Badalamenti v. US Dept. of State

• Decision Date: 26 September 1995
• Docket Number: No. 92-3171-RDR.,92-3171-RDR.
• Citation: 899 F. Supp. 542
• Parties: Gaetano BADALAMENTI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Kansas

899 F. Supp. 542

Gaetano BADALAMENTI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.

No. 92-3171-RDR.

United States District Court, D. Kansas.

September 26, 1995.

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Gaetano Badalamenti, Fairton, NJ, pro se.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Plaintiff, a pro se litigant, filed this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff submitted a request for records to the Department of State by letter dated November 14, 1991. Sixty-nine documents were retrieved in response to plaintiff's request and, following inter-agency review of certain documents which originated in other agencies, 43 complete documents were released to plaintiff. The State Department has asserted various exemptions pursuant to § 552(b) concerning information contained within 15 documents. Exemptions to disclosure are also asserted by the Drug Enforcement Administration (two documents), Interpol (one document), the Criminal Division of the Justice Department (eight documents), and the Executive Office for United States Attorneys (one document).

This matter is before the court on the parties' cross motions for summary judgment. Defendant's motion includes a detailed statement of facts, supported by declarations of government personnel. In his opposition, plaintiff generally questions the propriety of some of the claimed exemptions, challenges the sufficiency of the Vaughn¹ indices provided by the government and suggests defendant's search for records is incomplete². The court has carefully considered the parties' motions, responses to the motions and the Vaughn indices and supplements thereto. Upon that review, it is concluded that, with two exceptions, summary judgment in favor of defendant is appropriate.

The purpose of FOIA is to allow public scrutiny of agency action. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). Exemptions from disclosure must be in accordance with "clearly delineated statutory language". Id. at 360-61, 96 S.Ct. at 1599 (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)). The specific exemptions raised by defendant are addressed below.

A. Exemption 1—National Security.

The national security exemption is codified at 5 U.S.C. § 552(b)(1) and applies to "matters that are ... specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy". Defendant relies upon §§ 1.3(a)(3) and (5) of Executive Order 12356 which provides for the classification of documents as confidential if they involve "foreign government information" or "foreign relations or foreign activities of the U.S.".

This court reviews de novo whether defendant has properly withheld information pursuant to exemption 1. Agency affidavits, however, are accorded "substantial weight" in light of the executive branch's expertise in and responsibility for matters of national security. McDonnell v. U.S., 4 F.3d 1227, 1243 (3rd Cir.1993). As adopted by the Third Circuit, the standards governing summary judgment in a case such as this include the following:

An agency is entitled to summary judgment if its affidavits (1) "describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exception" ... and (2) "are not controverted by either contrary evidence in the record or evidence of agency bad faith." ... The Government bears the burden of demonstrating "that the withheld material is under the purview of an Executive Order and has been properly classified pursuant to such order." ...

Id. (citations omitted).

The State Department identified 11 documents which were withheld in whole or in part based upon exemption 1. These documents generally pertain to the efforts of the State Department to obtain plaintiff's extradition from Spain following his arrest in Madrid on April 7, 1984 for drug smuggling and other drug offenses. The documents reflect negotiations between the United States, Spain and Italy which led to plaintiff's extradition to the United States.

A review of the State Department's affidavit provides sufficient information to support the government's classification of these documents pursuant to subsections (a)(3) and (5) of Executive Order 12356. Defendant, therefore, is entitled to summary judgment concerning the documents withheld pursuant to exemption 1.³

B. Exemption 2—Personnel Rules and Practices.

Interpol deleted file and case numbers from a one-page document that was released to plaintiff, relying upon 5 U.S.C. § 552(b)(2), which exempts from disclosure records "related solely to the internal personnel rules and practices of an agency". Included within this exemption are "minor or trivial administrative matters of no genuine public interest and possibly more substantial matters that might be the subject of legitimate public interest if the disclosure of the latter might pose a risk of circumvention of lawful agency regulations". Hale v. U.S. Dept. of Justice, 973 F.2d 894, 900 (10th Cir.1992), vacated on other grounds, ___ U.S. ___, 113 S.Ct. 3029, 125 L.Ed.2d 717 (1993); see also Department of Air Force v. Rose, 425 U.S. 352, 365-67, 369, 96 S.Ct. 1592, 1601-02, 1602-03, 48 L.Ed.2d 11 (1976).

In support of the claim that the file and case numbers are exempt, Interpol states only that the deletions were made "pursuant to (b)(2), which exempts the release of information related solely to the internal practices of a Federal Agency". (Declaration of Yvonne A. Holley). This bare assertion fails to demonstrate that the file and case numbers relate to an agency rule or practice or are otherwise encompassed within exemption 2. See Schwaner v. Department of Air Force, 898 F.2d 793, 798 (D.C.Cir.1990) (file numbers are not routinely exempt pursuant to exemption 2). As such, plaintiff is granted summary judgment with respect to the (b)(2) exemption asserted by Interpol and the information excised in reliance upon exemption 2 should be released to plaintiff.

The Drug Enforcement Administration (DEA) has also invoked exemption 2 to protect certain information contained within parts of four documents. The DEA, however, seeks to exempt more substantial, as opposed to trivial, matters which, if disclosed, could risk circumvention of a legal requirement. The possible application of exemption 2 to such matters has been recognized by the Supreme Court. Rose, 425 U.S. at 369, 96 S.Ct. at 1603; see also Hardy v. Alcohol, Tobacco and Firearms, 631 F.2d 653 (9th Cir.1980) (applying exemption 2 where disclosure of law enforcement information would risk circumvention of agency regulation). The DEA seeks to withhold disclosure of G-DEP codes and NADDIS numbers⁴ on the grounds that their disclosure could thwart DEA's investigative and enforcement efforts by providing information which could assist suspects in evading detection by DEA. Defendant's reliance upon exemption 2 to delete the G-DEP codes and NADDIS numbers from documents provided to plaintiff is upheld.

The DEA, however, has also deleted certain information generically classified as "internal markings". Because the DEA has provided no information as to the type of information included within "internal markings", the agency has failed to support its claimed exemption. Plaintiff is granted summary judgment concerning the information excised by the DEA as "internal markings"⁵ and that material should be provided to plaintiff.

C. Exemption 3—Statutory Exemption.

The provisions of 5 U.S.C. § 552(b)(3) apply to records which are "specifically exempted from disclosure by statute". The (b)(3) exemption has been invoked by the State Department, relying upon 8 U.S.C. § 1202(f), to withhold from disclosure marginal notes pertaining to the consideration of granting or refusing a visa to plaintiff. Defendant has adequately established the applicability of this statutory exemption to the marginal notes at issue. See Jan-Xin Zang v. FBI, 756 F.Supp. 705, 711-12 (W.D.N.Y.1991) (upholding exemption 3 to withhold notes pertaining to visa eligibility).

D. Exemption 5—Deliberative process and work product.

Exemption 5, 5 U.S.C. § 552(b)(5), protects from disclosure "inter-agency or intra-agency memorandums or letter which would not be available by law to a party other than an agency in litigation with the agency." This exemption has been construed to encompass civil discovery privileges. Two such privileges are asserted by defendant in this action—the deliberative process privilege⁶ and the attorney work product privilege.

Work Product. Exemption 5 incorporates the work product privilege which, pursuant to Fed.R.Civ.P. 26(b)(3), applies to documents "prepared in anticipation of litigation or for trial by or for another party or for that other party's representative". See, e.g., FTC v. Grolier Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). The Criminal Division of the Department of Justice withheld five letters in their entirety as work product material. The documents were adequately described as pertaining to developments and requests for assistance in plaintiff's pending extradition proceedings. The exemption for these documents⁷ is upheld and summary judgment granted to defendant.

Likewise, the work product exemption applies to the July 19, 1984, telegram⁸ from the Department of State to the U.S. Embassy at Rome, which included the text of one of the five letters referenced above.

The Executive Office of United States Attorneys withheld one document as both a deliberative process and work product document pursuant to exemption 5. The document, a three-page letter written by an Assistant United States Attorney to the Office of International Affairs concerning...