp’n
at 8 (listing documents as to which he requests an in camera review). The plaintiff offers no
challenge to the defendant’s invocation of Exemption 5 for withholding information in these 18
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documents. Therefore, the defendant has carried its burden under the FOIA with respect to the
these 18 documents at issue, and only the 8 other documents remain at issue.
In addition, the plaintiff challenges the application of the personal privacy protections,
FOIA Exemptions 6 and 7(C), to information about Webber. Pl.’s Opp’n at 6. The plaintiff
argues that the personal privacy exemptions defendants must yield in the face of the plaintiff’s
belief that a Brady violation infected his criminal trial. Id. at 7. The plaintiff’s argument simply
does not comport with the law. Given the nature of law enforcement records, the individual’s
“privacy interest at stake is substantial.” SafeCard Serv., Inc. v. S.E.C., 926 F.2d 1197, 1205
(D.C. Cir. 1991); see also Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)
(holding that, in light of the stigma potentially associated with law enforcement investigations,
Exemption 7(C) affords broad privacy rights to suspects, witnesses and investigators). Given the
significant individual privacy interest, disclosure of 7(C) material is warranted only when the
individual’s interest in privacy is outweighed by the public’s interest in disclosure. United States
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989)
(requiring court to “balance the public interest in disclosure against the interest Congress
intended [Exemption 7(C)] to protect”); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir.
1993). Here, the interest plaintiff advances is private, not public, which is “irrelevant to this
balancing.” Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000).
Furthermore, even if the plaintiff’s private interest is construed as a public interest in promoting
the rule of law, “[f]irst, the citizen must show that the public interest sought to be advanced is a
significant one, an interest more specific than having the information for its own sake. Second,
the citizen must show the information is likely to advance that interest. Otherwise the invasion
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of privacy is unwarranted.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004). Even if the plaintiff satisfied the first showing, on these facts, he would fail to satisfy the
second showing. The Vaughn index on its face shows that there is no basis on which to conclude
that the sort of information the plaintiff is seeking is contained in the remaining 8 documents at
issue. Four of the documents have been withheld only in part, redacting only witness names and
addresses, but disclosing to the plaintiff the other contents of the documents. See Vaughn Index,
Docs. 42, 61, 87, and 1-S. There is no indication from plaintiff that the disclosed content of any
of those four documents is associated with Webber or the information he related to her that he
seeks. The other four documents, each of which is a handwritten note on a single page, have
been withheld in full. For each of these, the narrative in the Vaughn index indicates that the
document contains no information other than witness name and address information. See id.,Docs. 3 (“Hand-written note containing the names and business addresses of two witnesses”), 4
(“Hand-written list of witnesses to receive a trial subpoena”), 5 (“Hand-written note containing
witness’s name, place of residence, and fax number”), and 25 (“Hand-written note containing the
name, address & telephone number of a third party”). Thus, the information disclosed in the
Vaughn index demonstrates that disclosure of the information withheld in these 8 documents is
not likely to advance any significant public interest, even if the plaintiff could establish that the
public has a significant interest in the material he is seeking. On this record, the plaintiff has not
shown a public interest in disclosure that outweighs the substantial privacy interests.
The record in this case establishes that the defendant properly applied several identified
exemptions to withhold certain information from release to the public. The plaintiff challenged
only the personal privacy exemption with respect to certain documents, and he failed to show a
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public interest in disclosure that outweighed the substantial privacy interest protected by the
statutory exemption. On this record, there is no genuine dispute of material fact and the
defendant is entitled to judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion for summary judgment.
An Order consistent with this Memorandum Opinion is separately and contemporaneously issued
this 25th day of February 2009.
RICARDO M. URBINA
United States District Judge
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