Wolfson v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLEN WOLFSON,
Plaintiff,
v.
Civil Action No. 09-0304 (ESH)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C.
§ 552, against the United States Department of Justice (“DOJ”).1 This matter is before the Court
on the DOJ’s motion for summary judgment and plaintiff’s motion to dismiss. For the reasons
discussed herein, the Court will grant summary judgment for the DOJ.
I. BACKGROUND
On or about August 25, 2005, plaintiff submitted a Privacy Act Identification and Request
Form to the DOJ’s FOIA/PA Unit, Criminal Division, in Washington, D.C. Complaint
(“Compl.”) at 3; Defendants’ Memorandum in Support of its Motion for Summary Judgment
(“Def.’s Mem.”), Declaration of Pamela A. Roberts (“Roberts Decl.”), Exhibit (“Ex.”) 1 (Privacy
Act Identification and Request Form). He requested that the agency search the following systems
of records for information about himself:
JUSTICE/CRM-001 Central Criminal Division Index File and
Associated Records
1
Because the FOIA applies only to federal government agencies, see 5 U.S.C. §
552(f)(1), the United States Department of Justice is the proper party defendant.
JUSTICE/CRM-003 File of Names Checked to Determine if
Those Individuals have been the Subject of
an Electronic Surveillance
JUSTICE/CRM-004 General Litigation and Legal Advice
Section, Criminal Division, Central Index
File and Associated Records
JUSTICE/CRM-008 Name Card File on Department of Justice
Personnel Authorized to have Access to
Classified Files of the Department of Justice
JUSTICE/CRM-012 Organized Crime and Racketeering Section,
General Index File and Associated Records
JUSTICE/CRM-017 Registration and Propaganda Files Under the
Foreign Agents Registration Act of 1938, as
amended
JUSTICE/CRM-019 Requests to the Attorney General for
Approval of Applications to Federal Judges
for Electronic Interceptions
JUSTICE/CRM-021 The Stocks and Bonds Intelligence Control
Card File System
JUSTICE/CRM-022 Witness Immunity Records
JUSTICE/CRM-024 Freedom of Information/Privacy Act
Records
JUSTICE/CRM-025 Tax Disclosure Index File and Associated
Records
See id., Ex. 1. Through this FOIA request, plaintiff sought “ all of the wire taps that were done
illegally against him,” operating under the assumption that an Assistant United States Attorney
illegally obtained wiretaps “solely to keep tabbs [sic] of plaintiff[.]” Compl. at 3. Through such
surveillance, plaintiff felt “that the government invaded his privacy and should be forced to turn
over what ever they have acquired.” Id.Criminal Division staff located 16 documents responsive to plaintiff’s request and
processed them under the FOIA. Roberts Decl., Ex. 3 (June 16, 2008 letter from R.Y. Kim,
Chief, Freedom of Information/Privacy Act Unit, Criminal Division, regarding Request No.
CRM-200500908P). Of these 16 documents, the DOJ withheld two documents in full (Items 15-
2
16), released eight documents in full (Items 1-5, 12-14), and released six documents in part
(Items 6-11), after redacting information under Exemptions 3, 5, 6, 7(C), and 7(D) of the FOIA.2
Roberts Decl. ¶ 13. This determination was upheld on administrative appeal. Id., Ex. 5
(September 23, 2008 letter from J.G. McLeod, Associate Director, Office of Information and
Privacy, DOJ).
In this action, plaintiff demands the disclosure in full of all the information he has
requested in order to “prove that he did not commit any crimes from [1]990 until 2002” and to
“prove that the government has been illegally spying on [him].” Compl. at 3. In addition, he
“wants to be financially compensated for the illegal activity of the government in listening to
plaintiff’s telephone conversation[s]” in the amount of “1000 dollars a day for every day his
phones were tapped.” Id. at 4.
II. DISCUSSION
A. Summary Judgment Standard
The Court may grant a motion for summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant 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 of a genuine issue of
material fact in dispute. 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
2One document originated with the Federal Bureau of Investigation (“FBI”), and
Criminal Division staff referred it to the FBI for processing and direct response to plaintiff.
Roberts Decl. ¶ 6.
3
453, 456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)
(citations omitted). In a FOIA case, the Court may grant summary judgment based on the
information provided in an agency’s supporting 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 record [or] 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. The DOJ’s Search for Responsive Records
An agency’s search is adequate if its 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
4
F.2d at 68). “[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 of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry v.
Block, 684 F.2d 121, 128 (D.C. Cir. 1982)).
A search for records responsive to a person’s request for information about himself to the
Criminal Division begins “by searching its centralized records index, JUSTICE/CRM-001
(Central Criminal Division Index File and Associated Records).” Roberts Decl. ¶ 9. If this
search yields responsive or potentially responsive records, staff sends “a search request . . . to the
section identified as having custody of the records for such records.” Id. A requester also may
designate specific Privacy Act systems of records to be searched, as plaintiff has done. Id. ¶ 10;
see id., Ex. 1. “Pursuant to long-standing FOIA/PA Unit search procedures, a search sheet with a
copy of the request is transmitted to all sections that may have responsive records.” Id. ¶ 11.
Designated personnel in each section “undertake a search for responsive materials and report the
results by means of individual, signed forms to the Criminal Division FOIA/PA Unit.” Id.
In this case, a search of the Criminal Division’s centralized records index,
JUSTICE/CRM-001, using plaintiff’s name as a search term, “revealed six separate indexes
located in the Federal Records Center.” Notice of Filing Supplemental Declaration,
Supplemental Declaration of Rena Y. Kim (“Kim Decl.”) ¶ 6. Staff determined that “potentially
responsive records may exist [in] the following Criminal Division Sections: the Appellate, the
Fraud and Public Integrity Sections, as well as the FOIA/PA Unit.” Id.
Also using plaintiff’s name (or variants of his name) as a search term, manual and
electronic searches of records maintained by the Appellate and Public Integrity Sections yielded
5
no responsive records. Kim Decl. ¶¶ 7-8. Likewise, searches of JUSTICE/CRM-003,
JUSTICE/CRM-004, JUSTICE/CRM-012, JUSTICE/CRM-017, JUSTICE/CRM-021, and
JUSTICE/CRM-025, yielded no responsive records. See id. ¶¶ 11-12, 14-16. DOJ staff did not
search JUSTICE/CRM-008. Id. ¶ 17. This system of records “contains only records about
present and former [DOJ] personnel[,]” and plaintiff “gave no indication that he has ever been an
employee of the [DOJ].” Id. Criminal Division staff also requested that the Computer Crime
and Intellectual Property Section search its systems of records. Kim Decl. ¶ 18. Using “Allen Z.
Wolfson” as a search term, no responsive records were located. Id. Responsive records actually
were located in four systems of records: JUSTICE/CRM-001, JUSTICE/CRM-019,
JUSTICE/CRM-022, and JUSTICE/CRM-024, after having conducted electronic and manual
searches of each system using plaintiff’s name as a search term. Roberts Decl. ¶ 12; Kim Decl.
¶¶ 6, 11-13. The declarant “personally reviewed all of the original, signed search responses in
this case, and . . . verified that all of the Criminal Division’s Privacy Act systems of records
designated by the Plaintiff were searched.” Roberts Decl. ¶ 12.
Without support, plaintiff asserts that the DOJ “did not fulfill its obli[ga]tion under the
FOIA . . . to demonstrate that its search was reasonably calculated to uncover all relevant
documents.” Objection to Motion for Summary Judgment (“Pl.’s Opp’n”) at 3. Because
“plaintiff use[d] the telephone extensively,” he opines that there must be thousands of pages
missing” from the DOJ’s release. Id.
Having reviewed defendant’s declarations, the Court concludes that the DOJ’s searches
were “reasonably calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at
325. The declarations “are accorded a presumption of good faith, which cannot be rebutted by
6
purely speculative claims about the existence and discoverability of other documents.” SafeCard
Servs., 926 F.2d at 1200 (internal quotation marks and citation omitted). The fact that the DOJ
did not locate all of the records sought by plaintiff is not dispositive. An agency’s search is not
presumed unreasonable because it fails to find all the requested information. See Steinberg v.
United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (the question is not “whether
there might exist any other documents possibly responsive to the request, but rather whether the
search for those documents was adequate”); see also Meeropol v. Meese, 790 F.2d 942, 952-53
(D.C. Cir. 1986). Furthermore, a requester’s challenge requires that he present evidence
rebutting the agency’s initial showing of a good faith search. See Maynard v. Central
Intelligence Agency, 986 F.2d 547, 560 (1st Cir. 1993); Weisberg, 705 F.2d at 1351-52. Plaintiff
fails to meet this evidentiary burden.
C. Exemptions
At issue in this case are eight documents, two of which the DOJ withheld in full (Items
15-16), and six of which it released in part (Items 6-11). Roberts Decl. ¶ 13.
1. Exemption 3
Exemption 3 protects records that are “specifically exempted from disclosure by statute . .
. provided that such statute either . . . [requires withholding] in such a manner as to leave no
discretion on the issue, or . . . establishes particular criteria for withholding or refers to particular
types of matters to be withheld.” 5 U.S.C. § 552 (b)(3). Under Exemption 3, the DOJ withholds
from three documents (Items 6-8) particular “paragraphs of information concerning the contents
of intercepted communications, including direct quotes from these interceptions.” Roberts Decl.
¶ 16. Its declarant explains the agency’s rationale as follows:
7
Title III of the Omnibus Crime Control and Safe Street[s] Act of
1968, 18 U.S.C. §§ 2510-2521 (“Title III”), provides a
comprehensive statutory scheme regulating both electronic
surveillance as an investigative tool as well as the disclosure of
information obtained through such surveillance. Title III imposes
clear restraints on the use and disclosure of intercepted
communications [and] expressly authorizes the recovery of civil
damages by individuals whose communications have been disclosed
in violation of this statute. Since Title III clearly identifies
intercepted communications as the subject of its disclosure
limitations[,] it falls squarely within the scope of subsection (B)’s
second prong, as a statute referring to particular types of matters to be
withheld[,] and thus constitutes a valid statutory basis for non-
disclosure under Exemption [3].
Id. ¶ 15 (internal quotation marks and citation omitted). Although plaintiff does not refer
expressly to Exemption 3, he objects generally to the DOJ’s decision to withhold any information
pertaining to the wiretaps. See Pl.’s Opp’n at 3.
The District of Columbia Circuit holds that “Title III falls squarely within the scope of
[the second prong of 5 U.S.C. § 552(b)(3)(B)], as a statute referring to ‘particular types of
matters to be withheld.’” Lam Lek Chong v. United States Drug Enforcement Admin., 929 F.2d
729, 733 (D.C. Cir. 1991) (quoting 5 U.S.C. § 552(b)(3)(B)) (emphasis in original); see Smith v.
Dep’t of Justice, 251 F. 3d 1047, 1049 (D.C. Cir. 2001). Accordingly, wiretapped recordings
obtained pursuant to Title III ordinarily are exempt from disclosure under Exemption 3. See
Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (finding that wiretapped recordings
obtained pursuant to Title III are exempt from disclosure under Exemption 3 if they have not
entered the public domain); Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1281 (D.C.
Cir. 1992) (concluding that, absent plaintiff’s objection or a showing of public availability, Title
III intercepts properly were withheld under Exemption 3); Raulerson v. Ashcroft, 271 F. Supp. 2d
8
17, 25 (D.D.C. 2002) (concluding that “the FBI validly applied Exemption 3 with regard to Title
III's general prohibition on the release of intercepted information”).
The Court concludes that the information described in the DOJ’s supporting declaration
as the contents of communications intercepted by means of a Title III wiretap has properly been
is withheld under Exemption 3. See, e.g., Willis v. Fed. Bureau of Investigation, No. 98-5071,
1999 U.S. App. LEXIS 7354, at *1 (D.C. Cir. Mar. 19, 1999) (affirming grant of summary
judgment as to the FBI’s decision to withhold tapes obtained pursuant to Title III where appellant
alleged, without supporting evidence or offering a reason to doubt the veracity of the FBI’s
affidavits, that the tapes were not obtained pursuant to Title III).
2. Exemption 5
Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference
to the protections available to litigants in civil discovery; if material is not available in discovery,
it may be withheld from FOIA requesters.” Burka v. United States Dep’t of Health & Human
Servs., 87 F.3d 508, 516 (D.C. Cir. 1996) (internal quotation marks omitted); Nat’l Labor
Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975).
Deliberative Process Privilege
The deliberative process privilege “shields only government ‘materials which are both
predecisional and deliberative.’” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616
(D.C. Cir. 1997) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C.
Cir. 1988) (en banc)). To show that a document is predecisional, the agency need not identify a
9
specific final agency decision; it is sufficient to establish “what deliberative process is involved,
and the role played by the documents at issue in the course of that process.” Heggestad v. United
States Dep’t of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)); see also In re Sealed Case, 121 F.3d 729,
737 (D.C. Cir. 1997) (“The deliberative process privilege does not shield documents that simply
state or explain a decision the government has already made[.]”).
A document is “deliberative” if it “makes recommendations or expresses opinions on
legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). The
deliberative process privilege is thought to “prevent injury to the quality of agency decisions.”
Sears, Roebuck & Co., 421 U.S. at 151. Such protection encourages frank discussion of policy
matters, prevents premature disclosure of proposed policies, and avoids public confusion that
may result from disclosure of rationales that were not ultimately grounds for agency action. See,
e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982).
Materials may be withheld under Exemption 5 under both the deliberative process
privilege and the attorney work product privilege. See, e.g., Miller v. United States Dep’t of
Justice, 562 F. Supp. 2d 82, 114-15 (D.D.C. 2008) (concluding that draft grand jury indictment,
trial attorney certification and draft affidavit supporting a request for plaintiff’s extradition were
protected under Exemption 5 insofar as they reflected “predecisional communications among
government personnel such as discussions of various litigation issues, alternatives, and
strategies,” and “such matters as trial preparation, trial strategy, interpretation, personal
evaluations and opinions pertinent to [plaintiff’s] criminal case” ); Heggestad, 182 F. Supp. 2d at
8-12 (concluding that prosecution memoranda prepared by attorneys to assist their superiors in
10
determining whether to authorize prosecution of the targets of a criminal investigation prior to
the final decision to prosecute properly were withheld under Exemption 5).
Attorney Work Product Privilege
Attorney work product is among the types of material that is not available in discovery.
See, e.g., Federal Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 27 (1983). The attorney work
product privilege protects material gathered and memoranda prepared by an attorney in
anticipation of litigation, see Hickman v. Taylor, 329 U.S. 495 (1947), and records may be
withheld as attorney work product if they contain the “mental impressions, conclusions, opinions
or legal theories of an attorney” and were “prepared in anticipation of litigation.” Fed. R. Civ. P.
26(b)(3); see Miller v. United States Dep’t of Justice, 562 F. Supp. 2d 82, 115 (D.D.C. 2008)
(documents which “reflect such matters as trial preparation, trial strategy, interpretation, personal
evaluations and opinions pertinent to [plaintiff’s]” qualify as attorney work product under
Exemption 5); Heggestad, 182 F. Supp. 2d at 8 (the attorney work product privilege “covers
factual materials prepared in anticipation of litigation, as well as mental impressions,
conclusions, opinions, and legal theories”).
The DOJ asserts that information contained in Items 6-8 and 15-16 is exempt from
disclosure under both the deliberative process privilege and the attorney work product privilege.
Roberts Decl. ¶ 21.
Items 6-8
Items 6-8 are memoranda “prepared by [Criminal] Division attorneys [] recommending
that authorization be granted to apply for an order for continued interception of oral
communications” and additional information “establishing probable cause for the
11
interceptions[.]” Roberts Decl. ¶ 19. The declarant states that these memoranda “[were]
prepared . . . prior to making a recommendation to the Assistant Attorney General of the
Criminal Division (the Department official with delegated authority to authorize applications for
wiretaps)” and thus “preceded the final decision of whether to authorize the application for
continued wiretaps[.]” Id. ¶ 28. Further, the declarant states that the memoranda “express
opinions and provide recommendations relevant to the final decision,” id., insofar as “decisions
and analysis regarding requests for the authorization to apply for interception orders under 18
U.S.C. § 2518 constitute sensitive deliberations undertaken by Criminal Division attorneys and
their superiors[.]” Roberts Decl. ¶ 23.
The declarant further asserts that the withheld information is protected by the attorney
work product privilege because these documents or portions thereof “set forth the attorneys’
thoughts, impressions, evidence development, legal theory of the case, and facts and issues upon
which the attorney[s] could evaluate the case.” Roberts Decl. ¶ 23. With respect to Item 8, the
declarant represents that “attorneys’ thoughts, opinions, candid discussions, and
recommendations concerning the need for continued interception of oral communications” are set
forth therein. Id. ¶ 29.
Items 15-16
Items 15 is described as “a one-page cover memo dated August 11, 1982, that is attached
to Item 14[,] a prosecution memo also dated August 11, 1982.”3 Roberts Decl. ¶ 19. The cover
memo “provides a few statements of analysis regarding the prosecution memo.” Id. Item 16 is
described as “a 12-page prosecution memorandum prepared on August 11, 1982[, which]
3
Item 14 was released in full. Roberts Decl. ¶ 13.
12
identifies the defendants, discusses the proposed charges, summarizes the case, and provides a
statement of the law and a statement of the facts including proposed testimony and the
anticipated defenses.” Id. These two documents, according to the declarant, “contain crucial
elements of the deliberations in making key decisions in prosecuting the case [against plaintiff].”
Id. ¶ 31. The declarant states that both documents “were prepared in advance of trial and reveal
the attorney’s thought processes and litigation strategy.” Id. ¶ 31.
Based on the declarant’s representations, which plaintiff has not challenged, the Court
concurs that Items 6-8 and 15-16 “constitute ‘inter-agency or intra-agency’ memoranda” and thus
“meet Exemption 5’s threshold requirement.” Roberts Decl. ¶ 20. All were prepared in advance
of trial and in anticipation of litigation, and their release would reveal the attorneys’ thought
processes and litigation strategy and would reveal the agency’s deliberations prior to the decision
to seek authorization for continued monitoring of oral communications. In addition, the DOJ
establishes that this information was prepared by attorneys in anticipation of a criminal
prosecution. The Court concludes that the redacted portions of Items 6-8 and Items 15-16 in
their entirety have properly been withheld under Exemption 5.
3. Exemption 74
a. Law Enforcement Records
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S.
4Because the Court concludes that all the information withheld under Exemption 6 is
properly withheld under Exemption 7(C), there is no need to consider the applicability of
Exemption 6. See Simon v. Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).
13
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,
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).
Plaintiff’s criminal history has been described as follows:
Mr. Wolfson, working with certain other defendants named in the
SEC’s complaint, played a key role in a fraudulent scheme designed
to artificially inflate the stock price of a corporation known as
Freedom Surf, Inc. Over the course of several months, Mr. Wolfson
attempted to create the false appearance of market demand for the
stock by using nominees under his control to call in ever-higher bid
and ask prices for the stock. In fact, the demand for the stock was
generated by trading from accounts controlled by Mr. Wolfson. After
the price had been artificially inflated by these spurious trades, Mr.
Wolfson delivered 25,000 shares to defendant Salomon Grey
Financial Corporation, at a discount of 50% from the current bid
price. Salomon Grey then marked up the price of the shares and sold
them to investors before the share price crashed.
In a criminal action in the Southern District of New York, Mr.
Wolfson pleaded guilty to criminal charges arising from this
fraudulent scheme. He admitted under oath in his criminal
proceedings that he agreed to take steps to inflate the price of
Freedom Surf stock. According to his sworn statement in allocution,
he agreed to raise the price of the stock in order to defraud investors
and in order to enrich himself as well as others.
14
Sec. & Exch. Comm’n v. Wolfson, 249 Fed. App. 701, 702-03 (10th Cir. 2007).5
The DOJ represents that the responsive records “were compiled in connection with a
criminal investigation into violations of federal law involving racketeering activity, wire fraud,
money laundering, loan sharking, extortion, obstruction of justice, . . . aiding and abetting[,] . . .
securities fraud, . . . and embezzling funds from a labor organization[.]” Roberts Decl. ¶ 36.
Plaintiff does not dispute that the relevant records were compiled in the course of a criminal
investigation.
The Court concludes that the records at issue in this case are law enforcement records for
purposes 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). “To determine whether Exemption 7(C) applies, [courts] ‘balance the
privacy interests that would be compromised by disclosure against the public interest in release
of the requested information.’” Sussman v. United States Marshals Serv., 494 F.3d 1106, 1115
(D.C. Cir. 2007) (quoting Davis, 968 F.2d at 1282); see Beck v. Dep’t of Justice, 997 F.2d 1489,
1491 (D.C. Cir. 1993).
5
Although the trial court found that plaintiff “was competent at the time of his trial and
guilty plea,” it concluded after an evidentiary hearing that he since had become “incompetent to
be sentenced and therefore [was] committed to the custody of the Attorney General for care and
treatment pursuant to 18 U.S.C. § 4244 until such time as he has recovered so that he can be
sentenced.” United States v. Wolfson, 616 F. Supp. 2d 398, 401 (S.D.N.Y. 2008). Review of the
criminal docket reveals that plaintiff has been deemed competent to be sentenced, and that he is
to be transferred to New York for sentencing in the near future. See Order, United States v.
Wolfson, No. 02cr1588 (S.D.N.Y. filed Oct. 14, 2009).
15
Generally, the privacy interests of third parties mentioned in law enforcement files are
“substantial,” while “[t]he public interest in disclosure [of third-party identities] is not just less
substantial, it is insubstantial.” SafeCard Servs., 926 F. 2d at 1205. “[U]nless 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, such information is exempt from disclosure.” Id. at 1206; see Nation Magazine
v. United States Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995).
“[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, 968 F.2d at
1282 (quoting United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 773 (1989)). If the asserted public interest is government wrongdoing, then the
requester must “produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” Boyd v. Criminal Div. of the United
States Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (citing Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 174 (2004)).
Under Exemption 7(C), the DOJ withholds from Items 6-11 the names and addresses of
individuals who “either were the subjects of the criminal investigation, the targets of the
applications for interception of communications, or other individuals referenced in conjunction
with the investigation and intercepted communications.” Roberts Decl. ¶ 37; see id. ¶ 35. “The
individuals whose identifies were withheld . . . were not the [plaintiff].” Id. ¶ 35. The declarant
asserts that these individuals “all maintain a substantial privacy interest in not being identified
with a criminal law enforcement investigation.” Id. ¶ 38. To release these individuals’ identities
16
“as either the subjects of criminal investigations or being associated with such investigations can
subject them to innuendo, embarrassment, and stigmatization or even harassment, retaliation and
reprisals.” Id. Moreover, “revealing such information is unlikely to add to the public’s
understanding of how an agency works or how well it performs its statutory duties.” Id. ¶ 39.
Plaintiff “is quite sure that the tapping of his phones [was] an invasion of his privacy and
illegal surveillance by the government.” Pl.’s Opp’n at 3-4. He is under the mistaken impression
that the privacy interest at issue in the Exemption 7(C) analysis is his own. In his view, there is
no need to protect plaintiff’s privacy interest because he is the requester of “all information
regarding the tapping of his conversations.” Id. at 3. Exemption 7(C), however, focuses on the
privacy interests of third parties, who, in this case, were subjects of the criminal investigation,
targets of the wiretap applications, or otherwise were mentioned in connection with the wiretaps.
Plaintiff fails to articulate a public interest of such significance that it outweighs the privacy
interests of these third parties. The Court concludes that the DOJ properly has redacted the
names and addresses of the third parties described in the supporting declaration.
c. Exemption 7(D)
Exemption 7(D) protects from disclosure 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 U.S.C. § 552(b)(7)(D). A confidential source may be an individual, such as a private citizen or
paid informant, or it may be a state, local or foreign law enforcement agency. Lesar v. Dep’t of
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Justice, 636 F.2d 472, 491 (D.C. Cir. 1980). There is no assumption that a source is confidential
for purposes of Exemption 7(D) solely because the source provides information to a law
enforcement agency in the course of a criminal investigation. See United States Dep’t of Justice
v. Landano, 508 U.S. 165, 181 (1993). Rather, a source’s confidentiality is determined on a
case-by-case basis. Id. at 179-80. “A source is confidential within the meaning of 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 U.S. at 170-74).
Under Exemption 7(D), the DOJ withholds from Items 6-8 “information which would
identify confidential sources as well as the specific information or assistance which this source
provided to federal investigators.” Roberts Decl. ¶ 44. It appears that there was only one
confidential source and that he or she was neither a government agency nor a cooperating
witness. See id. ¶ 46. The declarant asserts that “the informant’s cooperation was provided
under circumstances where an assurance of confidentiality could reasonably be inferred[,]” based
on “the seriousness of the offenses and the source’s information.” Id. “[T]he nature of the
crimes being investigated included racketeering activity, wire fraud, money laundering, loan
sharking, extortion, obstruction of justice, aiding and abetting, securities fraud, and embezzling
funds from a labor organization.” Id.
The nature of the crime investigated and informant’s relation to it are the most important
factors in determining whether implied confidentiality exists. Landano, 508 U.S. at 179-80;
Quiñon v. Fed. Bureau of Investigation, 86 F.3d 1222, 1231 (D.C. Cir. 1996); Coleman v. Fed.
Bureau of Investigation, 13 F. Supp. 2d 75, 82 (D.D.C. 1998) (plaintiff’s conviction “of
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numerous violent crimes” including murder, rape and kidnaping, as well as “the relation of the
witnesses thereto is precisely the type that the implied confidentiality exemption expressed in
Landano is designed to encompass”). In determining whether the source provided information
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
question has been answered in the affirmative 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 of Investigation, No. 98-2728, 2002 WL 230756, at *4 (D.D.C. Feb. 2,
2002) (withholding identities and identifying information 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”).
Plaintiff counters that the government already has disclosed the identity of the person
“who originally recieved [sic] the permission [to] tap plaintiff’s telephone,” and because this
permission allegedly “was granted on false information,” he argues that the DOJ cannot now
establish that any information properly is withheld under either an express or implied assurance
of confidentiality. Pl.’s Opp’n at 4. Plaintiff presumes that the requester of the wiretaps is the
source whose identity the DOJ is protecting. See id. Further, he appears to argue that he is
innocent of the crimes of which he has been convicted, id., such that the nature of the crimes
should not be a factor in determining whether confidentiality can be reasonably implied. He
offers nothing, however, to undermine the presumption of veracity afforded to an agency’s
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supporting declaration.
Albeit on facts more compelling than those presented here, courts have concluded that the
investigation of crimes such as racketeering, loan sharking and extortion are circumstances under
which sources have provided information under an implied assurance of confidentiality. See,
e.g., Amuso v. United States Dep’t of Justice, 600 F. Supp. 2d 78, 99-100 (D.D.C. 2009)
(interviewees who provided information to the FBI did so under an implied assurance of
confidentiality based on the violent nature of plaintiff’s crimes, which included murder, extortion
and labor racketeering, and the fact that the interviewees reported on the activities of organized
crime families); McQueen v. United States, 264 F. Supp. 2d 502, 522-24 (S.D. Tex. 2003)
(documents identifying a confidential informant who provided information pertaining to the
crimes of willfully attempting to evade federal diesel fuel excise taxes and conspiracy to commit
such an offense are entitled to a “categorical presumption of implied confidentiality,” or,
alternatively, holding that the requester’s prior threats and ability to harm witnesses justified a
finding of implied assurances of confidentiality); Delviscovo v. Fed. Bureau of Investigation, 903
F. Supp. 1, 3 (D.D.C. 1995) (“[a] major racketeering investigation focusing on groups and
individuals involved in extortion, gambling, loan sharking, narcotics trafficking and interstate
transportation of stolen property gives rise to . . . an inference [of confidentiality] without the
need for elaboration”). The Court concludes that the DOJ properly has redacted from Items 6-8
information which would identify a confidential source.
D. Segregability
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
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are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pacific Policing
Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). The Court errs if it
“simply approve[s] the withholding of an entire document without entering a finding on
segregability, or the lack thereof.” Powell v. United States Bureau of Prisons, 927 F.2d 1239,
1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. United States Dep’t of the
Army, 611 F.2d 738, 744 (9th Cir. 1979)).
Plaintiff asserts that it is impossible for the DOJ to have released all segregable material
to him, apparently on the belief that he is entitled to disclosure in full of all information related to
his criminal trial. Pl.’s Opp’n at 4-5. The Court has reviewed the DOJ’s declarations and finds
that these submissions adequately specify “which portions of the document[s] are disclosable and
which are allegedly exempt.” Vaughn v. Rosen, 484 F.2d at 827 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974).
III. CONCLUSION
The DOJ has conducted an adequate search for materials responsive to plaintiff’s FOIA
request and properly has withheld information under Exemptions 3, 5, 7(C), and 7(D). The
agency has established that there is no genuine issue of material fact as to its compliance with the
FOIA and its entitlement to judgment as a matter of law. Accordingly, the Court will grant the
DOJ’s motion for summary judgment and will deny plaintiff’s motion to dismiss as moot. An
Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: November 30, 2009
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