RICHARD J. LEON, District Judge.
Plaintiff, Citizens for Responsibility and Ethics in Washington ("CREW"), brings this action against the U.S. Department of Justice ("defendant" or "DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., seeking records from the Federal Bureau of Investigation ("FBI"), a component of the DOJ. Before the Court are defendant's Motion for Summary Judgment [Dkt. #9] and plaintiffs Cross-Motion for Partial Summary Judgment [Dkt. #12]. Upon consideration of the parties' pleadings, relevant law, and the entire record herein, the defendant's Motion for Summary Judgment is GRANTED and plaintiffs Cross-Motion for Partial Summary Judgment is DENIED.
Pursuant to FOIA, CREW requested from the FBI "any witness statements, investigation reports, prosecution memoranda, and Federal Bureau of Investigation (`FBI') 302 reports related to [the Department's] investigation of former House Majority Leader Tom DeLay, ... includ[ing] ... [the Department's] investigation of relationships between Mr. Delay" and various other individuals and organizations.
On August 25, 2011, defendant filed a Motion for Summary Judgment arguing that it properly withheld the records pursuant to various FOIA exemptions. Def.'s Mot. at 2. On September 22, 2011, plaintiff filed its Cross-Motion for Partial Summary Judgment seeking "an order requiring DOJ to disclose [the] responsive records." Pl.'s Mot. at 1. Currently the only "records that remain at issue in this case are the `FD-302 and FD-302 inserts' and `Investigative Materials/Reports' maintained by the FBI."
"When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec, 598 F.Supp.2d 93, 95 (D.D.C.2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment shall be granted when the movant demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In a FOIA action, the Court may award summary judgment based solely on information provided in affidavits or declarations if 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). 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, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citation and internal quotation marks omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir. 2009) (citation and internal quotation marks omitted).
Plaintiff, pursuant to FOIA, seeks documents related to the DOJ's investigation of Tom DeLay ("Mr. DeLay") and alleges that defendant improperly withheld responsive documents under various FOIA exemptions. Plaintiff contends that the documents requested involve a matter of substantial public interest that outweighs any privacy interest in the contents of the records. Specifically, plaintiff argues that Mr. DeLay's privacy interest is diminished because he was a public official and he publicly acknowledged that he was the subject of a DOJ investigation. However, defendant contends that despite Mr. Delay's admissions, he did not waive his interest as to the details of the investigation. Defendant argues that it conducted an adequate search in response to plaintiffs requests and properly withheld its responsive documents under FOIA exemptions 2, 3, 6, 7(A), 7(C), 7(D), and 7(E). Unfortunately for the plaintiff, I agree with the defendant and, for the reasons that follow, GRANT defendant's Motion for Summary Judgment.
Under FOIA, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., [an agency] shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Congress has exempted nine categories of documents from the disclosure requirement, but, because there is a "strong presumption in favor of disclosure," Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)), the exemptions "are to be `narrowly construed,'" id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48
Both Exemption 6 and Exemption 7(C) protect an individual's privacy interest when balanced against the public interest in disclosure. 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). Exemption 7(C) excludes "records of information compiled for law enforcement purposes... to the extent that production of such law enforcement records or information... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). Thus, in determining the applicability of Exemptions 6 and 7(C), the Court must balance the interests advanced by FOIA's disclosure requirements against the privacy interests of the individuals mentioned in the records. Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993). Because Exemption 7(C) "establishes a lower bar [than Exemption 6] for withholding material," ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 6 (D.C.Cir.2011), the Court will focus its analysis on whether the records were properly withheld under Exemption 7(C), see Adionser v. Dep't of Justice, 811 F.Supp.2d 284, 298 n. 15 (D.D.C.2011) ("[T]he analysis under both [Exemption 6 or Exemption 7(C)] is ... the same."). Plaintiff concedes "that the requested records were `compiled for law enforcement purposes' within the meaning of Exemption 7."
To constitute a privacy interest under FOIA, the claimed interest must be "substantial" — that is, "anything greater than a de minimis privacy interest." Multi Ag Media LLC v. Dep't of Agric, 515 F.3d 1224, 1229-30 (D.C.Cir.2008) (citing Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989)). Generally, "individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity," Stern v. FBI, 737 F.2d 84, 91-92 (D.C.Cir.1984); see also Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 864 (D.C.Cir.1981) ("There can be no clearer example of an unwarranted invasion of personal privacy than to release to
Plaintiff argues, however, that Mr. DeLay's privacy interest is further diminished because "Mr. DeLay and his attorney have publicly acknowledged that he was a subject of DOJ's investigation" and "the FBI concede[d] that [it] maintain[s] records concerning Mr. DeLay that were created as part of DOJ's public corruption investigation."
Where, as here, a court finds that a legitimate privacy interest exists, the requester must "(1) show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and (2) show the information is likely to advance that interest." Boyd v. Criminal Div. of the U.S. Dep't of Justice, 475 F.3d 381, 387 (D.C.Cir.2007) (quoting Nat'l Archives & Records Admin, v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004)) (internal quotation marks omitted). "[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 1276, 1282 (D.C.Cir.1992) (quoting Reporters Comm. for Freedom of Press, 489 U.S. at 773, 109 S.Ct. 1468) (citation and internal quotation marks omitted). Thus, the Court must determine whether the disclosure "contribut[es] significantly to public understanding of the operations
The burden is on the requester to demonstrate a "sufficient" public interest for disclosure. Favish, 541 U.S. at 172, 124 S.Ct. 1570. Plaintiff contends that disclosure would serve the public interest by "`shed[ding] light on [the] agency's performance of its statutory duties,' and there is a substantial public interest in reviewing DOJ's enforcement of the ethics and anti-corruption laws governing the activities of federal officials, such as Mr. DeLay."
Unfortunately for plaintiff, however, the documents it presently seeks are "not very probative of [the DOJ's] behavior or performance." SafeCard Servs., Inc., 926 F.2d at 1205 (finding the privacy interest in "the names and addresses of potential witnesses" to outweigh the "insubstantial" public interest in the information's disclosure under Exemption 7(C)); see also Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 666 (D.C.Cir.2003) (rejecting the asserted public interest in redacted names and other identifying information — to "shed light on the workings of government by permitting closer public scrutiny of the... investigations"). The FD-302s and FD-302 inserts contain only identifying information and factual information principally supplied by third parties and sources. Hardy Decl. ¶ 35. While the Court acknowledges that there may be some public interest in the investigative materials and reports, which describe how evidence was obtained and are used to update other agencies on the investigation's progress, id. ¶ 40, this minimal public interest does not outweigh the substantial privacy interests of Mr. DeLay and other third parties in the contents of the documents. As such, I find that the "balance ... tips in" favor of exemption, Nation Magazine, 71 F.3d at 893 (citation omitted), and defendant properly categorically withheld the records pursuant to Exemptions 6 and
Additionally, I find that defendant properly withheld the records in whole pursuant to Exemption 7(A). Exemption 7(A) protects from disclosure "records or information compiled for law enforcement purposes" if disclosure "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). To justify withholding information pursuant to Exemption 7(A), the agency must demonstrate that "disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated." Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C.Cir.1993) (emphasis in original). Our Circuit has "held that the exemption is available where enforcement proceedings are `pending or contemplated,'" id. (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 870 (D.C.Cir.1980)), to prevent "agencies [from] be[ing] hindered in their investigations," NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The defendant has fulfilled the second and third prongs as this case involves "enforcement proceedings that are pending or reasonably anticipated." Not only is the investigation still ongoing, Hardy Decl. ¶ 23 (referring to the "continuing large public corruption investigation"), but "[t]here are several outstanding convictions and sentencing proceedings... which have not yet been completed." Hardy Decl. ¶ 29; see Kidder v. FBI, 517 F.Supp.2d 17, 27 (D.D.C.2007) (defendant's pending appeal and ongoing investigation of other suspects qualified as pending law enforcement proceedings); cf. Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 926 (D.C.Cir.2003) ("Exemption 7(A) does not require a presently pending `enforcement proceeding.' Rather, ... it is sufficient that the government's ongoing... investigation is likely to lead to such proceedings.") (citation omitted).
Defendant has demonstrated that disclosure "could reasonably be expected to interfere with" these enforcement proceedings. Defendant is withholding the FD-302s and FD-302 inserts and the investigative materials and reports, which, if disclosed, would interfere with the current enforcement proceedings by identifying "individuals, sources, and potential witnesses" and exposing them to "possible harm ... or intimidation," Hardy Decl. ¶ 31; identifying third parties currently under investigation, id.; "uncover[ing] the government's trial strategy," id.; and notifying "individuals who remain under investigation, who could use the released information to their advantage," Def.'s Mot. at 29. See Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 765 ("DOJ satisfies its burden of proof under Exemption 7(A) by grouping documents in categories and offering generic reasons for withholding the documents in each category.") (citation
In any event, I find that defendant can properly withhold the records pursuant to FOIA Exemptions 2, 3, 7(D), and 7(E). In a FOIA action, an agency must "demonstrate ... that its search was reasonably calculated to uncover all relevant documents." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (citation and internal quotation marks omitted). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search, which, in the absence of contrary evidence, are sufficient to demonstrate an agency's compliance with FOIA. Perry v. Block, 684 F.2d 121, 126-27 (D.C.Cir.1982) (per curiam). Defendant has demonstrated, through the declaration of David M. Hardy, the FBI's Section Chief of the Record/Information Dissemination Section, Record Management Division, Hardy Decl. ¶ 1, that a reasonable search was conducted. Hardy Decl. ¶¶ 12, 15, 24; Def.'s Mot. at 24.
Exemption 2 shields from disclosure information that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Among other things, Exemption 2 covers internal information — "that is, the agency must typically keep the records to itself for its own use." Milner v. Dep't of Navy, ___ U.S. ___, 131 S.Ct. 1259, 1265 n. 4, 179 L.Ed.2d 268 (2011) (citation omitted). Here, the "secure and nonsecure internal telephone numbers and secure internal facsimile numbers of FBI personnel" that defendant seeks to withhold, Def.'s Mot. at 32; Hardy Decl. ¶ 44, fall squarely within this Exemption. See, e.g., Miller v. U.S. Dep't of Justice, 562 F.Supp.2d 82, 110 (D.D.C.2008) ("internal secure telephone numbers and message addresses" properly withheld under Exemption 2); Skinner v. U.S. Dep't of Justice, 744 F.Supp.2d 185, 201 (D.D.C.2010) (government telephone numbers and contact information withheld under Exemption 2).
Exemption 3 permits an agency to prevent the release of records that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). In determining the applicability of Exemption 3, "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C.Cir.1978); see Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C.Cir.1987).
The FBI seeks to withhold information based on Federal Rule of Criminal
Exemption 7(D) protects "the identity of a confidential source," if the information was furnished on a confidential basis, and "information furnished by a confidential source," if compiled by a law enforcement authority during the course of a criminal investigation. 5 U.S.C. § 552(b)(7)(D). If production of the records "could reasonably be expected to disclose the identity of a confidential source" or "information furnished by" such a source, then the exemption is properly asserted. Id. The exemption's applicability, therefore, "depends upon whether the particular source who furnished the information at issue was granted confidentiality, either expressly or by implication." Mays v. DEA, 234 F.3d 1324, 1328 (D.C.Cir. 2000). While "[i]t may be true that many, or even most, individual sources will expect confidentiality," U.S. Dep't of Justice v. Landano, 508 U.S. 165, 176, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993), without an express assurance of confidentiality, the agency must demonstrate that, based on the circumstances, "the source nonetheless `spoke with an understanding that the communication would remain confidential.'" Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1184 (D.C.Cir.2011) (quoting Landano, 508 U.S. at 172, 113 S.Ct. 2014). In making this determination, the Court may consider factors such as (1) "the character of the crime at issue," (2) "the source's relation to the crime," (3) "whether the source received payment, and" (4) "whether the source has an ongoing relationship with the law enforcement agency and typically communicates with the agency only at locations and under conditions which assure the contact will not be noticed." Id. (quoting Landano, 508 U.S. at 179, 113 S.Ct. 2014) (internal quotation marks omitted).
The FBI asserts this Exemption to protect the identities of informants who provided information "under express confidentiality and/or under circumstances from
Finally, Exemption 7(E) protects from disclosure law enforcement records to the extent that their production "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); see Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 181 (D.D.C.2004) ("[E]ven commonly known procedures may be protected from disclosure if the disclosure could reduce or nullify their effectiveness.") (citation omitted). The FBI properly applied this exemption to protect law enforcement techniques and procedures used by FBI Special Agents during the investigation, which, if disclosed could cause circumvention of the FBI's ability to adequately enforce the law. Hardy Decl. ¶ 64. Further, "longstanding precedent" of this Court and our Court of Appeals, Sussman, 494 F.3d at 1112 (citations omitted), supports "categorical protection for techniques and procedures used in law enforcement investigations or prosecutions." Judicial Watch, Inc., 337 F.Supp.2d at 181 (citations and internal quotation marks omitted).
For all of the foregoing reasons, the defendant's Motion for Summary Judgment is GRANTED and the plaintiffs Cross-Motion for Partial Summary Judgment is DENIED, and this action is DISMISSED in its entirety. An Order consistent with this decision accompanies this Memorandum Opinion.
For the reasons set forth in the Memorandum Opinion entered this 8th day of June 2012, it is hereby
As part of its FOIA request, plaintiff also sought a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.1 l(k), asserting that disclosure would "contribute to greater public awareness of alleged malfeasance and possible criminal behavior by the former majority leader of the House of Representatives, and of DOJ's recently concluded investigation into Mr. DeLay's activities," and "would shed light on DOJ's conduct in conducting the investigation of Mr. DeLay, and its apparent decision to close the investigation without bringing charges against Mr. DeLay." Ex. 1 to Declaration of Kristin L. Ellis ("Ellis Decl.") [Dkt. #9-7], Ex. 6 to Def.'s Mot., at 3-4; see also Def.'s Mot. at 18. It does not appear that the fee waiver request was granted. Ex. 4 to Ellis Decl. [Dkt. #9-7] at 1 ("As to your fee waiver request, we will consider that request once we determine what records we have within the scope of your request and whether any fees will be incurred in the processing of your request.").