Amuso v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VITTORIO AMUSO,
Plaintiff,
v. Civil Action No. 07-1935 (RJL)
UNITED STATES DEPARTMENT
OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on defendants' motion for summary judgment. For the
reasons discussed below, the motion will be granted in part and denied in part.
1. BACKGROUND
In April 2007, plaintiff submitted to the Federal Bureau of Investigation's Washington,
D.C. headquarters ("FBI") a request for information under the Freedom of Information Act
("FOIA"), see 5 U.S.C. § 552.1 CompI. at 2 & Ex. A (April 10,2007 Freedom of
Information/Privacy Acts Request). In relevant part, the request stated:
In this case Amuso is requesting any and all documents, records,
memoranda, notes, statements and other information or data in what
ever form maintained by your agency that relates to and/or makes
Plaintiff submitted identical FOIA requests to the FBI's Washington, D.C.
Headquarters and to its Albany, New York field office. Mem. ofP. & A. in Supp. ofDefs.' Mot.
for Summ. J., Hardy DecI. ~ 7. Staff at the Albany field office forwarded plaintiffs FOIA
request to FBI Headquarters for processing. CompI., Ex. B (May 3, 2007 letter from D.M.
Hardy).
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reference to Amuso directly or indirectly. More specifically, any data
or information in the possession or control of your agency related to
and/or generated by the criminal investigation and prosecution of
Amuso by federal authorities in and around the U.S. Federal Districts
of New York.
Id., Ex. A at 1. Plaintiff sought "[a]ny 'main' and/or 'references' to Amuso by his known name .
. . [and] any reference to [him] as the 'Boss' of the Lucchese 'Crime Family', or 'soldier', or
'Captain', or 'Member' of the 'La Cosa Nostra[.]''' Id. The relevant time period, plaintiff
explained, was from January 1980 to the time of his request, noting that criminal trials involving
two former New York City police officers employed by the Lucchese crime family and the
prosecution of members of La Cosa Nostra in 2005 and 2006 would be responsive to his request.
Id. In addition, plaintiff asked that the FBI search its "Central Records System (CRS),
Automated Case Support System (ACS), Electronic Case Files (ECF), Universal Index (UI),
Legal Attaches (Legats), Investigative Case Management [S]ystem (ICMS), Confidential Source
System (CSS), and the 'I-Drive' system." Id.FBI staff acknowledged receipt of the request to which was assigned Request No.
1076768-000. CompI. at 2 & Ex. B (May 3, 2007 letter from D.M. Hardy, Section Chief,
Record/Information Dissemination Section, Records Management Division, FBI). FBI staff
initially determined that potentially responsive records at the Albany field office had been
destroyed on an unspecified date, see id., Ex. C (May 21,2007 letter from D.M. Hardy), and
later determined that FBI Headquarters maintained records responsive to the request. Mem.ofP.
& A. in Supp. ofDefs.' Mot. for Summ. J. ("Defs.' Mot."), Declaration of David M. Hardy
("Hardy DecI.") ~ 23. The agency "released 147 pages with redactions pursuant to FOIA
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Exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F)." Id. ~ 82. In addition, it referred four pages of
records to the Federal Bureau of Prisons ("BOP"). Id. ~ 81.
Plaintiff is serving a sentence of life imprisonment after his conviction "in 1992 of fifty-
four (54) counts of murder, extortion and labor racketeering." Hardy Decl. ~ 5; see United States
v. Amuso, 21 F.3d 1251, 1253 (2d Cir. 1994). He alleges that prosecution witnesses "provided
perjured testimony against [him] to cover-up their own criminal culpability," Compl. at 3, and he
believes that information in the FBI records he requests will support his claims of innocence and
his assertion that witnesses testified falsely at trial. Id. at 3-4.
II. DISCUSSION
A. Summary Judgment Standard
The court grants a motion for summary judgment when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits or declarations, show
that there is no genuine issue of material fact in dispute and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of
demonstrating an absence ofa genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true
unless the opposing party submits his own affidavits or declarations or documentary evidence to
the contrary. Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992).
In a FOIA case, the court grants summary judgment based on the information provided in
affidavits or declarations when they describe "the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
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record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). 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. Central Intelligence Agency, 692 F.2d 770,771 (D.C. Cir. 1981)).
B. FBI's Searches for Responsive Records
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was 'reasonably calculated to uncover all relevant documents. '" Valencia-
Lucena v. United States Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v.
Dep't of State , 897 F.2d 540,542 (D.C. Cir. 1990»); see Steinberg v. United States Dep't of
Justice, 23 F.3d 548,551 (D.C. Cir. 1994) (placing the burden on the agency to show that its
search was calculated to uncover all relevant documents). To meet its burden, the agency may
submit affidavits or declarations that explain in reasonable detail the scope and method of the
agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam). In the
absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an
agency's compliance with FOIA. Id. at 127. If the record "leaves substantial doubt as to the
sufficiency ofthe search, summary judgment for the agency is not proper." Truitt, 897 F.2d at
542.
1. FBI's Central Records System
In its Central Records System ("CRS"), the FBI maintains its "administrative, applicant,
criminal, personnel, and other files compiled for law enforcement purposes." Hardy Decl. -,r 15.
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It is "organized into a numerical sequence of files called FBI 'classifications,' which are broken
down according to subject matter." Id. A file's subject matter may relate to an individual,
organization, company, publication, activity, or foreign intelligence matter. Id. In order to
search the CRS, one uses a mechanism known as the Automated Case Support System ("ACS"),
id., which is "described as an internal computerized subsystem of the CRS." Id. ~ 16. General
indices, which consist of index cards arranged in alphabetical order, are the means by which CRS
records are retrieved through the ACS. Id. ~ 17. Entries in the general indices are either "main"
entries or "reference" entries. Id. The former "carr[y] the name corresponding with a subject of
a file contained in the CRS;" the latter "are generally only a mere mention or reference to an
individual, organization, etc., contained in a document located in another 'main' file." Id. ~
17(a), (b). In order to search the general indices for records pertaining to an individual, such as
Vittorio Amuso, one searches the subject in the index. Id. ~ 18.
"The ACS consists of three integrated ... applications that support case management
functions for all FBI investigative and administrative cases." Hardy Dec1. ~ 19. The
Investigative Case Management ("ICM") system enables an office "to open, assign, and close
investigative and administrative cases as well as set, assign, and track leads." Id. ~ 19(a). The
field office originating an investigation (the "00" or Office of Origin) opens a case and assigns it
a Universal Case File Number ("UCFN"). Id. ~ 19. The Electronic Case File ("ECF") is a
"central electronic repository for the FBI's official text-based documents." Id. ~ 19(b). The
Universal Index ("UNI") provides "a complete subject/case index to all investigative and
administrative cases" and "functions to index names to cases, and to search names and cases for
use in FBI investigations." Id. ~ 19(c). "Names of individuals or organizations are recorded with
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identifying applicable infonnation such as date or place of birth, race, sex, locality, Social
Security number, address, and/or date of event." Id.
The decision to index names other than subjects, suspects, and victims is left to the
discretion of the assigned Special Agent, the Supervisory Special Agent at the field office
conducting the investigation, and the Supervisory Special Agent at FBI Headquarters. Hardy
Decl. ~ 20. Without an index, "infonnation essential to ongoing investigations could not be
readily retrieved. The FBI files would be merely archival in nature and could not be effectively
used to serve the mandated mission of the FBI." Id. Thus, general indices to the CRS files "are
the means by which the FBI can detennine what retrievable infonnation, if any," its files may
contain on a particular subject or individual. Id.
The "I" drive mentioned in plaintiffs FOIA request "is simply a shared drive in a
computer network." Hardy Decl. ~ 21. The FBI shared drive in many field offices are now
identified with other letters, and are used "to hold preliminary work product investigative
documents drafted by FBI [Special Agents] in order to allow [Supervisory Special Agents] to
review and approve them before they are finalized, uploaded, and serialized in the official
investigative file." Id.
FBI staff initially "conducted a search of the automated indices" for responsive records
maintained at FBI Headquarters "using the name[] 'Amuso, Vittorio Benito '" and a phonetic
breakdown thereof, as well as plaintiffs date of birth and social security number "to facilitate the
identification of requested records." Hardy Decl. ~ 22. After plaintiff filed this civil action, FBI
staff conducted a "de novo search of the CRS indices." Id. ~ 23. Staff identified "the following
cross-references ... as being responsive: 66F-HQ-A 1074181-63; 92A-HQ-I020655-CI-5; 183-
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11597-271; 12-0-8733; 91-61044-4; 92A-HQ-1043395-I-1, 12, 13x2, 28 and 29; 89-6289-4; and
183-8533-2107X6, 4932, 4955, 4970, 5008, 5062, 5608, 5611, and 5664." Id. A search of the
indices at the Albany Field Office "revealed that records which may be responsive to plaintiff's
[FOIA] request were destroyed" on an unknown date. Id. ~ 24.
2. Plaintiff's Challenge to the Adequacy of the Search
With respect to the destruction of Albany Field Office records, plaintiff argues that the
FBI "never advised [him] as to the nature of the records which were destroyed, and [plaintiff]
was simply advised that they were, in fact, destroyed." PI.' s Resp. to Defs.' Mot. for Summ. J.
("PI.'s Opp'n") at 4. In his view, the FBI "act[s] in bad faith by failing to divulge the nature of
the records and by failing to search other available indices and records which might have
contained the destroyed records." Id. at 4-5. He is unable to "suggest other ways in which the
matter might have been searched" as he is without information "as to the nature of the records."
Id. at 5.
An agency's search is adequate ifits methods are reasonably calculated to locate records
responsive to a FOIA request, see Oglesby v. United States Dep 't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990), and an agency is not obligated to expand the scope of its search or to search all
of its systems of records when it has searched the systems of records most likely to contain
responsive records. See Campbell v. United States Dep 't of Justice, 164 F.3d 20, 28 (D.C. Cir.
1998) (stating that an agency generally need not search every records system as long as it
conducts "a reasonable search tailored to the nature of a particular request") (citing Oglesby, 920
F.2d at 68). The results of a search do not determine whether the search is adequate. See
Hornbostel v. United States Dep 't of the Interior, 305 F. Supp. 2d 21,28 (D.D.C. 2003) (stating
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that "[t]he focus of the adequacy inquiry is not on the results" of the search). "[T]he issue to be
resolved is not whether there might exist any other documents possibly responsive to the request,
but rather whether the search for those documents was adequate." Weisberg v. Dep't ofJustice,
705 F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry v. Block, 684 F.2d at 128).
The FBI's explanation of its automated system of records makes clear that a search for
records pertaining to an individual such as plaintiff is accomplished by means of the general
indices to the CRS files. See Hardy Decl. ~~ 16-20. Plaintiffs speculation as to the existence of
additional records, absent support for his allegations of agency bad faith, does not render the
search inadequate. See, e.g., Judicial Watch, Inc. v. United States Dep 't of Health and Human
Servs., 27 F. Supp. 2d 240,244 (D.D.C. 1998) (finding that "plaintiffs unsubstantiated
suspicions ... therefore, are insufficient to call into question the adequacy of [the agency's]
search and the truthfulness of its affidavit"). Even if the FBI's Albany Field Office once
maintained records that may have been responsive to plaintiffs FOIA request, the FBI's failure
to locate them now does not weaken the FBI's position. See Allen v. United States Secret Serv.,
335 F. Supp. 2d 95,98-100 (D.D.C. 2004) (concluding that adequacy of search not undermined
where responsive records were destroyed pursuant to agency's document retention policy).
"Nothing in the law requires the agency to document the fate of documents it cannot find."
Roberts v. United States Dep 't ofJustice, No. 92-1707, 1995 WL 356320, at *2 (D.D.C. Jan. 28,
1993).
On this record, the Court concludes that the methods by which FBI staff searched for
records responsive to plaintiffs FOIA request were reasonable under the circumstances.
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C. Segregabili~y
Before it discusses the FBI's claimed exemptions, the Court first addresses plaintiffs
recurring assertion of agency bad faith with respect to the redaction of records actually released
to him. Generally, plaintiff alleges that the FBI "acted in clear-cut bad faith by tendering
documents to the plaintiff with no information on them." PI. 's Opp'n at 5. For example, he
states that the FBI "provided 147 pages of documents, mostly FBI 302' s," including "a few
newspaper articles [but] no information whatsoever that had not been redacted and withheld."
!d. at 24. In other words, plaintiff states that most of the records are so heavily redacted that he
"has been given nothing of any substance or benefit." Id. at 25; see id. at 6 (stating that "FBI
302's with all information redacted does nothing to help the plaintiff and simply led to an
expense of copying for the government"), 16, 21. With so little information, plaintiff asserts that
he is unable to evaluate whether the FBI properly withholds information under the claimed
exemptions. See id. at 6-9,15-21,24-25.
If a record contains information that is exempt from disclosure, any reasonably segregable
information must be released after deleting the exempt portions, unless the non-exempt portions
are inextricably intertwined with exempt portions. Trans-Pacific Policing Agreement v. United
States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999); 5 U.S.C. § 552(b). FBI's declaration
states that the agency "has processed and released all segregable information from the documents
responsive to plaintiff s request" after having "reviewed [each document] page by page,
paragraph by paragraph and line by line to ensure maximum disclosure." Hardy DecI. ~ 82.
Attached to the FBI's motion are copies of the pages as released to plaintiff in full or in part, see
Def. 's Mot., Ex. I ("Vaughn Index"), on which are written "coded categories of exemptions"
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indicating "the nature of the infonnation withheld." Hardy Decl. ~ 26; see id. ~ 27 (Summary of
Justification Categories).
Review of the records as released to plaintiff reveals that several pages are so heavily
redacted that, aside from preprinted infonnation on standard fonns, little infonnation remains.
Notwithstanding the dearth of infonnation remaining on such pages, the Court is satisfied that
only the exempt records or portions of records have been withheld, and that all reasonably
segregable material has been released to plaintiff. The FBI's declaration and Vaughn index
adequately specify "which portions of the document[s] are disclosable and which are allegedly
exempt."2 Vaughn v. Rosen, 484 F.2d 820,827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977(1974). Plaintiffs level of satisfaction with the content of redacted records does not undennine
the FBI's decisions to redact or withhold infonnation under the claimed exemptions.
D. Exemptions
1. Exemption 23
Exemption 2 shields from disclosure infonnation that is "related solely to the internal
personnel rules and practices of an agency." 5 U.S.C. § 552(b )(2). The phrase "personnel rules
and practices" is interpreted to include not only "minor employment matters" but also "other
rules and practices governing agency personnel." Crooker v. Bureau of Alcohol, Tobacco and
Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The "infonnation need not actually
2
The Court makes no segregability finding at this time with respect to the records
referred to the BOP on May 2,2008 and August 14,2008.
3 Discussion of the FBI's decision to withhold infonnation pertaining to law
enforcement techniques and procedures under both Exemptions 2 and 7(E) appears in the
discussion of Exemption 7(E).
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be 'rules and practices' to qualify under [E]xemption 2, as the statute provides that matter
'related' to rules and practices is also exempt." Schwaner v. Dep 't of the Air Force, 898 F.2d
793, 795 (D.C. Cir. 1990) (emphasis in original).
Exemption 2 applies if the information that is sought meets two criteria. First, such
information must be "used for predominantly internal purposes." Crooker, 670 F.2d at 1074; see
Nat 'I Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 528 (D.C. Cir.
1985). Second, the agency must show either that "disclosure may risk circumvention of agency
regulation," or that "the material relates to trivial administrative matters of no genuine public
interest." Schwaner, 898 F.2d at 794 (citations omitted). "Predominantly internal documents the
disclosure of which would risk circumvention of agency statutes are protected by the so-called
'high 2' exemption." Schiller v. Nat 'I Labor Relations Bd., 964 F.2d 1205, 1207 (D.C. Cir.
1992). If the material at issue merely relates to trivial administrative matters of no genuine
public interest, it is deemed "low 2" exempt material. See Founding Church of Scientology of
Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 nA (D.C. Cir. 1983). "Low 2" exempt
materials include such items as "file numbers, initials, signature and mail routing stamps,
references to interagency transfers, and data processing references," Scherer v. Kelley, 584 F.2d
170, 175-76 (7th Cir. 1978), cert. denied sub nom. Scherer v. Webster, 440 U.S. 964 (1979), and
other "trivial administrative data such as ... data processing notations[] and other administrative
markings." Coleman v. Fed. Bureau of Investigation, 13 F. Supp. 2d 75, 78 (D.D.C. 1998)
(citation omitted).
In conjunction with Exemption 7(D), the FBI withholds under Exemption 2 two types of
information: informant file numbers of permanent confidential symbol number sources and the
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permanent source symbol numbers themselves. Hardy Decl. '11'1133, 37. In this section, the Court
addresses only the internal administrative purposes of this information and its status as "high 2"
exempt information. The use of informant file numbers and permanent source symbol numbers
in connection with the FBI's use of confidential sources appears in the discussion of Exemption
7(D).
a. Source File Numbers
"[C]onfidential source file numbers are ... assigned in sequential order to confidential
informants who report information to the FBI on a regular basis pursuant to an express assurance
of confidentiality." Hardy Decl. '1133. The file number is "unique to the particular confidential
informant and is used only in documentation relating to that particular informant." Id. Here,
instead of the source's names, "confidential source file numbers were used to document
information provided by various sources." !d.; see Vaughn Index at 53,56,60,64,67, 71, 72,
77, 117, and 126. Disclosure of these informant file numbers "would have a chilling effect on
the activities and cooperation of other FBI confidential informants" whose cooperation is enlisted
"only with the understanding of complete confidentiality." Id. '1135. Because disclosure of
informant file numbers "could reasonably be expected to identify a permanent confidential
source of the FBI," the file numbers are withheld under Exemption 2. Id.b. Source Symbol Numbers
"Permanent source symbol numbers are assigned to confidential informants who report
information to the FBI on a regular basis pursuant to an 'express' grant of confidentiality."
Hardy Decl. 'II 36. The FBI uses a source symbol number "as an administrative reporting tool to
protect the actual, sensitive identity of an informant in documents generated by the FBI." Id. A
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source symbol number consists of a two-letter abbreviation of the field office from which the
source operates or has operated, followed by a sequentially assigned number. Id. "The symbol
number [appears] in all written reports in which [the source] provided information to the FBI.
Id.; see Vaughn Index at 56, 117, 126, 135, and 136. Disclosure of these permanent source
symbol numbers "would indicate both the scope and location of FBI informant coverage within a
particular geographic area," as the information in context "reveals [the informants'] connections
to dates, times, places, events and names from which the source's identity could be deduced." Id.~ 37.
The FBI's declaration establishes that both informant file numbers and permanent source
symbol numbers are used predominantly for internal administrative or recordkeeping purposes.
Each informant file number and source symbol number is unique to a particular informant, and
the number assigned to that informant appears in FBI records instead of the informant's name.
The declaration also establishes that disclosure of informant file numbers and source symbol
numbers would risk circumvention of statutes or agency regulations. Release of information
from which confidential sources' identities may be deduced could hamper FBI operations by
dissuading these and other informants from cooperating with FBI investigations or by revealing
FBI informant coverage in a geographic area. The Court concludes that the FBI properly
withholds informant file numbers and confidential source symbol numbers under Exemption 2 as
"high 2" exempt information.
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2. Exemption 64
Exemption 6 protects from disclosure "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). Information that applies to a particular individual meets the threshold
requirement for Exemption 6 protection. See United States Dep 't of State v. Washington Post
Co., 456 U.S. 595,602 (1982). The exemption requires "a balancing of the individual's right of
privacy against the preservation of the basic purpose of the Freedom of Information Act 'to open
agency action to the light of public scrutiny.'" Dep 't of the Air Force v. Rose, 425 U.S. 352, 372
(1976); see United States Dep 't ofJustice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 756 (1989). The privacy interest at stake belongs to the individual, not the agency.
Reporters Comm.for Freedom of the Press, 489 U.S. at 763-65; Nat 'I Ass'n of Retired Fed.
Employees v. Horner, 879 F.2d 873,875 (D.C. Cir. 1989) (noting individual's significant privacy
interest "in avoiding the unlimited disclosure of his or her name and address"), cert. denied, 494
U.S. 1078 (1990). It is the requester's obligation to articulate a public interest sufficient to
4 It appears that the FBI withholds information under Exemption 6 only with
respect to "the names and/or identifying data of individuals who assisted the FBI by providing
information within the records responsive to plaintiff's request." Hardy Decl. ~ 45. Although
the FBI's declaration does not so state, review of the Vaughn index suggests that the FBI invokes
both Exemptions 6 and 7(C) to protect the same information. See id. ~ 58. The Court errs on the
side of caution and proceeds with its analysis under Exemption 6 only with respect to
information coded "(b)(6)-2." See Vaughn Index at 1,10,49-55,59-77,79-116 and 137.
Even if Exemption 6 were not applicable, for the reasons stated in the discussion of
Exemption 7(C), all the information coded "(b )(6)-2" would be withheld properly under
Exemption 7(C), as would all the information coded "(b)(6)-1," "(b)(6)-3," "(b)(6)-4" and
"(b)( 6)-5." Because the Court concludes that the information withheld under Exemption 6
properly is withheld under Exemption 7(C), there is no need to consider the applicability of
Exemption 6 further with respect to the infom1ation coded "(b)(6)-1," "(b)(6)-3," "(b)(6)-4" and
"(b )(6)-5." See Simon v. Dep't of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).
14
outweigh an individual's privacy interest, and the public interest must be significant. See Nat '[
Archives and Records Admin. v, Favish, 541 U.S. 157, 172 (2004).
Under Exemption 6, the FBI withholds "the names and/or identifying data of individuals
who assisted the FBI by providing information ... during an interview." Hardy Deci. ~ 45;
Vaughn Index at 1,10,49-55,59-77,79-116, and 137. The declaration explains that interviews
are among the most productive tools in law enforcement, and "[t]he largest roadblock in
successfully obtaining ... desired information through an interview is the fear by an interviewee
that his ... identity could possibly be exposed." Id. Disclosure of the interviewee's identity
could result in harassment, intimidation, or threats of reprisal or physical harm to the interviewee,
id., and the agency surmounts these obstacles by assuring interviewees "that their identities will
be held in the strictest confidence." Id. The FBI identifies no legitimate public interest in release
of the interviewees' identities because such release sheds no light on the FBI's activities or
operations. Id. The declaration further asserts that "continued access to persons willing to
provide pertinent facts bearing on a particular investigation outweighs any benefits derived from
releasing the identities of these individuals." Id.Plaintiff disputes the FBI's rationale for withholding information pertaining to
interviewees under Exemption 6. See PI.' s Opp'n at 8. He claims "that the names of third
parties have already been released in different parts of the proceedings, and [plaintiff] merely
seeks documentation of the information provided." Id.The release of information to plaintiff about third parties in any other context is not
relevant to this FOIA action. Cf Schiffer v. Fed. Bureau of Investigation, 78 F.3d 1405, 1411
(9th Cir. 1996) (treating requester's personal knowledge as irrelevant in assessing privacy
15
interests). The sole rationale supporting release ofinfonnation otherwise protected under
Exemption 6 is a legitimate public interest. Plaintiff articulates no public interest, and instead,
suggest that his personal interest in this infonnation is sufficient. See Pl.'s Opp'n at 8. Plaintiff
is mistaken. Any interest in the infonnation for purposes of proving his innocence or proving
that government witnesses perjured testimony at his criminal trial does not overcome the
individuals' privacy interest. See Oguaju v. United States, 288 F.3d 448,450 (D.C. Cir. 2002)
(finding that requester's "personal stake in using the requested records to attack his convictions
does not count in the calculation of the public interest"), vacated and remanded, 541 US. 970
(2004), on remand, 378 F.3d 115 (D.C. Cir.) (reaffinning prior decision), reh 'g denied, 386 F.3d
273 (D.C. Cir. 2004), cert. denied, 544 US. 983 (2005); see also Reporters Comm. for Freedom
of the Press, 489 US. at 771 (stating that the requester's identity has "no bearing on the merits of
his ... FOIA request").
The Court concludes that the FBI properly withheld the names and identifying data
pertaining to these interviewees under Exemption 6.
3. Exemption 7
a. Law Enforcement Records
Exemption 7 protects from disclosure "records or infonnation compiled for law
enforcement purposes," but only to the extent that disclosure of such records would cause an
enumerated hann. 5 US.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 US.
615,622 (1982). In order to withhold materials properly under Exemption 7, an agency must
establish that the records at issue were compiled for law enforcement purposes, and that the
material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster,
16
673 F.2d 408,413 (D.C. Cir. 1982). In assessing whether records are compiled for law
enforcement purposes, the "focus is on how and under what circumstances the requested files
were compiled, and whether the files sought relate to anything that can fairly be characterized as
an enforcement proceeding." Jefferson v. Dep 't of Justice, 284 F.3d 172, 176-77 (D.C. Cir.
2002) (citations and internal quotations omitted).
The FBI's declaration describes plaintiff as "a ruling figure of the Luchese LCN Family"
whose "organized crime involvement includes narcotics, labor racketeering, murder, and
extorting kickbacks." Hardy Decl. ~ 5. Plaintiff is serving a sentence of life imprisonment after
his conviction "in 1992 of fifty-four (54) counts of murder, extortion and labor racketeering."
Jd.; see United States v. Amuso, 21 F.3d 1251, 1253 (2d Cir. 1994). According to the
declaration, the records at issue in this case "were compiled for criminal law enforcement
purposes during the course of the FBI's performance of its law enforcement mission, including
the investigation of criminal activities." Hardy Decl. ~ 51.
Plaintiff disputes the assertion that the responsive records were compiled for law
enforcement purposes. In his view, the records released to him are so heavily redacted that "one
cannot deduce whether the documents were compiled by a government agency," leaving the
Court "to simply take the defendants' word that the documents related to the enforcement of
federal laws and that the enforcement activity is within the law enforcement duty of the agency."
PI. 's Opp'n at 12.
It is true that the FBI's supporting declaration offers little detail as to its law enforcement
function. There can be no dispute, however, that the FBI is a law enforcement agency. See 28
U.S.c. § 531 et seq. (establishing the FBI within the United States Department of Justice and its
17
jurisdiction to detect and investigate crimes). Furthermore, it is clear from the supporting
declaration and from the language ofplaintiffs FOIA request itself that the relevant records were
compiled for law enforcement purposes. The request specifically refers to "the criminal
investigation and prosecution of Amuso by federal authorities," and mentions the criminal case
by number and by federal district court. CompI., Ex. A at 2-3.
The Court concludes that the records at issue were compiled for law enforcement
purposes within the scope of Exemption 7.
b. Exemption 7(C)
Exemption 7(C) protects from disclosure information in law enforcement records that
"could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5
U.S.C. § 552 (b )(7)(C). In determining whether this exemption applies to particular material, the
Court must balance the interest in privacy of the individuals mentioned in the records against the
public interest in disclosure. Beck v. Dep't ofJustice, 997 F.2d 1489, 1491 (D.C. Cir. 1993).
"[T]he 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 v. United States
Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm.for Freedom
of the Press, 489 U.S. at 773). The public interest "sought to be advanced [must be] a
significant one[,] more specific than having the information for [one's] own sake." Favish,541
U.S. at 172.
18
FBI Special Agents, FBI Support Personnel
and Local Law Enforcement Personnel
The FBI withholds "the names and/or identifying information about FBI [Special Agents]
and support personnel responsible for conducting, assisting with and/or supervising the
investigative activities reported in the documents concerning plaintiff and others." Hardy Decl. ,-r
55. Among the Special Agents' responsibilities are interviewing witnesses and reviewing
materials gathered in the course of the investigation of plaintiff and others. Id. Special Agents
are not assigned to conduct investigations or to perform administrative duties by choice. Id. Any
"[p ]ublicity (adverse or otherwise) regarding [a] particular investigation to which they are
assigned may seriously prejudice their effectiveness in conducting other investigations." !d.
Further, these Special Agents "conduct official inquiries into various criminal and national
security cases," putting them "into contact with all strata of society." Id. ,-r 56. In this capacity,
they conduct searches and make arrests, "both of which constitute reasonable, but nonetheless
serious[,] intrusions into peoples' lives," and some of these people "carry grudges which last for
years." Id. These people may find an opportunity "to harass the [Special Agent] responsible for
these intrusions," and release of their identities "in connection with a particular law enforcement
investigation could trigger hostility toward the [Special Agent]." Id. Special Agents, then,
"maintain a substantial privacy interest in not having their identities disclosed." Id. For these
same reasons, the FBI withholds "the names and ranks oflaw enforcement officers of the New
Jersey and New York City Police Departments" who "assisted in the investigation of plaintiff and
others." Id. ,-r 61. Release of their identities may subject them to "unnecessary, unwarranted
harassment." Id.19
Based on a similar rationale, the FBI withholds "the names of FBI support employees"
assigned to "handle tasks relating to the investigation concerning plaintiff and others." Hardy
Dec!. ~ 56. These individuals are or were "in a position to access information regarding official
law enforcement investigations, and therefore could become the target[ s] of harassing inquiries
for unauthorized access to investigations if their identities were disclosed." Id.Against the recognized privacy interests of FBI Special Agents, support personnel, and
local law enforcement officers, the FBI weighs the public interest in disclosure. Hardy Dec!. ~
57. Its declaration explains that, absent allegations of misconduct on their part, disclosure of
their identities would shed no light on the agency's performance. !d.
Third Parties Who Provided Information to the FBI
Under Exemption 7(C), the FBI withholds "the names and/or identifying data of
individuals who assisted the FBI by providing information within the records responsive to the
plaintiffs request." Hardy Dec!. ~ 58. These individuals provided information in interviews,
and their cooperation can be obtained by assuring them "that their identities will be held in the
strictest confidence." Id. Release of their identities may result in their "being harassed,
intimidated or threatened with legal or economic reprisal, or possible physical harm." Id. The
FBI identifies "no legitimate public interest to be served by releasing the identities" of these
private citizens interviewed by FBI agents. Id.Third Parties Merely Mention in FBI Records
The FBI also withholds "the names and personal identifying information" about third
parties "who were merely mentioned in the documents responsive to plaintiffs request." Hardy
Dec1. ~ 59. Recognizing the "strong negative connotation" in releasing these third parties'
20
identities in connection with an investigation of plaintiff, the FBI asserts that such disclosure
"could subject them to possible harassment and could focus derogatory inferences and suspicion
on them." Id. ~ 60. The FBI determines that there is no public interest in the disclosure of these
third parties' identities to outweigh their interest in personal privacy. Id.Third Parties ofInvestigative Interest to the FBI
or Other Law Enforcement Agencies
Lastly, the FBI withholds under Exemption 7(C) the "names of and identifying
information of third party individuals who were of investigative interest to the FBI and/or other
law enforcement agencies." Hardy Decl. ~ 63. According to the FBI's declaration, "[b]eing
linked with any law enforcement investigation carries a strong negative connotation and a
stigma," such that releasing these individuals' identities "could subject them to harassment or
embarrassment, as well as undue public attention." Id. The FBI determines that these
individuals "maintain a substantial privacy interest in not having their identities disclosed," and
that disclosure of their identities "would not enlighten the public on how the FBI conducts its
internal operations and investigations." Id.In his opposition, plaintiff generally argues that the FBI "has not performed the proper
balancing function required for this exemption" because "the public interest in disclosure, in this
case, overrides the privacy interests of the individuals mentioned in [the] records." Pl.'s Opp'n
at 13-14. With respect to the FBI's argument that these third parties may face harassment or risk
of harm, plaintiff finds such allegations "ridiculous" because he "is incarcerated in a maximum
security prison some 18 years after the fact." Id. at 14. He opines that "the [Special Agents]
concerned have probably retired long ago," Id. at 15. Similarly, he argues that the third parties'
21
identities already "were disclosed to the public many years ago" and that the "public policy
interest in withholding their identities has eroded over time." Id. at 11. Further, he explains that
his sole purpose is "to collect information of a legal nature, and he has no intent to harass
anybody involved in his investigation." Id. at 18. None of these points undermines the FBI's
decision to withhold this third party information.
Law enforcement personnel "have a legitimate interest in preserving the secrecy of
matters that conceivably could subject them to annoyance or harassment in either their official or
private lives" Lesar v. United States Dep 't ofJustice, 636 F.2d 472, 487 (D.C. Cir. 1980).
Similarly, "third parties who may be mentioned in investigatory files" and "witnesses and
informants who provide information during the course of an investigation" have an "obvious"
and "substantial" privacy interest in their personal information. Nation Magazine v. United
States Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995); see Rugiero v. United States Dep 't of
Justice, 257 F.3d 534,552 (6th Cir. 2000) (concluding that agency properly withheld "identifying
information on agents, personnel, and third parties after balancing the privacy interests against
public disclosure), cert. denied, 534 U.S. 1134 (2002).
Individuals involved in law enforcement investigations, "even if they are not the subject
of the investigation[,] have a substantial interest in seeing that their participation remains secret."
Willis v. United States Dep 't of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008) (citations and
internal quotation marks omitted). Suspects, too, maintain a "substantial interest" in the
nondisclosure of their identities and connection to a particular investigation. See Neely v. Fed.
Bureau of Investigation, 208 F.3d 461,464-66 (4th Cir. 2000). Privacy interests do not diminish
with the passage of time, see, e.g., Halpern v. Fed. Bureau of Investigation, 181 F.3d 279, 297
22
(2d Cir. 1999), and plaintiff cannot argue that the passage of 18 years since the investigation took
place diminishes these individuals' privacy interests in any way.
Individuals have a "strong interest in not being associated unwarrantedly with alleged
criminal activity." Stern v. Fed. Bureau of Investigation , 737 F.2d 84, 91-92 (D.C. Cir. 1984).
Exemption 7(C) recognizes that the stigma of being associated with any law enforcement
investigation affords broad privacy rights to those who are connected in any way with such an
investigation unless a significant public interest exists for disclosure. Reporters Comm. for
Freedom of the Press, 489 U.S. at 773-775; SafeCard Servs., Inc., 926 F.2d at 1205-06. Plaintiff
articulates no public interest in disclosure of the names of and identifying information about FBI
Special Agents and support personnel, local law enforcement officers, third parties who provided
assistance to the FBI, third parties mentioned in the records, or third parties of investigatory
interest. His intention to use information in these FBI records to prove his claim of innocence is
not a public interest, as "an individual's personal interest in challenging his criminal conviction
is not a public interest under FOIA because it 'reveals little or nothing about an agency's own
conduct.'" Willis v. United States Dep 'f of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008)
(quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773).
The FBI's position is amply supported, see, e.g., Fischer v. United States Dep 't of Justice,
_ F. Supp. 2d _, No. 07-2037, 2009 WL 162688, at *7 (D.D.C. Jan. 26,2009) (concluding
that the FBI properly withheld the names and identifying information of FBI Special Agents and
support personnel, the names and identifying information of third parties merely mentioned, third
parties of investigative interest to the FBI or other law enforcement agencies, and the identities of
23
and information provided by Cooperative Witnesses under Exemption 7(C)), and the Court
concludes that the FBI properly withholds this information under Exemption 7(C).
c. Exemption 7(D)
Exemption 7(D) protects from disclosure those records or information compiled for law
enforcement purposes that:
could reasonably be expected to disclose the identity of a confidential
source ... [who] furnished information on a confidential basis, and,
in the case of a record or information compiled by a criminal law
enforcement authority in the course of a criminal investigation ... ,
information furnished by a confidential source.
5 US.C. § 552(b )(7)(D). There is no assumption that a source is confidential for purposes of
Exemption 7(D) whenever a source provides information to a law enforcement agency in the
course of a criminal investigation. See United States Dep 't ofJustice v. Landano, 508 US. 165,
181 (1993). Rather, a source's confidentiality must be determined on a case-by-case basis. !d. at
179-80. "A source is confidential within the meaning of [Exemption] 7(D) if the source
provided information under an express assurance of confidentiality or in circumstances from
which such an assurance could reasonably be inferred." Williams v. Fed. Bureau of
Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citing Landano, 508 US. at 170-74).
i. Express Assurance of Confidentiality
Confidential Source File Numbers and Source Symbol Numbers
The FBI withholds confidential source file numbers and permanent source symbol
numbers under both Exemptions 2 and 7(D). Hardy Dec!. ~~ 33,36, 70, 73. The former are
assigned "in sequential order to confidential informants who report information to the FBI on a
regular basis pursuant to an express assurance of confidentiality." Id. ~ 70. The latter are
24
"assigned to confidential sources who have been developed, instructed, closely monitored and in
may cases paid for [their] services ... under an express grant of confidentiality." Id. ~ 73.
The FBI's declaration explains that disclosure of confidential source file numbers "at
various times and in various documents could ultimately identify these sources since it would
reveal the connections of confidential informants to the information provided by them." Hardy
Dec!. ~ 71. Because a "source file number is assigned to only one confidential informant,"
release of the numbers together with information these informants have provided "would narrow
the possibilities of their true identities." Id.; see id. ~ 34. Disclosure of confidential sources'
identities "would have a chilling effect on the activities and cooperation of both current and
future FBI confidential informants," as it is "only with the understanding of complete
confidentiality that the aid of such informants can be enlisted." Id. ~ 72; see id. ~ 35. Because
disclosure of the confidential source file numbers "could reasonably be expected to identify a
permanent confidential source of the FBI," the FBI argues that the file numbers properly are
withheld under Exemption 7(D). Id.Similarly, the FBI argues that disclosure of informants' source symbol numbers and the
information provided by these symbol numbered sources, Hardy Dec!. ~~ 74-75, could result in
"[c]onsiderable harm to the informants and to ongoing FBI operations." Id. ~ 74. Informants to
whom source symbol numbers are assigned have provided "detailed and singular" information
"concerning criminal activity," and the sources' identities "could be ascertained by a person
knowledgeable of the events that gave rise to the FBI's investigation of plaintiff and other
subjects." Id. Release of the sources' identities means that both the sources and their families
"could be subjected to embarrassment, humiliation, and physical [or] mental harm." !d. On a
25
wider scale, release of the identities of confidential sources "could have a chilling effect on the
activities and cooperation of other FBI confidential sources" because it is "only through
assurances of [confidentiality] that these sources can be persuaded to continue providing valuable
assistance in the future." Id. For these reasons, the FBI asserts that source symbol numbers
properly are withheld under Exemption 7(D). Id."As a matter of policy and practice, all symbol numbered sources are given an express
grant of confidentiality." Hardy Dec!. ~ 75. Their identities are known only to "very few FBI
employees ... on a 'need to know' basis," and FBI documents to not refer to these sources by
name. Id. The FBI receives information from these sources "only under conditions which
guarantee the contact will not be jeopardized." Id. The FBI secures these sources' assistance
"only with the understanding of complete confidentiality," and, for this reason, the FBI argues
that "identifying data and information received from symbol numbered sources is withheld
properly under Exemption 7(D). Id.The FBI establishes that the confidential sources to whom the agency has assigned file
numbers and permanent source symbol numbers, and the information provided by these symbol
numbered sources, properly are withheld under Exemption 7(D). Its declaration explains that
these sources provided information under an express grant of confidentiality, and that disclosure
of this information could reasonably be expected to disclose their identities.
Foreign Government Agency Information
In file 92A-HQ-I020655-CI-5 there is "information provided to the FBI from a foreign
agency or authority with an explicit understanding of confidentiality." Hardy Dec!. ~ 76.
Although the declaration asserts that the FBI "solicits and receives information regularly from ..
26
· foreign agencies and authorities," id., the Court has before it only the declarant's bare assertion
that such information is shared under a "mutual understanding that the identity of such a source
and the information provided by it will be held in confidence by the FBI, and not relased
pursuant to FOIA ... requests." Id. Absent a more substantive description of the nature or scope
of the agreement with this foreign source, the FBI does not establish that this information
properly is withheld under Exemption 7(D) on the ground that the foreign source provided
information under an express grant of confidentiality.
ii. Implied Assurance of Confidentiality
The declaration explains that third parties with "knowledge of the activities that gave rise
to the investigation of the plaintiff and others" were interviewed, and that these individuals
"provided valuable information that is detailed and singular in nature." Hardy Dec!. ~ 69. The
FBI withholds under Exemption 7(D) "the names, identifying information, and information
provided by third parties to the FBI under an implied grant of confidentiality during the course of
the FBI's investigation of the plaintiff and others ... but only to the extent that the information
could identify the interviewee." !d. ~ 68. The agency justifies its decision based on "the violent
nature of the crimes reportedly committed by plaintiff," id. ~ 69, including murder, extortion and
labor racketeering, id. ~ 5, and on the fact that the interviewees reported on the "activities of
organized crime families." Id. ~ 68.
The declaration states that release of the interviewees' names or other identifying
information "could have disastrous consequences," particularly by subjecting these individuals
"to violent reprisals." Hardy Dec!. ~ 69. "The FBI has found that only with the understanding of
complete confidentiality that the aid of such sources can be enlisted, and only through this
27
confidence that these sources can be persuaded to continue providing valuable assistance in the
future." Id.In detennining whether the sources provided infonnation under an implied assurance of
confidentiality, the Court considers "whether the violence and risk of retaliation that attend this
type of crime warrant an implied grant of confidentiality for such a source." Mays v. Drug
Enforcement Admin., 234 F.3d 1324, 1329 (D.C. Cir. 2000). The nature of the crime
investigated and infonnant's relation to it are the most important factors in detennining whether
implied confidentiality exists. Landano, 508 U.S. at 179-80; Quiiion v. FBI, 86 F.3d 1222, 1231
(D.C. Cir. 1996). The question has been answered in the affinnative with respect to "the
violence and danger that accompany the cocaine trade," id., gang-related murder, Landano, 508
U.S. at 179, and other violent acts committed in retaliation for witnesses' cooperation with law
enforcement. See Shores v. Fed. Bureau ofInvestigation, No. 98-2728, 2002 WL 230756, at *4
(D.D.C. Feb. 2, 2002) (withholding identities and identifying infonnation of three cooperating
witnesses with knowledge of the murder of which plaintiff was convicted, where plaintiff
"subsequently attempted to procure the murder of a family member of one of the witnesses");
Coleman, 13 F. Supp. 2d at 82 (finding that plaintiffs conviction "of numerous violent crimes
including rape and kidnaping," as well as the nature of the crimes and "the relation of the
witnesses thereto is precisely the type that the implied confidentiality exemption expressed in
Landano is designed to encompass"). In this case, where plaintiff is a member of an organized
crime family who has been convicted of racketeering, extortion and murder, it is reasonable for
these sources to fear retaliation if the FBI were to release their names or any other infonnation
that might reveal their identities.
28
The Court concludes that these interviewees provided infonnation to the FBI with an
expectation that their identities would not be disclosed. This infonnation properly is withheld
under Exemption 7(D).
c. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records "to the extent that the
production of such law enforcement records or infonnation ... would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Courts have held that infonnation
pertaining to law enforcement techniques and procedures properly is withheld under Exemption
7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g.,
Piper v. United States Dep 'to ofJustice, 294 F. Supp. 2d 16,30 (D.D.C. 2003) (withholding
polygraph test infonnation on the ground that disclosure "has the potential to allow a cunning
criminal to extrapolate a pattern or method to the FBI's questioning technique," and anticipate or
thwart FBI's strategy); Fisher v. United States Dep 't of Justice, 772 F. Supp. 7,12 (D.D.C. 1991)
(upholding FBI's decision to withhold infonnation about law enforcement techniques where
disclosure would impair effectiveness and, within context of documents, "could alert subjects in
drug investigations about techniques used to aid the FBI"), aff'd, 968 F.2d 92 (D.C. Cir. 1992).
In conjunction with Exemption 2, the FBI withholds "procedures and techniques used by
FBI Special Agents during the investigation of plaintiff." Hardy Decl. ~ 78. With respect to
Exemption 2, the FBI's declaration explains that "infonnation [such] as instructions to
cooperating witnesses, the amount of money used to purchase evidence, and specific
29
investigatory techniques used during the investigation ... relate[] solely to the FBI's internal
practices." Id. ,-r 3S. In addition, the FBI withholds infonnation regarding "the logistical details
of an FBI undercover operation" under Exemption 2 on the ground that disclosure of such
"internal administrative infonnation ... could provide insight into how the FBI conducts
undercover operations." Id. If this infonnation were publicly available, it could be used "to
predict how the FBI will conduct similar operations in the future" or "to exhaust the FBI's
funding of a particular investigation," thus "imped[ing] the effectiveness of the FBI's internal
law enforcement procedures." Id. Insofar as "[r]elease of these techniques could reasonably be
expected to alert the subjects in other criminal investigations to how the FBI conducts
undercover operations," potential subjects could circumvent the law or otherwise jeopardize
future investigations or undercover operations. Id.,-r 7S. For this reason, the FBI invokes
Exemption 7(E). Id.Plaintiff counters that "the blank 302 fonns released to the plaintiff give no evidence that
any techniques and procedures used in law enforcement investigations or prosecutions were
involved." Pl.'s Opp'n at 22. Rather, to plaintiff, "the fonns appear to be documentations of
somewhat ordinary interviews," such that the FBI has "no basis for withholding anything that
would disclose any techniques or procedures employed by the FBI." Id.An agency may withhold infonnation from disclosure where, as here, it would provide
insight into its investigatory or procedural techniques. See Morley v. Central Intelligence
Agency, 50S F.3d 1107, 1129 (D.C. Cir. 2007) (concluding that the CIA properly withheld
infonnation revealing security clearance procedures because release "could render those
procedures vulnerable and weaken their effectiveness at uncovering background infonnation on
30
potential candidates"). Based on the FBI's representations and absent evidence from plaintiff to
rebut the presumption of good faith afforded to the FBI's declaration, the Court concludes that
the FBI properly withholds information pertaining to procedures and techniques used by FBI
Special Agents during the investigation of plaintiff under Exemptions 2 and 7(E).
d. Exemption 7(F)
Exemption 7(F) protects from disclosure information contained in law enforcement
records that "could reasonably be expected to endanger the life or physical safety of any
individual." 5 U.S.C. § 552(b)(7)(F). "While courts generally have applied Exemption 7(F) to
protect law enforcement personnel or other specified third parties, by its terms, the exemption is
not so limited; it may be invoked to protect 'any individual' reasonably at risk of harm." Long v.
United States Dep 't ofJustice, 450 F. Supp. 2d 42, 79 (D.D.C. 2006) (quoting 5 U.S.c. §
552(b)(7)(F)), order amended on recons., 457 F. Supp. 2d 30 (D.D.C.), and order amended, 479
F. Supp. 2d 23 (D.D.C. 2007) (same). In reviewing matters under Exemption 7(F), courts may
inquire "whether there is some nexus between disclosure and possible harm." Linn v. United
States Dep't of Justice, No. 92-1406,1995 WL 631847, at *8 (D.D.C. Aug. 22,1995). Within
limits, the Court defers to the agency's assessment of danger. See Garcia v. United States Dep 't
ofJustice, 181 F. Supp. 2d 356,378 (S.D.N.Y. 2002) (quoting Linn, 1995 WL 631847, at *9).
The FBI withholds "source symbol number informants and the names and identifying
information concerning cooperating witnesses who provided information to the FBI concerning
the criminal activities of plaintiff and/or other individuals of investigative interest in the records
responsive to plaintiffs request." Hardy I Decl. ~ 80. Because the crimes "reportedly committed
by plaintiff and other members of organized crime families," the FBI asserts that release of
31
infonnation about these infonnants and witnesses "could reasonably be expected to endanger the
life and/or physical safety of these cooperating individuals." Id.Plaintiff counters that the FBI incorrectly "assumes that the plaintiff is a member of an
organized crime family" and is without a "basis for making such an assumption." PI. 's Opp'n at
23. Rather, he asserts that the "only evidence that the plaintiff is a member of an organized crime
family is derived from the testimony of murderers and sewer dwellers who have never spent a
day in prison." PI.' s Aff. ~ 30. He argues that there "would not be a great risk to release the
identities of cooperating witnesses because the plaintiff is merely seeking infonnation for his
own legal purposes." PI. 's Opp'n at 23.
According to the Second Circuit's opinion, plaintiff indeed is associated with an
organized crime family. See United States v. Amuso, 21 F.3d at 1254 (summarizing witness
testimony as to "the extensive nature of organized crime's control over the window replacement
industry in New York and Amuso's involvement in the enterprise" and "a murderous campaign
by Amuso between 1988 and 1991 to eliminate anyone he suspected of disloyalty, including an
entire faction of the Luchese family"). The FBI's declaration, the assertions of which 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., 926 F.2d at
1200 (internal quotation marks omitted), establish that plaintiff was "a ruling figure of the
Luchese LCN Family" whose "organized crime involvement includes narcotics, labor
racketeering, murder, and extorting kickbacks." Hardy DecI. ~ 5.
Based on the FBI's declaration, including its statements regarding plaintiffs criminal
background, the Court concludes that the FBI properly withholds source symbol number
32
informants and the names and identifying information concerning cooperating witnesses under
Exemption 7(F). It is reasonable in these circumstances to conclude that disclosure of this
information could threaten the lives of or otherwise endanger their safety.
£. Referral to the BOP
On May 2,2008, the FBI referred three pages of records to the BOP. Hardy Decl., ~~ 3-4,
81 & Ex. A (Referral re: FOIA Request Number 2008-06852), Ex. J ("Moorer Decl."). The FBI
sent a second referral package to the BOP on August 14, 2008. Hardy Decl. ~ 81. It included the
three pages referred on May 2,2008, see Vaughn Index at 46-48, and one additional page. See
Vaughn Index at 45. As of the filing of the instant motion, the outcome of the August 14,2008
referral, that is, the decision to withhold or to release the one additional page, was unknown.
Moorer Dec!. ~ 5 n.1.
The records referred on May 2, 2008 "contained the names, register numbers, locations,
FBI numbers, Social Security numbers, dates of birth, and organized crime affiliation of inmates
incarcerated in the [BOP]," Moorer Decl. ~ 7, and the BOP withheld them under Exemptions
7(C) and 7(F). Id. ~ 5. According to the BOP's declaration, release of this information not only
would confirm each individual's status as "a significant organized crime member" but also
would endanger his life or physical safety. Id. The agency declined to offer a "more detailed
description ofthe information withheld" because it "could identify the protected material." Id. ~
6. Because non-exempt material "was so intertwined with protected material," the BOP released
no segregable material and, instead, withheld these records in their entirety. Id.Plaintiff opposes the BOP's decision, arguing that the BOP "made an improper, unilateral
decision to withhold the three pages of information which it had relevant to the plaintiffs
33
inquiry," Pl.'s Statement of Material Facts in Genuine Dispute ~ 2, without any "evidence ... as
to the nature of the information withheld and the legal basis therefor." Id. ~ 21; Pl.'s Aff. ~ 32.
Absent additional information from the BOP as to its rationale for withholding in full the three
pages of records referred on May 2, 2008, the Court cannot determine whether its decision is
proper. Nor can the Court determine whether the BOP withheld or released the additional page
referred by the FBI on August 14, 2008
III. CONCLUSION
The Court finds that the FBI conducted an adequate search for records responsive to
plaintiffs FOIA request and that it properly withheld information under Exemptions 2,6, 7(C),
7(E), and 7(F). Under Exemption 7(D), the FBI properly withholds confidential source file
numbers, permanent source symbol numbers, information provided by symbol numbered
informants under an express grant of confidentiality, and the names of and identifying
information about interviewees who provided information in circumstances under which
confidentiality is implied. In these respects the FBI's summary judgment motion will be granted.
The FBI does not establish that it received foreign government agency information under
an express assurance of confidentiality, and the Court cannot determine whether it properly
withheld this information under Exemption 7(D). Nor can the Court determine whether the BOP
properly withheld the three pages referred on May 2,2008, and the results of the August 14, 2008
referral are unknown. In these respects the motion will be denied.
An Order consistent with this Memorandum Opin'
RI
United States District JudgeDDate:
34