Beck v. Department of Justice

• Decision Date: 06 July 1993
• Docket Number: No. 91-5292,91-5292
• Citation: 997 F.2d 1489
• Parties: Robert Charles BECK, Appellant, v. DEPARTMENT OF JUSTICE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1489

997 F.2d 1489

302 U.S.App.D.C. 287

Robert Charles BECK, Appellant, v. DEPARTMENT OF JUSTICE, et al.

No. 91-5292.

United States Court of Appeals, District of Columbia Circuit.

Argued May 3, 1993.

Decided July 6, 1993.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 88-03433).

John Y. Gotanda, Washington, DC (appointed by this court as amicus curiae) argued the claims advanced by appellant. With him on the brief was Mark H. Lynch, Washington, DC.

Douglas Wickham, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With him on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before SILBERMAN, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Appellant Robert Charles Beck invokes the Freedom of Information Act in order to secure certain records pertaining to two Drug Enforcement Administration agents. Citing Exemptions 6 and 7(C) of the Act, the Department of Justice's Office of Professional Responsibility refused to either confirm or deny the existence of such records. Because the public interest served by the Act would not be advanced by revealing whether the Government has credible evidence that these individuals have engaged in wrongdoing, we agree that the requested information was properly withheld.

I. BACKGROUND

A. Legal Framework

The purpose of the Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA"), is to "facilitate public access to Government documents." Department of State v. Ray, --- U.S. ----, ----, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991). The Act is meant "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Id. (quoting Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976)).

Although FOIA's disclosure requirements are broad, Congress exempted nine categories of documents from the Act's reach. See 5 U.S.C. § 552(b). Exemption 6 excepts

personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Id. § 552(b)(6). Exemption 7(C) protects

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Id. § 552(b)(7)(C). The protection available under these exemptions is not the same. Noting the use of the adverb "clearly" in Exemption 6 and its requirement that disclosure constitute an actual rather than a likely invasion of privacy, the Supreme Court has held that "the standard for evaluating a threatened invasion of privacy interests ... is somewhat broader" under Exemption 7(C) than under Exemption 6. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756, 109 S.Ct. 1468, 1473, 103 L.Ed.2d 774 (1989).

In applying Exemption 7(C), we have noted that "we balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Davis v. Department of Justice, 968 F.2d 1276, 1281 (D.C.Cir.1992) (citing Reporters Committee, 489 U.S. at 762, 109 S.Ct. at 1476; and Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C.Cir.1991)). The Supreme Court has defined the public interest against which the protected privacy interests are to be balanced as "the citizens' right to be informed about what their government is up to." Ray, --- U.S. at ----, 112 S.Ct. at 549 (quoting Reporters Committee, 489 U.S. at 773, 109 S.Ct. at 1481-82) (internal quotation marks and citation omitted). The same standard, of course, is applicable in the case of Exemption 6.

Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents. See 5 U.S.C. § 552(a)(4)(B); see also Ray, --- U.S. at ----, 112 S.Ct. at 547. An agency's refusal to disclose information is subject to de novo review by a district court. 5 U.S.C. § 552(a)(4)(B)); see also Reporters Committee, 489 U.S. at 755, 109 S.Ct. at 1472.

B. Factual and Procedural History

Appellant Beck filed FOIA requests with several federal agencies, including the Department of Justice's Office of Professional Responsibility ("OPR"). Beck sought records that mentioned him as well as OPR records pertaining to two DEA special agents. Not satisfied with the responses to his FOIA requests, Beck brought this pro se action in November 1988.

In a memorandum opinion dated January 31, 1991, the district court granted the Government's motion for summary judgment and denied Beck's cross-motion for summary judgment. Beck v. Department of Justice, No. 88-3433, Mem.Op. at 13, 1991 WL 519827 (D.D.C. Jan. 31, 1991) ("Mem.Op."). On November 19, 1992, we granted the Government's motion for summary affirmance as to all the defendant agencies with the exception of OPR. Beck v. Department of Justice, No. 91-5292, Mem. Order at 1-2, 1992 WL 360498 (D.C.Cir. Nov. 19, 1992) (granting in part and denying in part motion for summary affirmance). In that same order, and on our own motion, we appointed an amicus curiae to argue the claims advanced by Beck.

The only FOIA request at issue, then, is Beck's request for OPR records, which reads as follows:

I[n] the records of your office, have there been any complaints to your office regarding the activities of Drug Enforcement [Special Agent] Dale L. Stenson? Further, I request a copy of all records regarding [Special Agent] Stenson that your office has in its files.

Brief for Appellees at 5. Beck sent an identical request for records pertaining to Special Agent Raymond W. Troy.

Beck had been named in an indictment alleging his involvement in a continuing criminal enterprise, in violation of 21 U.S.C. § 848, and a conspiracy to possess with the intent to distribute in excess of 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846. Beck was convicted and sentenced to prison. He alleged in a Memorandum of Points and Authorities in support of his Motion for Summary Judgment filed in the district court that in connection with the DEA's investigation, Special Agents Stenson and Troy "planned and put into effect actions that can only be characterized as unethical conduct and willful disregard for the safety and wellbeing of members of the public." Appendix of Court-Appointed Amicus Curiae ("App.") at 58. He also claimed that the agents knowingly presented false information and documents to the grand jury in order to secure his conviction. See id. at 75.

The OPR responded to Beck's FOIA request in a January 1989 letter indicating that it was OPR policy neither to confirm nor deny the existence of records pertaining to individuals except in two circumstances: either (1) when those individuals signed a waiver of their privacy rights or (2) when some set of compelling circumstances made clear that the release of the records would not constitute an invasion of privacy. The OPR reiterated this position in a declaration filed with the district court in support of its motion for summary judgment and claimed an exemption from disclosure on the basis of Exemptions 6 and 7(C), 5 U.S.C. §§ 552(b)(6), (b)(7)(C). See App. at 44, 46.

In that declaration, Richard M. Rogers, Deputy Counsel on Professional Responsibility for the Department of Justice, argued that "there does not appear to be any identifiable general public interest in the disclosure ... which would outweigh the personal privacy interest of these individuals." Id. at 46. The district court agreed, holding that

[t]o require OPR, the internal investigative arm of DOJ, to confirm or deny the existence of records regarding DOJ employees where, as here, a litigant merely alleges that those investigating him engaged in misconduct, would elevate a mere accusation to a compelling public interest.

Mem.Op. at 11. This appeal followed.

II. ANALYSIS

A. Exemptions 6 and 7(C)

As noted, Exemptions 6 and 7(C), though similar, are not coextensive. See above at pages 2-3. Amicus argues that OPR failed to demonstrate that the requested documents were in fact prepared for law enforcement purposes; as a consequence, he maintains that the Government may not proceed under Exemption 7(C) in this appeal, but must meet the more stringent requirements of Exemption 6. While it is true that the district court did not identify which of the two exemptions it was invoking in its discussion of the OPR documents, see Mem.Op. at 10-11, we do not reach this argument because under either exemption we find no public interest to be balanced against the two agents' obvious interest in the continued confidentiality of their personnel records.

B. Public Interest Analysis

Amicus argues that due to the agency's refusal to either confirm or deny the existence of the requested files, the district court did not have an adequate factual basis for performing the balancing required in an Exemption 6 analysis. According to amicus, there is a public interest in knowing the identity of Government employees who have engaged in wrongdoing; therefore, the OPR's refusal to either confirm or deny the existence of documents that might reveal wrongdoing by them ignores this potential public interest and leaves the district court without an adequate foundation on which to balance the competing interests.

Amicus, in a substantial shift of position from that of plaintiff below, asserts that the OPR should conduct a review of its files to determine whether they contain "credible evidence" (or, as defined at oral argument, "a finding") that the individual employees in question have violated any statutes, rules, regulations, or standards of agency conduct. If no such evidence exists, amicus argues, then the agency...