Skinner v. United States Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JESSE SKINNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-0725 (PLF)
)
UNITED STATES DEPARTMENT )
OF JUSTICE, et al., )
)
Defendants. )
)
OPINION
Plaintiff brought this action under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, against the United States Department of Justice (“DOJ”) and four of its
components. The Court has resolved the claims regarding plaintiff’s FOIA requests to the
Executive Office for United States Attorneys (“EOUSA”) and the Federal Bureau of
Investigation (“FBI”). See Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010).1
This matter now is before the Court on defendants’ renewed motion for summary judgment
which addresses three outstanding issues regarding the response of the Bureau of Alcohol,
1
The EOUSA has released 100 pages of records without charge to plaintiff, see
Defs.’ Renewed Mot. for Summ. J., Ex. 1 (Letter to plaintiff from William G. Stewart II,
Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated January 3, 2011).
No genuine issues of material fact are in dispute with respect to plaintiff’s FOIA request to the
EOUSA, and defendants’ renewed motion for summary judgment will be granted in this respect.
Tobacco, Firearms and Explosives (“BATFE”) to plaintiff’s July 3, 2007 FOIA request, assigned
No. 08-171.2
I. BACKGROUND
In relevant part, plaintiff’s FOIA request to the BATFE read:
This letter serves as a FOIA request . . . for copies of any and all
records created and received by the Biloxi, Mississippi Field Office
for the [BATFE] in regards to myself – JESSE SKINNER. In
addition, this is a request for an index of any and all files maintained
by the [BATFE] in reference to me.
Defs.’ Mem. of Points & Authorities. in Supp. of the Mot. to Dismiss In Part, and Alternatively,
for Summ. J. (“Defs.’ First Mem.”) [Dkt. #18], Decl. of Averill P. Graham (“Graham Decl.”),
Ex. Q (Letter from plaintiff to BATFE, Biloxi, Mississippi Field Office, dated July 3, 2007) at 1.
The BATFE released responsive records to plaintiff on three occasions. Initially, it released 100
pages of records on November 21, 2007 at no cost to plaintiff. Id., Graham Decl. ¶ 25. Plaintiff
was notified at that time “that some of the pages responsive to his FOIA request had been
referred to other agencies where they originated.” Id., Graham Decl. ¶ 25. Twelve pages of
records were referred to the Department of the Army (“Army”), id., Graham Decl. ¶ 26, and one
page was referred to the U.S. Customs and Immigration Services (“USCIS”), id., Graham Decl.
¶ 29. On December 13, 2007, upon receipt of a payment of fees assessed for the search for a
copying of the records, the BATFE released more documents. Id., Graham Decl. ¶ 32. Lastly, on
2
Also before the Court are Plaintiff’s Motion to Renew Plaintiff’s Motion for
Defendant DEA to Turn Over to Plaintiff the Medical Records of Craig Shows and John
Bordages [Dkt. #61] and Plaintiff’s Motion to Order the Defendant DEA to Revise [Its] “Vaughn
List” to the Current Status Information In Their Possess and to Release All Information to
Plaintiff Immediately [Dkt. #62]. Both motions will be denied.
2
“review of all the documents for litigation,” the BATFE released 34 more pages of records on
October 26, 2009. Id., Graham Decl. ¶ 41.
A. Disclosure of a Compact Disc
Among the records responsive to plaintiff’s FOIA request to the BATFE was “a
CD of photographs . . . referenced on the cover sheet related to request number 08-171 on
December 13, 2007, but was inadvertently not released to [plaintiff].” Defs.’ Mem. in Supp. of
their Renewed Mot. for Summ. J. (“Defs.’ Renewed Mot.”), Ex. 2 (“Labrie Decl.”) ¶ 4.3 This
“CD contained 8 photographs of two individuals, one of whom was female, and both of whom
were not further identified.” Defs.’ Renewed Mot., Labrie Decl. ¶ 4. It was believed that the
BATFE “intended to withhold the CD in full because [no one] could identify the individuals, but
accidentally omitted it from the exemption portion of the cover sheet.” Id., Labrie Decl. ¶ 4.
Staff discussed the CD with the assigned case agent, and it was determined “that one of these
individuals is [plaintiff].” Id., Labrie Decl. ¶ 4. Accordingly, the BATFE has released the
photograph of plaintiff and the photographs of the female “with her facial features redacted under
Exemption 7(C).” Id., Labrie Decl. ¶ 4.
3
Because defendants’ prior motion for summary judgment and supporting
declaration did not indicate whether the CD had been released, the Court deferred consideration
of plaintiff’s “Motion for Production of ATF CD Containing Photographs and All Other
Photograph’s [sic] with Respect to Plaintif[f]’s Instant Civil Action in Possession of the ATF”
[Dkt. #22]. Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d at 190 n.4. The agency since has
released the CD. Defs.’ Renewed Mot., Labrie Decl. ¶ 3. In addition, in response to plaintiff’s
request “during this litigation . . . [for] color copies of 15 photographs of laboratory exhibits
consisting of 9 printed pages . . . which were . . . delineated in [BATFE’s] previously filed
Vaughn Index,” the BATFE released redacted copies of these photographs on November 8, 2010.
Id., Labrie Decl. ¶ 5. As is discussed below, the BATFE properly has redacted images of the
third parties, and plaintiff’s motion will be denied as moot.
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B. Referral to the Department of the Army
On November 21, 2007, the BATFE referred 12 pages of records to the
Department of the Army. Defs.’ First Mem., Graham Decl. ¶ 26. Relevant to this discussion are
the documents described as “[a] copy of a Certificate of Release or Discharge from Active Duty”
and two memoranda, one “from the Commander, 86th Ordnance Battalion to the Commander, US
Army Armor Center and Fort Knox, dated March 8, 1991,” and one “from the Commander,
Company B, to the Commander, 86th Ordnance Battalion, dated March 6, 1991,” both referencing
plaintiff’s discharge from the Army. Defs.’ Renewed Mot., Decl. of Thom M. Jones (“Jones
Decl.”) ¶ 3.4 The Army released these records to plaintiff in part after redacting the names of
third parties under Exemption 6. Id., Jones Decl. ¶ 4. Although plaintiff was advised of his right
to appeal this determination to the Commander, U.S. Army Human Resources Command
(“HRC”), id., Jones Decl., Ex. (Letter to plaintiff from Kelly R. Fraser, Colonel, U.S. Army,
Chief of Staff, U.S. Army Human Resources Command, dated March 13, 2008), “HRC records
do not indicate that [plaintiff] appealed the partial denial” of his FOIA request. Id., Jones Decl.
¶ 7.
C. Referral to the U.S. Citizenship and Immigration Services
On December 13, 2007, the BATFE referred a one-page document to the U.S.
Citizenship and Immigration Service (“USCIS”). Defs.’ First Mem., Graham Decl. ¶ 29; see id.,Graham Decl., Ex. AA (Letter to B.J. Welsh, FOIA Officer, USCIS, from Suzanne Placanica,
4
The remaining documents were routing and transmittal forms and copies of
correspondence pertaining to the original FOIA request, the referral of documents from the
BATFE to the Army, and the Army’s release of records to plaintiff. See Defs.’ Renewed Mot.,
Jones Decl. ¶ 4.
4
Disclosure Specialist, BATFE, dated December 13, 2007). The document was “a printout of
information extracted from a Privacy Act system of records commonly referred to as [t]he
Enforcement Communications System (formerly, Treasury Enforcement Communications
System (TECS)).” Defs.’ Renewed Mot., Decl. of Jill E. Eggleston (“Eggleston Decl.”) ¶ 5
(emphasis removed). From this document, the USCIS redacted “internal computer codes, an
unpublicized investigation technique, and the names and employee identification numbers of
federal law enforcement officers” under FOIA Exemptions 2, 7(C), and 7(E). Id., Eggleston
Decl. ¶ 7. The USCIS released this document to plaintiff on December 27, 2007. Id., Eggleston
Decl., Ex. C (Letter from T. Diane Cejka, Director, USCIS, dated December 27, 2007).
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).
The Court grants summary judgment if the movant shows that there is no genuine dispute as to
any material fact and is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). In a
FOIA action to compel production of agency records, the agency “is entitled to summary
judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls
within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]
inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F. 3d 828, 833
(D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir.
1978)). Summary judgment may be based solely on information provided in an agency’s
5
supporting affidavits or declarations if they are relatively detailed and 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 nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton,
770 F. Supp. 2d 175, 182 (D.D.C. 2011).
Plaintiff’s opposition to defendants’ renewed summary judgment motion is
devoted entirely to his quest to obtain from the United States District Court for the Southern
District of Mississippi exhibits from his criminal trial, defendants’ alleged possession of these
exhibits, and their alleged refusal to disclose them. According to plaintiff, his father “went to the
Courthouse in South Mississippi and was allowed to examine the exhibits and allowed to take
photographs” on two occasions in November 2010. Pl.’s Resp. in Opp’n of Def.’s Mot. for
Summ. J. (“Pl.’s Opp’n”) ¶ 17; Pl.’s Aff. in Supp. of Pl.’s Resp. in Opp’n of Defs.’ Mot. for
Summ. J. (“Pl.’s Aff.”) ¶¶ 8-9. Among these documents, plaintiff’s father allegedly “discovered
. . . incriminating evidence that further proves that the DOJ used false fraudulent evidence to
convict plaintiff.” Pl.’s Opp’n ¶ 17. Days later, a Drug Enforcement Administration (“DEA”)
agent allegedly “went to the District Courthouse in South Mississippi and took the trial exhibits.”
Id.; Pl.’s Aff. ¶ 12. Defendants, plaintiff claims, have “take[n] possession of the incriminating
evidence to prevent [him] from further exposing them as liars,” and depriving him of an
opportunity to have a private investigator review these exhibits “to further [his] claims of
wrongful acts on behalf of DOJ employees involved” in the criminal case. Id. ¶ 30. Thus,
plaintiff asserts, “the evidence exhibits [are] in the possession of the . . . DEA and this Court has
6
the authority to enjoin the agency from withholding agency records and to order the production
of any agency records properly withheld from complainant.” Pl.’s Opp’n ¶ 22 (brackets and
internal quotation marks omitted).
“A requester may challenge the government’s showing by setting out specific
facts showing a genuine issue for trial,” Brown v. U.S. Dep’t of Justice, 742 F. Supp. 2d 126, 129
(D.D.C. 2010) (citation and internal quotation marks and brackets omitted), but he “cannot rebut
the good faith presumption” afforded to an agency’s supporting declarations “through purely
speculative claims about the existence and discoverability of other documents.” Id. (citations
omitted). Nor do plaintiff’s speculative and conclusory assertions amount to “contradictory
evidence in the record or by evidence of agency bad faith.” Halperin v. Cent. Intelligence
Agency, 629 F.2d 144, 148 (D.C. Cir. 1980); see Judicial Watch, Inc. v. Bd. of Governors of the
Fed. Reserve Sys., 773 F. Supp. 2d 57, 60 (D.D.C. 2011).
B. Exemptions
1. Exemption 2
Exemption 2 protects from disclosure material that is “related solely to the
internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). From a one-page
document described as a “Person/Subject Entry screen printout,” the USCIS withholds “internal
computer codes associated with a hyper-sensitive law enforcement database containing homeland
security information, i.e., TECS.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D (Vaughn Index)
at 1 (page number designated by the Court). “TECS is a comprehensive computerized law
enforcement and communications information system . . . designed to identify individuals,
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businesses, and vehicles suspected of or involved in violation of federal law.” Id., Eggleston
Decl., Ex. D at 1. It also allows for “message transmittal between federal, state, and local law
enforcement agencies,” and “provides access to the FBI’s National Crime Information Center
(NCIC) and the National Law Enforcement Telecommunications Systems (NLETS).” Id.,Eggleston Decl., Ex. D at 1. “[S]trict access controls, passwords and background checks on
individuals accessing the data” are among the measures taken to ensure that TECS data is being
handled properly. Id., Eggleston Decl., Ex. D at 1-2.
The USCIS withholds as “high 2” exempt information these internal computer
codes, explaining that they “not only permit access to the system, but are tied to the means to
identify, monitor, track, audit and, when necessary, pursue, apprehend and prosecute
unauthorized uses and users.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D at 2. Its declarant
explains that “[p]ublic dissemination of these access codes would permit unauthorized users to
avoid recognition, instant detection and apprehension, while simultaneously giving them near-
unfettered access to one of the nation’s most critical electronic law enforcement infrastructures
and the ability to irreparably corrupt the integrity of data contained therein.” Id., Eggleston
Decl., Ex. D at 2.
The difference between “High 2” and “Low 2” exempt information, long
recognized by the D.C. Circuit, is no longer an accepted distinction. See Milner v. Dep’t of the
Navy, 131 S.Ct. 1259, 1265 (2011) (“Our construction of the statutory language simply makes
clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . . .”)). The Supreme Court recently
has held, “consistent with the plain meaning of the term ‘personnel rules and practices,’” that
Exemption 2 “encompasses only records relating to issues of employee relations and human
8
resources.” Id. at 1271. Under Milner, then, “Exemption 2 may no longer be used to justify
withholding records on the grounds that disclosure would risk circumvention of the law or
federal agency functions.” Raher v. Fed. Bureau of Prisons, No. CV-09-526, 2011 WL 2014875,
at *2 (D. Or. May 24, 2011). On this record, the Court cannot grant summary judgment in
defendants’ favor with respect to any information withheld under Exemption 2.
2. Exemption 6
Exemption 6 protects “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). The term “similar files” is construed broadly and is “intended to cover detailed
Government records on an individual which can be identified as applying to that individual.”
U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (citation omitted). “The
information in the file ‘need not be intimate’ for the file to satisfy the standard, and the threshold
for determining whether information applies to a particular individual is minimal.” Milton v.
U.S. Dep’t of Justice, __ F. Supp. 2d __, __, 2011 WL 1743234, at *2 (D.D.C. May 6, 2011)
(quoting New York Times Co. v. Nat’l Aeronautics and Space Admin., 920 F.2d 1002, 1006 (D.C.
Cir. 1990)). Information protected under Exemption 6 includes such items as a person’s name,
address, place of birth, employment history, and telephone number. See Nat’l Ass’n of Retired
Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); see also Gov’t Accountability
Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010) (personal email addresses);
Schmidt v. Shah, No. 08-2185, 2010 WL 1137501, at *9 (D.D.C. Mar. 18, 2010) (employees’
home telephone numbers); Schwaner v. Dep’t of the Army 696 F. Supp. 2d 77, 82 (D.D.C. 2010)
9
(names, ranks, companies and addresses of Army personnel); United Am. Fin., Inc. v. Potter, 667
F. Supp. 2d 49, 65-66 (D.D.C. 2009) (name and cell phone number of an “unknown individual”).
Once this threshold inquiry is met, the Court employs a balancing test to determine whether
release of such information constitutes a clearly unwarranted invasion of personal privacy.
Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 260 (D.C. Cir.
1982). It is the requester’s obligation to demonstrate the existence of a significant public interest
in disclosure. See Coleman v. Lappin, 680 F. Supp. 2d 192, 196 (D.D.C. 2010).
The Army denied plaintiff’s FOIA request in part “in accordance with Title 5,
United States Code, Section 552(b)(6), and paragraph 3-200, Exemption 6, Army Regulation
25-55, the Department of the Army Freedom of Information Act Program.” Defs.’ Renewed
Mot., Jones Decl. ¶ 5. Redacted were the names of third parties appearing in the three
documents referred by the BATFE to the Army, see id., Jones Decl., Attach., in order “to protect
[their] personal privacy,” id., Jones Decl. ¶ 4. Only the names were redacted; the remainder of
the documents was released. Id., Jones Decl. ¶ 6. Wholly absent from plaintiff’s opposition is an
assertion of any public interest which outweighs the personal privacy interests of these third
parties. See generally Pl.’s Opp’n.
The Court concludes that the Army has complied fully with its obligations under
the FOIA. Its decision to redact the names of third parties was appropriate, and all segregable
information has been released to plaintiff.
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3. 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).5 In determining whether this exemption applies to particular material,
the Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.
Cir. 2007); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993); Davis v. U.S. Dep’t
of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992) . The privacy interest at stake belongs to the
individual, not the government agency, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 763-65 (1989); Nat’l 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”), and 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). “[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. U.S. Dep’t of Justice, 968 F.2d at 1282 (quoting Reporters
Comm. for Freedom of the Press, 489 U.S. at 773). It is the requester’s obligation to articulate a
public interest sufficient to outweigh an individual’s privacy interest, and the public interest must
be significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
5
The Court already has determined that the records responsive to plaintiff’s FOIA
request were compiled for law enforcement purposes. See Skinner v. U.S. Dep’t of Justice,
744 F. Supp. 2d at 206.
11
Under Exemption 7(C), the USCIS withholds “the names and identification
numbers of law enforcement personnel found in TECS records compiled for law enforcement
purposes.” Def.’s Mem., Eggleston Decl., Ex. D at 2. Its declarant asserts that “[p]ublic
identification of any of these individuals could conceivably subject them to harassment and
annoyance in the conduct of their official duties, as well as in their private lives.” Id., Eggleston
Decl, Ex. D at 2. Further, the declarant asserts that individuals “who serve as career public
servants are not thereby stripped of all vestiges of personal privacy, even with respect to the
discharge of their official public duties,” such that the “interest in protecting the privacy of . . .
law enforcement officers and employees” prevails “[i]n the absence of a demonstration of
significant misconduct.” Id., Eggleston Decl, Ex. D at 2. Accordingly, the USCIS redacts the
names of and identifying information about law enforcement personnel mentioned in the relevant
records in order to prevent the “risk [of] impairing their effectiveness by subjecting them to
potential harassment, stigmatization, overwhelming media scrutiny or, worse, physical harm.”
Id., Eggleston Decl, Ex. D at 2.
Applying a similar rationale, the BATFE withholds under Exemption 7(C) the
name of a federal law enforcement agent and “the face of a third party individual referenced in
connection with the investigation” of plaintiff’s activities. Defs.’ Renewed Mot., Labrie Decl.
¶ 9. Absent plaintiff’s submission of “waivers that would permit release of any third party
individual’s information,” the BATFE’s declarant explains that the agency “balance[d] the
interests at stake” and “determined that . . . disclosure of the information could reasonably be
expected to cause the third parties . . . embarrassment, harassment, and harm, and would do little,
12
if anything at all, to aid the public’s understanding of the BATFE.” Id., Defs.’ Renewed Mot.,
Labrie Decl. ¶ 11.
“The D.C. Circuit has consistently held that [E]xemption 7(C) protects the privacy
interests of all persons mentioned in law enforcement records, including investigators, suspects,
witnesses and informants, and has determined that such third-party information is categorically
exempt from disclosure under [E]xemption 7(C), in the absence of an overriding public interest
in its disclosure.” Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (internal
quotation marks and citations omitted); see Sussman v. U.S. Marshals Serv., 494 F.3d at 1116(names, addresses, telephone numbers, social security numbers and other private information
about law enforcement officers, other government employees, and third parties other than a third
party who had authorized the release of records about himself to the requester); Richardson v.
U.S. Dep’t of Justice, No. 09-1916, 2010 WL 3191796, at *7-8 (D.D.C. Aug. 13, 2010)
(identities of and personal information about FBI Special Agents, Metropolitan Police
Department officers, law enforcement technicians, an Assistant United States Attorney, and
eyewitnesses to an attempted murder); Lasko v. U.S. Dep’t of Justice, 684 F. Supp. 2d 120, 132
(D.D.C. 2010) (identities of DEA Special Agents and laboratory personnel, and state and local
law enforcement officers); Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008)
(identities of federal and local law enforcement personnel). Absent a showing by plaintiff that
“the public interest sought to be advanced is a significant one. . . and . . . [that] the information is
likely to advance that interest,” Sussman v. U.S. Marshals Serv., 494 F.3d at 1115 (internal
quotation marks and citations omitted), the Court concludes that the agency properly withheld
this third party information under Exemption 7(C).
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4. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records “to the extent
that the production of such law enforcement records or information . . . 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
information 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., Morley v. Cent. Intelligence Agency, 453 F. Supp. 2d 137, 157 (D.D.C. 2006)
(approving the withholding of information pertaining to security clearances and background
investigations on the ground that “disclosure of CIA security clearance and investigatory
processes would risk circumvention of those processes in the future”), rev’d on other grounds,
508 F.3d 1108 (D.C. Cir. 2007); Fisher v. U.S. Dep’t of Justice, 772 F. Supp. 7, 12 (D.D.C.
1991) (upholding FBI’s decision to withhold information about law enforcement techniques
where disclosure would impair its future effectiveness and, “within the context of the documents
at issue could alert subjects in drug investigations about techniques used to aid the FBI”), aff’d,
968 F.2d 92 (D.C. Cir. 1992).
“The TECS screen printout at issue here, among other things, contains a ‘all-
points bulletin’ regarding an ongoing criminal law enforcement operation; a brief profile of the
subject of this communication, including his involvement, habits and level of threat; subject
tracking; and actions to be taken by law enforcement agents stationed at check points if subjects
are encountered.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D at 3. Release of this
14
information to plaintiff, the declarant states, “will have the unintended and undesirable result of
placing the same information at the disposal of other subjects of investigation(s), assisting them
to evade detection and apprehension by alerting them to the investigation techniques used to aid
the underlying law enforcement operation and, thereby, impair the effectiveness of those law
enforcement techniques.” Id., Eggleston Decl., Ex. D at 3.
D.C. Circuit precedent “sets a relatively low bar for the agency to justify
withholding” information under Exemption 7(E). Blackwell v. Fed. Bureau of Investigation, __
F.3d __, __, 2011 WL 2600831, at *3 (D.C. Cir. July 1, 2011). The exemption allows for
withholding information in the face of “not just for circumvention of the law, but for a risk of
circumvention; not just for an actual or certain risk of circumvention, but for an expected risk;
not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not
just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.”
Id. (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C. Cir.
2009)). Law enforcement procedures and techniques are afforded categorical protection under
Exemption 7(E), see Fisher v. U.S. Dep’t of Justice, 772 F. Supp. at 12 n.9, and plaintiff presents
no argument to rebut the USCIS’ showing that the information withheld falls within the scope of
such protection.
The Court concludes that the USCIS properly has redacted from the TECS screen
printout information pertaining to the techniques, procedures and guidelines for action in an
ongoing criminal law enforcement operation.
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III. CONCLUSION
The Court concludes that the BATFE has demonstrated its full compliance with
the FOIA by releasing copies of photographs after having redacted only the name of a federal law
enforcement agent and the face of a third party, as has the Army by redacting only the names of
third parties. Further, the Court concludes that the USCIS properly withheld the names and
employee identification numbers of federal law enforcement officers under Exemption 7(C) and
investigation techniques under Exemption 7(E). In these respects, defendants’ renewed motion
for summary judgment will be granted. Because the USCIS relies on an impermissible basis for
withholding computer access codes under Exemption 2, the motion will be denied in part
without prejudice. An appropriate Order accompanies this Opinion.
/s/
PAUL L. FRIEDMAN
DATE: August 24, 2011 United States District Judge
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