Billington v. U.S. Dept. of Justice, CIV.A. 92-0462(RCL).

• Decision Date: 04 February 2004
• Docket Number: No. CIV.A. 92-0462(RCL).,CIV.A. 92-0462(RCL).
• Citation: 301 F.Supp.2d 15
• Parties: Gail G. BILLINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

301 F.Supp.2d 15

Gail G. BILLINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. CIV.A. 92-0462(RCL).

United States District Court, District of Columbia.

February 4, 2004.

COPYRIGHT MATERIAL OMITTED

Gail G. Billington, Leesburg, VA, Plaintiff, Pro Se.

Diane M. Sullivan, Assistant United States Attorney, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court on both defendant's and plaintiff's motions to reconsider pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Upon consideration of both defendant's and plaintiff's motions, their oppositions thereto, their replies, and the applicable law in this case, the Court finds defendant's motion should be granted in part and denied in part. It further finds plaintiff's motion should be denied in its entirety.

Also before the Court is defendant's renewed motion for summary judgment. Upon consideration of defendant's motion, plaintiff's partial opposition thereto, the record, and the applicable law in this case, the Court finds defendant's motion should be granted in part and denied in part.

I. BACKGROUND

This case has a long history. Plaintiff first filed her complaint on February 24, 1992 under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Since then, there has been a steady stream of motions, memoranda and orders. The Court need not belabor the history here, in what it hopes will be this case's final disposition. It is assumed the parties know the procedural and factual history of this litigation.¹

As for historical matters of a more recent vintage, this Court granted defendant's motion for leave to submit declarations in camera on July 24, 2003. The Court found that the declarations were central to defendant's argument that the much disputed "Notes on Interview"² (hereinafter "Notes") were properly withheld under FOIA and that the journalist author of the "Notes" gave them to the State Department official, who then gave it to the FBI, with the understanding of confidentiality, i.e., his or her identity and "Notes" would not become public. The journalist is also referenced in another document at issue known as NCLC Document 27 (hereinafter NCLC 27). In addition, defendant was granted leave to submit an in camera declaration of another informant identified in NCLC Document 92 (hereinafter NCLC 92).

The Court received defendant's in camera declarations on August 7, 2003. As instructed by the July 24 opinion, the Government also filed a detailed statement covering each discrete portion of the declarations and explained why the portion had to be provided in camera.

Prior to the in camera filing, defendant moved for a renewed finding of summary judgment on behalf of the FBI on July 15, 2003. Defendant asserts it reprocessed and released Schiller documents 7 and 9 in relation to information previously withheld under Exemption 7(D); properly applied Exemption 7(C) to NY-196B-4052; PH-196-1989; and PH-196B-1893 in relation to information previously withheld pursuant to Exemption 7(D); and performed a segregability analysis as to documents NY-196B-4052; PH-196-1989; and PH-196B-1893. (Def.'s Renew. Summ. J. Mot. at 9-20.) Plaintiff filed a partial opposition to defendant's renewed summary judgment motion on July 28, 2003 claiming that nothing substantive was disclosed after the reprocessing. (Pl.'s Opp'n Def.'s Renew. Summ. J. Mot. 2-6.) Therefore, plaintiff concludes summary judgment would be inappropriate.

Defendant also filed a Rule 60(b) motion to reconsider on April 28, 2003. Defendant prayed the Court reconsider its February 14 ruling that NCLC 27 and "Notes" were not properly withheld under Exemption 6 and that the informant identified in NCLC 92 was not protected from public disclosure under Exemption 7(D). Plaintiff, too, filed a Rule 60(b) motion to reconsider on May 12, 2003. Plaintiff prayed the court reconsider a list of individuals who waived their privacy rights in consideration of plaintiff's FOIA request and the Court amend its ruling to include disclosure of those individuals' information in the documents. On August 28, 2003, the D.C. Circuit Court ordered, on its own motion, that the parties' appeals be held in abeyance pending its further order. The parties were directed to file motions to govern future proceedings within 30 days of this Court's disposition of the Rule 60(b) motions to reconsider. The Court takes up these motions, defendant's renewed motion for summary judgment and plaintiff's opposition thereto.

II. ANALYSIS

A. Motions to Reconsider Pursuant to Rule 60(b)

By order of the D.C. Circuit on August 28, 2003, this Court will decide both parties' motions for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Defendant moved this Court to reconsider its ruling that document NCLC 27 and the journalist's "Notes on Interview" were not protected by Exemption 6 and that the identity of the informant identified in NCLC 92 was not protected by Exemption 7(D). Rule 60(b) allows the district court to relieve a party from a judgment for several reasons such as "mistake, inadvertence, surprise, or excusable neglect ... or any other reason justifying relief be made from operation of the judgment." The district court is "vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion." Computer Prof'ls for Soc. Responsibility v. Secret Service, 72 F.3d 897, 903 (D.C.Cir.1996). Rule 60(b) preserves "the delicate balance between the sanctity of final ... judgments and the incessant command of the court's conscience that justice by done in the light of all the facts." Good Luck Nursing Home, Inc., v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980) (quoting Bankers Mortgage Co., v. United States, 423 F.2d 73, 77 (5th Cir.1970)).

As noted, the parties have been litigating various FOIA issues since 1992. The Court is eager to put this litigation to rest and is not thrilled about reconsidering its February 14 order. Nevertheless, the Government asserts it is protecting third party interests. Against this backdrop, the Court gave both defendant's and plaintiff's motion to reconsider, and subsequent oppositions thereto, due attention. The Government argues the Court should not sacrifice third party privacy interests in this litigation because the Government's explanation for its exemptions were inadequate. (Def.'s Mot. Recon. under Rule 60(b) at 5.)

1. "Notes on Interview" and NCLC 27

In Computer Prof'ls for Soc. Responsibility v. Secret Service, 72 F.3d 897, 903 (D.C.Cir.1996), the D.C. Circuit took up a Rule 60(b) motion concerning the interests of a third party whose identity and information were protected under FOIA. The D.C. Circuit found that it was "incumbent on the [district] court to examine the second in camera submission in order to determine whether its ruling on the Exemption 7(D) issue had been based on a correct understanding of the underlying facts." Id. The instant case presents a similar issue. The Court's February 14 opinion was clear about the public interest involved with respect to the "Notes" and NCLC 27, and that analysis is incorporated here by reference. However, that opinion was prepared prior to the "Notes" author submitting an in camera affidavit. The journalist declares cooperation with the State Department and FBI was done with the understanding that the "Notes" and his or her identity would be kept confidential. This language speaks directly to Exemption 7(D), yet the Government invoked Exemption 6 with respect to the journalist and the "Notes." Under the facts of this case, the distinction is immaterial. Upon reconsideration, the Court finds the Government did properly invoke Exemption 6.³ However, the protection offered by this Exemption is limited and does not cover the "Notes" in their entirety.

Exemption 6 protects information about individuals contained in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § (b)(6). All information that relates to an individual qualifies for consideration under this Exemption. Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). This Exemption should only be employed when the privacy interest at stake outweighs the public interest in disclosure. Accordingly, the courts must "balance the individual's right of privacy against the basic policy of opening agency action to the light of public scrutiny." U.S. Dep't of State v. Ray, 502 U.S. 164, 175, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (citing Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)) (internal punctuation omitted). The February 14 opinion made clear that the Court was unpersuaded by the Government's assertions that the journalist's identity and the "Notes" in their entirety were properly withheld under Exemption 6. For a good portion of the "Notes", this remains true. However, in light of the journalist's in camera affidavit, the Court reconsiders its position.

The journalist asserts the "Notes" were personal notes, which were taken at a private meeting. As the Government points out, and the document confirms, the "Notes" contain substantial commentary that reflect the personal thoughts and ideas of the journalist. When handing the "Notes" to a State Department official, the journalist did not intend nor expect them to become public. The journalist further asserts that when the FBI was furnished with the "Notes", it was permissible provided that they were not disclosed outside the FBI. This indicates the journalist would not have furnished copies of the "Notes" had there existed the possibility of public disclosure. The journalist's private thoughts contained in the "Notes" and his or her understanding that the "Notes" would not be made public implicate a strong...