Opinion
Civ. Action No. 03-1418 (RMU), Document No. 24.
January 3, 2005
MEMORANDUM ORDER
GRANTING THE DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION
This matter comes before the court on the defendant's renewed motion for summary judgment. The plaintiff claims that the defendant improperly withheld certain documents from the plaintiff's request for information pursuant to the Freedom of Information Act ("FOIA"). The defendant maintains that it properly withheld the records at issue under FOIA's Exemption 7(D). Having considered the defendant's motion, the plaintiff's opposition, and the entire record of this case, the court grants the defendant's motion.
II. BACKGROUND
The plaintiff submitted a request for information under the FOIA, 5 U.S.C. § 552, to the Internal Revenue Service ("IRS"). The matter was assigned to a Senior Disclosure Specialist in IRS' Cincinnati Disclosure Office. Huneke Decl. ¶ 1. The Specialist found that the IRS had conducted a criminal investigation of plaintiff. Id. ¶ 7. An IRS Special Agent located records responsive to five of the fourteen items listed in plaintiff's FOIA request. Id. ¶¶ 8-9. The Disclosure Specialist reviewed the records and released twenty-four pages of records in their entirety, and withheld fifteen pages pursuant to Exemption 7(D). Id. ¶¶ 10-11.
Although the court now concludes that the IRS's search for responsive records was adequate, the court originally denied defendant's initial summary judgment motion without prejudice on the ground that it failed to justify its decision to withhold records or portions of records under Exemption 7(D).
III. ANALYSIS A. Legal Standard for Summary Judgment
The court grants a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact in dispute, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true, unless the opposing party submits his own affidavits or documentary evidence that contradict the movant's assertions. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)); LCvR 7.1(h).
To obtain summary judgment in a FOIA action, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). The Court may award summary judgment solely on the information provided in affidavits or declarations when such sworn statements describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information logically withheld falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
In support of its renewed summary judgment motion, defendant submits two declarations. In the first, Special Agent Richard Serrano describes his official duties as involving "the investigation of money laundering activities, violations of Federal tax laws, and other offenses." Serrano Decl. ¶ 2. Performance of these duties may require him to conduct "surveillance, witness and suspect interviews, seizures of contraband, equipment, and vehicles, securing and serving search warrants, and the inspection of records and documents." Id. Special Agent Serrano declares that, in 1996, he was assigned to assist in "an ongoing investigation of the plaintiff in connection with alleged money laundering and narcotics trafficking activities." Id. ¶ 3. In addition, defendant submits the declaration of Geoffrey Campbell, an attorney with the IRS' Office of Chief Counsel (Disclosure and Privacy Law). Campbell Decl. ¶ 1. Mr. Campbell assists in the agency's defense in litigation under FOIA. Id. ¶ 2. He is, therefore, familiar with the types of documents created and maintained by IRS divisions, provisions of FOIA, and exemptions from disclosure. Id. He declares that he was assigned to handle plaintiff's FOIA litigation in July 2003, and is familiar with the handling of his FOIA request. Id. ¶ 3.
B. FOIA Exemption 7(D)
Among other things, plaintiff sought the "names and statements of all confidential informants who provided information" in his criminal case. Compl. ¶ 8. Defendant withheld this information on the ground that its disclosure would reveal the identity of a confidential informant. Huneke Decl. ¶ 10.
Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that the production of such records would cause an enumerated harm. 5 U.S.C. § 552(b)(7); FBI v. Abramson, 456 U.S. 615, 622 (1982). Exemption 7(D) protects from disclosure those law enforcement records that:
Could reasonably be expected to disclose the identity of a confidential source . . . which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation . . . information furnished by a confidential source. 5 U.S.C. § 552(b)(7)(D). "A source is confidential within the meaning of Exemption 7(D) if the source provided information under an express assurance of confidentiality." Williams v. Federal Bureau of Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citing United States Dep't of Justice v. Landano, 508 U.S. 165, 170-74 (1993)).
The plaintiff was the subject of an IRS investigation of his alleged money laundering and narcotics trafficking activities. Serrano Decl. ¶ 3. In connection with this investigation, IRS Special Agent Serrano became acquainted with an individual who had relevant information pertaining to the plaintiff's criminal activities; this information otherwise would not have been available to IRS. Id. ¶ 4. The individual expressed fear of retaliation from the plaintiff, and agreed to provide the IRS agent with information only if his or her identity remained confidential. Id.
Pursuant to IRS procedures, Special Agent Serrano requested and obtained permission to use this individual as a confidential informant. Serrano Decl. ¶ 6. "Information obtained from this informant in connection with [IRS'] investigation of plaintiff was provided under the express understanding that the informant's identity would be held confidential." Id. ¶ 7.
The defendant withheld 15 pages of records in their entirety. All of these records were created and obtained during IRS' investigation of the plaintiff's money laundering and narcotics trafficking activities. Serrano Decl. ¶ 8. These records consisted of the following:
1. administrative documents pertaining to the request for and approval of a particular confidential informant (3 pages);
2. background information pertaining to the prospective informant (9 pages); and
3. a request for monetary compensation for the informant, accompanied by a memorandum in support of the request which included information provided by the informant about the plaintiff (3 pages).Id. ¶ 8. Among other things, these records contain biographical and other information identifying the informant. Campbell Decl. ¶ 5(a)-(c).
The defendant thus demonstrates that the records at issue were compiled for law enforcement purposes, that the informant provided IRS with information pertaining to its investigation of the plaintiff's criminal activities under an express assurance of confidentiality, and that disclosure of this information would reveal the informant's identity.
The plaintiff argues against the granting of summary judgment in the defendant's favor. He contends that Special Agent Serrano's declaration conflicts with his prior testimony at the plaintiff's criminal trial. See Pl.'s Opp. at 5-8 Ex. A. The argument is neither relevant nor persuasive. The defendant's obligation is to show that the records at issue are law enforcement records, the disclosure of which would reveal the identity of a confidential informant. Special Agent Serrano's declaration, signed under penalty of perjury, is sufficient to meet its burden. It is beyond the scope of FOIA to determine the veracity of testimony at the plaintiff's criminal trial. The plaintiff does not show a lack of good faith on defendant's part in responding to his FOIA request.
C. Segregability
If a record contains information that is exempt from disclosure, any reasonably segregable information must be released after deleting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999); 5 U.S.C. § 552(b). The defendant's declarant states that deleting the exempt portions of the records at issue "would yield blank, internal IRS administrative forms and meaningless words and phrases (e.g., "To," "From," "the informant stated [redacted]," and "the informant observed [redacted]"). Campbell Decl. ¶ 6. For this reason, the defendant asserts that all nonexempt responsive materials have been released to plaintiff," with the exception of those portions of the documents described herein. Id. ¶ 7. The court concludes that defendant has properly justified its decision to withhold the records at issue in their entirety, as no reasonably segregable portions can be disclosed.
IV. CONCLUSION
For the reasons stated above, the court concludes that the defendant properly withheld the records at issue under FOIA's Exemption 7(D). Accordingly, it is this 3rd day of January, 2005,
ORDERED that the defendant's renewed motion for summary judgment is GRANTED.