Opinion
Civil Action Nos. 00-0507, 00-2078 (GK)
September 5, 2002
MEMORANDUM OPINION
This Freedom of Information Act ("EOIA") case is before the Court on Defendants Renewed Motion for Summary Judgment, which addresses the Court's concerns raised in its Memorandum Opinion filed August 15, 2001 ("Mem. Op. I"). Specifically, the Court questioned Defendant's withholding of information under FOIA Exemption 7(D). its withholding of entire documents under Exemption 7(C). and its search for records pertaining to an internal investigation. Upon consideration of Defendant's renewed motion and supporting exhibits, Plaintiffs Opposition, and Defendant's Reply, the Court will grant Defendant's renewed motion.
1. Exemption 7(D) and Supplemental Release of Records
Defendant has withdrawn its reliance on Exemption 7(D) and has released portions of information previously withheld under that exemption. See Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment at 11 (page number supplied). Defendant continues to withhold the names of "Secret Service special agents" and "third party suspects" and the "name of property owned by third party suspect" under Exemption 7(C). Declaration of Larry L. Cockell ("Cockell Decl.") ¶ 7 and supplemental Vaughn Index at 1. In addition, Defendant released substantial portions of six of the fifteen documents previously withheld in their entirety. claiming Exemption 7(C) in conjunction with Exemptions 2 and 7(E) as the bases for withholding information. Plaintiff does not dispute Defendant's specific justifications for withholding the information and therefore concedes the issue.
In response to Plaintiffs Opposition, which in part challenges the withholding in its entirety of Document 53 (a handwritten statement of Plaintiffs witness in the internal investigation proceedings), Defendant released a redacted copy of that document. Defendant properly justified withholding third-party information under Exemption 7(C). Defendant's Reply, Declaration of Carlton D. Spriggs ¶¶ 6-7.
2. Segregability of Withheld Records
Defendant continues to withhold eight documents located in Plaintiffs criminal case file in their entirety under Exemption 7(C). The Court is required to determine the propriety of an agency's withholding of entire documents even if it is not disputed. See Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027 (D.C. Cir. 1999). Defendant avers that six of the "documents [withheld in their entirety] are various Secret Service Forms which solely request and then record information concerning third parties. The information . . . includes [third-party] names . . . photographs . . . fingerprints . . . descriptive information [and] identifying information. . . . Cockell Decl. ¶ 5. "Due to the nature of the documents, to redact personal information contained on them would leave these documents as little more than blank forms." Id. As to the remaining two documents withheld in their entirety, Defendant avers that they "are copies of the handwritten statements of third parties. These documents contain highly personal information including specific information concerning criminal activity and admissions of drug use by third parties. This information is deeply intertwined within the statements and cannot, therefore, be redacted. Furthermore, because the statements are handwritten, plaintiff could conceivably recognize the handwriting and, therefore, the identity of the individuals involved." Id. ¶ 6. The Court finds that Defendant has adequately justified the withholding of documents in their entirety under Exemption 7(C). See Mem. Op. I at 7-11 (upholding Defendant's withholding of third-party information and finding no overriding public interest warranting disclosure).
In his Opposition, Plaintiff asserts that Defendant "did not offer any specific justification" for withholding copies of a "wiretap application [and an] Agency report [to the Attorney General] pursuant to 28 U.S.C. § 535(b)." Opposition at 2. In reply, Defendant refers to the Second Declaration of Kevin T. Foley filed May 3, 2001. as Exhibit 1 to Defendant's Reply to Plaintiff Opposition to Defendant's [First] Motion for Summary Judgment. There, Foley avers that a hand search of Plaintiffs criminal file failed to locate either a wiretap application or "a copy of any report submitted to the Attorney General." Second Foley Decl. ¶¶ 6, 8. An agency cannot produce what it does not possess. See McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (an agency satisfies its obligation under the FOIA by releasing responsive records in its "custody" and "control" at the time of the request.).
3. Defendant's Search for Internal Investigation Records
Defendant avers that it searched the Inspection Division's computerized record system, which "contains a case number listing for subject, witness, and complainant names included in the Inspection Division's files. Computerized searches are conducted by typing in the employee or nonemployee's last name into the system." Declaration of Reed E. Ziegler ¶ 3. A search using plaintiffs first and last names located one case file, which contained "one 7 page Secret Service Form (SSF) 1588, Memorandum Report covering dates April 9-June 11. 1998." That document is identified in the record as Document 44. Id. ¶ 4. Plaintiff does not dispute the adequacy of Defendant's search. In any event, the Court is satisfied that Defendant conducted a search reasonably calculated to retrieve all records responsive to Plaintiffs request for information pertaining to an internal investigation of Secret Service agents.
For the reasons stated above and in the previously filed Memorandum Opinion, the Court is satisfied that Defendant has met its obligations under the FOIA and will now enter judgment for Defendant. A separate Order of dismissal accompanies this Memorandum Opinion.