UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARLOS LOPEZ, : : Plaintiff, : Civil Action No.: 07-2002 (RMU) : v. : Document No.: 11 : EXECUTIVE OFFICE FOR THE : UNITED STATES ATTORNEYS, : : Defendant. :

MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The plaintiff, Carlos Lopez, filed this suit under the Freedom of Information Act

(“FOIA”),

. The defendant, the Executive Office of the U.S. Attorneys

(“EOUSA”), filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil

Procedure, which the plaintiff has opposed. Because there is no genuine issue of material fact

and the defendant is entitled to judgment as a matter of law, the court grants the defendant

summary judgment.

II. BACKGROUND

Lopez was arrested in 2001 on federal narcotics and firearms charges, having been

identified by a confidential informant, Jennifer Webber, who later testified against him at his trial

in 2003. Lopez, who is currently incarcerated after having been convicted of the charges stemming from that arrest, submitted a FOIA request to EOUSA asking for “all and any records .

. . relating to my arrest and prosecution on federal narcotic and firearm violations in the State of

New Hampshire[,]” and in particular seeking “copies of Special Agent (SA) Steven Story, SA

Norman Houle, and SA Edward Bals’ investigation reports made on this matter.” See Def.’s

Mot. for Summ. J. (“Def.’s Mot.”), Ex. B. The purpose of his FOIA request was to obtain

information that would provide answers to the following questions about Webber:

(1) Was the government aware that their main witness, Jennifer Webber, had a felony drug case pending while she served as their confidential informant? (2) Did the government, or any of its employees, have contact with any State of New Hampshire employee regarding Ms. Webber or her then-pending felony cases in Strafford County Superior Court? and (3) Whether Ms. Webber was the recipient of favorable treatment on behest of the government for cooperating as their witness and/or serving as a confidential informant.

Pl.’s Opp’n at 7. Lopez asserts that Webber gave false testimony about the status of state

criminal charges pending against her at the time she testified against Lopez. Affidavit of Carlos

Lopez (“Lopez Aff.”) ¶ 13. He further asserts that the government failed to disclose to the

defense an alleged “‘deal’ made with Ms. Webber to secure her assistance and testimony.”

.

Lopez made his FOIA request by letter in August 2006. In November 2007, having

received no documents in response to his request, Lopez initiated this action. By letter dated

December 21, 2007, the defendant reported to the plaintiff that it had identified 980 pages of

responsive material, released 311 pages in full, released another 72 pages with redactions and

withheld 276 pages under stated statutory exemptions enumerated in the FOIA and the Privacy

-2- Act. See Declaration of Karen Finnegan (“Finnegan Decl.”) ¶¶ 13, 16.1 In addition, 327 pages

were referred to other agencies for review and potential release to the plaintiff.

.

The defendant filed this motion for summary judgment along with exhibits, the Finnegan

Declaration, and a Vaughn index indicating the statutory basis for any information not released to

the plaintiff. See generally Def.’s Mot. The plaintiff filed an opposition in which he challenges

the defendant’s decision to apply personal privacy exemptions to information about Webber. See

Pl.’s Opp’n at 6-7. In support, the plaintiff alleges that Webber gave perjured testimony at the

plaintiff’s criminal trial and that the government’s conduct constituted a Brady violation insofar

as his defense was deprived of impeachment material to use against Webber. See

; see

also Lopez Aff. & Exhibits. Throughout his submissions, the plaintiff emphasizes that because

the alleged Brady violation involves rights of constitutional dimension, the personal privacy

rights of third parties must give way. See Pl.’s Opp’n at 7; Pl.’s Request for Production of

Documents to EOUSA ¶ 7 (stating that “[t]he Defendants have cited numerous FOIA exemptions

based on third party privacy interests to justify their decision to withhold documents from the

Plaintiff. It is respectfully submitted that those exemptions cannot circumvent your Plaintiff’s

constitutional rights”).

1 The report and release were originally sent to a prior address. This error was corrected when discovered, and the package re-sent to plaintiff’s correct address on January 30, 2008. Finnegan Decl. ¶ 15.

-3- III. ANALYSIS

A. Legal Standard for Summary Judgment in a FOIA Case

Summary judgment may be granted only where the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); Burke v. Gould,

(D.C. Cir. 2002). A material fact is one

that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby,

(1986). A genuine issue is one where the “evidence is such that a reasonable jury could

return a verdict for the nonmoving party,”

as opposed to evidence that “is so one-sided that

one party must prevail as a matter of law.”

. A court considering a motion for

summary judgment must draw all “justifiable inferences” from the evidence in favor of the

nonmovant.

.

In a FOIA suit, an agency is entitled to summary judgment once it bears its burden of

demonstrating that no material facts are in dispute and that it has conducted a search reasonably

calculated to uncover all relevant information, Weisberg v. Dep’t of Justice,

(D.C. Cir. 1984), which either has been released to the requestor or is exempt from disclosure,

Students Against Genocide v. Dep’t of State,

(D.C. Cir. 2001). A court may

award summary judgment to a FOIA defendant solely on the basis of information provided by the

department or agency in sworn statements with reasonably specific detail that justify the

nondisclosures, demonstrate that the information withheld logically 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,

(D.C. Cir. 1981). To

-4- successfully challenge such a showing by the defendant agency, the plaintiff party must do more

than merely establish some “metaphysical doubt;” rather, the plaintiff must come forward with

“specific facts” demonstrating a genuine issue. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.,

(1986).

B. Because There are No Material Facts at Issue, the Court Grants Summary Judgment to the Defendant

The defendant has filed a sworn statement describing the search for responsive records.

See Def.’s Mot. at 4-6 (citing Finnegan Decl.). The plaintiff does not dispute that the search was

adequate. The defendant’s Vaughn index, which is commendably detailed, informative and

comprehensible, describes the nature and content of each document that was not released in full

to the plaintiff and both cites a statutory exemption and provides a narrative specific to the

document that explains the application of the asserted exemptions to that particular document.

All documents that were withheld in full or in part were withheld for multiple reasons. See

Vaughn Index. The defendant explained the statutory exemptions and each exemption’s

application to specific categories of information. See Def.’s Mot. at 17-31 (explaining the

application of Exemptions 6 and 7(C), which protects the identities and privacy of third parties),2

12-17 (explaining the application of Exemption 5, which protect both attorney work product and

information created as part of the deliberative process), and 8-12 (explaining the application of

2 FOIA Exemption 7(C) exempts “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 constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). Because the defendant asserted Exemption 6 in every instance that it asserted Exemption 7(C) and because the privacy inquiry in the two exemptions is essentially the same, see Judicial Watch, Inc. v. Dep’t of Justice,

(D.C. Cir. 2004), the applicability of Exemption 6 need not be, and is not here, separately analyzed.

-5- Exemption 3, which was used to withhold secret grand jury information in accord with Federal

Rule of Criminal Procedure 6(e) and to withhold confidential conflict of interest forms in accord

with 5 U.S.C. App. 4 § 107(a)(1)). Where information was withheld in full, there was a specific

determination made that no information could reasonably be segregated. See Def.’s Mot. at 31-

32. The Vaughn index and the Finnegan Declaration provide sufficient information, absent a

genuine issue of material fact raised by the defendant, to conclude that the decision to withhold

information was properly justified in each case.

Focusing on Webber’s trial testimony and what he believes to be a Brady violation by the

government, he has identified a list of 26 documents he asks the Court to inspect “to learn if any

of them contain information relevant to Ms. Webber and/or the State of New Hampshire.” Pl.’s

Opp’n at 8. A court is neither required nor well-advised to undertake in camera inspection of

documents at issue in a FOIA case absent some compelling reason. Mead Data Central, Inc. v.

U.S. Dep’t of Air Force,

(D.C. Cir. 1977) (noting that routine reliance on in

camera inspection is neither consistent with the FOIA nor a wise use of judicial resources). In

this case the Vaughn index demonstrates that there is no need for an in camera inspection of the

26 documents of interest to the plaintiff. The defendant claims Exemption 5,

(b)(5), as to 18 of those 26 documents, asserting that the withheld information is either

attorney work product or was created as part of the deliberative process. Compare Finnegan

Decl. ¶ 29 (listing documents as to which the defendant asserts Exemption 5) with Pl.’s Opp’n

at 8 (listing documents as to which he requests an in camera review). The plaintiff offers no

challenge to the defendant’s invocation of Exemption 5 for withholding information in these 18

-6- documents. Therefore, the defendant has carried its burden under the FOIA with respect to the

these 18 documents at issue, and only the 8 other documents remain at issue.

In addition, the plaintiff challenges the application of the personal privacy protections,

FOIA Exemptions 6 and 7(C), to information about Webber. Pl.’s Opp’n at 6. The plaintiff

argues that the personal privacy exemptions defendants must yield in the face of the plaintiff’s

belief that a Brady violation infected his criminal trial.

. The plaintiff’s argument simply

does not comport with the law. Given the nature of law enforcement records, the individual’s

“privacy interest at stake is substantial.” SafeCard Serv., Inc. v. S.E.C.,

(D.C. Cir. 1991); see also Bast v. U.S. Dep’t of Justice,

(D.C. Cir. 1981)

(holding that, in light of the stigma potentially associated with law enforcement investigations,

Exemption 7(C) affords broad privacy rights to suspects, witnesses and investigators). Given the

significant individual privacy interest, disclosure of 7(C) material is warranted only when the

individual’s interest in privacy is outweighed by the public’s interest in disclosure. United States

Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

(1989)

(requiring court to “balance the public interest in disclosure against the interest Congress

intended [Exemption 7(C)] to protect”); Beck v. Dep’t of Justice,

(D.C. Cir.

1993). Here, the interest plaintiff advances is private, not public, which is “irrelevant to this

balancing.” Mays v. Drug Enforcement Admin.,

(D.C. Cir. 2000).

Furthermore, even if the plaintiff’s private interest is construed as a public interest in promoting

the rule of law, “[f]irst, the citizen must show that the public interest sought to be advanced is a

significant one, an interest more specific than having the information for its own sake. Second,

the citizen must show the information is likely to advance that interest. Otherwise the invasion

-7- of privacy is unwarranted.” Nat’l Archives & Records Admin. v. Favish,

(2004). Even if the plaintiff satisfied the first showing, on these facts, he would fail to satisfy the

second showing. The Vaughn index on its face shows that there is no basis on which to conclude

that the sort of information the plaintiff is seeking is contained in the remaining 8 documents at

issue. Four of the documents have been withheld only in part, redacting only witness names and

addresses, but disclosing to the plaintiff the other contents of the documents. See Vaughn Index,

Docs. 42, 61, 87, and 1-S. There is no indication from plaintiff that the disclosed content of any

of those four documents is associated with Webber or the information he related to her that he

seeks. The other four documents, each of which is a handwritten note on a single page, have

been withheld in full. For each of these, the narrative in the Vaughn index indicates that the

document contains no information other than witness name and address information. See

Docs. 3 (“Hand-written note containing the names and business addresses of two witnesses”), 4

(“Hand-written list of witnesses to receive a trial subpoena”), 5 (“Hand-written note containing

witness’s name, place of residence, and fax number”), and 25 (“Hand-written note containing the

name, address & telephone number of a third party”). Thus, the information disclosed in the

Vaughn index demonstrates that disclosure of the information withheld in these 8 documents is

not likely to advance any significant public interest, even if the plaintiff could establish that the

public has a significant interest in the material he is seeking. On this record, the plaintiff has not

shown a public interest in disclosure that outweighs the substantial privacy interests.

The record in this case establishes that the defendant properly applied several identified

exemptions to withhold certain information from release to the public. The plaintiff challenged

only the personal privacy exemption with respect to certain documents, and he failed to show a

-8- public interest in disclosure that outweighed the substantial privacy interest protected by the

statutory exemption. On this record, there is no genuine dispute of material fact and the

defendant is entitled to judgment as a matter of law.

IV. CONCLUSION

For the foregoing reasons, the court grants the defendant’s motion for summary judgment.

An Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 25th day of February 2009.

RICARDO M. URBINA United States District Judge

-9-