Trial Court County: Cook
Disposition: Affirmed.
ithholds the names of DEA Special Agents, Supervisory Special Agents, [BATFE] Special Agents, state/local law enforcement officer, and confidential sources" under both Exemption 7(C) and Exemption 7(F).
See Myrick Decl. ¶¶ 51, 54-55, 60-62. Because the Court concludes that this information properly is withheld under Exemption 7(C), it need not address whether Exemption 7(F) also applies.
See Simon v. Dep't of Justice, 980 F.2d at 785.
ii. Other Third Parties Mentioned in Law Enforcement Records
The BATFE withholds the names of and identifying information about third parties investigated by the BATFE, who are "described in sufficient detail to allow for . . . identification . . . by persons familiar with the circumstances and facts of the [BATFE's] investigation." Graham Decl. ¶ 68. Where the BATFE has withheld records in full under Exemption 7(C), it does so in order "to protect the individual from identification by handwriting, voice and . . . witness accounts which could be attributed only to that individual." Id. According to the declarant, disclosure of information about witnesses has "the very real potential to endanger [them] or cause harassment and harm to [their] lives and reputation." Id. Taken into account is plaintiff's criminal history, particularly the assault on federal officers, as evidence of a propensity to violence and a capacity to harm human beings. Id. The declarant explains that disclosure of witness information "may well discourage future witnesses from cooperating with [the BATFE]." Id. The agency has determined that disclosure of this third party information could reasonably be expected to cause the third parties embarrassment, harassment or harm, while doing "little, if anything at all, to aid the public's understanding" of the agency. Id.
The FBI withholds the names of and identifying information (such as addresses, dates of birth, social security numbers, and telephone numbers) about third parties "interviewed by the FBI during the course of the FBI's investigation of plaintiff and others," Hardy Decl. ¶ 55, individuals "only incidentally mentioned" in these investigative records," id. ¶ 58, and third parties "of investigative interest" to the FBI, the IRS, the DEA or the Gulfport Police Department. Id. ¶ 60. Its declarant explains that "[t]he largest roadblock to successfully obtaining the desired information through an interview" is the interviewee's "fear . . . that his/her identity will . . . be exposed and consequently [that] he/she could be harassed, intimidated, or threatened with legal, economic . . ., or possible physical harm." Id. ¶ 56. To address this fear, the FBI seeks to assure interviewees "that their names and personal identifying information will be held in the strictest confidence." Id. The agency concludes, then, that the interviewees' substantial privacy interest in not having their identities disclosed outweighs a public interest in disclosure. Id. ¶ 57.
With respect to those merely mentioned in the FBI's records, the declarant explains that disclosure of their identities in connection with a criminal investigation of the plaintiff "could cause unsolicited and unnecessary attention to be focused on [them] and/or their family members," and also "could cast them in an unfavorable or negative light[.]" Hardy Decl. ¶ 58.
With respect to persons of investigative interest, the declarant states that such persons also have privacy interests which outweigh a public interest in disclosure of their identities. Hardy Decl. ¶¶ 60-61. Accordingly, the FBI withholds their names and other identifying information (such as aliases, addresses, physical descriptions, dates of birth, and Social Security numbers) on the ground that disclosure linking them to a law enforcement investigation "carries a strong negative connotation and stigma," such that they could be subjected to "harassment or embarrassment, as well as undue public attention." Id. ¶ 60.
The DEA also withholds the names of and identifying information about "innocent third parties, witnesses, suspects, co-defendants, and confidential sources of information" under Exemption 7(C). Myrick Decl. ¶ 51. According to the declarant, release of this information "may [cause them to] suffer undue invasions of privacy, harassment, and humiliation from disclosure of their identities in the context of a criminal law enforcement investigatory file." Id. ¶ 54.
Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. at 773-75; SafeCard Servs., Inc. v. Sec. Exch. Comm'n, 926 F.2d at 1205-06. Redaction of the names of federal, state and local law enforcement personnel and support staff under circumstances similar to those described here has routinely been upheld for the reasons stated by these declarants. See, e.g., Lesar v. U.S. Dep't of Justice, 636 F.2d at 487 (finding legitimate interest in concealing the identities of government officials where disclosure "could subject them to annoyance or harassment in either their official or private lives").
The exemption "takes particular note of the strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity." Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (internal quotation marks omitted); see also Sussman v. U.S. Marshals Serv., 494 F.3d at 1115 (holding that Exemption 7(C) protects "the privacy interests of all persons mentioned in law enforcement records, whether they be investigators, suspects, witnesses, or informants," and their names are "generally exempt from disclosure"). Accordingly, "[t]he D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses, and informants." Fischer v. U.S. Dep't of Justice, 596 F. Supp. 2d 34, 47 (D.D.C. 2009) (citing Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)); see also Zavala v. Drug Enforcement Admin., 667 F. Supp. 2d at 100. In accordance with these rulings, the Court concludes that the BATFE, the FBI and the DEA properly withheld the names of and identifying information about federal and local law enforcement officers and support personnel, confidential sources, witnesses, interviewees, persons of investigative interest, and innocent third parties mentioned in the law enforcement records relevant to this case.
c. Exemption 7(D)
Exemption 7(D) protects from disclosure those records or information compiled for law enforcement purposes that
could reasonably be expected to disclose the identity of a confidential source . . . [who] furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). There is no general "presumption that a source is confidential within the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement
agency] in the course of a criminal investigation."
U.S. Dep't of Justice v. Landano, 508 U.S. 165, 181 (1993). Rather, a source's confidentiality must be determined on a case-by-case basis,
id. at 179-80, and a presumption of confidentiality arises only in narrowly defined circumstances,
id. at 181 ("For example, when circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality, the Government is entitled to a presumption."). "A source is confidential within the meaning of [E]xemption 7(D) if the source `provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'"
Williams v. Fed. Bureau of Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (quoting
U.S. Dep't of Justice v. Landano, 508 U.S. at 170-74).
i. Express Assurance of Confidentiality
Where a law enforcement agency relies on express assurances of confidentiality to justify its decision to withhold information under Exemption 7(D), it must offer "probative evidence that the source did in fact receive an express grant of confidentiality." Campbell v. U.S. Dep't of Justice, 164 F.3d at 34 (quoting Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1061 (3d Cir. 1995)). Such evidence may take many forms, such as notations on the face of the withheld document, an official's personal knowledge about the source, a statement from the source, or documents discussing practices or policies for dealing with the source at issue or similarly situated sources. Id.
The FBI's declarant explains that the agency withheld "identifying information [about] cooperating witnesses who provided information [to] and cooperated with the FBI, IRS, DEA, and [Gulfport Police Department] in this criminal investigation of plaintiff[.]" Hardy Decl. ¶ 71. The information withheld "includes dates of incidents, dates of FBI interviews, specifics surrounding various encounters, and the nature and circumstances of their association with [plaintiff] and others." Id. ¶ 72. The declarant explains that disclosure of the cooperative witnesses identities "could subject [the witnesses] to embarrassment, harassment, or violent reprisal," and "would also have a chilling effect on the activities and cooperation of other FBI cooperating witnesses." Id. ¶ 72. In addition, he explains that these individuals "provided valuable information concerning [plaintiff's] criminal activities . . . with the express understanding that their identit[ies] and any information which would tend to identify them would only be used for law enforcement purposes and not released to the public." Id. ¶ 71. The declarant further states that these individuals were expected to testify in court proceedings, but even "if their appearance in court is not requested, [they] reserve[] the express assurance of confidentiality." Id.
The FBI also withholds a cooperative witness file number, which "is unique to the particular . . . witness . . . [and is] used to document information provided by [him or her] concern[ing] criminal activities of plaintiff and other third parties." Hardy Decl. ¶ 73. Disclosure of this file number "would indicate both the scope and location of FBI witness coverage within a particular area, id., and its release "at various times and in various documents could ultimately identify the source since it would reveal the connections of this cooperative witness to the subject matters of these documents." Id. ¶ 74. According to the declarant, not only would repeated release of the cooperating witness file number "narrow the possibilities of [his or her] true identity, endangering his/ner physical safety," id., it "would have a chilling effect on the activities and cooperation of other FBI cooperating witnesses," id. ¶ 75.
The DEA's declarant explains that the "investigation of plaintiff involved multiple confidential sources, thus the responsive investigative records are replete with source-related information," some of which was obtained from "`coded' confidential informants with an express assurance of confidentiality." Myrick Decl. ¶ 57. Coded informants "have a continuing cooperative association, by written signed agreement, with [the] DEA [and thus] are assured express confidentiality in their identities and the information they provided to [the] DEA." Id.
The FBI's and the DEA's declarants establish that their agencies' respective cooperating witnesses and informants provided information under an express assurance of confidentiality. It follows under the relevant case law that the components' decisions to withhold under Exemption 7(D) information pertaining to the cooperating witnesses or informants described above and the numbers assigned to them is proper. See, e.g., Putnam v. U.S. Dep't of Justice, 873 F. Supp. 705, 716 (D.D.C. 1995) (concluding that permanent symbol numbers assigned to confidential sources, file numbers and information that could be used to identify the sources were properly withheld under Exemption 7(D)); see also Doe v. U.S. Dep't of Justice, 790 F. Supp. 17, 21 (D.D.C. 1992) (commenting that, when confidential interviewees are well known to the requester, "even the most oblique indications of identity" are protected).
ii. Implied Assurance of Confidentiality
The D.C. Circuit has held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source. See Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1329 (D.C. Cir. 2000) (withholding source supplying information about conspiracy to distribute crack and powder cocaine). The nature of the crime investigated and the informant's relation to it are the most important factors in determining whether implied confidentiality exists. U.S. Dep't of Justice v. Landano, 508 U.S. at 179-80; Quiñon v. Fed. Bureau of Investigation, 86 F.3d 1222, 1231 (D.C. Cir. 1996); Coleman v. Fed. Bureau of Investigation, 13 F. Supp. 2d 75, 82 (D.D.C. 1998) (finding that plaintiff's conviction "of numerous violent crimes" including murder, rape and kidnaping, as well as "the relation of the witnesses thereto is precisely the type that the implied confidentiality exemption expressed in Landano is designed to encompass").
The FBI withholds the name of, identifying information about, and the information provided by a third party to the FBI, the IRS, the DEA and the Gulfport Police Department. Hardy Decl. ¶ 70. Its declarant states that the source "provided specific detailed information that is singular in nature concerning the criminal activities involving plaintiff . . . and his associates," and that the disclosure of his or her identity "could have disastrous consequences" in light of the subjects' drug-related activities, and "could subject [him or her] to harassment or violent reprisal" if his or her cooperation became known. Id. Under these circumstances, the declarant states, "it is reasonable to assume that this source would not have provided the information other than under an implied assumption of confidentiality." Id.
Similarly, the DEA withholds information that would disclose the identity of, and the information provided by, confidential sources "provided by those about whom . . . confidentiality could be implied." Myrick Decl. ¶ 56. Its declarant states that releasing identifying information about these sources "could subject [them] to serious bodily harm," id. ¶ 59, and for this reason the DEA withholds this information under both Exemption 7(D) and Exemption 7(F). Id. She further explains that, in the DEA's experience, "the release of Special Agents' identities has . . . resulted in several instances of physical attacks, threats, harassment and attempted murder of undercover and other DEA Special Agents." Id. ¶ 62. In light of plaintiff's past attack on DEA agents, namely the wounding of two DEA task force agents "by a booby-trapped shotgun device set by plaintiff," id. ¶ 61, the agency deems it "reasonable to infer that releasing the identities of . . . confidential sources would endanger the life or physical safety of these individuals." Id. ¶ 62.
In determining whether the source provided information under an implied assurance of confidentiality, the Court must consider "whether the violence and risk of retaliation that attend this type of crime warrant an implied grant of confidentiality for such a source." Mays v. Drug Enforcement Admin., 234 F.3d at 1329. The question has been answered in the affirmative with respect to "the violence and danger that accompany the cocaine trade," id., gangrelated murder, U.S. Dep't of Justice v. Landano, 508 U.S. at 179, and other violent acts committed in retaliation for witnesses' cooperation with law enforcement. See, e.g., Shores v. FBI, No. 98-2728, 2002 WL 230756, at *4 (D.D.C. Feb. 2, 2002) (withholding identities and identifying information of three cooperating witnesses with knowledge of the murder of which plaintiff was convicted, where plaintiff "subsequently attempted to procure the murder of a family member of one of the witnesses").
Courts have also held that persons providing information to law enforcement entities regarding methamphetamine trafficking operations have done so under an implied assurance of confidentiality. See Mendoza v. Drug Enforcement Admin., 465 F. Supp. 2d 5, 13 (D.D.C. 2006); Chavez-Arellano v. U.S. Dep't of Justice, No. 05-2503, 2006 WL 2346450, at *9-10 (D.D.C. Aug. 11, 2006); see also Engelking v. Drug Enforcement Admin., 119 F.3d 980, 981 (D.C. Cir. 1997) (concluding that a source provided information about requester's methamphetamine distribution operation, which was the subject of "multiple cooperative investigations by federal, state, and local law enforcement agencies, [and] which ultimately resulted in [requester's] conviction following the seizure of two methamphetamine laboratories, six handguns, and a rifle," under an implied assurance of confidentiality). The Court concludes that the FBI and the DEA properly withhold information pertaining to its sources under Exemption 7(D)'s implied assurance of confidentiality.
d. 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); Piper v. U.S. Dep't of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (approving the withholding of 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 the FBI's strategy); 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 BATFE withholds information pertaining to firearms toolmark examination techniques and search and arrest warrant techniques, specifically "the circumstances under which the techniques were used, the specific timing of their use, and the specific location where they were employed. Graham Decl. ¶ 70. Its declarant explains that these techniques are not widely known to the public and that their disclosure "would illustrate the agency's strategy in implementing these specific techniques, including the timing of certain actions and the placement of certain agency resources in the implementation of the technique." Id. ¶ 71. Disclosure, then, could lead to their decreased effectiveness in future investigations "by allowing subjects to anticipate the circumstances under which search warrants are executed and how toolmarks are identified" and therefore allowing them "to take evasive measures to avoid detection." Id.
Under both Exemptions 2 and 7(E), the FBI withholds "FBI Form FD-515[,] . . . a form used by FBI [Special Agents] to report investigative accomplishments . . . [and] submitted at various stages in an investigation to report statistical results such as an arrest, the recovery of stolen property, and so forth." Hardy Decl. ¶ 77. In the section captioned "Investigative Assistance and Techniques Used," the form lists "27 publicly known investigative techniques and/or assistance of which some were used by the investigative personnel during the investigation of [plaintiff]." Id. "Opposite each investigative technique and assistance is a rating column which records a numerical rating from 1-4 for the effectiveness of each technique/assistance used by investigative personnel during the course of the investigation into plaintiff's criminal activity." Id. Where the form contains a numerical rating next to one or more of the listed items, the FBI redacts the entire column "to preclude disclosure of both the particular investigative techniques used in the investigation and the effectiveness of the individual techniques." Id. If the rating column were released, plaintiff and other subjects of investigation "could change their activities and modus operandi in order to avoid detection and/or surveillance in the future," and this information is withheld "to prevent future circumvention of the law by the criminal element." Id. ¶ 78
As stated previously, under Exemption 2, so-called "high 2" exempt information encompasses "[p]redominantly internal documents the disclosure of which would risk circumvention of agency statutes." Schiller v. Nat'l Labor Relations Bd., 964 F.2d at 1207.
The FBI also withholds "procedures and techniques used by the FBI [Special Agent] during plaintiff's and other primary subjects' drug distribution investigation" under Exemptions 2 and 7(E). Hardy Decl. ¶ 79. If these procedures and techniques were disclosed, its declarant explains that future FBI undercover operations could be jeopardized if criminals were to learn how it conducts undercover operations. Id.
Having reviewed the BATFE's and the FBI's declarations and the components' respective Vaughn Indices, and absent any substantive challenge from plaintiff, the Court concludes that both properly withheld the information described above. As the declarations have explained, release of the FBI Form FD-515, the FBI's techniques and procedures for conducting investigations and undercover operations, as well as the BATFE's firearms toolmark examination techniques, are protected from disclosure by Exemptions 2 and 7(E). See, e.g., Showing Animals Respect and Kindness v. U.S. Dep't of Interior, No. 09-0877, 2010 WL 3191801, at *14 (D.D.C. Aug. 12, 2010) (concluding that videos and photographs properly were withheld in full under Exemption 7(E) because "they reveal specific details of surveillance techniques, including equipment used and location and timing of use, the revelation of which could compromise [the Fish and Wildlife Service's] ability to conduct future investigations at various National Wildlife Refuges"); Peay v. Dep't of Justice, No. 04-1859, 2007 WL 788871, at *6 (D.D.C. Mar. 14, 2007) (concluding that the FBI properly redacted the "entire rating column [of form FD-515] in order to protect . . . the specific techniques that were and were not used by the FBI during its investigation of plaintiff and others"); Perrone v. Fed. Bureau of Investigation, 908 F. Supp. 24, 28 (D.D.C. 1995) (concluding that the FBI FD-515 form properly is withheld under Exemption 7(E) because "disclosure of this information would help plaintiff or potential criminals predict future investigative actions by the FBI and consequently employ countermeasures to neutralize those techniques").
III. CONCLUSION
The Court concludes that the BATFE, the FBI, and the DEA conducted searches that were reasonably calculated to locate records responsive to plaintiff's FOIA requests, and that they properly withheld records or portions of records under FOIA Exemptions 2, 5, 7(C), 7(D), and 7(E). On these matters the Court will grant summary judgment for the DOJ. Because the results of the BATFE's referral of records to the Army and the USCIS have not been explained, however, summary judgment will be denied in part. The Court will grant Plaintiff's "Motion for Production of Plaintiff's Free 100 Page's [sic] Unlawfully Being Withheld by the EOUSA and All Other Information's [sic] Unlawfully Being Withheld by the EOUSA," but defers 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" and its ruling on segregability. An appropriate Order accompanies this Opinion.
DATE: September 30, 2010