McGehee v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
FIELDING McGEHEE, III, )
REBECCA MOORE, )
)
PlaintiffS, )
)
v. ) Civil Action No. 01-1872 (GK)
)
UNITED STATES DEPARTMENT )
OF JUSTICE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiffs Fielding McGehee, III and Rebecca Moore bring this
action against Defendant, the United States Department of Justice
(“DOJ”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552. Plaintiffs seek documents in the possession of the Federal
Bureau of Investigation concerning the victims and investigations
of the Jonestown Massacre, which occurred in Jonestown, Guyana, on
November 18, 1978. This matter is before the Court on Defendant’s
Second Motion for Summary Judgment [Dkt. No. 126] and Plaintiffs’
Second Cross-Motion for Summary Judgment [Dkt. No. 132]. Upon
consideration of the Motions, Oppositions, Replies, and the entire
record herein, and for the reasons set forth below, Defendant’s
Motion for Summary Judgment is granted in part and denied in part
and Plaintiffs’ Motion for Summary Judgment is granted in part and
denied in part.
I. BACKGROUND1
Plaintiffs are a husband and wife “journalistic and academic
team,” who operate a website containing information on the
Jonestown Massacre. This case concerns Plaintiffs’ efforts to
uncover the names of the victims of the massacre and to obtain
other information about the FBI and CIA’s investigation into the
Peoples Temple Christian Church (“Peoples Temple”) and its leader,
Jim Jones. On the day of the Massacre, a member of the Peoples
Temple assassinated California Congressman Leo J. Ryan at an
airstrip in Port Kaituma, near Jonestown, Guyana. Later that day,
nine hundred and thirteen members of the Peoples Temple died in a
mass suicide at Jonestown.
On October 6, 1998, Plaintiff McGehee submitted a FOIA request
for “a copy of all lists of the people who died in Jonestown,
Guyana on November 18, 1978.” By letter dated November 23, 1998,
the FBI notified McGehee that the results of his FOIA request
consisted of 48,738 pages. On December 11, 1998, McGehee responded
that he wished to limit the scope of his request “to cover the 251
pages on Peoples Temple membership which [Mr. Phil Waltz]
identified during a cursory review of the Peoples Temple records in
the FBI’s larger collection of materials.” Def.’s Opp’n, Ex. D, at
1 [Dkt. No. 142-1]. McGehee stated that he did “not intend for this
1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
2
letter to serve as a limitation to access to other pages of the
FBI’s larger collection of materials on Peoples Temple.” Id.Between July 1 and July 5, 1999, Plaintiff Moore submitted five
further FOIA requests to the FBI regarding the Jonestown Massacre.
On May 24, 2000, the FBI sent Plaintiffs three CD-ROMs
containing the 48,738 pre-processed pages referenced in its
November 23 letter. These pages did not contain a list of victims.
However, the FBI maintains that these pages encompass all
disclosable pages it possesses relating to Jonestown.
By letters dated May 30, 2000, and July 2, 2000, McGehee filed
an appeal with the Department of Justice’s Office of Information
Policy (“OIP”), challenging FBI redactions within the pages
produced. By letter dated August 29, 2000, OIP informed McGehee
that a supplemental release of two pages would be made, but
otherwise affirmed the redactions.
On August 30, 2001, Plaintiffs filed their first Complaint
[Dkt. No. 1], seeking an order requiring Defendant to provide the
information sought. On June 6, 2003, Judge John G. Penn, then
presiding over this case, granted Plaintiffs’ Motion for Leave to
File an Amended Complaint [Dkt. No. 29]. Plaintiffs’ Amended
Complaint covered additional FOIA requests made to the FBI
regarding the Jonestown Massacre. Thereafter, the parties spent
several years negotiating in an effort to resolve this matter,
during which time Defendant made certain additional searches and
3
productions. The case was transferred to this Court on October 25,
2007 [Dkt. No. 80].
On July 2, 2009, after further negotiations between the
parties, Plaintiffs provided the FBI with a list of 105 documents,
comprising 424 pages, to serve as a representative sample for which
the FBI would provide justification of their redactions pursuant to
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). On November 2, 2009, the FBI filed its first
Vaughn Index, but agreed to conduct a new declassification review
of the classified material within the original 48,738 pages. On
June 29, 2010, the FBI filed an updated Vaughn Index (the “Vaughn
Index”) [Dkt. Nos. 124, 125]. This Index reflected that the FBI
had, upon review of the sample, released 36 pages in full, 234
pages in part, and withheld 157 pages in full.2
On August 2, 2010, Defendant filed the present Motion for
Summary Judgment [Dkt. No. 126]. On September 22, 2010, Plaintiffs
filed their Opposition and Cross-Motion for Summary Judgment [Dkt.
No. 132]. On March 25, 2011, Defendant filed its Reply to
Plaintiffs’ Opposition and Opposition to Plaintiffs’ Cross-Motion
2
Because three pages from the original 424-page sample
submitted by McGehee were subsequently released in full as a result
of further declassification review, McGehee was permitted to choose
three replacement pages for the sample. Supp. Hardy Decl. ¶ 39.
Hence, the Vaughn Index reflects review of a total of 427 pages.
Id.4
for Summary Judgment [Dkt. No. 140]. On May 6, 2011, Plaintiffs
filed their Reply to Defendant’s Opposition [Dkt. No. 147].
II. STANDARD OF REVIEW
FOIA “requires agencies to comply with requests to make their
records available to the public, unless the requested records fall
within one or more of nine categories of exempt material.” Oglesby
v. United States Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996) (citing 5 U.S.C. §§ 552(a), (b)). An agency that withholds
information pursuant to a FOIA exemption bears the burden of
justifying its decision, Petroleum Info. Corp. v. Dep’t of the
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §
552(a)(4)(B)), and must submit an index of all materials withheld.
Vaughn, 484 F.2d at 827-28. In determining whether an agency has
properly withheld requested documents under a FOIA exemption, the
district court conducts a de novo review of the agency’s decision.
5 U.S.C. § 552(a)(4)(B).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d
83, 87 (D.D.C. 2009). Summary judgment will be granted when the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits or declarations, show that
there is no genuine issue as to any material fact and that the
5
moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c).
In a FOIA case, the court may award summary judgment solely on
the basis of information provided in affidavits or declarations
when they (1) “describe the documents and the justifications for
nondisclosure with reasonably specific detail;” (2) “demonstrate
that the information withheld logically falls within the claimed
exemption;” and (3) “are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
A. Adequacy of the Search
Plaintiffs first make several specific challenges to the
adequacy of Defendant’s search. Pls.’ Opp’n 15-16. To demonstrate
that a search was adequate, the agency must demonstrate that its
search was “reasonably calculated to uncover all relevant
documents.” Weisberg v. United States Dep't of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983). The agency must “show that it made a
6
good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” Oglesby v. United States Dep’t of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990). There is no requirement that an
agency search every record system in which responsive documents
might conceivably be found. Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995). However, the
agency cannot limit its search to only one record system if there
are others that are likely to produce the information requested.
Id. at 892.
The adequacy of any FOIA search is measured by a standard of
“reasonableness” and is dependent on the circumstances of the case.
Schrecker v. United States Dep't of Justice, 349 F.3d 657, 663
(D.C. Cir. 2003). The adequacy of a search is not determined by its
results, but by the method used to conduct the search itself.
Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984). To show reasonableness at the summary judgment
phase and to allow the court to determine if the search was
adequate, an agency must provide a “reasonably detailed affidavit,
setting forth the search terms and the type of search performed,
and averring that all files likely to contain responsive materials
(if such records exist) were searched.” Oglesby, 920 F.2d at 68.
In response to Plaintiffs’ request for “all lists of the
people who died in Jonestown,” the FBI searched its Central Records
7
System (“CRS”) and Automated Case Support System (“ACS”) for
“Jonestown deaths, “Jonestown list,” and “Jonestown Casualties.”
Def.’s Mot. 34. These searches produced no results. Id.However, a search for “Jonestown” produced the “RYMUR”
file—the criminal investigatory file for the investigation into the
assassination of Congressman Ryan. Id.; Supp. Hardy Decl. ¶ 47
[Dkt. No. 124]. This file was determined to be the only file
related to the FBI’s investigation into Jonestown and contained the
48,738 pages produced to Plaintiffs. Supp. Hardy Decl. ¶¶ 48-50. In
response to Plaintiffs’ further FOIA requests, the FBI also
searched its ACS Universal Index “using each subject’s name to
locate any main investigatory files maintained at FBIHQ.” Id. at ¶
51. The FBI used “each subject’s name and included a six way
phonetic breakdown of the subject’s first, middle, and last name,
in addition to a basic search using the exact spelling of the name
provided by the plaintiff.”3 Id.
Plaintiffs argue that the FBI’s search was deficient for
several reasons. First, Plaintiffs argue that Defendant’s
description of the FBI’s search “is inadequate, consisting simply
of general statements that it conducted a search of 12 subjects of
the several requests and found no ‘main’ files.” Pls.’ Opp’n 16. To
the contrary, Defendant’s affidavit explains precisely what
3
The “subjects” are the individuals about whom Plaintiffs
sought information in their additional FOIA requests. See Supp.
Hardy Decl. ¶ 51.
8
searches it conducted and the databases searched. It constitutes a
“reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were
searched.” Oglesby, 920 F.2d at 68. Further, the FBI’s search
picked up not only “main” files but also “cross-references,” which
are documents “in an FBI file on another subject of an
investigation in which the subject of the FOIA request is merely
mentioned or referred to, but in which he/she is not the main
subject of the investigation.” Eighth Hardy Decl. ¶ 52 [Dkt. No.
142-11].
Second, Plaintiffs argue that it is “implausible” that “there
was no separate file on the FBI’s investigation of [Larry]
Layton[]”—the subject of one of Plaintiffs’ later FOIA requests.
Pls.’ Opp’n 16. As the FBI has explained, however, Larry Layton was
tried and convicted “for acts relating to the assassination in
Jonestown.” Eighth Hardy Decl. ¶ 53. Hence, documents relating to
Layton would be in the RYMUR file, and, in fact, “Larry Layton is
listed as a main subject of the RYMUR file.” Id.Finally, Plaintiffs argue that a number of attachments to
documents are missing from the three CD-ROMs sent by the FBI. Pls.’
Opp’n 16. Defendant insists that “[m]any of the items alleged to be
missing were never listed as enclosures or attachments to the
document filed in this file, [the three CD-ROMs,] but were only
9
noted as attachments or enclosures to the offices listed in the
copy counts,” and that “[o]ther items were accounted for with a
deleted page information sheet or provided in another location in
the file.” Def.’s Reply 7; Eighth Hardy Decl. ¶ 4. In any case,
these missing attachments, in the context of the FBI’s search and
the size of its production, are not sufficient to render the FBI’s
search inadequate. See Nation Magazine, 71 F.3d at 892 n.7 (“the
failure to turn up . . . [a] document does not alone render the
search inadequate; there is no requirement that an agency produce
all responsive documents.”) (emphasis in original).
In sum, Defendant has submitted reasonably detailed affidavits
demonstrating that its search was “reasonably calculated to uncover
all relevant documents.” Weisberg, 705 F.2d at 1351.
B. Exemption 3
Defendant argues that it properly withheld information
pursuant to Exemption 3, which 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).
When faced with an Exemption 3 defense to a FOIA claim,
district courts engage in the two-pronged inquiry identified in
Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979), cert.
10
denied, 444 U.S. 1075, 100 S.Ct. 1021, 62 L.Ed.2d 757 (1980).
First, the Court must determine whether the statute qualifies as an
Exemption 3 statute. Second, the Court must determine “whether the
information sought after falls within the boundaries of the
non-disclosure statute.” Id. Defendant cites two statutes that
justify withholding under Exemption 3. Each will be addressed in
turn.
1. Federal Rule of Criminal Procedure 6(e)
Defendant first argues that certain information must be
withheld because it relates to a grand jury investigation. The
Federal Rules of Criminal Procedure prohibit disclosure of “matters
occurring before [a] grand jury.” Fed. R. Crim. P. 6(e)(2); see In
re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 498-501 (D.C.
Cir. 1998), cert. denied sub nom. Dow Jones & Co., Inc. v. Clinton,
525 U.S. 820, 119 S.Ct. 60, 142 L.Ed.2d 47 (1998). Rule 6(e) is a
statute for purposes of Exemption 3 because Congress affirmatively
enacted it. See Fund for Constitutional Gov't v. Nat'l Archives and
Records Serv., 656 F.2d 856, 867-68 (D.C. Cir. 1981).
In this Circuit, the grand jury exception is limited to
material which, if disclosed, would “tend to reveal some secret
aspect of the grand jury's investigation, such . . . as the
identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or
questions of jurors, and the like.” Senate of the Commonwealth of
11
Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 582
(D.C. Cir. 1987).
Here, the FBI invoked Exemption 3 in conjunction with Rule
6(e) only as to “Federal Grand Jury subpoenas, as well as the names
and identifying information of individuals subpoenaed to testify
before the Federal Grand Jury and information that identifies
specific records subpoenaed by the Federal Grand Jury.” Supp. Hardy
Decl. ¶ 76. Plaintiffs make no response to this statement, other
than generally to request in camera inspection of the withheld
documents. See Pls.’ Opp’n 16-21.
Given that the information withheld plainly implicated “the
identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or
questions of jurors, and the like,” Defendant properly invoked
Exemption 3 in conjunction with Rule 6(e). Senate of the
Commonwealth of Puerto Rico, 823 F.2d at 582. Hence, no in camera
inspection is necessary. Larson v. Dep’t of State, 565 F.3d 857,
870 (D.C. Cir. 2009) (If the agency's affidavits ‘provide specific
information sufficient to place the documents within the exemption
category, if this information is not contradicted in the record,
and if there is no evidence in the record of agency bad faith, then
summary judgment is appropriate without in camera review of the
documents.’”) (quoting Hayden v. Nat’l Sec. Agency, 608 F.2d 1381,
1387 (D.C. Cir. 1987)); Am. Civil Liberties Union v. United States
12
Dep’t of Defense, 628 F.3d 612, 626 (D.C. Cir. 2011) (“a court
should not resort to [in camera inspection] routinely on the theory
that ‘it can’t hurt.’”) (citing Larson, 565 F.3d at 870).
2. 50 U.S.C. § 403Defendant explains that certain information was withheld on
behalf of the CIA because that information “relates to the
organization, its functions, names, official titles, salaries and
numbers of personnel employed by the agency.” Supp. Hardy Decl. ¶
77. Defendant cites to two statutes that justify this withholding.
First, pursuant to the National Security Act of 1947 (“NSA”), the
“Director of National Intelligence shall protect intelligence
sources and methods from unauthorized disclosure.” 50 U.S.C. §
403–1(i)(1). Second, Section 6 of the Central Intelligence Agency
Act of 1949 (“CIA Act”) exempts the CIA from “any ... law which
require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of
personnel employed by the [CIA].” 50 U.S.C. § 403g.
There is no question that both statutes cited by Defendant are
“precisely the type of statutes comprehended by exemption 3.”
Goland v. Cent. Intelligence Agency, 607 F.2d 339, 349 (D.C. Cir.
1978) (internal quotations omitted); Larson, 565 F.3d at 865(“There is thus no doubt that section 403(d)(3) [now section
403-1(i)(1)] is a proper exemption statute under exemption 3.”)
(bracketed language in original) (quoting Fitzgibbon v. Cent.
13
Intelligence Agency, 911 F.2d 755, 861 (D.C. Cir. 1990); Halperin
v. Cent. Intelligence Agency, 629 F.2d 144, 147 (D.C. Cir. 1980)
(“Section 403g further provides for the exemption of the CIA from
any law that requires disclosure of the organization functions,
names, official titles, salaries or numbers of personnel employed
by the Agency.”).
Ralph S. DiMaio, the Information Review Officer for the
National Clandestine Service of the CIA, has provided a declaration
stating that the CIA has withheld “information relating to its
functions, foremost of which is the collection of foreign
intelligence through intelligence sources and methods, as well as
the names of CIA employees, and organizational data, including
location of facilities, file numbers and dissemination controls and
markings.” DiMaio Decl. ¶ 27 [Dkt. No. 126-1]. According to DiMaio,
“[t]he CIA has withheld this information to prevent the publication
of CIA personnel, structure, organization, and procedures, which
could be used as a tool for hostile penetration or manipulation.”
Id. Plaintiffs reply that “there must be some limit on [using 50
U.S.C. § 403-1(i)(1)] which relates to a practical assessment of
current actual national security needs” and that the Court should
permit an in camera inspection. Pls.’ Reply 9-10. “Given the
special deference owed to agency affidavits on national security
matters,” Defendant properly invoked Exemption 3 in conjunction
14
with 50 U.S.C. § 403. Morley v. Cent. Intelligence Agency, 508 F.3d
1108, 1126 (D.C. Cir. 2007).
C. Exemptions 6 and 7(C)4
Defendant contends that a substantial portion of the withheld
documents are protected from disclosure by Exemption 7(C), which
protects information compiled for law enforcement purposes to the
extent that disclosure “could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C. §
522(b)(7)(C). In determining whether Exemption 7(C) applies, the
Court must balance the public interest in disclosure with the
privacy interests implicated by release of the material. Computer
Prof’ls for Soc. Responsibility v. United States Secret Serv., 72
F.3d 897, 904 (D.C. Cir. 1996). Suspects, witnesses, investigators,
and third parties all have substantial privacy interests that are
implicated by the public release of law enforcement investigative
materials. Id.; Davis v. United States Dep’t of Justice, 968 F.2d
1276, 1281 (D.C. Cir. 1992). Disclosure of these materials can lead
to great embarrassment and reputational harm for these individuals.
Safecard, 926 F.2d at 1205. Indeed, disclosure could, in some
cases, lead to physical harm as well.
4
Because the FBI asserted Exemption 6 coextensively with
Exemption 7(C) and, as explained in this section, the information
sought was properly withheld under Section 7(C), there is no need
to address the more stringent standards of Exemption 6.
15
Moreover, it “is well established that the only public
interest relevant for purposes of Exemption 7(C) is one that
focuses on the citizens’ right to be informed about what their
government is up to.” Davis, 968 F.2d at 1282 (internal quotations
omitted). Whether disclosure of private information is warranted
under Exemption 7(C) turns upon whether the information “sheds
light on an agency’s performance of its statutory duties.” Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 759,
773, 109 S.Ct. 1468, 1482, 103 L.Ed.2d 774 (1989). Thus, the
requested information must shed light on the agency’s own conduct
and not merely on the subject matter of the underlying law
enforcement investigation. Id. Our Court of Appeals has held
“categorically that, unless access to the names and addresses of
private individuals appearing in files within the ambit of
Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity,
such information is exempt from disclosure.”5 Safecard, 926 F.2d
at 1206.
The FBI has asserted Exemption 7(C) “to protect names and/or
identifying information of: 1) Third Parties Merely Mentioned; 2)
Third Parties who Provided Information; 3) FBI Agents and Support
Personnel; 4) Non-FBI Federal Government Personnel; 5) Local and/or
5
Plaintiffs do not present any evidence, no less compelling
evidence, that the FBI has engaged in illegal activity–at least as
to the facts of this case.
16
State Government Employees; 6) Third Parties of Investigative
Interest; and 7) Victims and Survivors of Jonestown.” Def.’s Mot.
23. Defendant argues that the release of this information “would
not shed any light on how the FBI performed its statutory
investigative duties” but “could reasonably be expected to cause
harassment, embarrassment and/or unsolicited publicity which would
clearly constitute an unwarranted invasion of their privacy.” Id.
at 24.
Although Plaintiffs make a number of speculative arguments
relating to specific redacted documents, they argue essentially
that the interest in disclosure is particularly high in this case
due to “the depth and extent of the public interest in the
Jonestown records.”6 Pls.’ Opp’n 24. Plaintiffs further argue that
6
In their Reply, Plaintiffs also argue that there should be
no privacy interest in information that was once published in a
newspaper, even if that information is now difficult or impossible
to find. Pls.’ Reply 14-17. Plaintiffs contend that the notion of
“practical obscurity” is improperly drawn from the holding in
Reporters Comm. for Freedom of the Press, 489 U.S. 759, because the
holding in that case was limited to computerized rap sheets. Pls.’
Reply 15-17.
Plaintiffs’ reading of Reporters Comm. for Freedom of the
Press is too cramped. As the Supreme Court stated, “the issue here
is whether the compilation of otherwise hard-to-obtain information
alters the privacy interest implicated by disclosure of that
information.” Reporters Comm. for Freedom of the Press, 489 U.S. at
764. The Supreme Court acknowledged “the privacy interest inherent
in the nondisclosure of certain information even where the
information may have been at one time public.” Id. at 767. Finally,
the Supreme Court concluded that “the fact that an event is not
wholly ‘private’ does not mean that an individual has no interest
in limiting disclosure or dissemination of the information.” Id. at
770 (internal quotation omitted).
17
the identity of a person involved in the investigation into the
Jonestown Massacre “tells who the FBI thought relevant and
pertinent to its investigation” and “enables a requester to link
together various statements and evaluate the reliability of this
and other witnesses.” Pls.’ Reply 13. For this reason, Plaintiffs
contend that they cannot compile an accurate historical record
without knowing all relevant identities. Id.
Although the Jonestown Massacre may have elicited a great deal
of public attention, the relevant question is not whether the
public would like to know the names of FBI agents and victims
involved, but whether knowing those names would shed light on the
FBI’s performance of its statutory duties. Reporters Comm. for
Freedom of the Press, 489 U.S. at 773. Plaintiffs have failed to
convincingly explain how knowing the names of the persons involved
would achieve that goal. Fitzgibbon, 911 F.2d at 768 (“there is no
reasonably conceivable way in which the release of the one
Our Court of Appeals has acknowledged the Supreme Court’s
holding, observing that Reporters Comm. for Freedom of the Press
“does cast doubt on the proposition that, simply because material
has been made public at one time, it should be thought permanently
in the public domain, even though it has since become
‘practical[ly] obscur[e].’” Davis, 968 F.2d at 1279 (quoting
Reporters Comm. for Freedom of the Press, 489 U.S. at 762-71). In
Davis, the Court of Appeals held that the plaintiff “has the burden
of showing that there is a permanent public record of the exact
portions” he or she believes should not be withheld because they
are in the public domain. 968 F.2d at 1280. Thus, it is clear that
in our Circuit a privacy interest may be implicated by “practically
obscure” information. Reporters Comm. for Freedom of the Press 489
U.S. at 764.
18
individual’s name . . . would allow citizens to know what their
government is up to.”) (internal quotations omitted).
Thus, after balancing the privacy interests implicated by
these documents against the public interest in their disclosure,
the Court concludes that the FBI properly withheld this information
under Exemption 7(C).
D. Exemption 7(D)
Defendant asserts that certain information is protected by
Exemption 7(D), which exempts from disclosure information that
could reasonably be expected to disclose the identity of
a confidential source, including a State, local, or
foreign agency or authority or any private institution
which furnished information on a confidential basis, and,
in the case of a record or information compiled by
criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a
lawful national security intelligence investigation,
information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D).
To invoke Exemption 7(D), an agency must show either that a
source provided the information to the agency under express
assurances of confidentiality or that the circumstances support an
inference of confidentiality. United States Dep’t of Justice v.
Landano, 508 U.S. 165, 179-81, 113 S.Ct. 2014, 2023-24, 124 L.Ed.2d
84 (1993). When determining the existence of an implied assurance
of confidentiality, the government is not entitled to a presumption
that all sources supplying information in the course of a criminal
investigation are confidential sources. Id. at 181. Such an
19
assurance can be inferred, however, by the nature of the criminal
investigation and the informant’s relationship to it. Id. “A source
should be deemed confidential if the source furnished information
with the understanding that [the law enforcement agency] would not
divulge the communication except to the extent . . . necessary for
law enforcement purposes.” Id. at 174.
Defendant asserts that the FBI received information from
individuals who were given an express assurance of confidentiality
as well as from individuals who were given an implied assurance of
confidentiality. Def.’s Mot. 27-28. Specifically, Defendant claims
that two witnesses were given express assurances of
confidentiality. The first “related that he/she had received
threats to his/her safety if they were to reveal any information
concerning the People’s [sic] Temple to law enforcement.” Supp.
Hardy Decl. ¶ 100. Further, documents relating to this individual
bore the words “protect identity” and “confidential source.” Id.Documents relating to the second individual bore the words “In
confidence.” Id. at 101.
Plaintiffs argue that this evidence is insufficient to
demonstrate an express assurance of confidentiality. Plaintiffs
contend that the declarant had no personal knowledge of what
assurances were given and that the phrases “protect identity,”
“confidential source,” and “In confidence” “may have been based on
an FBI agent’s misunderstanding of the circumstances . . . or were
20
simply part of a bureaucratic routine engaged in by FBI agents
regardless of whether an express pledge of confidentiality was
either asked for or received.” Pls.’ Opp’n 41-42.
Plaintiffs’ claims are simply too speculative to overcome the
presumption of good faith accorded Defendant’s affidavit. SafeCard,
926 F.2d at 1200. Plaintiffs have offered no specific reason–other
than pure speculation–to cast doubt on the fact that these two
sources were expressly assured that they would remain confidential.
See Campbell v. United States Dep't of Justice, 164 F.3d 20, 34
(D.C. Cir. 1998) (evidence of an express grant of confidentiality
“can take a wide variety of forms, including notations on the face
of a withheld document, the personal knowledge of an official
familiar with the source, a statement by the source, or
contemporaneous documents discussing practices or policies for
dealing with the source or similarly situated sources.”).
Defendant also argues that other individuals gave the FBI
information under an implied assurance of confidentiality. The FBI
explains that “based on the violent nature of the crime and the
events related by the third parties and because of the third
parties[’] relationships to the crime, it can be inferred from the
information provided that . . . there was an expectation of
privacy.” Supp. Hardy Decl. ¶ 102.
Plaintiffs offer two responses. First, they state that
“[w]hile there was a general fear of reprisals after Jonestown,
21
they were generated in the heat of the moment and never
materialized.” Pls.’ Opp’n 43. Hence, Plaintiffs argue that because
the informants’ fear of danger may have subsided, they no longer
are entitled to an implied promise of confidentiality. Second,
Plaintiffs contend that “the circumstances of at least some of the
interviews raise questions about the validity of any
confidentiality agreement because they were carried out under
conditions suggesting duress.” Id.Plaintiffs point to no authority for the claim that a source
can lose its implied assurance of confidentiality if and when it
subsequently becomes less afraid of reprisal. To the contrary, if
the agency “can demonstrate that the information was provided in
confidence at the time it was communicated to the FBI . . . the
source will be deemed a confidential one, and both the identity of
the source and the information he or she provided will be immune
from FOIA disclosure.” Dow Jones & Co., Inc. v. Dep’t of Justice,
917 F.2d 571, 575-76 (D.C. Cir. 1990) (internal quotations
omitted). Further, Plaintiffs offer no specific facts to suggest
that the confidentiality agreements were a result of duress. In
sum, their claim of duress is entirely speculative and
unpersuasive.
Once the agency has demonstrated that the withheld information
was given by a confidential informant, no balancing test is
necessary. Boyd v. Criminal Div. of United States Dep’t of Justice,
22
475 F.3d 381, 390 (D.C. Cir. 2007). Therefore, the FBI properly
withheld information under Exemption 7(D).7
E. Exemption 7(E)
Finally, Defendant asserts that certain information is
properly withheld pursuant to 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).
Information pertaining to law enforcement techniques and
procedures is properly 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, 156 (D.D.C. 2006) (withholding information pertaining
7
Plaintiffs also argue that “the FBI has not indicated
whether any of its alleged confidential sources testified at
Layton’s trial,” which would waive confidentiality, and that the
“FBI does disclose Permanent Source Symbol Numbers on occasion,
particularly if the informant is deceased or has been publicly
revealed.” Pls.’ Opp’n 44. Neither argument is convincing. See
Davis, 968 F.2d at 1281 (“Even when the source testifies in open
court . . . he does not thereby waive the [government's] right to
invoke Exemption 7(D) to withhold . . . information furnished by a
confidential source not actually revealed in public.”) (internal
quotations omitted); Campbell, 165 F.3d at 34 n.14 (“Death of a
confidential source . . . is not relevant under exemption 7(D).”).
23
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”); Piper v. United States Dep't. of Justice, 294 F. Supp. 2d
16, 30 (D.D.C. 2003) (withholding polygraph test information 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 information
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).
The FBI seeks to protect information regarding “the type of
Stop Notice placed on certain survivors/victims.” Def.’s Mot. 31.
The FBI explains that the “placement of Stops through the
Immigration and Naturalization Service (now Immigration and Customs
Enforcement, Department of Homeland Security) is a technique
utilized by the FBI to obtain information concerning the movement
of individuals of interest.” Supp. Hardy Decl. ¶ 107. Because the
“decision of what type of stop to place with a particular agency,
such as INS, reflects what information the FBI is interested in,”
“[r]elease of the types of stops could allow individuals to
24
circumvent the law by avoiding discovery if they are aware of what
action the FBI is requesting from an agency by the placement of a
particular type of Stop.” Id.Plaintiffs argue that the FBI has failed to “allege that this
technique is generally unknown to the public” and has “set[]
forward no facts which would support a contention that [the risk of
circumvention of the law] could reasonably be expected to occur.”
Pls.’ Opp’n 45. However, Exemption 7(E) may be used to protect
information where disclosure reasonably could lead to circumvention
of laws or regulations even where the existence of the general
technique is known to the public. See, e.g., Lewis-Bey v. United
States Dep’t of Justice, 595 F. Supp. 2d 120, 138 (D.D.C. 2009)
(withholding the circumstances, timing, and location of electronic
surveillance); Piper, 294 F. Supp. 2d at 30 (withholding polygraph
test information). In sum, Exemption 7(E) does not require that the
general technique be unknown to the public.
Because “[r]elease of the types of stops could allow
individuals to circumvent the law by avoiding discovery if they are
aware of what action the FBI is requesting from an agency by the
placement of a particular type of Stop,” the FBI properly withheld
information pursuant to Exemption 7(E).
F. Adequacy of the Vaughn Index and Segregability
Plaintiffs also challenge the adequacy of Defendant’s Vaughn
Index. They argue that the “index submitted in this case contains
25
numerous and pervasive flaws,” including failure to adequately
describe the content of what was withheld and failure to
sufficiently describe which exemptions the FBI has relied upon for
which portions of withheld information. Pls.’ Opp’n 47.
In Vaughn v. Rosen, the Court of Appeals held that an agency's
response to a FOIA request must include an index of all material
withheld in whole or in part. 484 F.2d 820. This index must
identify the material withheld and the statutory exemptions claimed
as justification for such withholding with sufficient detail “‘to
permit adequate adversary testing of the agency's claimed right to
an exemption,’ and to enable ‘the District Court to make a rational
decision whether the withheld material must be produced without
actually viewing the documents themselves, as well as to produce a
record that will render the District Court’s decision capable of
meaningful review on appeal.’” King v. United States Dep’t of
Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting NTEU v. United
States Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986) and
Dellums v. Powell, 642 F.2d 1351, 1360 (D.C. Cir. 1980)). However,
the precise form of the Vaughn Index is immaterial; nor is the
index’s sufficiency determined by the length of its document
descriptions. Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d
141, 146 (D.C. Cir. 2006). “Specificity is the defining requirement
of the Vaughn index and affidavit.” King, 830 F.2d 210, 219 (D.C.
Cir. 1987).
26
The form of Defendant’s “Vaughn Index” is twofold: Defendant
has submitted (1) multiple lengthy affidavits explaining why
certain exemptions are invoked, and (2) the entirety of the 427-
page sample with Exemptions listed beside redactions or on “Deleted
Page Information Sheets.” Although these documents do provide a
great deal of detail, many are missing critical information. In
particular, the Deleted Page Information Sheets contain absolutely
no information as to the author, date, contents, or recipients of
the missing pages. See Hussain v. United States Dep’t of Homeland
Sec., 674 F. Supp. 2d 260, 267 (D.D.C. 2009) (details “such as the
date, author or recipient of the document” are “often necessary ‘to
enable the court and opposing party to understand the withheld
information in order to address the merits of the claimed
exemptions.’”) (quoting Judicial Watch, 449 F.3d at 150); Defenders
of Wildlife, 623 F. Supp. 2d at 88 (D.D.C. 2009) (same). Similarly,
although it is often obvious from the context that redactions
included the names of individuals, in many instances it is entirely
unclear what substantive information was redacted. See, e.g.,
Vaughn Index, Ex. U, at Jonestown-11, Jonestown-22, Jonestown-29,
Jonestown-30.
Even 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. 5 U.S.C. §
27552(b); Trans-Pac. Policing Agreement v. United States Customs
Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999). A district court
has an affirmative duty to consider the issue of segregability sua
sponte and the failure to make express findings on segregability
constitutes reversible error. Morley, 508 F.3d at 1123.
Critically, “[i]n order to demonstrate that all reasonably
segregable material has been released, the agency must provide a
‘detailed justification’ for its non-segregability.” Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(quoting Mead Data Cent., Inc. v. United States Dep’t of the Air
Force, 566 F.2d 242, 261 (D.C. Cir. 1977)). A “blanket declaration”
that documents do not contain segregable material is insufficient.
Wilderness Soc. v. United States Dep’t of Interior, 344 F. Supp. 2d
1, 19 (D.D.C. 2004).
Although the Court was able to determine the propriety of the
asserted Exemptions based upon the Defendant’s affidavits, the
failure of the Vaughn Index to provide any specific information
regarding the missing pages and numerous redactions renders it
impossible to evaluate the FBI’s conclusions that the pages
included no segregable portions. See Johnson, 310 F.2d at 776;
Defenders of Wildlife, 623 F. Supp. 2d at 90. Therefore,
Defendant’s Vaughn Index is deficient and must be supplemented.
Further, Defendant’s declarant’s statement that “[e]very
effort was made to provide plaintiff with all material in the
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public domain and with all reasonably segregable portions of
releasable material” falls far short of the specificity required to
justify non-segregation. Johnson, 310 F.2d at 776. Therefore,
Defendant has not carried its burden of demonstrating that all
segregable information has been disclosed.
G. Exemptions 1 and 2 and Pending Sealing Order
Defendant states that it “will no longer defend its use of
what was previously referred to as the ‘high’ (b)(2) exemption” and
that “it must adjust its declaration and supporting exhibits with
regard to its claims under FOIA exemption (b)(1).” Def.’s Reply 1-
2. Accordingly, Defendant will reprocess its entire production and
file supplemental briefing regarding Exemptions 1 and 2. Id.
Additionally, Defendant states that it has sent a formal request to
the Los Angeles County Police Department seeking its consent to the
lifting of a sealing order which, up until now, Defendant has cited
as precluding the release of certain information. Id. at 3. Once
again, “[t]he FBI intends to supplement its filing on this issue at
a later date.” Id. For these reasons, the Court will not address
those Exemptions at this time.8
8
In its Reply, Defendant indicates its intention to consider
asserting additional exemptions when reprocessing this material.
Def.’s Reply 2. Our Court of Appeals has made plain that “as a
general rule, [the Government] must assert all exemptions at the
same time, in the original court proceedings.” Maydak v. United
States Dep’t of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000).
Although the proceedings before this Court have not fully
concluded, “there may be circumstances in which withdrawal of an
agency’s prime exemption claim should preclude the agency’s fresh
29
However, the Court has noted Plaintiffs’ concern over the time
Defendant has indicated it will take to reprocess its production.
See Pls.’ Reply 1-4. The Court acknowledges the burdens on the FBI,
but believes the one-year estimate to be unreasonable for the
following reasons. First, this Memorandum Opinion and its
accompanying Order have substantially decreased the amount of work
to be done by the FBI in this matter. Second, the FBI does not, as
it contends, have to “reprocess the entire roughly 48,738 pages of
response material.” Def.’s Reply 1. As Plaintiffs point out,
approximately 35,000 pages have been released in full, leaving
approximately 14,000 pages to be reviewed. Id. at 2-3. Of these
14,000 pages containing redactions or withheld in full, the vast
majority were withheld on the basis of Exemption 6 and 7(C), and
assertion of additional exemptions.” Senate of the Commonwealth of
Puerto Rico, 823 F.2d at 580; see also Ryan v. United States Dep’t
of Justice, 617 F.2d 781, 792 (D.C. Cir. 1980) (warning of the
“danger of permitting the Government to raise its FOIA exemption
claims one at a time, at different stages of a district court
proceeding”).
Now, eleven years after sending Plaintiffs the original pre-
processed material, Defendant suggests that it will use its own
withdrawal of Exemption 2 claims as an opportunity to drum up new
exemptions. Permitting the Government to raise new exemptions at
this stage would undermine “the interest in judicial finality and
economy, which has ‘special force in the FOIA context, because the
statutory goals--efficient, prompt, and full disclosure of
information--can be frustrated by agency actions that operate to
delay the ultimate resolution of the disclosure request.’” August
v. Fed. Bureau of Investigation, 328 F.3d 697, 699 (D.C. Cir. 2003)
(quoting Senate of the Commonwealth of Puerto Rico, 823 F.2d at
580). Therefore, the Court will not consider new exemptions raised
by Defendant at this late point in the litigation.
30
therefore do not need to be reviewed for withholding under other
exemptions. Id. at 3. Hence, the number of pages the FBI needs to
review is in reality a far cry from the 48,738 it claims. Based on
this information, the Court would expect that the FBI could
complete its reexamination within six months, at which time it
could also submit an adequate Vaughn Index.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment is granted in part and denied in part and
Plaintiffs’ Motion for Summary Judgment is granted in part and
denied in part. Defendant must file an updated Vaughn Index in
conformity with this Memorandum Opinion when it completes its
reevaluation of documents previously withheld under Exemptions 1
and 2 and the sealing order. An Order shall accompany this
Memorandum Opinion.
/s/
August 5, 2011 Gladys Kessler
United States District Judge
Copies to: Attorneys of record via ECF
31