UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPUTER PROFESSIONALS FOR )
SOCIAL RESPONSIBILITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0231-LFO
)
UNITED STATES SECRET SERVICE, )
)
Defendant. )
_________________________________)
Plaintiff brought this action under the Freedom of Information Act, 5 U.S.C. Sec. 552 et seq., to obtain any documents in defendant's possession relating to the breakup of a meeting of computer enthusiasts that took place on November 6, 1992 at the Pentagon City mall in Arlington, Virginia. The attendees, apparently affiliated with a computer magazine called 2600 and referred to in media accounts of the incident as computer "hackers," were dispersed shortly after their arrival by Arlington County Police and mall security officers.[1] According to plaintiff, the officers took names of attendees and confiscated some of their personal property before ordering them to leave the mall. Plaintiff also avers that an agent or agents of defendant participated in the incident.
Plaintiff submitted its FOIA request to defendant on November 10, 1992. Several months later, defendant released to plaintiff several newspaper articles about the incident. Defendant informed plaintiff that it was withholding two additional responsive documents pursuant to FOIA exemptions 7 (A), (C), and (D). The parties filed cross-motions for summary judgment. During the pendency of these motions, defendant discovered six additional responsive documents in its Washington, D.C. field office. Defendant submitted a supplementary declaration and memorandum in which it stated that it would withhold the six new documents under the same three FOIA exemptions claimed for the two earlier documents. Defendant subsequently filed an additional declaration _in camera_. Plaintiff has moved to strike defendant's _in camera_ submission.
Plaintiff objects to defendant's _in camera_ submission on the ground that permitting such submissions in FOIA actions undermines the adversarial structure of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), by preventing the plaintiff from expressing its views as to the government's reasons for withholding documents. See Yeager v. DEA, 678 F.2d 315, 324-25 (D.C. Cir. 1982). As plaintiff contends, _in camera_ submissions should only be permitted in those instances where they are "absolutely necessary" to resolve the case. Id. This is such an instance. Defendant has made a thorough effort to explain as much of its case as possible in its public filings. However, the confidential nature of the criminal investigation underlying defendant's withholding of documents makes _in camera_ review the exclusive means of weighing specific aspects of defendant's claims. Accordingly, plaintiff's motion to strike defendant's _in camera_ submission will be denied, and that submission will be considered in ruling on the parties' cross-motions for summary judgment.
FOIA exemption 7 permits the withholding of several categories of "records or information compiled for law enforcement purposes." 5 U.S.C. Sec. 552(b)(7). Initially, plaintiff argues that defendant has categorically failed to satisfy the threshold requirement for invoking exemption 7 because defendant has failed to demonstrate that the information at issue relates to a criminal investigation.
Defendant's public declarations specify the nature of the underlying criminal investigation, and its _in camera_ submission discusses that investigation with even greater specificity. This is a case to which exemption 7 might properly be applied. Defendant has withheld documents based on three provisions of that exemption.
FOIA exemption 7(C) permits the withholding of information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552 (b)(7)(C). Defendant argues that exemption 7(C) applies in this case because of "the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, 'in not being associated unwarrantedly with alleged criminal activity.'" Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (citation omitted).
The cases defendant cites in support its exemption 7(C) claim generally involve persons whose connection with a criminal file could embarrass or endanger them -- for example, persons investigated but not charged in criminal matters. See, e.g., Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Defendant has not suggested that the meeting at issue here is the object of any criminal investigation. The incident occurred in plain view of the patrons of a busy shopping mall. The mere fact that defendant has maintained materials relating to the incident in connection with a criminal investigation does not mark participants in the meeting with the "stigma" of being associated with a criminal investigation, which defendant identifies as the gravamen of its 7(C) claim. Indeed, several participants in the meeting have executed privacy waivers in connection with a later FOIA request from defendant, which suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests. Exemption 7(C) is not an appropriate basis for withholding responsive documents in this case.
Defendant next invokes FOIA exemption 7(D), which permits the withholding of documents that "could reasonably be expected to disclose the identity of a confidential source ... and ... information furnished by a confidential source." 5 U.S.C. Sec. 552(b)(7)(D). To support its claim of this exemption, defendant initially cited the law of this Circuit that "in the absence of evidence to the contrary, promises of confidentiality are 'inherently implicit' when the FBI solicits information." Keys v. Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987) (citations omitted). However, during the pendency of this motion, the Supreme Court in Department of Justice v. Landano, 113 S.Ct. 2014 (1993), eliminated the Keys presumption. The Court held that exemption 7(D) only applies where there is an actual promise of confidentiality, or circumstances from which such a promise may be inferred -- for example, a type of crime that makes recriminations against sources likely. Id. at 2023. After Landano, which defendant concedes governs the exemption 7(D) claim in this case, defendant's sole basis for applying exemption 7(D) is a statement in its supplemental memorandum that defendant "recently contacted" the source, which told defendant that the source understood the information to have been provided on a confidential basis. Supplemental Declaration of Melvin E. Laska (June 18, 1993) at para. 49. Such a post hoc rationalization is inadequate. At no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information. Thus, defendant's exemption 7(D) claim does not survive Landano.
Defendant's strongest claim for withholding certain responsive documents is based on FOIA exemption 7(A) That exemption permits an agency to withhold responsive documents that "could reasonably be expected to interfere with law enforcement proceedings." 5 U.S.C. Sec. 552(b)(7)(A). Defendant has represented that it is maintaining the withheld documents as part of a particular, ongoing criminal investigation. It has elaborated on this representation in its _in camera_ submission. Withholding of documents is appropriate under exemption 7(A) if release of the documents would interfere with the ongoing investigation in any of the ways defendant enumerates: by alerting individuals that they are under investigation, thus allowing them to alter their behavior; by exposing or chilling the participation of informants or witnesses; or by providing premature access to the government's strategy or the nature, focus, and limits of its case. See generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-241 (1978).
Defendant, however, has failed to demonstrate that the release of each of the documents it has withheld would interfere with the ongoing investigation in any of these ways. Defendant's public filings state that the investigation involves allegations made by, a private corporation of telephone fraud. See Defendant's Supplemental Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (June 25, 1993) at 3. Thus, defendant cannot fear the possibility that release of the withheld documents might reveal defendant's involvement in this type of investigation. Similarly, the fact that the documents at issue are responsive to plaintiff's FOIA request indicates that those documents concern the breakup of the November 6, 1992 meeting at Pentagon City. Thus, defendant cannot claim exemption 7(A) to withhold documents based on the possibility that the documents would reveal that investigators were interested in that meeting. The only documents at issue that defendant might properly withhold under exemption 7(A) would fall into one of the following three categories: information identifying the individual(s) under investigation and stating that they are under investigation; information identifying any witness(es) or informant(s) of the activity under criminal investigation and stating that they are witnesses or informants; and information revealing the particular strategy or parameters of the criminal investigation, such as the name of the corporation complaining of telephone fraud, the dates of the suspected criminal activity, or any conclusions defendant's agents have drawn in connection with the investigation. Beyond information in these specific categories, defendant has failed to explain how release of any withheld documents would interfere with any ongoing criminal investigation. Accordingly, the accompanying Order instructs defendant to redact from the withheld documents information that falls into the three specific categories described in this paragraph and to release the redacted documents to plaintiff.
Date: July 1, 1994 /sig/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPUTER PROFESSIONALS FOR )
SOCIAL RESPONSIBILITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0231-LFO
)
UNITED STATES SECRET SERVICE, )
)
Defendant. )
_________________________________)
For the reasons stated in the accompanying Memorandum, it is this 1st day of July 1994, hereby
ORDERED: that plaintiff's motion to strike defendant's _in camera_ submission should be, and is hereby, DENIED; and it is further
ORDERED: that defendant's motion for summary judgment should be, and is hereby, GRANTED in part with respect to FOIA exemption 7(A); and it is further
ORDERED: that plaintiff's cross-motion for summary judgment should be, and is hereby, GRANTED with respect to FOIA exemptions 7(C) and (D) and is GRANTED in part with respect to FOIA exemption 7(A); and it is further
ORDERED: that defendant shall redact from the withheld documents information that falls into the three specific categories described in the accompanying Memorandum and shall release the redacted documents to plaintiff.
/sig/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE