Opinion
Civ. No. 02-734 (RJL).
March 7, 2005
MEMORANDUM OPINION
This action concerns a request by the pro se plaintiff, Willard Santos, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for documents in possession of the Drug Enforcement Agency ("DEA") regarding a criminal investigation of a third party. Presently before the Court are the parties' renewed motions for summary judgment. On March, 31, 2004, this Court issued an order granting the defendants' motion to dismiss in part, denying the plaintiff's motion for summary judgment, and ordering the defendants to submit more detailed affidavits regarding the processes, procedures, and legal grounds followed by the DEA in withholding the information responsive to plaintiff's FOIA request. For the following reasons, the defendants' renewed motion for summary judgment is GRANTED, and the plaintiff's renewed motion for summary judgment is DENIED.
Discussion
For a recitation of the relevant facts see this Court's opinion in Santos v. DEA, et al., 2004 WL 3168228 (D.D.C. 2004).
Summary judgment is warranted where the agency describes "the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Wheeler v. CIA, 271 F. Supp. 2d 132, 136 (D.D.C. 2003). The DEA has the burden of establishing that an exemption from disclosure applies. 5 U.S.C. § 552(a)(4)(B). The Court, however, is to accord "substantial weight" to an agency's affidavit concerning the details of the classified status of a disputed record. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
A. Exemption (b)(2)
Exemption (b)(2) provides that FOIA disclosure requirements do not apply to records that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2) (2002). The DEA seeks to exempt internal documents that, if released, could frustrate its investigatory and enforcement efforts. Def. Renewed Mot. for Summ. J. 3. The DEA asserts that the release of this information, which includes Geographical Drug Enforcement Program codes, Narcotics and Dangerous Drug Information Systems numbers, and Informant Identifier codes, would compromise narcotics investigations by allowing drug users to alter their drug usage and exposing information regarding individuals cooperating with the agency. Id.; Decl. of Leila I. Wassom ¶¶ 21-22; Supp. Decl. of Leila I. Wassom ¶¶ 21-50. In the absence of any specific challenge by the plaintiff with regard to the DEA's claims under exemption (b)(2), the Court finds that the DEA has met its burden of demonstrating that it applied exemption (b)(2) to matters that, if released, would circumvent DEA law enforcement procedures. See Crooker v. Bureau of Alcohol, Tobacco Firearms, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981).
B. Exemption (b)(3)
Exemption (b)(3) exempts from disclosure any matters that are "[s]pecifically exempted from disclosure by statute (other than section 552(b) of this title), provided that such 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) (emphasis added). Title 18 U.S.C. § 2511(2)(a)(ii), which prohibits disclosure of certain intercepted communications, "falls squarely within the scope of [Exemption 3] subsection (B)'s second prong, as a statute referring to `particular matters to be withheld.'" Lam Lek Chong v. DEA, 929 F.2d 729, 733 (D.C. Cir. 1991).
Here, the DEA maintains that it has withheld wiretap records, including surveillance records and applications for wiretaps. Decl. of Leila I. Wassom ¶ 23; Supp. Decl. of Leila I. Wassom ¶¶ 52-54, 58. These materials fall under the category of information which can be withheld under 18 U.S.C. § 2511(2)(a)(ii). See Delviscovo v. F.B.I., 903 F. Supp. 1, 2 (D.D.C. 1995). Accordingly, the Court finds that the DEA has properly asserted exemption (b)(3) to withhold information regarding DEA's investigation of Bernardo Arias.
C. Exemption (b)(6)
Exemption (b)(6) provides that "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" may be exempted from disclosure under FOIA. 5 U.S.C. § 552(b)(6). With regard to the meaning of the term "similar files," the Supreme Court has stated that exemption (b)(6) was "intended to cover detailed Government records on an individual which can be identified as applying to that individual." U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (citing H.R. Rep. No. 1497). Once an agency has shown that the information applies to a particular individual, the Court must then strike a "proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information. . . ." Id. at 599. If a document invades a third party's privacy, and does not contain "official information" shedding light on government functions, it may be withheld under Exemption 6. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 774 (1989).
The DEA invokes exemption (b)(6) to protect information concerning the personal information about individuals associated with or the target of a criminal law enforcement investigation. Def. Renewed Mot. for Summ. J. 9. The DEA asserts that this protection is a "substantial" privacy interest. Id. Also, the defendants argue that the requested documents do not contain information that sheds light on the DEA's functions. See Reporters Comm., 489 U.S. at 774. Furthermore, the DEA claims the records are "not relevant to the public's understanding of the DEA's conduct of its business." Def. Renewed Mot. for Summ. J. 10.
The Court finds that a balancing of the personal privacy of third parties involved in the Arias investigation and a consideration of public interest weighs in favor of exemption. The plaintiff has not obtained the required privacy waivers from Mr. Arias or third parties involved in the Arias investigation. Supp. Decl. of Leila I. Wassom ¶¶ 18, 20. Moreover, plaintiff's request would undermine the security interests of the DEA and third parties involved with its investigations. Accordingly, the Court finds that the DEA has properly invoked exemption (b)(6).
D. Exemption (b)(7)(C)
Exemption (b)(7)(C) exempts from disclosure information compiled for law enforcement purposes when disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The same balancing of privacy versus public interest in disclosure is applied to exemption (b)(7)(C) as that applied to exemption (b)(6). See Reporters Comm., 489 U.S. at 774. The DEA invokes exemption (b)(7)(C) to protect information concerning the investigation of Mr. Arias, as well as the identities of third parties involved with Mr. Arias. Def. Renewed Mot. for Summ. J. 13; Decl. of Leila I. Wassom ¶ 25; Supp. Decl. of Leila I. Wassom ¶¶ 16-20. The DEA argues that Mr. Arias' privacy interests outweigh any public interest because the plaintiff's name is not mentioned in any of the responsive documents. Supp. Decl. of Leila I. Wassom ¶ 18. Furthermore, the DEA asserts that the release of third party names would amount to an unwarranted invasion of personal privacy because the information would not shed light on the DEA's conduct or functions. Def. Renewed Mot. for Summ. J. 12-13; Supp. Decl. of Leila I. Wassom ¶¶ 17, 19-20. Accordingly, the Court finds that the privacy interests outweigh the public interest in disclosure and, therefore, that the DEA has properly applied exemption (b)(7)(C).
E. Exemption (b)(7)(D)
Exemption (b)(7)(D) exempts from disclosure information compiled for law enforcement purposes when disclosure "could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency. . . ." 5 U.S.C. § 552(b)(7)(D). The Supreme Court has held that courts should determine the existence of source confidentiality on a case-by-case basis. Dep't of Justice v. Landano, 508 U.S. 165, 179-80 (1993). Information can be withheld under exemption (b)(7)(D) when it was received from sources who believed that the communication would remain confidential. Id. at 180-81. Moreover, assurances of confidentiality and identity protection under the FOIA can be express or implied. Mays v. DEA, 234 F.3d 1324, 1329-31 (D.C. Cir. 2000) (finding that sources who received express assurances of confidentiality are entitled to protection and asserting that sources can infer implied assurances of confidentiality because of the violent and retaliatory nature of drug trafficking).
The DEA has invoked exemption (b)(7)(D) to withhold documents containing the names of informants who were given either express or implied assurances that their identities would not be disclosed. Def. Renewed Mot. for Summ. J. 15; Decl. of Leila I. Wassom ¶¶ 28-31. The DEA asserts that exemption (b)(7)(D) was created to "prevent the FOIA from causing the `drying up' of sources of information in criminal investigations." Def. Renewed Mot. for Summ. J. 15 (quoting Shaw v. FBI, 749 F.2d 58, 61 (D.C. Cir. 1984)). The Court finds that the DEA has properly invoked exemption (b)(7)(D) because the exemption permits the DEA to protect valuable data provided by informants who would be less likely to cooperate without the assurance of confidentiality.
F. Exemption (b)(7)(F)
Exemption (b)(7)(F) exempts from disclosure information compiled for law enforcement purposes when disclosure "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). The DEA has invoked exemption (b)(7)(F) to withhold the names and other identifying information of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers. Def. Renewed Mot. for Summ. J. 16; Decl. of Leila I. Wassom ¶¶ 32-34. The DEA asserts that releasing the names of its agents or other cooperating law enforcement officials could expose them to verbal or physical attacks by individuals under investigation by the DEA. Def. Renewed Mot. for Summ. J. 17; Decl. of Leila I. Wassom ¶ 34. Other courts have supported the position advocating protection for law enforcement personnel's names and identifying data under exemption (b)(7)(F) by finding that there is potential for harm when conducting dangerous investigations. See, e.g., Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 552 (6th Cir. 2001); Johnston v. U.S. Dep't of Justice, No. 97-2173, 1998 WL 518529, at *1 (8th Cir. Aug. 10, 1998). Accordingly, the Court finds that the DEA has properly invoked exception (b)(7)(F) to withhold documents that contain the names and other identifying information of law enforcement agents.
Conclusion
The Court therefore GRANTS defendants' renewed motion for summary judgment and DENIES plaintiff's renewed motion for summary judgment. An order directing the parties in a manner consistent with this opinion is separately and contemporaneously issued herewith.