Smith v. Federal Bureau of Investigation ( 2009 )

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