Cole v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICKY LYNN COLE,
Plaintiff,
v. Case No. 13-cv-01205 (CRC)
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
MEMORANDUM OPINION
Ricky Lynn Cole is currently serving a 365-month sentence for interstate
transportation and distribution of child pornography. In 2011, Cole filed a
Freedom of Information Act (“FOIA”) request for the employment and
disciplinary records of a Federal Bureau of Investigation (“FBI”) agent, whom
Cole has accused of misconduct in connection with his prosecution. The FBI
responded by neither confirming nor denying the existence of any such records.
The FBI based its response on FOIA Exemptions (6) and (7)(C), stating that
disclosure of any personnel records would constitute an unwarranted invasion of
the agent’s personal privacy. After unsuccessfully appealing the FBI’s response
within the Agency, Cole filed suit in this Court, asserting that the public
interest in uncovering the improper conduct that he claims would be revealed in
the requested record outweighs the agent’s privacy interests. The FBI moved
for summary judgment. Because the Court finds that Cole has failed to support
his allegations of misconduct with sufficient evidence to warrant balancing the
public interest in disclosure against the privacy interests at stake, the Court will
grant the FBI’s motion for summary judgment.
I. Background
In October 2005, a jury in the U.S. District Court for the Northern District
of Texas convicted Cole of “107 counts of interstate transportation of child
pornography, distribution of child obscenity, transportation of obscene matter,
and aiding and abetting.” United States v. Cole, 535 F. App’x 445, 446 (5th
Cir. 2013). Cole was sentenced in January 2006 to a prison term of 365 months.
Id. He then filed a habeas petition with the district court seeking to vacate his
conviction and sentence on the grounds that his counsel was ineffective for
failing to object to alleged government interference with a defense witness, Tina
Cox-Cole (“Cox”). Cole v. United States, No. 5:05-CR-027-01-C, 2014 WL
1724768, at *2 (N.D. Tex. Apr. 30, 2014). After a hearing, the court found the
evidence insufficient to support Cole’s allegations and concluded that his
motions were frivolous, without merit, and filed to delay a final resolution. Id.
at *1.
In September 2011, Cole submitted a FOIA request for any records
regarding complaints of misconduct, disciplinary action, and the employment
status of FBI Special Agent Derek Stone, who had investigated his crimes. Cole
alleges that Agent Stone “intimidated a key defense witness to scare her from
testifying” at his trial, Decl. of Ricky Lynn Cole, ¶ 2 (Dec. 12, 2014), and he
consequently needs the documents to “support his claim of substantial
government misconduct” during his prosecution. Def.’s Stmt of Material Facts
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¶ 2 (ECF No. 21-2). Pursuant to the FBI’s policy on FOIA requests seeking
third-party records, the FBI issued a “Glomar response,” neither confirming nor
denying the existence of such records absent a privacy waiver, proof of the
subject’s death, “or a clear demonstration that the public interest in disclosure
outweighs the personal privacy interest and that significant public benefit would
result from the disclosure of the requested records.” Decl. of David M. Hardy
¶¶ 2-3, 6 (ECF No. 22-1) (“Hardy Decl.”). The FBI based its response on FOIA
Exemptions 6 and 7(C), which protect from disclosure personnel and medical
records, 5 U.S.C. § 552(b)(6), and records or information compiled for law
enforcement purposes, production of which would constitute an “unwarranted
invasion of personal privacy”. Id. § (7)(C).
Cole appealed the FBI’s decision to the Office of Information Policy
(“OIP”), asserting that the requested information was needed to support his
claims of “innocence” and “prosecutorial misconduct, specifically substantial
interference of critical defense witnesses by Special Agent Stone.” See Hardy
Decl. Ex. C. OIP affirmed the FBI’s decision. Id. Ex. E. Cole then filed this
suit.
II. Legal Standard
Congress created FOIA “to pierce the veil of administrative secrecy and
to open agency action to the light of public scrutiny.” Am. Civil Liberties Union
v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose,
425 U.S. 352, 361 (1976)). Despite this broad mandate, FOIA contains a set of
exemptions to the general obligation to provide government records to the
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public. 5 U.S.C. § 522(b). These exemptions are in place “to balance the
public’s interest in governmental transparency against the “‘legitimate
governmental and private interests [that] could be harmed by release of certain
types of information.’” United Techs. Corp. v. Dep’t of Defense, 601 F.3d 557,
559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)). Because
FOIA “mandates a strong presumption in favor of disclosure,” its “statutory
exemptions, which are exclusive, are to be narrowly construed.” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quotations
omitted).
“FOIA cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp.
2d 83, 87 (D.D.C. 2009). In deciding a motion for summary judgment, the Court
assumes the truth of the non-movant’s evidence and draws all reasonable
inferences in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The government bears the burden to establish that the
claimed exemptions apply to each document for which they are invoked. Am.
Civil Liberties Union v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011).
The government may satisfy this burden through declarations that describe the
justifications for its withholdings in “specific detail, demonstrat[ing] that the
information withheld logically falls within the claimed exemption.’” Id. The
agency’s affidavits will not be sufficient to warrant summary judgment if the
plaintiff puts forth contrary evidence or demonstrates the agency’s bad faith. Id.
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III. Analysis
Cole does not dispute that the requested information falls within FOIA’s
Exemptions 6 and 7(C). He asserts instead that Special Agent Stone engaged in
“substantial misconduct” and the public interest in exposing this “government
corruption” outweighs the agent’s privacy interests. See Pl.’s Opp’g Mem. of P.
& A. at 2-4. The Court finds that the information Cole requested is protected
under Exemptions 6 and 7(C) because Cole has not demonstrated that Agent
Stone’s privacy interest in the requested information is outweighed by a public
interest in disclosure.
A. Glomar Response
An agency may issue a Glomar response, refusing to confirm or deny the
existence of requested information under a FOIA exemption when doing so
“would itself ‘cause harm cognizable.’” Am. Civil Liberties Union v. CIA, 710
F.3d 422, 426 (D.C. Cir. 2013) (quoting Roth v. DOJ, 642 F.3d 1161, 1178
(D.C. Cir. 2011)) (citation omitted); accord Smith v. FBI, 663 F. Supp. 2d 1, 5
(D.D.C. 2009) (finding a Glomar response proper when confirmation of records
concerning any adverse action or disciplinary reports on an FBI agent would
necessarily reveal the information Exemption 6 shields). Here, the FBI based
its Glomar response on two grounds. First, under FOIA Exemption 6, an agency
is not required to disclose “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). Second, Exemption 7(C) protects “records or
information compiled for law enforcement purposes, but only to the extent that
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the production of such law enforcement records or information . . . could
reasonably be expected to constitute an unwarranted invasion of personal
privacy.” Id. § 552(b)(7)(C).
Although both exemptions seek to prevent unwarranted invasions of
personal privacy, the scope of their protection differs. The privacy interests to
be weighed under Exemption 7(C) are somewhat broader than those considered
under Exemption 6 because the latter is limited to “clearly” unwarranted
invasions. Beck, 997 F.2d at 1491 (citing Reporters Comm., 489 U.S. at 756).
For both exemptions, the Court must balance the privacy interests against “the
public interest in release of the requested information.” Beck, 997 F.2d at 1491
(citing Reporters Comm., 489 U.S. at 773). The Court concludes, however, that
it need not reach the step of balancing the private and public interests because
Cole has not provided sufficient evidence of any public interest to be balanced.
1. Private Interest
There are two privacy interests protected under Exemptions 6 and 7(C).
First, a government employee has “at least a minimal privacy interest in his own
employment record and evaluation history.” Dunkelberger v. DOJ, 906 F.2d
779, 781 (D.C. Cir. 1990) (citing Stern, 737 F.2d at 91). Additionally, each
individual, including suspects, witnesses, and investigators, has a “‘strong
interest’” in not being associated with alleged criminal activity. Id. at 92. In
his FOIA request, Cole sought “all records, information and reports relating to .
. . (1) any and all complaints and accusations of misconduct reported against
[Agent Stone]; [and] (2) any and all disciplinary actions taken against [Agent
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Stone].” Compl. App. 1. The Court finds, and Cole does not dispute, that
Agent Stone has a privacy interest in the requested personnel files. The Court
must therefore assess the public interest in disclosure of those records.
2. Public Interest
Where the asserted public interest is disclosure of government
impropriety, the requester must produce evidence “that would warrant a belief
by a reasonable person that the alleged Government impropriety might have
occurred.” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 174
(2004). Because “[a]llegations of government misconduct are easy to allege and
hard to disprove . . . courts must insist on a meaningful evidentiary showing”
before ordering disclosure. Id. at 175 (citation and internal quotation marks
omitted). The request must be “based on the known facts” before the court and
may not rely on a “hypothetical set of facts that strengthen [the requestors]
position.” Beck, 997 F.2d at 1494.
The record before the court does not support a reasonable belief that
Agent Stone engaged in misconduct in connection with Cole’s prosecution. 1
Cole claims that Agent Stone intimidated Cox into not testifying as a defense
witness at trial. The district court that presided over Cole’s habeas proceeding
addressed this same allegation and found insufficient evidence to support Cole’s
1
Cole has submitted, and Court has considered, the following materials in support of his
motion: an undated extract from a deposition of Tina Cox-Cole; a letter from Cox-Cole dated
October 3, 2012 and notarized November 5, 2012; and part of a notarized letter from Cole’s
former attorney Helen Riggett dated March 24, 2009, all attached to his complaint. As part of
his opposition to the government’s motion for summary judgment, Cole included his own
declaration; a letter from defense witness Patricia Garris-Shoemaker dated May 6, 2009; a
notarized statement from a colleague of Tina Cox-Cole dated February 22, 2014; and the rest of
the letter from Helen Riggett.
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contentions. See Cole 5:05-CR-027-01-C, 2014 WL 1724768, at *8. That court
held an evidentiary hearing at which Cole, his trial counsel, and Agent Stone
testified. Id. At the hearing, Cole introduced a declaration from Cox stating
that Agent Stone had threatened her with witness tampering and obstruction of
justice charges after she provided him with a supposed letter from Cole’s
daughter confessing to the crimes that Cole was suspected of having committed.
Id. at *7. Cole’s lawyer, however, debunked Cox’s declaration. Id. He
testified that he had interviewed the daughter and was convinced that she had
been forced to fabricate the confession. Id. The lawyer therefore advised Cole
not to have Cox testify because the jury would not believe her. Id. The court
also noted that during the trial, Cox had an opportunity to speak with an
independent, court-appointed attorney. Id. She then decided not to testify. Id.
Upon consideration of the evidence and testimony, the court found no evidence
that Agent Stone’s interactions with Cox caused her not to testify. Id. at *8.
Rather, the court found that both Agent Stone and the trial judge advised Cox of
the repercussions of perjury and witness tampering and noted that doing so did
not constitute substantial interference with a defense witness. Id.
The Court recognizes that the evidentiary standard and burden of proof in
the habeas court weighed against Cole. See id. at *9 (finding that Cole failed to
prove by a preponderance of the evidence that he was denied effective
assistance of counsel). The habeas court was guided by a “strong presumption”
that counsel adequately assisted Cole and counsel’s decisions were the “product
of reasoned trial strategy.” Id. (citing Wilkerson v. Collins, 950 F.2d 1054,
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1065 (5th Cir. 1992)). Conversely, when the government invokes a FOIA
exception, it bears the burden of establishing that the claimed exemption applies
to each document for which it is invoked. Am. Civil Liberties Union, 628 F.3d
at 619. And of course FOIA’s “statutory exemptions, which are exclusive, are
to be narrowly construed.” Norton, 309 F.3d at 32.
Nevertheless, the Court finds the decision of the habeas court persuasive,
and Cole presents no new evidence of government misconduct here. After
reviewing all the submissions, the Court cannot identify sufficient evidence to
support a reasonable belief that the Agent Stone improperly interfered Ms.
Cox’s potential testimony. Cole’s statements that he is “filing charges of
perjury, witness tampering, and obstruction of justice” in his appeal to the U.S.
Court of Appeals for the Fifth Circuit, and that he expects to secure testimony
from several other eyewitnesses to bolster his allegations, Pl.’s Opp’g Mem. at
4, suggest merely a hypothetical set of facts that would support Cole’s position.
He therefore has not met his burden of providing a “meaningful evidentiary
showing” of government misconduct. Favish, 541 U.S. at 175. 2 The Court
therefore finds that Cole has not set forth evidence of any public interest in the
requested records.
2
Cole’s also alleges that Agent Stone was likely involved in the misconduct
that occurred in the prosecution of U.S. Senator Ted Stevens from Alaska.
Compl. at 8. He claims he received reports that Agent Stone was relocated,
disciplined, and ultimately terminated as a direct result of the misconduct. Id.
Yet, Cole has not provided any evidence of misconduct by Agent Stone in that
case or demonstrated how such misconduct would relate to the allegations in
this one.
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IV. Conclusion
The FBI properly refused to confirm or deny the existence of the
requested personnel records because Cole had not demonstrated a public interest
that outweighs the privacy interests protected under Exemptions 6 and 7(c).
Accordingly, the FBI’s motion for summary judgment will be granted. A
separate order accompanies this Memorandum Opinion.
____________s/_______________
CHRISTOPHER R. COOPER
DATE: July 31, 2015 United States District Judge
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