Negley v. Federal Bureau of Investigation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
JAMES LUTCHER NEGLEY, :
:
Plaintiff, :
:
v. : Civil Action No. 03-2126 (GK)
:
FEDERAL BUREAU OF :
INVESTIGATION, :
:
Defendant. :
_______________________________:
MEMORANDUM OPINION
Plaintiff James Lutcher Negley (“Plaintiff”), brings this
action against Defendant, Federal Bureau of Investigation (“FBI” or
“Defendant”), under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. This matter is now before the Court on Plaintiff’s
Motion for Summary Judgment [Dkt. No. 112] and Defendant’s Motion
for Summary Judgment [Dkt. No. 116].
Upon consideration of the Motions, Oppositions, Replies, the
entire record herein, and for the reasons discussed below,
Plaintiff’s Motion for Summary Judgment is denied and Defendant’s
Motion for Summary Judgment is granted.
However, the FBI should take no comfort in prevailing on its
Motion for Summary Judgment. It has taken almost 10 years for Mr.
Negley to get the documents to which he is legally entitled under
FOIA. The FBI has stonewalled, has delayed, has repeatedly “found”
responsive documents long after it should have, and has on numerous
occasions failed to meet its obligations under FOIA. This conduct
has forced this Court and Plaintiff (to say nothing of the FBI
itself) to expend substantial resources to force the FBI to meet
its statutory obligations. The fact that, after almost 10 years,
the FBI has--finally--“gotten it right” is a tribute to the
persistence, patience, and diligence of Mr. Negley and his counsel.
Indeed, this case is a sad example of how a federal agency can
delay, and almost succeed, in avoiding compliance with one of this
nation’s most important statutes.1
I. BACKGROUND2
This case concerns a FOIA dispute between Negley and the FBI,
which has been ongoing for over nine years. On January 16, 2002,
Negley submitted a FOIA request to the FBI’s San Francisco Field
Office (“SFFO”) seeking “a copy of any records about [him]
maintained at and by the FBI in [the San Francisco] field office.”
On January 30, 2002, the FBI informed Negley that a search of its
Central Records System did not yield any records responsive to his
request.
On October 17, 2003, after more than a year and a half of
waiting without any substantive response from the FBI, Plaintiff
1
For these reasons, the Court understands the frustration
voiced in Plaintiff’s most recent pleadings. While there is much
intemperate language and sarcasm in his latest round of pleadings,
of which the Court would ordinarily disapprove, there is ample
justification for them.
2
Unless otherwise noted, the facts set forth herein are drawn
from parties’ Statements of Material Facts Not in Dispute submitted
pursuant to Local Rule 7(h).
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filed this suit. Plaintiff challenged the FBI’s compliance with
FOIA and sought production of all agency records relating to him
from the SFFO. Compl. ¶¶ 1, 19 [Dkt. No. 1].
On August 24, 2007, after several years of litigation
regarding the specifics of the FBI’s FOIA responsibilities,
Plaintiff filed a Motion for Partial Summary Judgment [Dkt. No.
71], arguing that the FBI’s search and production of documents were
inadequate as a matter of law, and failed to comply with his FOIA
request.3 Plaintiff argued that “despite his broad request ‘for any
records about him,’ and the existence of nine different sources of
searchable records, the FBI’s only pre-lawsuit search was of one
such source--the Universal Index (‘UNI’).” Negley v. FBI, 658 F.
Supp. 2d 50, 56-57 (D.D.C. 2009) (citations omitted). On the same
day, Defendant filed a Second Motion for Summary Judgment on all
claims raised by Plaintiff [Dkt. No. 72].
3
The Court previously granted Defendant’s Motion for Summary
Judgment [Dkt. No. 10], finding that Plaintiff’s claim was barred
by the doctrine of res judicata, and that the FBI’s search for
records was adequate. Negley v. FBI, No. 04-5348 (D.D.C. July 26,
2004)[Dkt. No. 26]. The Court of Appeals subsequently reversed and
remanded the case, concluding that application of res judicata was
in error, and that there was sufficient doubt about the adequacy of
the FBI’s search that summary judgment was not warranted. Negley v.
FBI, 169 F. App’x. 591, 593-94 (D.C. Cir. 2006). On remand, this
Court ordered Defendant to (1) conduct a search for, and produce,
certain documents; (2) provide a Vaughn Index and a detailed
affidavit explaining any redactions or withholdings; and (3) allow
Plaintiff to take depositions of FBI personnel. Scheduling Order
(Feb. 2, 2006) [Dkt. No. 31]. On January 8, 2007, Defendant’s
Motion for Reconsideration was granted as to all File Numbers
except for Sub S0-3041 (Serial 3041). Order, Jan. 8, 2007 [Dkt. No.
43].
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On June 15, 2009, unbeknownst to the Court, Plaintiff
submitted a separate, expansive FOIA request to Defendant, seeking
“all records in the possession of the Federal Bureau of
Investigation relating, in any way, to James Lutcher Negley.”
Eighth Hardy Decl. ¶ 10, Apr. 22, 2010 [Dkt. No. 103-3]. Neither
party informed the Court of Plaintiff’s June 2009 request.
On September 24, 2009, this Court granted Plaintiff’s Motion
for Partial Summary Judgment and denied Defendant’s Second Motion
for Summary Judgment, finding that the FBI’s search for responsive
documents was inadequate, and that Defendant’s production of
documents was insufficient. Negley, 658 F. Supp. 2d at 56-61. The
Court ordered Defendant to:
(1) “produce File Number 149A-SF-106204-S-1575 in its
entirety, along with a Vaughn Index for any
redactions and/or withholdings and a detailed
affidavit explaining the bases for any redactions
and/or withholdings” within 30 days of the date of
the Order (by October 26, 2009);
(2) conduct reasonable searches, “in response to
Negley’s FOIA request, for all documents that
relate to or reference Negley in any manner,” or
specify with sufficient detail the search terms
used in its previous searches of certain databases,
within 60 days of the date of the Order (by
November 23, 2009);4
4
Specifically, Defendant was ordered to conduct a search of
(1) the ICM database, using relevant file numbers and dates; (2)
the ECF database that “captures at least the ‘six-way phonetic
breakdown’ of Negley’s name”; (3) the ELSUR database; (4) the Zy
database; (5) the SFFO card index; (6) FBIHQ; and (7) handwritten
notes, personal files and restricted files. Order 2-3, Sept. 24,
2009.
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(3) produce “all documents, including duplicates,
responsive to Negley’s FOIA request,” along with a
Vaughn Index for any redactions and/or
withholdings, within 90 days of the date of the
Order (by December 23, 2009); and
(4) make its affiants available for three depositions,
limited to: (A) the topics discussed in Hardy’s
Fifth Declaration (within 30 days of the date of
the Order); (B) the affidavit explaining any
redactions and/or withholdings from the Vaughn
Index for File S-1575 (within 60 days of the date
of the Order); and (C) the affidavit explaining the
searches conducted in response to Negley’s FOIA
request, including all search terms used, and the
bases for any redactions and/or withholdings from
the Vaughn Index for the documents produced within
90 days of the date of the Order (by December 23,
2009).
Order 1-4, Sept. 24, 2009 (the “September 24, 2009, Order”) [Dkt.
No. 90].
In response to this Order, Defendant took the following
actions: (1) on October 22, 2009, Defendant made David M. Hardy
available for a deposition on the topics discussed in the Fifth
Hardy Declaration; (2) on October 26, 2009, Defendant released to
Plaintiff File Number 149A-SF-106204-S-1575, along with a Vaughn
Index and the Sixth Declaration of David M. Hardy, Oct. 24, 2009
[Dkt. No. 103-1], explaining the bases for Defendant’s redactions
and/or withholdings; (3) Defendant conducted the searches specified
by the Order, or, where appropriate, specified with sufficient
detail the search terms used in its previous searches, the details
of which were disclosed in the Seventh Declaration of David M.
Hardy, Dec. 23, 2009 [Dkt. No. 103-2]; (4) on December 23, 2009,
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Defendant produced all responsive documents5 identified in the
above searches, along with a Vaughn Index and the Seventh Hardy
Declaration, which explained the bases for any redactions and/or
withholdings; and (5) on January 28, 2010, by agreement of the
parties, Plaintiff took the deposition of Hardy on the topics
discussed in the Sixth Hardy Declaration and Seventh Hardy
Declaration.
All searches conducted after the issuance of the Court’s
September 24, 2009, Order were conducted to locate records
responsive to both Plaintiff’s 2002 and 2009 FOIA requests.
However, the searches conducted pursuant to Plaintiff’s 2009
request did not locate any responsive “investigatory” records that
had not previously been released. The searches did locate
“administrative” files, which are not typically produced because
most requesters do not want a copy of their own request or want to
pay for these files. The FBI subsequently sent Plaintiff two
letters inquiring as to whether he would like to receive these
files, and the FBI never received any clear response.
5
The Seventh Hardy Declaration noted that some records
located from these searches were not produced to Plaintiff: (1)
from the UNI search, “administrative files related to the
Plaintiff’s prior FOIA/PA requests to other field offices and the
FBI’s file related to this litigation file”; (2) from the ECF
search, five serials in which Plaintiff’s name appeared in the
text. One serial was a litigation file concerning the SFFO, three
serials were from Plaintiff’s prior FOIA/PA requests to the Miami,
Los Angeles, and San Antonio field offices, and the fifth serial
did not concern Plaintiff. Seventh Hardy Decl. ¶ 39(b).
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On April 5, 2010, Plaintiff filed a Motion for Contempt for
Defendant’s Failure to Comply with the Court’s September 24, 2009,
Order [Dkt. No. 102]. On March 1, 2011, this Court denied
Plaintiff’s Motion for Contempt, finding that Defendant did not
violate the Court’s “reasonably clear and unambiguous order.”
Negley v. FBI, 766 F. Supp. 2d 190, 196 (D.D.C. 2011). On March 9,
2011, Plaintiff filed a Motion for Reconsideration of that ruling
[Dkt. No. 111], which is the subject of a separate Order and
Memorandum Opinion accompanying this Order and Memorandum Opinion.
On March 15, 2011, Plaintiff filed the pending Motion for
Summary Judgment (“Pl.’s Mot.”) [Dkt. No. 112]. On May 2, 2011,
Defendant filed its Opposition and Cross-Motion for Summary
Judgment (“Def.’s Mot.”) [Dkt. Nos. 116-117]. On June 1, 2011,
Plaintiff filed his Opposition and Reply [Dkt. Nos. 118-119]. On
July 1, 2011, Defendant filed its Reply [Dkt. No. 121].
II. STANDARD OF REVIEW
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. United States Border Patrol, 623 F.
Supp. 2d 83, 87 (D.D.C. 2009). “The standard governing a grant of
summary judgment in favor of an agency’s claim that it has fully
discharged its disclosure obligations under FOIA is well-
established . . . . [T]he agency bears the burden of showing that
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there is no genuine issue of material fact, even when the
underlying facts are viewed in the light most favorable to the
requester.” Weisberg v. United States Dep't of Justice, 705 F.2d
1344, 1350 (D.C. Cir. 1983); see also Fed. R. Civ. P. 56(c).
The court may award summary judgment solely on the basis of
“[a] reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials (if such records exist) were
searched.” Oglesby v. United States Dep’t of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990).
If the agency withholds any material on the basis of statutory
exemptions, the agency’s affidavits must also (1) “describe the
documents and the justifications for nondisclosure with reasonably
specific detail;” and (2) “demonstrate that the information
withheld logically falls within the claimed exemption;” and must
not be (3) “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). Such affidavits or
declarations are accorded “a presumption of good faith, which
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. Cent. Intelligence
Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
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III. ANALYSIS
The outstanding disputes regarding Plaintiff’s 2002 FOIA
request fall into two basic categories. First, Plaintiff argues
that Defendant’s search itself was inadequate. Second, Plaintiff
contends that Defendant improperly withheld certain information
based on statutory exemptions. Each of these claims will be
addressed in turn.
A. Sufficiency of the Search
The purpose of FOIA is to “facilitate public access to
Government documents” and “to pierce the veil of secrecy and to
open agency action to the light of public scrutiny.” McCutchen v.
United States Dep’t of Health & Human Servs., 30 F.3d 183, 184
(D.C. Cir. 1994) (internal quotations omitted). In responding to a
FOIA request, an agency is under an obligation to conduct a
reasonable search for responsive records. Oglesby, 920 F.2d at 68.
To win summary judgment on the adequacy of a search, the agency
must demonstrate beyond material doubt that its search was
“reasonably calculated to uncover all relevant documents.”
Weisberg, 705 F.2d at 1351. An agency may demonstrate the
reasonableness of its search by submitting “[a] reasonably detailed
affidavit.” Oglesby, 920 F.2d at 68.
First, Plaintiff argues that the FBI’s search was not
reasonable because it failed to locate one document, “which is
dated September 18, 1995 and contains a San Francisco file number
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of 149A-SF-106204-S-7575 (or 1575).” Pl.’s Mot. 8-9. Second,
Plaintiff argues that “the FBI’s use of April 2002 as the cut-off
date for production of documents is unreasonable.” Id. at 9-13.
1. Failure to Locate a Document
Plaintiff does not challenge the parameters of the search
conducted by the FBI, which, of course, were based on this Court’s
September 24, 2009, Order. Instead, Plaintiff presents a document
bearing his name, a date of September 18, 1995, and a San Francisco
file number, which Plaintiff argues should have been uncovered by
a reasonable search of the San Francisco Field Office files. Pl.’s
Mot. 8-9. Plaintiff contends that “the very fact that this document
exists and has not been produced in this case, despite fitting
precisely within the FBI’s own limitations to production, shows
that either its search or production are unreasonable and do not
meet the standards of FOIA.” Id. at 9.
However, Defendant’s affidavit provides a plausible, if
somewhat speculative, explanation for the failure of a reasonable
search to locate this document. David M. Hardy, the Section Chief
of the Record/Information Dissemination Section, Records Management
Division, of the FBI, explains that this record was found in a
Sacramento file, but not a San Francisco file. Ninth Hardy Decl.
¶ 6, May 2, 2011 [Dkt. No. 117-4]. According to Hardy, the San
Francisco file number does not appear to have originally been on
the document, but rather was manually added using a stamp and hand-
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written notation. Id. Hardy confirms that “[a]n original or copy of
this document was not located during the search of the San
Francisco 149A-SF-106204 file at issue in this case and a physical
review (and later processing) of the 149A-SF-106204-S-1575 file
serial did not locate this record.” Id.
Hardy reasons that this file was found in Sacramento, but not
in San Francisco, because the file contains a tip that came into
the San Francisco Field Office’s UNABOM tip line, which “would have
been delegated to the Sacramento Field Office for action.” Id. The
San Francisco Field Office made its own determination “of which
leads were significant enough to warrant placement in the San
Francisco UNABOM investigative file.” Id. Hence, according to
Hardy, it is not surprising that this file would exist in
Sacramento, but not in San Francisco, which was the object of
Plaintiff’s 2002 FOIA request. See Negley, 766 F. Supp. 2d at 195
(finding that Plaintiff’s 2002 request was limited to documents
held by the San Francisco field office).
Moreover, “adequacy of a search is not determined by its
results, but by the method of the search itself.” Saldana v. Fed.
Bureau of Prisons, 715 F. Supp. 2d 24, 26 (D.D.C. 2010) (citing
Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984)). Indeed, “an agency’s failure to find a
particular document does not undermine the determination that the
search was adequate” and “there could be several possible reasons
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other than an inadequate search for why particular records are not
located.” Jefferson v. Bureau of Prisons, 578 F. Supp. 2d 55, 58
(D.D.C. 2008) (citing Wilbur v. Cent. Intelligence Agency, 355 F.3d
675, 678 (D.C. Cir. 2004)).
Plaintiff is therefore incorrect when he argues that “the very
fact that this document exists and has not been produced in this
case, despite fitting precisely within the FBI’s own limitations to
production, shows that either its search or production are
unreasonable and do not meet the standards of FOIA.” Pl.’s Mot. 9.
Given the history of this litigation and the FBI’s recalcitrance in
complying with FOIA, Plaintiff’s scepticism about the accuracy of
Hardy’s affidavit is very understandable. However, Plaintiff is
challenging the failure to locate one document, and that is not
sufficient to defeat summary judgment given the Court’s finding in
March, 2011, that the FBI has--finally--complied with the Court’s
September 24, 2009 Order specifying in great detail what kind of
search the FBI was required to undertake.
2. April 2002 Cut-off Date
Plaintiff next argues that it was unreasonable for Defendant
to deem only records created before April 2002 as responsive to his
2002 FOIA request. Pl.’s Mot. 9-13. This is now the third time
Plaintiff has pressed this argument. Plaintiff originally argued
that Defendant should be held in contempt for imposing such a
temporal restriction in response to the Court’s September 24, 2009,
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Order, and, after losing that Motion, filed a Motion for
Reconsideration of this same issue. In denying the Motion for
Contempt, the Court held that “it was reasonable for the FBI to use
a cut-off date of April 2002, when it was aware that it would also
have to respond to Plaintiff's broader 2009 FOIA request.” Negley,
766 F. Supp. 2d at 196.
As stated in the Court’s accompanying Memorandum Opinion
regarding Plaintiff’ Motion for Reconsideration, Plaintiff has
presented no reason for the Court to change its prior analysis. It
is true, as Plaintiff himself states, “temporal limitations on FOIA
productions are prohibited where the agency is unable to
demonstrate that such cut-offs are reasonable under the
circumstances.” Pl.’s Mot. 10 (emphasis added). However, in this
particular circumstance, the FBI responded to Plaintiff’s 2002
request while also conducting searches in response to a subsequent,
much broader request. Indeed, “following searches conducted in
response to the June 14, 2009, FOIA/PA requests and the Court’s
September 24, 2009 Order, the FBI did not locate any responsive FBI
investigatory records related to plaintiff that had not been
previously released.” Eighth Hardy Decl. ¶ 16. Simply put,
Defendant’s search and production in response to the 2002 request
were reasonable under the specific circumstances of this case.
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B. Claimed Exemptions
Plaintiff also objects to Defendant’s withholding of certain
information based on statutory exemptions. FOIA “requires agencies
to comply with requests to make their records available to the
public, unless the requested records fall within one or more of
nine categories of exempt material.” Oglesby v. United States Dep’t
of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C.
§§ 552(a), (b)). An agency that withholds information pursuant to
a FOIA exemption bears the burden of justifying its decision,
Petroleum Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1433
(D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit
an index of all materials withheld. Vaughn v. Rosen, 484 F.2d 820,
827-28 D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). In
determining whether an agency has properly withheld requested
documents under a FOIA exemption, the district court conducts a de
novo review of the agency’s decision. 5 U.S.C. § 552(a)(4)(B).
As with claims of inadequacy of the search, the court may
award summary judgment as to withheld records solely on the basis
of information provided in affidavits or declarations when they (1)
“describe the documents and the justifications for nondisclosure
with reasonably specific detail;” (2) “demonstrate that the
information withheld logically falls within the claimed exemption;”
and (3) “are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Military Audit
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Project, 656 F.2d at 738. As noted above, such affidavits or
declarations are accorded “a presumption of good faith, which
cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard
Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, 692 F.2d at
771).
Specifically, Plaintiff protests Defendant’s invocation of
Exemption 7(C), which protects information compiled for law
enforcement purposes to the extent that disclosure “could
reasonably be expected to constitute an unwarranted invasion of
personal privacy.” 5 U.S.C. § 522(b)(7)(C).6 The FBI has relied on
6
Plaintiff has failed to contest the FBI’s invocation of any
exemption other than 7(C). Therefore, the Court may treat the
Defendant’s arguments concerning Exemptions 6 and 7(D) as conceded.
Fischer v. United States Dep’t of Justice, 723 F. Supp. 2d 104, 110
(D.D.C. 2010) (“It is proper to treat defendant’s argument as
conceded, with regard to the exemptions and categories not
challenged by plaintiff.”) (internal quotation omitted); Hopkins v.
Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003) (“It is well understood in this Circuit that when a
plaintiff files an opposition to a dispositive motion and addresses
only certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as conceded.”)
(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)).
Similarly, Plaintiff has not opposed Defendant’s argument that
it has released all reasonably segregable portions of exempt
records. Def.’s Mot. 34; see 5 U.S.C. § 552(b). The FBI’s declarant
has stated that the FBI has released 120 pages, including “66 pages
in full and 54 pages in part.” Seventh Hardy Decl. ¶ 4. The FBI did
not withhold any pages in full. Id. Further, “[e]very effort was
made to provide plaintiff with all material in the public domain
and with all reasonably segregable portions of releasable
material.” Id. ¶ 47. In light of Plaintiff’s failure to offer any
opposition to Defendant’s arguments and Defendant’s affidavit
(continued...)
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Exemption 7(C) to protect names and/or identifying information of:
(1) FBI personnel; (2) individuals who furnished information to the
FBI under an implied assurance of confidentiality; (3) State
government employees or non-federal law enforcement officers; (4)
third parties merely mentioned; (5) individuals interviewed by the
FBI; and 6) third parties of investigative interest. Seventh Hardy
Decl. ¶ 49. Defendant argues that “for each of these categories of
information, the FBI explained in detail how disclosure of certain
information pertaining to individuals could be reasonably expected
to result in an invasion of personal privacy and worse still, could
risk subjecting the named individuals to harassment, public
embarrassment, and retaliation.” Def.’s Mot. 25; Seventh Hardy
Decl. ¶¶ 61-70. Plaintiff argues that “the FBI has not established
the redactions are necessary to protect against an unwarranted
invasion of privacy.” Pl.’s Mot. 15.
In determining whether Exemption 7(C) applies, the Court must
balance the public interest in disclosure with the privacy
interests implicated by release of the material. Computer Prof’ls
for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897,
904 (D.C. Cir. 1996). Suspects, witnesses, investigators, and third
6
(...continued)
attesting to its efforts, the Court deems the issue conceded, and
finds that the Defendant has fulfilled its responsibility to
produce all reasonably segregable portions of exempt documents.
Quick v. United States Dep’t of Commerce, Nat. Inst. of Standards
and Tech., 775 F. Supp. 2d 174, 179-80 (D.D.C. 2011) (treating
segregability as conceded); Hopkins, 284 F. Supp. 2d at 25.
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parties all have substantial privacy interests that are implicated
by the public release of law enforcement investigative materials.
Id.; Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1281
(D.C. Cir. 1992). There is no disagreement that disclosure of these
materials can lead to great embarrassment and reputational harm to
these individuals. Safecard, 926 F.2d at 1205. Indeed, disclosure
could, in some cases, lead to physical harm to the individuals
and/or their families.
Moreover, it “is well established that the only public
interest relevant for purposes of Exemption 7(C) is one that
focuses on the citizens’ right to be informed about what their
government is up to.” Davis, 968 F.2d at 1282 (internal quotations
omitted). Whether disclosure of private information is warranted
under Exemption 7(C) turns upon whether the information “sheds
light on an agency’s performance of its statutory duties.” Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 759,
773, 109 S. Ct. 1468, 1482, 103 L. Ed. 2d 774 (1989).
Thus, the requested information must shed light on the
agency’s own conduct and not merely on the subject matter of the
underlying law enforcement investigation. Id. Our Court of Appeals
has held “categorically that, unless access to the names and
addresses of private individuals appearing in files within the
ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity,
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such information is exempt from disclosure.”7 Safecard, 926 F.2d at
1206.
Plaintiff points to several examples he believes illustrate
the FBI’s misuse of Exemption 7(C). Pl.’s Mot. 16-19. Plaintiff
argues that each of the examples suffer from a common flaw, namely,
that Defendant has failed to demonstrate for each one how removing
the redaction would result in an unwarranted invasion of privacy.
Finally, and most significantly, Plaintiff never identifies any
public interest that would be served by disclosure.
In fact, for each example cited by Plaintiff, Defendant has
specifically explained that it redacted the names or identifying
information of either witnesses, third parties merely mentioned,
individuals interviewed by the FBI, or individuals of investigative
interest, and has described the relevant circumstances. Seventh
Hardy Decl. ¶¶ 63, 65-70. All of these people have well established
privacy interests implicated by release of identifying information.
Computer Prof’ls, 72 F.3d at 904.
For these reasons, the Court concludes that the FBI properly
invoked Exemption 7(C). Id.
7
Plaintiff does not present any evidence, no less compelling
evidence, that the FBI has engaged in illegal activity in this
case.
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IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary
Judgment is denied and Defendant’s Motion for Summary Judgment is
granted.
/s/
August 31, 2011 Gladys Kessler
U.S. District Court Judge
Copies to: Attorneys of record via ECF.
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