Durham v. US Dept. of Justice

• Decision Date: 17 August 1993
• Docket Number: Civ. A. No. 91-2636 (CRR).
• Citation: 829 F. Supp. 428
• Parties: Ricky DURHAM, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

829 F. Supp. 428

Ricky DURHAM, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civ. A. No. 91-2636 (CRR).

United States District Court, District of Columbia.

August 17, 1993.

COPYRIGHT MATERIAL OMITTED

Ricky Durham, pro se.

David L. Dougherty, Dept. of Justice, Civ. Div., with J. Ramsey Johnson, U.S. Atty., and John D. Bates, Asst. U.S. Atty., for defendant.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

Before the Court are the Defendant's Motion for Summary Judgment and the Plaintiff's Cross-Motion for Summary Judgment in this case under Freedom of Information Act ("FOIA"). 5 U.S.C. § 552.¹ After consideration of the filings by both parties, the applicable law, and the record herein, the Court shall grant the Defendant's Motion.

I. BACKGROUND

The Plaintiff is a prisoner in jail for the homicide of Kenneth Clark, a former Postal Service Carrier. He is requesting records pertaining to Clark's murder from the Defendant Executive Office for United States Attorneys ("EOUSA") under FOIA. He asks for all investigative records that pertain to himself relating to Clark's murder, the names of all suspects (including criminology reports on one particular suspect), and a waiver of any copying fees.

In response to the Plaintiff's requests, EOUSA provided the Plaintiff with 103 pages in full. EOUSA released 62 pages with some information excised and withheld approximately 1,488 pages in full under certain FOIA Exemptions. See Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Partial Summary Judgment. The Defendant has submitted three detailed declarations which describe the documents that were withheld and indicated under which FOIA exceptions those records fall. See Defendant's Motion for Partial Summary Judgment, Declaration of Virginia L. Wright ("Wright Declaration"); Declaration of Special Agent James L. Vermeersch ("Vermeersch Declaration"); and Declaration of Mary Otto ("Otto Declaration").²

Because the Defendant has demonstrated that the withheld documents and information fall within FOIA Exemptions (b)(2), (b)(3), (b)(5), (b)(7)(C), (b)(7)(D), (b)(7)(F), the Court shall grant summary judgment for the Defendant.³

II. EXEMPTION 2

The Defendant invokes Exemption 2 to withhold from disclosure an informant's symbol number.⁴ Under FOIA Exemption 2, material "related solely to the internal personnel rules and practices of an agency" is exempted from disclosure. 5 U.S.C. § 552(b)(2). Exemption 2 permits withholding of information when disclosure would permit circumvention of a statute or agency regulation. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C.Cir.1981). It is established law that the symbol numbers of informants fall within Exemption 2. See Lesar v. Department of Justice, 636 F.2d 472, 485-86 (D.C.Cir.1980) (informant codes "plainly fall within the ambit of Exemption 2"); Watson v. United States Department of Justice, 799 F.Supp. 193, 195 (D.D.C.1992) (DEA protection of Informant Identifier codes properly withheld as internal markings). Accordingly, the Court finds that the Defendant here properly withheld the informant source numbers under FOIA Exemption 2.⁵

III. EXEMPTION 3

The Defendant invokes Exemption 3 to justify its refusal to release 355 pages of grand jury records. Exemption 3 permits the withholding of information where:

a statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or ... establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). The Defendant cites Rule 6(e) of the Federal Rules of Criminal Procedure as its justification for withholding "256 pages of transcripts of grand jury testimony, 96 grand jury subpoenas, 2 letters to grand jury witnesses, and a one-page draft memo from the grand jury foreman requesting evidence for inspection by the grand jury." Defendant's Motion for Partial Summary Judgment, Wright Declaration, ¶ 17.

Rule 6(e) prohibits the disclosure of grand jury records which would "tend to reveal some secret aspect of the grand jury's investigation; such matters as `the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'" Senate of Puerto Rico v. United States Department of Justice, 823 F.2d 574, 582 (D.C.Cir.1987) (quoting SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.1980), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289); see Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 867 (D.C.Cir. 1981). The Court agrees that the information withheld by the Defendant here would enable the identification of witnesses or jurors, and would show the substance of testimony and the direction of the investigation. Accordingly, the Court finds that the grand jury records were properly withheld under FOIA Exemption 3.

In addition to the grand jury records, the Defendant has also withheld three pages of tax records under this Exemption.⁶ The relevant statute limiting disclosure of tax return information is 26 U.S.C. § 6103(a), which provides, inter alia, that returns and return information shall be confidential, and shall not be disclosed except as authorized by that title. As the tax information refers to a person other than the Plaintiff, there is no exception in that statute for its disclosure and the Court concludes that this material was properly withheld by the Defendant under this Exemption.

IV. EXEMPTION 5

The Defendant has invoked Exemption 5 to protect 507 pages of documents as work-product prepared by attorneys and other government personnel working under the prosecuting attorney's direction and supervision in the Defendant's criminal case. Wright Declaration, ¶ 18.⁷ Exemption 5 permits the withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). The Exemption encompasses "all civil discovery rules," Martin v. Office of Special Counsel, 819 F.2d 1181, 1185 (D.C.Cir.1987), and has been held to extend to criminal matters as well as civil. See Antonelli v. Sullivan, 732 F.2d 560, 561 (7th Cir.1983). The Exemption includes records not discoverable in litigation due to attorney work-product privilege, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515-16, 44 L.Ed.2d 29 (1975), and thus any document prepared in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495, 509-10, 67 S.Ct. 385, 392-93, 91 L.Ed. 451 (1947). The work-product privilege exists even where the information has been shared with a third party so long as the party holds a common interest with the agency. See United States v. American Tel. and Tel. Co., 642 F.2d 1285, 1299 (D.C.Cir.1980).

The Defendant here represents that the materials withheld under this Exemption "reflect trial preparation, trial strategy, interpretations and personal evaluations and opinions regarding events pertinent to the criminal litigation in United States v. Ricky Durham." Wright Declaration, ¶ 19. As the documents withheld by the Defendant would not be available to a party in litigation with the Defendant agency, the Court concludes that these documents were properly withheld under FOIA Exemption 5.⁸

V. EXEMPTIONS 7(C), (D), AND (F)

Pursuant to Exemption 7, the Defendant has withheld the names of confidential sources, agents, agency employees, and third parties mentioned in its investigatory files, and withheld 594 pages of records which it asserts contain information provided by confidential sources that might reveal their identities. Wright Declaration, ¶¶ 20, 22, 24; Vermeersch Declaration, ¶¶ 26, 36.

To qualify under Exemption 7, a document must 1) have been "compiled for law enforcement purposes" and 2) fall into one of six categories enumerated by that section. 5 U.S.C. § 552(b)(7). The Defendant maintains that it compiled the information in the course of investigating the Plaintiff for the murder of the Postal Service employee, Kenneth Clark; for unlawful flight to avoid prosecution; and for drug trafficking. Wright Declaration, ¶ 12; Vermeersch Declaration, ¶¶ 15, 16. Therefore, the Court concludes that the Defendant has demonstrated that this material meets the first requirement that it was "compiled for law enforcement purposes."

As to the second prong, the Defendant claims that the withheld material here falls under 7(C), 7(D), and 7(F); the Court will consider each claim separately.

A. EXEMPTION 7(C)

Under Exemption 7(C), the Defendant has withheld 29 pages of information to protect the names of third parties mentioned in its investigatory files. Vermeersch Declaration, ¶ 26; Wright Declaration, ¶ 20. Exemption 7(C) provides protection when the investigatory material "could reasonably be expected to constitute an unwarranted invasion of personal privacy...." 5 U.S.C. § 552(b)(7)(C).

Exemption 7(C) requires a balancing of the named individual's personal privacy interest and the interest of the public in the disclosure of the information. United States Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774 (1989); Stern v. FBI, 737 F.2d 84, 91 (D.C.Cir.1984). "It is generally recognized that the mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation." Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.1987); see also Lesar, 636 F.2d at 488. The names of these individuals, while perhaps of interest to the Plaintiff, are not of interest to the general public. See Simon v. United States Department of Justice, 752 F.Supp. 14, 19, n. 5 (D.D.C.1990). Further, the goal of FOIA is to permit the public to scrutinize the activities of...