Opinion
94-CV-365A(F).
August 31, 2002
JAECKLE, FLEISCHMANN MUGEL, RALPH L. HALPERN, of Counsel, Attorneys for Plaintiff, Buffalo, New York.
DENISE E. O'DONNELL, UNITED STATES ATTORNEY, Attorney for the Government. LYNN S. EDELMAN, Assistant United States Attorney, of Counsel, Buffalo, New York.
REPORT and RECOMMENDATION
JURISDICTION
This case was re-referred to the undersigned by Hon. Richard J. Arcara on November 15, 1999 for further proceedings in accordance with the Second Circuit's decision in Halpern v. Federal Bureau of Investigation, 181 F.3d 279 (2d Cir. 1999). The matter is presently before the court on Defendant's motion for summary judgment (Docket Item No. 7), filed January 3, 1995, Plaintiff's cross-motion for summary judgment (Docket Item No. 11), filed April 5, 1995, and Plaintiff's motion in the alternative for in camera inspection (Docket Item No. 50), filed April 14, 2000.
BACKGROUND and FACTS
The fact statement is taken from the pleadings and motion papers filed in this action.
Plaintiff, Dr. Eric B. Halpern, has published extensively on the American meatpacking industry and is considered an expert on the subject. This action concerns Plaintiff's research on the unionization of the meatpacking industry in Chicago from the 1930s through the 1950s. In pursuit of that endeavor, Plaintiff filed a request for certain information pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., with the Federal Bureau of Investigation ("the FBI"). When some of the requested information was withheld or redacted on the basis that it was within one of the enumerated exemptions from disclosure under FOIA, Plaintiff commenced this action on May 12, 1994, seeking a court determination as to the applicability of the invoked exemptions to the undisclosed information.
On January 3, 1995, the FBI moved for summary judgment. On March 14, 1995, the parties stipulated to substitute the Department of Justice ("the DOJ" or "the Government") for the FBI as the proper defendant in this action. Plaintiff filed a cross-motion for summary judgment on April 5, 1995. Oral argument on the motions was held on May 10, 1996. On March 25, 1997, the undersigned issued a Report and Recommendation recommending that summary judgment be granted in favor of the Government and denied as to Plaintiff. The Report and Recommendation was adopted by Judge Arcara on January 26, 1998, judgment was entered in the Government's favor and the case was closed. On February 17, 1998, Plaintiff appealed the decision to the Second Circuit Court of Appeals where, by Opinion and Order issued on June 22, 1999, the district court's decision was affirmed as to the documents redacted pursuant to the personal privacy and implied confidentiality exemptions, but was vacated and remanded with regard to the documents redacted based on the national security and express confidentiality exemptions. Halpern v. Federal Bureau of Investigation, 181 F.3d 279, 300 (2d Cir. 1999).
On August 3, 1999, Plaintiff filed a motion requesting this court conduct an in camera inspection to determine the applicability of the Government's redactions of 22 pages of requested information based on the national security exemption, and an additional 487 pages based on the express confidentiality exemption (Docket Item No. 37). Attached to the motion is the affidavit of Ralph L. Halpern, Esq. ("Halpern Affidavit").
On October 5, 1999 the case was reopened. Since the Second Circuit's decision was issued, the Government has re-examined 655 pages of information previously withheld from Plaintiff, many of which were provided to Plaintiff on October 27, 1999.
At a pretrial conference held on January 19, 2000, the Government was given until February 9, 2000 to file additional affidavits in support of the claimed exemptions; Plaintiff was to file his response by February 23, 2000. The Government, on February 9, 2000, filed Declarations by William McNair (Docket Item No. 41) ("McNair Declaration"), and Scott Hodes (Docket Item No. 42) ("Hodes Declaration"), accompanied by a separate document, Part 2 of Exhibit B to Hodes Declaration ("Exhibit B"), containing redacted copies of the documents at issue. In response Plaintiff filed on February 23, 2000 the Declaration of Ralph L. Halpern (Docket Item No. 43) ("Halpern Response Declaration"), in which Plaintiff has identified 123 redacted pages which he concedes are the only pages remaining at issue. Plaintiff maintains that seven of those pages contain redactions based on the national security exemption and 116 contain redactions based on the express confidentiality exemption. Halpern Response Declaration, ¶ 4(a) and (b).
With the court's permission the Government, on March 30, 2000, filed a Reply Memorandum of Law (Docket Item No. 46) ("Government's Memorandum"), the Second Declaration of Scott Hodes (Docket Item No. 47) ("Hodes Second Declaration"), and the Affidavit of Assistant United States Attorney Lynn Edelman (Docket Item No. 48) ("Edelman Affidavit"). In its memorandum, the Government explains that although seven pages originally redacted based on the national security exemption remain withheld, three of those pages have been reclassified and are now redacted pursuant to the personal privacy exemption. Edelman Affidavit, ¶ 21.
On March 30, 2000, the court dismissed Plaintiff's motion for in camera inspection without prejudice. Plaintiff refiled the motion on April 14, 2000 (Docket Item No. 50), incorporating by reference the same papers he submitted in support of the earlier motion.
Based on the following, Defendant's motion for summary judgment (Docket Item No. 7) should be GRANTED; Plaintiff's cross-motion for summary judgment (Docket Item No. 11) should be DENIED; Plaintiff's motion for an in camera inspection (Docket Item No. 50) is DENIED.
DISCUSSION
1. FOIA Overview
The purpose of FOIA "is to ensure the Government's activities be opened to the sharp eye of public scrutiny." United States Dep't of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 774 (1988) (emphasis omitted). As such, FOIA requires federal government agencies to make certain classes of information available to the public upon request, 5 U.S.C. § 552(a), although certain classes of information are statutorily exempt from disclosure. 5 U.S.C. § 552(b).
A governmental agency's decision to withhold or provide only in redacted form information requested under FOIA is subject to de novo review in federal district court which may "enjoin the agency from withholding agency records and . . . order the production of any agency records improperly withheld. . . ." 5 U.S.C. § 552(a)(4)(B). It is the defendant government agency's burden on summary judgment to establish that withheld information is within a FOIA exemption. Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973).
The Government's burden of proof as to the applicability of a FOIA exemption may be sustained by the submission of a Vaughn affidavit or index providing (1) "a relatively detailed analysis [of the undisclosed material] in manageable segments" without resort to "conclusory and generalized allegations of exemptions"; and (2) "an indexing system [that] would subdivide the [withheld] document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification." Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). In other words, a Vaughn index sufficient to sustain the Government's burden of proof must
describe with reasonable specificity the nature of the documents at issue and the claimed justification for nondisclosure, and . . . indicate the requested material logically comes within the claimed exemption.
Malizia v. U.S. Dep't of Justice, 519 F. Supp. 338, 342 (S.D.N.Y. 1981). The Vaughn affidavit must furnish the court with enough information to determine the validity of a claimed FOIA exemption. See John Doe Corp. v. John Doe Agency, 850 F.2d 105,107 n. 1 (2d Cir. 1988). Further, where a FOIA litigant requests the court conduct an in camera review of material withheld by the government, no such review is required provided "the government's Vaughn indices sufficiently detail the nature of the material withheld and the applicability of the relevant exemption(s)." Jan-Xin Zang v. Federal Bureau of Investigation, 756 F. Supp. 705, 708-709 (W.D.N.Y. 1991).
2. Remand from the Second Circuit Court of Appeals
The Second Circuit remanded this matter for further proceedings because the Government's Vaughn index originally submitted in support of summary judgment was in its view too vague to establish the applicability of the national security and express confidentiality exemptions, and resulted in this court's issuance of a generalized ruling approving the redactions as a whole, rather than itemized rulings regarding specific pages or documents, making de novo review of this court's decision impossible. Halpern, supra, at 294, 298-99. The Second Circuit stated that this court could exercise several options upon remand to elicit further detail from the Government, including requiring supplemental Vaughn affidavits, permitting Plaintiff further discovery, conducting in camera review of additional Vaughn affidavits with regard to those documents for which the Government asserts that national security could be compromised if it is compelled to reveal any greater specificity in open court, or conducting in camera review of the unredacted documents themselves. Id. at 295.
The Second Circuit, however, did not direct an in camera review of unredacted copies of the withheld information; rather, it stated this court could rely on additional Vaughn affidavits sufficient to negate the need such review. Halpern, supra, at 293. Regardless of the manner in which this court determined to proceed upon remand, the Second Circuit cautioned that itemized findings should be made, "ideally with respect to specific documents or redactions, but at least at such a level of detail as to permit effective de novo review, if required, in the future." Id.
The Court of Appeals also stated that ideally a Vaughn index should provide "information that is not only specific enough to obviate the need for an in camera review, but that also enables the court to review the agency's claimed redactions without having to pull the contextual information out of the redacted documents for itself." Halpern, supra, at 294. Such approach comports with Vaughn. Vaughn, supra, at 826-27 ("An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but would ordinarily be composed without excessive reference to the actual language of the document.") (emphasis added).
Further guidance provided by the Second Circuit for this court's consideration upon remand included (1) the passage of time is insufficient to require the release of documents; (2) application of the national security exemption is generally unaffected by the entry of the information into the realm of public knowledge; (3) no bad faith on the part of the FBI was apparent based on the withholding of certain information which was later reclassified and released; (4) the reversal of the district court's judgment does not contravene Congress' directive that courts accord substantial weight to agency affidavits in FOIA litigation as the good faith presumption attaches to agency affidavits only when accompanied by reasonably detailed explanations of why material was withheld; and (5) the district court did not necessarily abuse its discretion by declining to conduct in camera review of the unredacted documents. Halpern, supra, at 294-95.
In the instant case, the Government, upon remand, submitted declarations explaining why the asserted exemptions apply to the withheld information. See generally, Hodes Declaration and McNair Declaration ("the Vaughn Affidavits"). Attached to the Hodes Declaration is a chart setting forth each document the FBI determined was exempt from disclosure under FOIA, and the applicable exemption ("the Vaughn Index"). Accordingly, the court considers whether the Vaughn affidavits and index the Government submitted upon remand sufficiently establish that the withheld information falls within one of FOIA's specifically enumerated exemptions from disclosure.
3. Applicability of FOIA Exemptions
As stated, the Government has withheld information requested by Plaintiff on the basis that it is within one of the enumerated exemptions to disclosure under FOIA. The exemptions at issue in this case include the national security exemption, 5 U.S.C. § 552(b)(1) ("Exemption 1"), the specific statutory exemption, 5 U.S.C. § 552(b)(3) ("Exemption 3"), the personal privacy exemption, 5 U.S.C. § 552(b)(6) ("Exemption 6"), and the law enforcement exemption for express confidentiality, 5 U.S.C. § 552(b)(7)(D) ("Exemption 7(D)"). Should the court find that the Government has sufficiently demonstrated that the withheld information is within these exemptions, the information need not be disclosed. FLRA v. United States Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir. 1992). The statutory exemptions are, however, "narrowly construed with doubts resolved in favor of disclosure." Massey v. Federal Bureau of Investigation, 3 F.3d 620, 622 (2d Cir. 1993).
In this case, all the redacted information at issue originated with the FBI, except for portions of Document No. 190 and all three redacted pages of Document No. 209 which originated with the Central Intelligence Agency ("the CIA"). Explanations for redactions of information originating with the FBI are provided by Scott A. Hodes ("Hodes"), who is an Attorney-Advisor for the FBI, and is currently Acting Chief of the Litigation Unit, Freedom of Information-Privacy Acts (FOIPA) Section, Office of Public and Congressional Affairs at FBI Headquarters in Washington, D.C. Hodes Declaration, ¶ 1. Explanations for redactions to information originating with the CIA, are provided by William A. McNair ("McNair"), who is the Information Review Officer for the Directorate of Operations ("the DO") which is an organization within the CIA responsible for the clandestine collection of foreign intelligence from human sources. McNair Declaration, ¶¶ 1 and 2.
A. Exemption 1 — National Security
Exemption 1 exempts from disclosure:
matters that are — (A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.5 U.S.C. § 552(b)(1). Only those individuals specifically authorized by Executive Order ("EO") 12958 may classify or declassify information pursuant to that Order. EO 12958, §§ 1.4 and 3.2.
The Government originally invoked EO 12356, 47 Fed. Reg. 14,874 (Apr. 2, 1982), which was in effect when the Government made its initial classification decisions in this case, and the Second Circuit agreed that EO 12356 governed the application of Exemption 1 on appeal. Halpern, supra, at 289. In its papers submitted in support of summary judgment upon remand, however, the Government invokes EO 12958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), which became effective as of October 14, 1995 and, thus, was in effect when the Government reprocessed Plaintiff's FOIA requests subsequent to the Second Circuit's decision in Halpern, resulting in reclassification of some documents. As such, the court's review upon remand is pursuant to EO 12958. See Halpern, supra, at 289 ("an agency's decision to withhold information under FOIA is reviewed under the Executive Order upon which the classification was made".
In this case, the Government has redacted portions of four documents pursuant to Exemption 1 and based on EO 12598 § 1.5, including
Document No. Page No.
100 1
106 1
185 1
190 1
As a threshold matter, Plaintiff asserts that the information for which Exemption 1 is claimed was unclassified in May 1991, and Documents Nos. 100, 106, 185 and 190 each bears a stamp indicating: "All information contained herein is unclassified." Halpern Response Declaration, ¶ 6; See Halpern Affidavit, ¶ 8 (asserting that each of the documents for which the Government claims national security exemption has been declassified). Plaintiff maintains that presence of such stamp is "fatal" to the Government's position that the documents are exempt from disclosure based on the national security exemption. Id. In response, the Government maintains that Plaintiff has only partially quoted the stamp which reads in its entirety: "all information contained herein is unclassified except where shown otherwise." Edelman Affidavit, ¶ 14 (emphasis in original).
The court has reviewed the redacted copies of Documents Nos. 100, 106, 185 and 190. Each of those documents contains several items of redacted material, many of which are accompanied by a stamp indicating the material was later unclassified. However, each of those documents also bears at least one redaction that is not accompanied by such a stamp, indicating that some of the information in the documents which was at one time classified as exempt from disclosure is no longer so exempt, although other material that was also so classified remains exempt. Accordingly, the court finds that the Government has consistently asserted such material is exempt from disclosure.
Plaintiff also invokes the historical researcher exception to Exemption 1 in support of his request for the information withheld in the interest of preserving national security. Halpern Affidavit, ¶ 8. The historical researcher exception provides for the waiver of Exemption 1
for persons who:
(1) are engaged in historical research projects; or
(2) previously have occupied policy-making positions to which they were appointed by the President.
EO 12958 § 4.5(a). However, as relevant to the instant case, a historical researcher waiver
Plaintiff relies on the historical researcher exception to Exemption 1 found in EO 12356 § 4.3(a)(1), which is substantially identical to EO 12958 § 4.5(a).
may be granted only if the agency head or senior agency official of the originating agency: (1) determines in writing that access is consistent with the interest of national security; [and] (2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order.
EO 12958 § 4.5(b)(1) and (2).
The declarations submitted by the Government in the case at bar establish that no agency head or senior official of the FBI or CIA has determined in writing that providing an historical researcher access to the subject documents would be consistent with the interest of national security. Rather, according to Hodes, as Attorney-Advisor for the FBI, and Acting Chief of the Litigation Unit of FOIPA, he is responsible for classifying FBI information as mandated by EO 12958 and the preparation of affidavits in support of FOIA Exemption 1 claims. Hodes Declaration, ¶ 3. Hodes has been authorized by the United States Attorney General to classify and declassify information pursuant to EO 12598. Id. Hodes asserts that disclosure of the redacted information contained in Documents Nos. 100, 106, 185 and 190, would reveal identifying information concerning foreign governments that would reasonably be expected to seriously and demonstrably impair relations between the United States and the foreign governments. Id., ¶ 18.
Similarly, McNair asserts that as the Information Review Officer for the DO, he is responsible for reviewing records maintained by the DO that may be responsive to FOIA requests and DOJ requests pertaining to criminal and civil litigation to ensure that no release of such information will jeopardize DO interest or endanger DO personnel or facilities. McNair Declaration, ¶ 2. McNair, as a senior CIA official and pursuant to a written delegation of authority in accordance with Executive Order 12958 is authorized to review and classify DO information at the TOP SECRET level. Id., ¶ 3. McNair asserts that the redacted information contained in Document No. 190 that originated with the CIA, the disclosure of which would reveal intelligence sources and methods, remains properly classified as exempt from disclosure under Exemption 1. Id., ¶¶ 4 and 12.
The court finds the Hodes and McNair Declarations sufficiently establish that the FBI and the CIA have consistently found the redacted information in the subject documents is necessary and, thus, Exemption 1 has not been waived under EO 12958 § 4.5(a) as to these redactions. This finding is supported by Plaintiff's failure to point to any written determination by the agency head or senior agency official of the FBI or the CIA that disclosure of the redacted information would be consistent with the interest of national security, much less that appropriate steps have been taken to protect the information from further unauthorized disclosure or compromise. The court thus considers whether the Government has, through the Vaughn affidavits, index and exhibits, sufficiently established that Documents Nos. 100, 106, 185 and 190 are exempt from disclosure under FOIA in the interest of national security.
According to Hodes, the information withheld pursuant to Exemption 1 contained in Documents Nos. 100, 106 and 185 is classified as "Secret," meaning its unauthorized disclosure reasonably could be expected to cause serious damage to the national security. Hodes Declaration, ¶ 15; EO 12958 § 1.3(2). The Government acknowledges that EO 12958 provides for the automatic disclosure of "all classified information contained in records that (1) are more than 25 years old, and (2) have been determined to have permanent historical value under title 44, United States Code," EO 12958 § 3.4(a), but contends that the redacted information is within one of the exceptions to such automatic disclosure. Hodes Declaration, ¶ 15.
According to the Government, public disclosure of the redacted information within Documents Nos. 100, 106, 185 and 190 would reveal information that would seriously and demonstrably (1) impair relations between the United States and a foreign government, or (2) undermine ongoing diplomatic activities of the United States. Hodes Declaration, ¶ 16. Such information is specifically exempt from automatic disclosure under EO 12958 § 3.4(b)(6). Hodes explains that in his judgment, "[i]nformation contained in the classified and withheld portions of these documents would reveal the active relationships with these foreign governments," and negatively impact the FBI's ability to effectively collect intelligence information from these and other countries as well as to continuously recruit sources for current and future use, thereby damaging the national security interest. Hodes Declaration, ¶ 16.
Further, the Hodes Declaration submitted by the Government, as well as the accompanying Vaughn index, identify the type of information claimed exempt pursuant to Exemption 1 as information pertaining to foreign governments and foreign relations. Id., ¶ 17. Specifically, the redacted material on Document No. 100 identifies a foreign government component that expects its cooperative endeavors with the FBI to remain classified. Vaughn Index at 41. The redacted material on Document No. 106 identifies two foreign government components that also expect their relationships with the FBI to remain classified. Id. at 44. Nine deletions to Document No. 185 protect the identities of components of five foreign governments expecting their cooperation with the FBI to remain undisclosed. Id. at 117. Finally, Document No. 190 contains three redactions intended to protect the identity of components of two foreign governments whose relations with the FBI also depend on continuing anonymity. Id.
The Vaughn index provides the precise location of these redactions on the relevant pages of documents 100, 106, 185 and 190, and a review of the redactions in the context of the documents indicates that the such redactions are consistent with the Government's assertions. Moreover, "substantial deference" must be given to Vaughn affidavits in the context of national security. Diamond v. FBI, 707 F.2d 75, 79 (2d Cir. 1983).
The McNair Declaration also explains why certain redacted information in Document No. 190, originating with the CIA, is exempt from disclosure under Exemption 1. According to McNair, Document No. 190 is a memorandum from an FBI Legal Attaché ("Legat"), to FBI Headquarters, about FBI security information provided to a particular CIA office and describes the location of the CIA office as well as another office. McNair Declaration, ¶ 20. Two clandestine CIA intelligence posts or stations remain at these sites, the location of which would be revealed through disclosure of the redacted information. Id. McNair lists various reasons for protecting the location of CIA stations in foreign countries including (1) political embarrassment for the host government of a foreign government, especially if the CIA's presence in the foreign country has been privately authorized, (2) such disclosure may cause a reaction by the host government against American interests, and (3) foreign countries or other entities hostile to the United States may retaliate against the host country for cooperating with the CIA, rendering the host country less inclined to provide intelligence information and more likely to take steps to actively disrupt CIA intelligence collection activities. Id., ¶¶ 21-22. McNair asserts that revealing the location of the two clandestine CIA intelligence posts or stations could reasonably be expected to result in damage to the national security in the form of diplomatic or economic measures, or retaliation against American citizens or other American interests. Id., ¶¶ 22-23. According to McNair, in his experience, the perception of violation of sovereignty of a foreign country can generate retribution years later. Id., ¶ 23.
A review of Document No. 190, as redacted, is consistent with McNair's assertions regarding the redacted information and the location of clandestine CIA intelligence gathering stations. Granting "substantial deference" to the McNair Declaration regarding the applicability of Exemption 1 to Document No. 190 as required, Diamond, supra, at 79, the court finds the Government has sufficiently established the redacted information in Document No. 190 that originated with the CIA is properly exempt from disclosure under FOIA pursuant to Exemption 1.
The Government has thus met its burden of establishing that the information redacted in Documents Nos. 100, 106, 185 and 190 are exemption from disclosure under FOIA based on national security under Exemption 1.
B. Exemption 3 — Specifically Exempt by Statute
The Government also maintains that certain information contained in page 1 of Document No. 190 is exempt from disclosure under FOIA insofar as the redacted information therein originated with the CIA. Hodes Declaration, ¶ 19; McNair Declaration, ¶¶ 12-13. Exemption 3 excepts from disclosure matter specifically exempted by another statute, provided such other statute:
(A) requires that the matters be withheld from the public 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). As relevant, the National Security Act of 1947, as amended, requires the Director of Central Intelligence ("DCI"), to protect intelligence sources and methods from unauthorized disclosure. 50 U.S.C. § 403-3(c)(6). Further, the CIA is exempt from "the provision of any other laws which require the publication or disclosure of the organizations, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 403g.
As discussed in connection with the application of Exemption 1 to Document No. 190, the Government has established that certain information in Document No. 190 was redacted to protect foreign intelligence sources and methods from unauthorized disclosure, specifically, the location of foreign CIA intelligence stations. Discussion, supra, at 15-16. The court agrees with the Government that such information redacted in page 1 of Document No. 190 is also within the scope of 50 U.S.C. § 403-3(c)(6) and, therefore, is properly withheld from disclosure pursuant to Exemption 3.
C. Exemption 6 — Personal Privacy
Plaintiff maintains that Exemption 1 does not apply to Document No. 209 as "the material redacted in pages 1, 2 and 3 of Document No. 209 has nothing to do with the identity of the informant, nor national security." Halpern Response Declaration, ¶ 6. The Government responds that the redactions made to Document No. 209 are based on personal privacy under 5 U.S.C. § 552(b)(6). Edelman Affidavit, ¶ 21. McNair also explains that Plaintiff improperly refers to Document No. 209, which also originated with the CIA, as being exempt from disclosure pursuant to Exemption 1, and explains why the information is exempt from disclosure based on Exemption 6. McNair Declaration, ¶¶ 18, 25-28. Accordingly, the court considers whether Document No. 209 is exempt from disclosure pursuant to Exemption 6.
Exemption 6 excepts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The term "similar files," as used in Exemption 6, includes "information contained in Government record [that] can be identified as applying to a particular individual." Allen v. Department of Defense, 658 F. Supp. 15, 22 (D.D.C. 1986). To prevail on an Exemption 6 claim, the Government must demonstrate that the subject documents "come from the type of files that are statutorily protected, and must also show that, on balance, the public interest in disclosure does not outweigh the personal privacy interest of the individual who is the subject of the file." Allen, supra (citing Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976)).
As stated, the information contained within Document 209 originated with the CIA. According to the Government, Document No. 209 contains CIA information regarding a specific individual that was derived from a letter opening operation called HTLINGUAL. McNair Declaration, ¶ 25. Through the HTLINGUAL program, in existence between 1953 and 1973, the CIA covertly intercepted mail sent between the United States and the former Soviet Union as the letters passed through New York. McNair Declaration, ¶ 26 (citing Birnbaum v. United States, 588 F.2d 319, 321 (2d Cir. 1978)). Information gathered through the HTLINGUAL program has been held to qualify as "similar files" as that term is used in Exemption 6. Allen, supra, at 22 (holding information regarding investigation of President John F. Kennedy's assassination, including letters intercepted and copied through HTLINGUAL program, qualified as "similar files" and were exempt from FOIA disclosure under Exemption 6 as mere association with the Kennedy assassination created type of unfavorable inference impinging on substantial privacy interest).
The Government maintains that because the HTLINGUAL operation has been officially disclosed and much of the material gathered under it has been disclosed, the CIA information contained in Document No. 209 no longer satisfies the criteria for classification and, as such, need not be withheld on the basis of the Director of Central Intelligence's statutory authority to protect intelligence sources and methods. McNair Declaration, ¶ 26. Nevertheless, the individual whose identity is withheld by the redactions retains a strong privacy interest against disclosure and that interest is not outweighed by public's interest in disclosure. Id.
A review of the redacted copy of Document 209 demonstrates that the information redacted therein by the CIA pursuant to Exemption 6 is consistent with the Government's stated explanation. Specifically redacted are the names of living individuals who are considered to be former Security Index subjects and United States contacts for a member of the former U.S.S.R. Communist Party. Document No. 209. The Government explains that the names of two of these individuals, Herbert and Jane March, who are among the objects of Plaintiff's request, have not been redacted because the Marches have previously provided the CIA with permission to release HTLINGUAL information pertaining to them. McNair Declaration, ¶ 27. However, the identity of those individuals who have not consented to similar disclosure have not been released and McNair concluded that releasing the redacted names without permission would constitute a clearly unwarranted invasion of privacy within the meaning of FOIA. Id.
Plaintiff, however, maintains that the Government has not demonstrated that it ever attempted to contact the individuals whose names remain redacted in Document No. 209 pursuant to Exemption 6. Halpern Response Declaration, ¶ 8. However, Plaintiff refers to no authority requiring the Government to contact such persons for Exemption 6 to apply and the court's research has revealed none.
Here, the court finds that revealing the names of persons suspected at one time of cooperating with members of the former U.S.S.R. communist party may cause serious difficulties for such individuals still living in Russia. Accordingly, the court finds that such information falls within Exemption 6 and such information contained in Document No. 209 pages 1, 2 and 3 need not be produced in response to Plaintiff's FOIA request.
D. Exemption 7(D) — Express Confidentiality
The Government maintains that information contained in 116 pages of 31 additional documents is exempt from disclosure under 5 U.S.C. § 552(b)(7)(D) which provides for the withholding of:
Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency, or authority or any private institution which furnished information on a confidential basis, and, in the case of record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.5 U.S.C. § 552(7)(D). Under this exemption, "[a] source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes." United States Department of Justice v. Landano, 508 U.S. 165, 174 (1993). Further, disclosure is not required "if the source furnished information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Id. at 172.
The Government explains that much of the information redacted under Exemption 7(D) are symbol source numbers, codes, letter designations and informant file numbers used to protect the identities of 125 individual confidential informants reporting information to the FBI on a regular basis with the understanding that such information would be held in the FBI's strictest confidence. Hodes Declaration, ¶¶ 26-30. Plaintiff, however, asserts he is not interested in such symbols and code designation and has dropped his request for disclosure as to those redactions. Halpern Response Declaration, ¶ 4(a).
Instead, Plaintiff challenges that the mere fact that an informant may have provided information to the FBI as a confidential informant and was assigned a confidential source code or symbol to protect the informant's identity, such protection does not extend to other pages of information where the informant is referred to by name, rather than by a code or symbol, unless the Government demonstrates that the such information was obtained only pursuant to an express grant of confidentiality. Halpern Response Declaration, ¶ 7(D). There are 116 redacted pages of 31 documents at dispute on this issue, including:
Document No. Page Nos.
13 5
33 3, 6
40 2, 7, 10, 12
47 5, 6, 7, 8
54 2
63 42, 43, 44, 45, 46
Document No. Page Nos.
75 9, 10
86 11
93 8
102 5, 15, 16
107 1
108 1
113 1, 2, 3, 4, 5, 7, 17, 18, 20, 21, 22
121 2, 4, 5, 6, 8, 10, 11, 15, 16, 17, 18, 19, 21, 22
122 1, 2, 3, 13, 15, 16, 18
123 3, 11, 13, 16, 18, 23, 27, 29, 35, 36, 47, 48, 49, 53, 54, 55, 61, 66, 75, 79, 81, 90, 91, 92, 98, 130, 132, 133, 135, 139, 140, 145, 151
128 12, 15
136 3
141 5, 11, 14, 16
143 4
146 6
149 Cover page, A, last page
152 B
153 A
154 A, B, 2
156 1
222 8
228 22
250 1
263 3
270 1, 2, 3
Halpern Response Declaration, ¶ 4(a); See Hodes Declaration, ¶¶ 31-35. The information redacted on all 116 pages of the above 31 documents originated with the FBI.
The court first addresses the Government's assertion that Plaintiff has conceded that the request for confidentiality appears on the face of 39 of the 116 redacted pages, indicating such pages were properly redacted under Exemption 7(D). Edelman Affidavit, ¶¶ 8-9 (citing Halpern Response Declaration, ¶ 17). According to the Government, such concession would remove the 39 pages from the court's consideration, leaving only 77 pages at issue with regard to Exemption 7(D). Edelman Affidavit, ¶ 9 (listing the 39 pages the Government asserts need no longer be considered).
Although Plaintiff has not responded to this point, the court observes that Plaintiff, in the same document in which the Government contends Plaintiff conceded 39 pages are no longer at issue, specifically enumerated the 116 pages for which he alleges the Government has improperly applied Exemption 7(D). See Halpern Response Declaration, ¶ 4. This extensive listing is patently inconsistent with the Government's assertion that the applicability of Exemption 7(D) to 39 of these pages is no longer at issue. As such, the court will not further address this argument.
As stated, the redactions contained in these 116 pages includes identifying information of individuals who have routinely provided information to the FBI with the understanding that such information would be held in the FBI's strictest confidence and who are, in other documents, referred to only by a code or symbol to protect their identities. Plaintiff maintains that although such steps were sometimes taken to protect the informants' identities, that express confidentiality does not extend to the 116 pages of the 31 documents at issue where the same informants are referred to not by their assigned codes and symbols, but by their names and other identifying information. Halpern Response Declaration, ¶ 17. Plaintiff maintains that the Government must come forward with evidence that the informants provided the information contained in the redacted pages at issue only after being given express assurances that such information and their identities would be treated in a confidential manner. Id., ¶ 13 (citing Halpern, supra, at 299).
The Second Circuit instruct that upon remand, the court should consider whether the Government provided the informants with express assurances of confidentiality in accordance with Davin v. Department of Justice, 60 F.3d 1043, 1061 (3d Cir. 1995). In particular, proof of express assurances may be established through numerous means, including:
declarations from the agents who extended the express grants of confidentiality, contemporaneous documents form the FBI files reflecting the express grants of confidentiality, evidence of a consistent policy of expressly granting confidentiality to certain designated sources during the relevant time period, or other such evidence that comports with the Federal Rules of Evidence.
Davin, supra, at 1061.
As evidence that these redacted sources were provided with express grants of confidentiality the Government provides portions of the FBI's Manual of Rules and Regulations ("MRR"), Manual of Instructions ("MOI"), and Bureau Bulletins ("BBs"), relevant to the time periods when the information was obtained, alleging such material demonstrates the FBI had a consistent policy of granting confidentiality to these sources. Edelman Affidavit, ¶ 10; Hodes Second Declaration, ¶ 4. The Government explains that the MRR, MOI and BBs "are the means for disseminating information to filed offices throughout the jurisdiction of the FBI to ensure that the standard procedures are used by all FBI personnel in conducting law enforcement activities." Hodes Second Declaration, ¶ 5. These instructions were used by FBI Special Agents in their daily duties and operations during investigations pertaining to the individuals and companies subject to Plaintiff's requests during the 1940s through the 1970s and continue to be consistently applied. Id., ¶¶ 5-7. The Government quotes relevant portions of the MRR, MOI and BBs which refer to four different types of informants, including symbol source informants, confidential national defense informants ("CNDIs"), confidential sources ("CSs"), and Potential Security Informants ("PSIs"), all of whom report to the FBI on a regular basis and with the understanding that their identities would be held in the strictest confidence. Hodes Second Declaration, ¶¶ 8-9 (quoting Exhibits A-J).
Copies of these documents are attached as exhibits to Hodes Second Declaration.
According to the Government, release of the redacted symbol source designations would reveal the scope of the FBI's informant coverage, including the particular geographic region and the type of investigation in which the informant provided the information which is especially significant as many of the individuals who were the target of the investigations for which the confidential information was obtained are still living. Hodes Second Declaration, ¶ 10. Release of this information would permit these individuals to determine dates, times and places that information pertaining to them was obtained, resulting in knowledge as to the informant's identity. Id. Furthermore, if any of the informants and sources became aware or apprehensive of the FBI's inability to provide continuous protection of their identities, they would be less willing to cooperate. Id., ¶ 11.
A review of the MRR, MOI and BBs establishes that information provided to the FBI by such informants was given with the understanding that the FBI would protect their identities. Review of the redacted copies are consistent with the Government's assertions in the Vaughn index that the information redacted pursuant to Exemption 7(D) is limited to identifying information of FBI informants. Significantly, Plaintiff does not challenge the authenticity of the MRR, MOI or BBs, nor does he assert that the informants whose identities he seeks do not qualify as one of the types for which the FBI routinely received information in return for express assurances of confidentiality. On this record, the court finds the Government has submitted sufficient "evidence of a consistent policy of expressly granting confidentiality to certain designated sources during the relevant time period." Davin, supra, at 1061. Accordingly, Plaintiff's request for the redacted information contained in the 116 pages at issue is DENIED.
4. Request for In Camera Review
Plaintiff has moved for the court to conduct an in camera review of the unredacted documents withheld pursuant to the national security exemption and the express confidentiality exemption to determine the applicability of the claimed exemptions. Halpern Affidavit, ¶ 9; Halpern Response Declaration, ¶ 11. The Government opposes such review, arguing that the affidavits and Vaughn index submitted upon remand sufficiently establish the applicability of the claimed FOIA exemptions. Edelman Affidavit, ¶ 20.
Where the "[g]overnment's affidavits on their face indicate that the documents withheld logically fall within the claimed exemptions and there is no doubt as to agency good faith," the court need not conduct an in camera review, and disclosure is properly denied. Doherty v. United States Department of Justice, 775 F.2d 49, 52-53 (2d Cir. 1985). A district court "should be generally reluctant to conduct an in camera examination since `in camera inspections are burdensome and are conducted without benefit of an adversary proceeding.'" Jan-Xin Zang v. Fed. Bureau of Investigation, 756 F. Supp. 705, 709 (W.D.N.Y. 1991) (quoting Weissman v. Cent. Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977)).
Under § 552(b) of FOIA, "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of portions which are exempt under this subsection." As the court in Doherty, supra, stated
[d]isclosable information cannot be easily separated from that which is exempt without compromising the secret nature of the information. The fact that there may be some nonexempt matter in documents which are predominantly exempt does not require the district court to undertake the burdensome task of analyzing approximately 300 pages of documents, line-by-line.
Doherty, supra, at 53.
Here, as the court has found the Government's affidavits and the Vaughn index sufficiently support its application of the § 552(b) exemptions, the court thus finds that in camera review in the instant case is unwarranted. See Jan-Xin Zang, supra, at 708-09. Accordingly, Plaintiff's motion for in camera review of the unredacted documents withheld is DENIED.
Alternatively, should the District Judge find in camera review of the redacted pages is necessary, the court considers whether all the documents need be reviewed, or whether sufficient review can be had based on a random sampling of the pages. In particular, Plaintiff originally asserted that in camera review of the 487 pages redacted on the basis of express confidentiality could be accomplished by a random sample of 30 pages, with 10 selected by Plaintiff, 10 selected by the Government and 10 selected by the court. Halpern Affidavit, ¶ 9.
The use of random sampling in conducting in camera review of documents responsive to a FOIA request has been approved when "the number of documents is excessive and it would not be realistically possible to review each and every one." Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490 (D.C. Cir. 1984) (60,000 documents at issue). However, in this case, Plaintiff has conceded that only 116 of the 487 pages remain at issue based on express confidentiality exemption, Halpern Response Declaration, ¶ 4, a number the court does not find excessive. As such, if the District Judge finds in camera review necessary, the number of the pages at issue do not warrant review of only a random sampling.
CONCLUSION
Based on the foregoing, Defendant's motion for summary judgment (Docket Item No. 7) should be GRANTED; Plaintiff's cross-motion for summary judgment (Docket Item No. 11) should be DENIED; Plaintiff's motion for an in camera inspection (Docket Item No. 50) is DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.