Ray v. US DEPT. OF JUSTICE, INS, 89-1556-CIV.
| Decision Date | 21 November 1991 |
| Docket Number | No. 89-1556-CIV.,89-1556-CIV. |
| Parties | Michael D. RAY, Plaintiff, v. UNITED STATES DEPT. OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Michael D. Ray, Neil Kolner, Miami, Fla., for plaintiff.
Dexter Lee, Asst. U.S. Atty., Miami, Fla., for defendant.
THIS CAUSE came before the Court upon defendant's Motion for Summary Judgment. The matter was referred to the Honorable Ted E. Bandstra, United States Magistrate Judge, who held a hearing on this motion in February 1991. A Report and Recommendation dated April 30, 1991 has been filed, recommending that defendant's Motion for Summary Judgment be granted. On June 17, 1991, plaintiff filed his Written Objections Pursuant to 28 U.S.C. § 636 to the Report and Recommendation of the Magistrate.
The government filed its Response to Plaintiff's Objections to the Report and Recommendation on July 17, 1991. This Court heard oral argument on the issues presented by defendant's motion on November 15, 1991. The Court, having reviewed the record and being otherwise fully advised in the premises, affirms Magistrate Judge Bandstra's Report and Recommendation in its entirety for the reasons that follow.
Summary judgment is authorized only when:
the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In applying this standard, the Adickes Court explained that when assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608.
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
This Freedom of Information Act (FOIA or the Act) action was filed in July 1989. Pursuant to 5 U.S.C. § 552, plaintiff, an immigration attorney, seeks agency records concerning the results of any Department of Immigration and Naturalization Service investigation of INS Examiner Joe Grillo. In his complaint, plaintiff asserts that he previously filed a complaint against Officer Grillo in connection with the alleged deportation of plaintiff's former client, Mildred Anderson, and Grillo's alleged misconduct resulting in that deportation. In the instant action, plaintiff Ray alleges that FOIA entitles him to INS records concerning any INS investigation of Officer Grillo and that the INS has failed to fully respond to his request, as required by law.
Defendant INS admitted possession of certain documents relating to plaintiff's complaint against Grillo but denied any non-compliance with FOIA requirements. As grounds for its conduct, defendant asserts as an affirmative defense, certain exceptions from disclosure under FOIA which justify any non-production of certain documents in this case.
This Court must make a two-fold determination: does FOIA entitle plaintiff (1) to know whether an investigation was conducted regarding Officer Grillo, and (2) to have access to the results of any investigation that occurred. Defendant INS contends that this Court need only reach the first issue in granting summary judgment in its favor. The INS relies on two provisions in the Act in support of its position that the documents sought by plaintiff, even if in existence1, are exempt from disclosure under FOIA because disclosure "would constitute a clearly unwarranted invasion of personal privacy" under 5 U.S.C. § 552(b)(6), and because the documents requested were "records or information compiled for law enforcement purposes" under 5 U.S.C. § 552(b)(7)(C).
Plaintiff opposes summary judgment claiming inadequate discovery2, defendant's failure to advise plaintiff of the results of its investigation pursuant to the present (or former) policy of the INS, and defendant's failure to provide proof that Officer Grillo's privacy interests outweigh the public interest in this case3.
FOIA is primarily an access and disclosure statute providing for wide-ranging access to government documents presumably subject to disclosure absent a clear showing to the contrary. Ely v. FBI, 781 F.2d 1487, 1489 (11th Cir.1986) (quoting The 1984 U.S.Code Cong. and Ad. News at 3789). The burden is solely on the government to prove that the information requested is covered by these exemptions. See Ely v. FBI, supra, 781 F.2d at 1489-90.
FOIA mandates that the court consider and resolve competing claims of privilege and access. In its review, the court must determine the matter de novo, and examine the contents of any agency records in camera. 5 U.S.C. § 552(a)(4)(B). The court, rather than the agency, is the ultimate arbiter of privilege.
Congress has also directed that due deference be given to the competing private value of privacy, that is, the right of the individual citizen to limit access to information about him that the government has gathered. While disclosure is presumed, access to certain personnel files must be denied if disclosure would constitute a clearly unwarranted invasion of personal privacy.
Exemption (b)(7)(C), relied on by the government, requires only that the disclosure could, not would reasonably be expected to constitute an unwarranted invasion of personal privacy. This lesser burden results from a recognition that law enforcement records are inherently more invasive of privacy than personnel, medical and other similar files. Congressional News Syndicate v. United States Dept. of Justice, 438 F.Supp. 538, 541 (D.D.C.1977).
Plaintiff Ray does not dispute the defendant's contention that Officer Grillo has a privacy interest in this matter but rather, asserts that Grillo's personal interest is outweighed by the public interest.4
This Court is not persuaded. Revealing information concerning an official investigation of this government employee may threaten his reputation and good standing in the community. Miller v. Bell, 661 F.2d 623 (7th Cir.1981). Defendant INS details the harm that could reasonably be expected to result from an affirmation that an investigation did exist as follows:
... The inference drawn from the fact that an individual was involved in some manner with an OIG investigation is that the investigation interest shown in him by the OIG was predicated on the belief that the individual was engaged in, or witness to, some type of conduct which was in violation of a criminal or civil statute or of a Departmental regulation. Such an inference subjects the individual to public speculation or ridicule, which in turn can cause embarrassment, harassment, and potential physical harm. Even if disclosure of an actual file were to demonstrate that the OIG's interest in the individual was not connected with a violation of law or regulation, the adverse inferences will have been the subject of public speculation. Such speculation is not easily overcome by the release of additional facts.
Westbrook Declaration (attached to defendant's Motion for Summary Judgment), paragraph 12. The defendant maintains that this affidavit provides sufficient evidence of the possible harm to Grillo's reputation or standing in the community. Halloran v. Veterans Administration, 874 F.2d 315 (5th Cir.1989). Both Magistrate Judge Bandstra and this Court agree.
The very retention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation. Baez v. U.S. Dept. of Justice, 647 F.2d 1328, 1338 (D.C.Cir.1980); Branch v. F.B.I., 658 F.Supp. 204, 209 (D.D.C.1987). Grillo's...
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...privacy interest of a private citizen, but it is nevertheless considerably substantial. Compare Ray v. U.S. Dep't of Justice, I.N.S., 778 F. Supp. 1212, 1215 (S.D. Fla. 1991) ("[The officer]'s status as a federal employee does not diminish his privacy interest." (alteration added; citation ......