Opinion
Civil Action No. 04-0486 (RJL).
May 10, 2005
MEMORANDUM OPINION
This matter is before the Court on consideration of defendants' renewed motion to dismiss or, in the alternative, for summary judgment. Having considered defendants' motion, plaintiff's opposition, and entire record of the case, the Court will grant summary judgment for defendants.
I. BACKGROUND
The Court denied defendants' motion for summary judgment in part because defendants did not demonstrate that Exemption 3 protected one document from disclosure under the Freedom of Information Act ("FOIA"). See 5 U.S.C. § 552(b)(3). The sole issue remaining in this case is whether defendants properly withheld this document.
II. DISCUSSION
Exemption 3 protects records that are "specifically exempted from disclosure by statute . . . provided that such statute either "(A) [requires withholding] in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3).
The document at issue is described as a "Confidential Conflict of Interest Certification." Supp. Luczynski Decl., ¶ 1. Assistant United States Attorneys are required to report the information contained in the document under Title I of the Ethics in Government Act of 1978 (5 U.S.C. App.). Luczynski Decl., ¶¶ 2, 5; see 5 C.F.R. §§ 2606.103, 2634.604, 2634.901(d). These reports are deemed confidential, and "[n]o member of the public shall have access to such reports, except pursuant to the order of a Federal court or as otherwise provided under the Privacy Act." 5 C.F.R. § 2634.604(b); Supp. Luczynski Decl., ¶ 2; see 5 U.S.C. App. (Ethics in Government Act of 1978, section 107(a)). Further, these reports "are required to be withheld from the public, pursuant to section 107(a) of the [Ethics in Government] Act. Section 107(a) leaves no discretion on this issue with the agencies." 5 C.F.R. § 2634.901(d). Additionally, "[t]hese reports and the information which they contain are, accordingly, exempt from being released to the public, under exemptions 3(A) and (B)," among other FOIA exemptions. Id.
Defendants submit the supplemental declaration of David Luczynski, attorney advisor with the Executive Office for United States Attorneys, United States Department of Justice, in support of their renewed motion. See Def.'s Mot., Attach. (Supp. Luczynski Decl.).
The Conflict of Interest Certification report is an approved alternative to Office of Government Ethics standard form 450. Supp. Luczynski Decl., ¶ 5.
Plaintiff opposes defendants' motion, arguing that defendants do not "`declare with any specificity' as to why or what the `conflict of interest' is," or "how such a `conflict of interest' can still be effective more than twenty years" after the criminal case ended. Pl.'s Opp. at 2. He speculates that defendants "invoke `conflict of interest' to hide prosecutorial misconduct.'" Id.
Plaintiff submitted two documents, both styled "`Affidavit of Specific Negative Averment,' Pursuant to the Federal Rules of Civil Procedure, Rule 9(a).'" See Dkt. # 22, 24. The latter is a typewritten version of the former. The Court refers to the typewritten document, Dkt. #24.
The fact that Document No. 8 is a confidential conflict of interest certification form does not confirm the existence of an actual conflict. In this action, defendants need not declare whether a conflict exists or describe the nature of a conflict. Rather, the question before the Court is whether defendants properly withheld Document No. 8 pursuant to Exemption 3. Based on the supplemented record, the Court concludes that Document No. 8 falls within the scope of Exemption 3, and that defendants properly withheld the document in full.
III. CONCLUSION
The Court concludes that defendant properly withholds Document No. 8 under Exemption 3. Accordingly, defendants' renewed motion for summary judgment will be granted. An Order consistent with this Memorandum Opinion will be issued separately on this same date.