HAWKES, C.J.
In this workers' compensation appeal, we are required to interpret section 440.093, Florida Statutes, enacted by the Florida Legislature as part of the 2003 Chapter 440 reforms. Section 440.093 discusses the four situations when mental or nervous injuries arise. Because both parties appear to have misunderstood how the chapter now handles these types of claims, we reverse and remand this matter to the JCC for further proceedings.
Facts
Claimant, a registered nurse, worked in a treatment center that houses patients with behavioral and mental disorders. While at work, a violent patient attacked her and struck her in the neck and throat. As a result of the accident, she was diagnosed with a laryngeal contusion and vocal cord hematoma. These physical injuries required medical treatment. The employer/carrier accepted these claims as compensable. In addition to the claims based on her physical injuries, the Claimant claimed psychiatric injuries and requested treatment with a psychiatrist. The employer/carrier denied the psychological claims, alleging the psychiatric injuries were not compensable.
At a hearing before a JCC, both parties' arguments focused on section 440.093(2), Florida Statutes, which authorizes coverage for psychiatric injuries that manifest themselves as a result of a physical injury otherwise compensable under Chapter 440. In light of both parties' arguments, the JCC denied the compensability of the psychiatric injuries, concluding "[t]here is no evidence . . . that Claimant's laryngeal contusion and vocal cord hematoma alone constitute at least 50% of the cause of her PTSD [Post Traumatic Stress Disorder], dysthymic disorder, anxiety disorder or personality disorder." Claimant now challenges the JCC's ruling, arguing the JCC erred in its application of section 440.093(2).
Because this issue requires us to interpret and apply section 440.093, our review is de novo. See Socolow v. Flanigans Enters., 877 So.2d 742, 743 (Fla. 1st DCA 2004).
Section 440.093
The Workers' Compensation Law is designed to provide defined benefits for certain injuries caused by workplace accidents. See Chapter 440, Fla. Stat. (2007). Although recovery for psychiatric injuries is limited and restricted under the law, certain psychiatric injuries, which the statute refers to as "mental or nervous injuries," are compensable. Id.
Section 440.093 was added to the chapter as part of the 2003 reforms. This section addresses "mental or nervous injuries" and clarifies when these injuries are either compensable, or when they affect compensability. Id. Section 440.093(1) contains three sentences, with each sentence addressing different situations when mental or nervous injuries may arise in the workplace. Section 440.093(2) defines a fourth situation involving mental or nervous injuries. The following discussion addresses the extent of coverage for these four situations.
The first sentence in section 440.093(1) provides: "A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment." This first provision precludes coverage for mental or nervous injuries caused only by mental trauma. In other words, an employee will not receive compensation for a mental or nervous injury that is caused by "stress, fright or excitement" alone. Examples might include a situation where an employee experiences mental trauma after being robbed at gunpoint but does not suffer a physical injury requiring medical treatment; or perhaps a situation where an employee suffers a mental or nervous injury as a consequence of witnessing some horrific event at the workplace. Although the legislature recognizes that such mental or nervous injuries exist, they are not compensable pursuant to Chapter 440.
The second sentence in section 440.093(1) provides: "Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment." This second provision recognizes and makes compensable mental or nervous injuries that accompany a separate physical injury serious enough to require medical treatment. Critically important to the interpretation of this provision is the recognition that a workplace accident can cause an employee to suffer both a physical injury and a separate mental or nervous injury. The statute sets conditions regarding standards and proof requirements, but generally if a separate mental or nervous injury occurs at the same time as a physical injury requiring medical treatment, the mental or nervous injury will also be compensable. For example, if an employee, in the course and scope of employment, is sexually assaulted at the workplace and suffers a physical injury that requires medical treatment, the physical injury is certainly compensable. See § 440.09, Fla. Stat. (2007). If the employee also suffers a mental or nervous injury separate and apart from the physical injury, the mental or nervous injury would be compensable because it would meet the section 440.09 requirements and also comply with section 440.093(1). In this hypothetical situation, the employee would have simultaneously suffered two compensable workplace injuries: one physical and one mental.
The third sentence in section 440.093(1) provides: "A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter." This third provision precludes coverage when a mental or nervous injury (not accompanied by a physical injury requiring medical treatment) causes a subsequent physical injury. Thus, an employee, under this provision, will not receive compensation for a physical injury if that physical injury occurred solely as a result of the employee experiencing mental or nervous trauma at the workplace. An example of this situation may be where an employee becomes stressed or nervous about something occurring at work and the stress or nervousness causes the employee to suffer a heart attack or other internal failure. In this hypothetical, the physical injury (the heart attack) was caused by the mental or nervous injury (stress, fright, excitement) and would not be compensable under Chapter 440.
Subsection 440.093(2) defines a fourth situation involving mental or nervous injury. This subsection authorizes coverage for mental or nervous injuries which are the manifestation of a physical injury otherwise compensable under Chapter 440. Under the Workers' Compensation Law, a "manifestation" is a disease or infection that "naturally or unavoidably" results from an initial, compensable workplace injury, not a synonym for the initial compensable injury. § 440.02(19), Fla. Stat. (2007);
Subsection 440.093(2) provides:
Mental or nervous injuries occurring as a
manifestation of an injury compensable under this chapter shall be demonstrated by clear and convincing medical evidence by a licensed psychiatrist . . . The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition and . . . must be at least 50 percent responsible for the mental or nervous condition as compared to all other contributing causes combined.
Pursuant to this provision, an employee who suffers an initial physical injury requiring medical treatment may recover for any mental or nervous injury that manifests, so long as the initial physical injury is the major contributing cause of the mental or nervous injury. See A Duda Sons, Inc. v. Kelley, 900 So.2d 664, 667-68 (Fla. 1st DCA 2005) (explaining that a "manifestation" occurs where a psychological injury, such as a depressive disorder, results naturally or unavoidably from a serious physical injury). For example, if an employee loses a limb operating heavy machinery and, over time, the loss of the limb causes the employee to become clinically depressed or mentally unstable (a natural manifestation of the physical injury), the mental or nervous injury will also be compensable under Chapter 440. Another example may arise in a situation where an employee suffers a physical injury that causes long term chronic pain. If the chronic pain eventually results in the employee suffering a mental or nervous injury requiring treatment, the mental or nervous injury would be compensable as the manifestation of the physical injury.
The Injury at Issue
Here, the parties seem to have conflated the provision enumerated in the second sentence of section 440.093(1) (mental or nervous injury accompanying a physical injury) with that in section 440.093(2) (mental or nervous injury manifesting as a result of an earlier physical injury).
The Claimant argues that the JCC erred in finding her mental injuries were not covered under section 440.093(2). As noted, section 440.093(2) addresses only those mental injuries that manifest as a result of a physical injury requiring medical treatment. Thus, in order to support her claim for coverage under section 440.093(2), the Claimant would have had to prove her mental injury was the manifestation of the bruising and temporary loss of voice that she suffered during the attack.
At the hearing before the JCC, the Claimant did not present any evidence to support her claim that a compensable mental or nervous injury had manifested as a result of her physical injuries. Instead, the record indicates she presented evidence that she may have suffered a separate mental or nervous injury that accompanied (occurred at the same time as) the physical injuries to her neck and throat. In fact, two different psychiatrists testified that the Claimant's mental or nervous injuries were the result of the accident (the attack at her workplace), not the result of the physical injury to the Claimant's neck. Because these mental or nervous injuries may have occurred at the same time as the physical injuries that required medical treatment, the mental or nervous injuries could only be compensable under the second sentence in section 440.093(1). Therefore, the JCC was correct in finding they could not, without further evidence, be compensable under section 440.093(2).
In sum, the Claimant presented evidence relating directly to the type of mental or nervous injury defined in the second provision of section 440.093(1), but made an argument based on the type of injury defined in section 440.093(2). Accordingly, the JCC was correct in finding there was insufficient evidence to support the Claimant's argument that she was entitled to compensation pursuant to the later. However, because it appears that both the Claimant and the employer/carrier were uncertain as to the nuances of section 440.093, we REVERSE and REM this matter for further proceedings, including the taking of additional evidence if necessary.
VAN NORTWICK and THOMAS JJ., concur.
or that each declaration is based on the declarant's personal knowledge of the handling of his FOIA requests. Pl.'s Opp'n at 15-16. In this case, however, each declarant has stated his or her familiarity with the component's procedures for handling FOIA and Privacy Act requests, and each declaration is based on the declarant's review of the component's official files.
See Def.'s Mem., Luczynski Decl. ¶¶ 2-3, Dennis Decl. ¶ 2, Argall Decl. ¶ 3. The Court may accept the declaration of a person who did not conduct the search itself "if in his declaration, [he] attests to his personal knowledge of the procedures used in handling [a FOIA] request and his familiarity with the documents in question."
Barnard v. Dep't of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (internal quotation marks and citations omitted). Thus, the declarant need not have conducted the search himself.
See Willis v. U.S. Dep't of Justice, 581 F. Supp. 2d 57, 66 (D.D.C. 2008) (noting that an agency's supporting "affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search.").
On this record the Court finds that the FBI has established that its search for records responsive to the plaintiff's FOIA request satisfies the requirements of the FOIA.
C. Analysis Under the Privacy Act
In relevant part, the Privacy Act provides:
The head of any agency may promulgate rules . . . to exempt any system of records within the agency from [certain parts of the Act] . . . if the system of records is . . . maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
5 U.S.C. § 552a(j)(2).
"The EOUSA's Criminal Case Files (Justice/USA-007) are contained in a Privacy Act System of Records," and "the Attorney General has promulgated rules exempting these records from the Privacy Act's access provisions as authorized by 5 U.S.C. § 552a(j)(2)." Def.'s Mem., Luczynski Decl. ¶ 23; see 28 C.F.R. § 16.81(4) (2009). Similarly, the FBI's CRS "is a component of the FBI's CRS Privacy Act Records System," and its records "are exempt from disclosure pursuant to 5 U.S.C. § 552a(j)(2), in conjunction with 28 C.F.R. § 16.96 (2003)." Def.'s Mem., Argall Decl. ¶ 25. However, both the EOUSA and the FBI processed "the documents responsive to the plaintiff's request . . . under the access provisions of the FOIA to achieve maximum disclosure." Id.
D. FOIA Exemptions
The DOJ bears the burden of justifying a decision to withhold records or portions of records that are responsive to a FOIA request. See 5 U.S.C. § 552(a)(4)(B). However, to establish justification for the withholding of responsive records the agency's declarants must describe the records withheld, and show that the records fall within the claimed exemption or exemptions. See Canning v. U.S. Dep't of Justice, 848 F. Supp. 1037, 1043 (D.D.C. 1994).
1. Exemption 2
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). The phrase "personnel rules and practices" is interpreted to include not only "minor employment matters" but also "other rules and practices governing agency personnel." Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The "information need not actually be `rules and practices' to qualify under [E]xemption 2, as the statute provides that matter `related' to rules and practices is also exempt." Schwaner v. Dep't of the Air Force, 898 F.2d 793, 795 (D.C. Cir. 1990).
Exemption 2 applies if the information that is sought meets two criteria. First, such information must be "used for predominantly internal purposes." Crooker, 670 F.2d at 1073; see Nat'l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C. Cir. 1986). Second, the agency must show either that "disclosure may risk circumvention of agency regulation," or that "the material relates to trivial administrative matters of no genuine public interest." Schwaner, 898 F.2d at 794 (citations omitted).
"Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations are protected by the so-called `high 2' exemption." Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). "High 2" exempt information is "not limited . . . to situations where penal or enforcement statutes could be circumvented." Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed "low 2" exempt material. See Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C. Cir. 1983).
The FBI has redacted from 57 pages of records "the secure website address of the FBI's Law Enforcement Online ("LEO") computer system." Def.'s Mem., Argall Decl. ¶ 29. The FBI declarant describes the LEO system as "a controlled-access communications and information-sharing data repository" which "provides an Internet-accessible focal point for certain electronic communications and information sharing for the international, federal, state, local and tribal law enforcement agencies." Id. Further, the declarant states that the website addresses "relate to the internal practices of the FBI in that they are utilized by FBI personnel during the performance of their jobs." Id. Lastly, the declarant states that disclosure of the secure website address "could impede the FBI's effectiveness." Id. Plaintiff raises no objection to the FBI's decision to withhold information under Exemption 2. See Pl.'s Opp'n at 13.
The declaration establishes that the website address falls within the scope of Exemption 2, and the Court concludes that this information properly has been withheld.
2. Exemption 6
Exemption 6 of the FOIA protects from disclosure "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 FBI's practice "is to assert Exemption [6] in conjunction with Exemption [7(C)]," Def.'s Mem., Argall Decl. ¶ 30 n. 5, and review of the redacted records shows that the FBI has invoked the exemptions in conjunction with each other in all instances related to the plaintiff's FOIA request, see id., Ex. FBI-G ( Vaughn index). As will be discussed in the next section, the Court concludes that all the records responsive to the plaintiff's request were compiled for law enforcement purposes. The Court will therefore analyze the withholding of this law enforcement related information under Exemption 7(C), and it need not determine whether this same information properly has been withheld under Exemption 6. See Simon v. Dep't of Justice, 980 F.2d 782, 785 (D.C. Cir. 1992).
In addition, the FBI has redacted Social Security numbers and dates of birth wherever they appear in these records pursuant to Rule 5.2 of the Federal Rules of Civil Procedure and to Local Civil Rule 5.4(f). See generally Def.'s Mem., Argall Decl., Ex. FBI-G.
Similarly, where the EOUSA has withheld information under Exemption 7(F) in conjunction with Exemption 7(C), see Def.'s Mem., Luczynski Decl. ¶¶ 44-45, the Court will conduct its analysis under Exemption (C) only.
3. Exemption 7
Exemption 7 of the FOIA protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that disclosure of such records would cause an enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982).
a. Law Enforcement Records
In order to withhold materials properly under Exemption 7, an agency must establish that the records at issue were compiled for law enforcement purposes, and that the material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). In assessing whether records are compiled for law enforcement purposes, the "focus is on how and under what circumstances the requested files were compiled, and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding." Jefferson v. Dep't of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).
Records responsive to the plaintiff's FOIA request to the FBI were generated when the District of Columbia Metropolitan Police Department ("MPD") requested assistance from the FBI's Washington Field Office ("WFO") in apprehending the plaintiff, for whom the Superior Court of the District of Columbia had issued a felony arrest warrant "for a shooting death which had occurred in Washington, D.C." Def.'s Mot., Argall Decl. ¶ 5. On August 20, 1992, "[t]he plaintiff was arrested by an FBI/MPD Joint Fugitive Apprehension Team." Id. Some of the responsive records "pertain to the FBI's investigation of [the] plaintiff while he was a fugitive from justice" while others "pertain to an FBI investigation at a prison facility, and to entry of the plaintiff's criminal history into the FBI's [Violent Criminal Apprehension Program ("ViCAP")] database." Id. ¶ 33; see also id. ¶¶ 27-28.
The United States Attorney for the District of Columbia prosecuted the plaintiff's criminal case. See Def.'s Mem., Luczynski Decl. ¶ 24. The EOUSA records responsive to the plaintiff's FOIA request are maintained in a criminal case file captioned United States v. Marvin Holt, No. F-8825-92. Id. ¶ 21. This "criminal case file pertains to the criminal investigation of [the plaintiff] for violation of federal controlled substance laws, for felony murder, and for various firearms violations," and the records therein "were complied for criminal law enforcement purposes by the USAO DDC, which performs as its principal function activities related to the enforcement of criminal laws." Id. ¶ 24.
As for the BOP, it is considered a law enforcement agency, see Quinto v. U.S. Dep't of Justice, No. 09-2068, 2010 WL 1875623, at *3 (D.D.C. May 11, 2010), and its declarant explains that its records responsive to the plaintiff's FOIA request "pertained to the investigation of an inmate-on-inmate assault," Def.'s Mem., Declaration of Ron Hill ¶ 4. It appears that these records are created in connection with the BOP's responsibility to "protect[] inmates, staff, and the community," Butler v. Fed. Bureau of Prisons, No. 05-643, 2005 WL 3274573, at * 3 (D.D.C. Sept. 27, 2005), and, therefore relate to the enforcement of federal law.
Both of these two DOJ components readily meet the threshold for Exemption 7 status, i.e., that the records responsive to the plaintiff's FOIA requests were compiled for law enforcement purposes. The records, therefore, fall within the scope of Exemption 7.
b. Public Domain Doctrine
Before proceeding with its analysis of the withholding of the law enforcement records, the Court will first address the plaintiff's assertion that all the records withheld under Exemption 7 must be released "because the records have been released into the public domain through judicial proceedings and media outlets." Pl.'s Opp'n at 13. Under the public domain doctrine, records which otherwise may be exempt from disclosure under the FOIA "lose their protective cloak once disclosed and preserved in a permanent public record." Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). "[W]here information requested `is truly public, then enforcement of an exemption cannot fulfill its purposes.'" Id. (quoting Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)). In order to obtain the records he requests, the plaintiff "has the burden of showing that there is a permanent public record of the exact [records] he wishes." Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992); see Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
As support for his public domain doctrine argument, the plaintiff points only to his own affidavit, which states that "the government witnesses testified in open court to all of the facts and circumstances related to the criminal case," Plaintiff's Pro Se Opposition to the Defendants' Motion for Summary Judgment ("Pl.'s Opp'n"), Affidavit of Marvin Leon Holt ¶ 14, and that "local newspapers . . . published several news articles related to [his] murder and drug charges trial," id. ¶ 15. The plaintiff's affidavit does not suffice, and the plaintiff presents no other document or other evidence to meet his "initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar, 702 F.2d at 1130. Accordingly, the Court concludes that disclosure is not warranted under the public domain doctrine. See Lieff, Cabraser, Heimann Bernstein, LLP v. U.S. Dep't of Justice, No. 09-00157, 2010 WL 1063785, at *5 (D.D.C. Mar. 24, 2010) (rejecting public domain doctrine argument where the plaintiff's "several exhibits . . . including news reports, corporate statements, and a court filing" were "essentially devoid of any specific explanation of the overlap between the information in these exhibits and in the records [the plaintiff] seeks").
c. Exemption 7(C)
The BOP has withheld "the identities and personal information about third party individuals." Def.'s Mem., Decl. of Ron Hill ("Hill Decl.") ¶ 5. Its declarant merely parrots the language of the FOIA, and it is not clear from review of the redacted records themselves the basis for withholding certain information appearing on the second of the three pages. A substantial portion of the information on that page has been redacted without any notation on each redacted portion identifying the exemption or exemptions claimed. Morever, insofar as the BOP relies on Exemption 7(C) in conjunction with Exemption 7(F), the declaration offers little explanation as to how disclosure "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). For these reasons, the Court will deny in part the defendant's summary judgment motion.
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). 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 Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The privacy interest at stake belongs to the individual, not the government agency, see 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. FBI, 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, 968 F.2d at 1282 (quoting Reporters Comm., 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).
i. Law Enforcement Agents, Officers and Support Personnel
The EOUSA has withheld under Exemption 7(C) "the names, signatures and badge numbers of local law enforcement officers and support employees who were responsible for conducting, supervising, and/or maintaining the investigative activities reported in this investigation." Def.'s Mem., Luczynski Decl. ¶ 28. The EOUSA declarant explains that any publicity "regarding any particular investigation conducted by a state or federal law enforcement agent may seriously impair [his or her] effectiveness in conducting future investigations." Id. He notes that these agents "conduct official inquiries into violations of various criminal statutes and come into contact with all strata of society" whenever they, for example, "conduct searches and make arrests, both of which result in reasonable, but . . . serious disruptions in the lives of individuals." Id. The declarant opines that these individuals might "carry a grudge which may last for years, and [may] seek revenge on the agents involved in the investigation." Id. He therefore concludes that disclosure of their identities and the publicity associated with such disclosure "could trigger hostility towards the [agents]." Id.
Similarly, under Exemption 7(C) the FBI has withheld the names of and identifying information (such as Social Security numbers) about the Special Agents "responsible for conducting, supervising, and/or maintaining the investigative activities reported in the documents concerning [the] plaintiff and others," Def.'s Mem., Argall Decl. ¶ 34, in addition to local law enforcement employees, id. ¶ 35, and commercial employees who assisted the FBI by entering data into the ViCAP database, id. ¶ 38. The FBI declarant explains that FBI Special Agents are not assigned to a particular investigation by choice, and that "[p]ublicity (adverse or otherwise) regarding any particular investigation to which they have been assigned may seriously prejudice their effectiveness in conducting other investigations." Id. ¶ 34. Withholding their identities under Exemption 7(C), the declarant asserts, protects them "from unnecessary, unofficial questioning as to the conduct of this or other investigations, whether or not they are currently employed by the FBI," and protects them from any hostility which may be triggered by the disclosure of their identities. Id. The declarant applies this same rationale to local law enforcement employees, explaining that disclosure of their identities "could subject them as individuals to unnecessary and unwelcome harassment" or otherwise could make them "prime target[s] for compromise if their identities were known." Id. ¶ 35.
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. See Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (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"); Pray v. Dep't of Justice, 902 F. Supp. 1, 3 (D.D.C. 1995) (finding that "animosity or grudges toward special agents" resulting from release of information outweighed any possible benefit from disclosure), aff'd in relevant part, 1996 WL 734142 (D.C. Cir. Nov. 20, 1996). In accordance with these rulings, the Court concludes that the EOUSA and the FBI properly withheld the names of and identifying information about federal and local law enforcement officers and support personnel under Exemption 7(C).
ii. Other Third Parties Mentioned in Law Enforcement Records
The EOUSA has withheld "the name[s] and/or identifying information pertaining to individuals who assisted the government in its investigation and prosecution of [the plaintiff] by providing information concerning the murder investigation," Def.'s Mem., Luczynski Decl. ¶ 30, "the names [and] home telephone numbers of those [individuals] who are only incidentally mentioned in these records," id. ¶ 33, as well as "the identities and/or personal and non-public information concerning third-party individuals in whom federal and/or local law enforcement agencies had an investigative interest," id. ¶ 34. Likewise, the FBI withholds the "name, address, telephone number, date of birth and nickname of a victim of a crime," Def.'s Mem., Argall Decl. ¶ 36, the names of and identifying information about third parties of investigative interest either to the FBI or to other law enforcement agencies, id. ¶ 37, and, lastly, "the name and title of a commercial employee who cooperated and provided assistance to the FBI by entering data into the ViCAP database," id. ¶ 38.
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. Reporters Comm. for Freedom of the Press, 489 U.S. at 773-775; SafeCard Servs., 926 F.2d at 1205-06. 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). 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)).
The plaintiff does not assert, and the Court cannot identify, a public interest of such significance that it outweighs the privacy interests of the third parties mentioned in the records responsive to the plaintiff's FOIA requests. Furthermore, his assertion that "the passage of time has substantially eroded the records['] law enforcement exemption status," Pl.'s Opp'n at 14, is unavailing, because an individual's privacy interest does not diminish with the "passage of time." Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990).
For all of the above reasons, the Court finds that the DOJ's decision to withhold the names of and identifying information about law enforcement officers, support personnel, witnesses, persons of investigative interest, and other third parties whose names happen to appear in these law enforcement records is proper. See, e.g., King v. U.S. Dep't of Justice, No. 08-1555, 2010 WL 935420, at *4 (D.D.C. Mar. 17, 2010) (upholding nonproduction of "the names and other identifying information of third parties, including suspects, co-defendants, and confidential sources of information"); Sellers v. U.S. Dep't of Justice, No. 08-0840, 2010 WL 545939, at *7 (D.D.C. Feb. 17, 2010) (withholding the identities of FBI Special Agents who testified at the plaintiff's criminal trial held proper); Kurdyukov v. U.S. Coast Guard, 657 F. Supp. 2d 248, 256 (D.D.C. 2009) (sustaining the withholding of "[t]he names and personal information of the U.S. Coast Guard crew members, which may include addresses, passport numbers and other personal data" (internal quotation marks omitted)).
d. 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."). Moreover, as the District of Columbia Circuit held, "[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. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (quoting
Landano, 508 U.S. at 170-74).
i. Eyewitnesses to the Murder for which the Plaintiff was Convicted
According to the EOUSA it has withheld under Exemption 7(D) "information provided by eyewitnesses to the murder for which [the plaintiff] was prosecuted" in circumstances under "which the assurance of confidentiality could be reasonably inferred." Def.'s Mem., Luczynski Decl. ¶ 39. These sources are not named, and they appear in the EOUSA records only as "W-1" and W-2." Id. ¶ 41. They "had direct contact with the subject of the criminal investigation" and thus were able to "provide[] details as to their criminal conduct," in addition to supplying detailed information about the murder for which the plaintiff has been convicted. Id. The EOUSA declarant states that these witnesses "would likely become targets of harassment or other forms of reprisal" if their identities or the information they provided were released. Id. ¶ 37. Moreover, he states that disclosure "would likely produce a disastrous impact upon the ability to ever obtain . . . investigative information again, as it would create a chilling effect upon the free-flow of information essential to resolve criminal prosecutions." Id.
Recognizing the "the violence and danger that accompany the cocaine trade," Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1329-30 (D.C. Cir. 2000), the District of Columbia Circuit has found that "a source of information about a conspiracy to distribute cocaine typically faces a sufficient threat of retaliation that the information he provides should be treated as implicitly confidential," id. at 1330 (approving the withholding of the identity of a source who supplied information about a conspiracy to distribute crack and powder cocaine). Similarly, courts have found that disclosure of the identities of or information provided by confidential sources is not required in circumstances where the subject of the investigation is known to have committed serious or violent offenses and where the sources are at risk of retaliation, harassment or bodily harm. See Williams, 69 F.3d at 1159-60 (concluding that sources who spoke to the FBI regarding a nationalist organization "suspected . . . of committing . . . rebellion or insurrection, seditious conspiracy, and advocating the overthrow of the government," and had demonstrated its "willingness to use violence against its enemies," did so under an implicit assurance of confidentiality); Shores v. FBI, 185 F. Supp. 2d 77, 84 (D.D.C. 2002) (approving the withholding of the identities of and identifying information about three cooperating witnesses who had knowledge of the murder for which plaintiff was convicted). It is equally reasonable in this case to conclude that W-1 and W-2 provided information to law enforcement with an expectation that their identities would not be disclosed. This information is therefore properly withheld under Exemption 7(D).
ii. Confidential Source Material in the ViCAP File
The FBI withholds certain "confidential source material contained in the ViCAP file, as well as in a reference file concerning a Racketeering Enterprise Investigation ("REI") of gang activity." Def.'s Mem., Argall Decl. ¶ 40. Here, the FBI declarant explains that a local law enforcement agency supplied information to ViCAP under an express assurance of confidentiality, as is underscored by the FBI's Rules of Behavior for the ViCAP Web. Id. These rules clearly state that the ViCAP Web database is a confidential system, the unauthorized access to which is prohibited. Id. Moreover, the declarant states that the FBI "solicits and receives information regularly from state, local, and foreign agencies and authorities," and that cooperation from these identities depends on a "mutual understanding that the information provided by [these sources] will be held in confidence by the FBI, and not released pursuant to FOIA and Privacy Act requests." Id.
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 20, 34 (D.C. Cir. 1998) (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. In addition to individual sources, a law enforcement agency itself may be a confidential source for purposes of Exemption 7(D). See, e.g., Founding Church of Scientology of Washington, D.C., Inc. v. Levi, 579 F. Supp. 1060, 1063 (D.D.C. 1982) (approving the withholding from law enforcement records the identities of state, local and foreign law enforcement agencies), aff'd, 721 F.2d 828 (D.C. Cir. 1983); Thomas v. U.S. Dep't of Justice, 531 F. Supp. 2d 102, 111 (D.D.C. 2008) (approving the withholding of a report provided to the EOUSA by the Metropolitan Police Department which stated, "[t]his report is the property of the Metropolitan Police Department. Neither it nor its contents may be disseminated to unauthorized personnel."); Meserve v. U.S. Dep't of Justice, No. 04-1844, 2006 WL 2366427,
at *10 (D.D.C. Aug. 14, 2006) (concluding that the State of Ohio provided information regarding the plaintiff's criminal history under an implied assurance of confidentiality); see also Code v. FBI, No. 95-1892, 1997 WL 150070, at *7 (D.D.C. Mar. 26, 1997) (approving the withholding under Exemption 7(D) of information provided by local law enforcement authorities to the FBI's National Center for the Analysis of Violent Crime as a part of its ViCAP program).
The plaintiff raises no specific objection to the withholding of information under Exemption 7(D). Accordingly, based on the defendant's supporting declarations, the Court concludes that both the EOUSA and the FBI properly have withheld the information described above under Exemption 7(D).
e. 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. CIA, 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 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). Moreover, 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, 964 F.2d at 1207.
Based on Exemptions 2 and 7(E), the FBI has withheld information contained in a ViCAP file. Def.'s Mem., Argall Decl. ¶¶ 28, 42; see id., Ex. FBI-G at 29-86 (deleted page information sheets). The FBI's Critical Incident Response Group, National Center for Analysis of Violent Crime, Behavior Analysis Unit's Violent Criminal Apprehension Program ("ViCAP") "is a law enforcement oriented behavioral science and data-processing center designed to provide assistance to local, state, federal and foreign law enforcement agencies investigating unusual, bizarre, and/or repetitive violent crimes." Def.'s Mem., Argall Decl. ¶ 28. "ViCAP collects, collates, and analyzes crimes of violence, specifically murder," id., and information it processes "contains detailed administrative, investigative and behavior-oriented data[,]" such as "modus operandi, crime scene information, and types of trauma inflicted on the victim," id. ¶ 42.
The FBI declarant states that information in ViCAP "relates solely to the FBI's internal practices" Def.s' Mem., Argall Decl. ¶ 28, and that ViCAP "is utilized for law enforcement investigations," id. ¶ 42. He asserts that disclosure of information in the ViCAP file would "reveal the characteristics and data . . . collected and tracked using this system [and therefore] could allow offenders to circumvent discovery." Id. ¶ 28; see id. ¶ 42. Thus, if a criminal knew the specific information collected and the origins of such information, he or she "would then be able to avoid detection by modifying or avoiding certain behavior/activities connected with his/her criminal conduct." Id. ¶ 28. In addition, the declarant explains that "the FBI will use the same or similar techniques and/or assistance to bring future investigations to successful conclusions," id., and that "release of the ViCAP analytical techniques would reduce their effectiveness," id. ¶ 42. According to the declarant, ViCAP's techniques are not well known to the public. Id.
Despite these representations, the plaintiff argues that the defendant "does [not] even attempt to make a showing as required by law," as it fails "to show that the particular law enforcement technique or procedure is not generally known to the public" and to "describe the general nature of the techniques[.]" Pl.'s Opp'n at 14. However, absent a showing by the plaintiff that rebuts the declarant's assertion that ViCAP's techniques are not well known to the public, the Court presumes that the declaration is made in good faith and therefore accepts the agency's representation on this point. In addition, the plaintiff's assertion that the declarant has not described generally the nature of the ViCAP techniques, id., is meritless, as the declaration explains the type of data collected and the purpose of collecting this data.
E. Segregability
If a record contains information that is exempt from disclosure, any reasonably segregable information must be released after deleting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008); Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999). The Court therefore errs if it "simply approve[s] the withholding of an entire document without entering a finding on segregability, or the lack thereof." Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1991) (quoting Church of Scientology v. Dep't of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).
The plaintiff argues that the DOJ cannot have disclosed all reasonably segregable material because so few pages have been released and because so much information on these pages has been redacted. See Pl.'s Opp'n at 16-17. Unless the Court conducts an in camera inspection of all the documents deemed responsive to his FOIA requests, the plaintiff states that he "is compelled . . . to [accept] the Defendants' bald assertions on face value — something [he] admittedly has a hard time doing after 7-years of the Defendants' shenanigans." Id. at 17.
The Court will deny plaintiff's request for in camera review. Based on a review of the defendant's supporting declarations and exhibits, the Court finds that they adequately "specify in detail which portions of the document[s] are disclosable and which are allegedly exempt." Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
III. CONCLUSION
For the reasons outlined above, the Court concludes that the FBI and the EOUSA conducted reasonable and adequate searches for records responsive to the plaintiff's multiple FOIA requests, that these components properly have withheld records or portions of records under Exemptions 2, 7(C), 7(D), and 7(E), and that they have released all reasonably segregable material. In these respects, the defendant's summary judgment motion is granted. However, because the defendant has not established that the BOP has fulfilled its obligations under the FOIA, its motion is denied in part without prejudice. The defendant will be directed to file a renewed motion for summary judgment based on additional undisputed facts or by presenting additional legal arguments. An Order accompanies this Memorandum Opinion.