UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALBERTO CONCEPCION, : : Plaintiff, : : Civil Action No.: 07-1766 (RMU) v. : : Re Document No.: 38 FEDERAL BUREAU : OF INVESTIGATION et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff, a federal prisoner, brought this action under the Freedom of

Information Act (“FOIA”),

, against the United States Department of Justice

(“DOJ”) and two DOJ agencies, the Federal Bureau of Investigation (“FBI”) and the Executive

Office for United States Attorneys. On March 27, 2009, the court granted in part and denied in

part the defendants’ first motion for summary judgment, resolving all issues but one: the FBI’s

decision to withhold in full under FOIA Exemption 5 a draft affidavit supporting an application

for a warrant to seize vehicles in connection with a criminal investigation of the plaintiff and

others. The FBI’s1 renewed motion for summary judgment addresses its justification for this

withholding, and for the reasons set forth below, the court grants in part and denies in part the

motion.

1 For ease of reference, the court will refer to the FBI as “the defendant.”

1 II. FACTUAL & PROCEDURAL BACKGROUND

A detailed factual and procedural history of this case was provided in the court’s previous

memorandum opinion. See Mem. Op. (Mar. 27, 2009) at 1-8. The draft affidavit at issue in the

defendant’s renewed motion for summary judgment is a nine-page document “designated as

Bates-stamped pages 183-191 in Exhibit F to the Second Declaration of David M. Hardy[2] dated

May 16, 2008.”3 Def.’s Renewed Mot. for Summ. J. (“Def.’s Mot.”), Ex. 1 (“5th Hardy Decl.”) ¶

6; see also Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. 1 (“2d Hardy Decl.”) ¶ 31;

Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. F (“Vaughn Index”) at 183-91. Its

contents are described as follows:

On Bates-stamped pages 183 and 191, the Affidavit contains the name and identifying information of the FBI Special Agent in charge of the criminal investigation of plaintiff and his co-conspirators. On Bates-stamped pages 185-190, the Affidavit contains a substantial amount of detailed information about various confidential sources who provided information to the FBI in connection with the criminal investigation of plaintiff and his co-conspirators. For example, the Affidavit contains specific dates on which confidential sources interacted with plaintiff and/or his co-conspirators and the precise nature of those interactions. This information was provided by unnamed confidential sources. Disclosure of this information could allow plaintiff and/or his co-conspirators to readily identify the confidential sources and retaliate against them.

5th Hardy Decl. ¶ 6. The draft affidavit was prepared for filing in the United States District

Court for the District of New Jersey.

. It “had not yet been approved or signed as a final

2 Hardy is the Section Chief of the defendant’s Record/Information Dissemination Section, Records Management Division. Def.’s Renewed Mot. for Summ. J. (“Def.’s Mot.”), Ex. 1 (“5th Hardy Decl.”) ¶ 1. 3 “Each page of [the Vaughn Index] is consecutively numbered Concepción 1-206 in the lower right-hand corner.” Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. 1 (2d Decl. of David M. Hardy (“2d Hardy Decl.”)) ¶ 12. A “Deleted Page Information Sheet” appears in the Vaughn Index in the place where the affidavit would have been. Id.; Notice of Filing of 2d Hardy Decl. & Vaughn Index, Ex. F (“Vaughn Index”) at 183-91.

2 version of the document,” 2d Hardy Decl. ¶ 31, and it was undated, see 5th Hardy Decl. ¶ 7.

The defendant asserts that it asked the United States Attorney’s Office for the District of

New Jersey for a copy of the final, signed affidavit,

, to compare the draft affidavit to the

final affidavit on the assumption that a comparison “would show that the text of the two

documents is different, and thus, would support its prior invocation of exemption 5,” the

deliberative process privilege, Def.’s Mot. at 3 n.3. The defendant asserts that the United States

Attorney’s Office did not have a copy of the final affidavit, but was able to obtain one from the

United States District Court for the District of New Jersey. 5th Hardy Decl. ¶ 9. A comparison

of the two documents, Hardy avers, shows that “[t]he text of the signed version of the Affidavit

is identical to the text of the unsigned version found at Bates-stamped pages 183-91.”

Only upon review of the final affidavit did the defendant become aware that “[t]he signed

version . . . was filed under seal pursuant to a Sealing Order dated December 9, 1999.”

.

In relevant part, that Sealing Order stated:

Upon the application of the United States of America . . . for seizure warrant; and the application upon which this Court should order the documents submitted in support of its issuance be filed under seal; and for good cause shown; [it is] . . . ORDERED that, with the exception of copies of the seizure warrant, the documents upon which its issuance is based and all other papers related to the above captioned matter be filed under, and are hereby sealed, until further order of this Court.

Ex. A (“Sealing Order”) at 1-2. In light of this new information, the defendant now asserts

that the Sealing Order justifies its withholding of the draft affidavit. Def.’s Mot. at 3-5. In the

alternative, the defendant contends that Exemption 7 justifies withholding certain portions of the

draft affidavit.

. The court turns now to the applicable legal standard and the parties’

arguments.

3 III. ANALYSIS

A. Legal Standard for Summary Judgment in a FOIA Case

The court may grant a motion for summary judgment “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of

material fact. Celotex Corp. v. Catrett,

(1986). Factual assertions in the

moving party’s affidavits may be accepted as true unless the opposing party submits his own

affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly,

(D.C. Cir. 1992).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009) (citations

omitted). In a FOIA case, the court may grant summary judgment based on the information

provided in an agency’s supporting affidavits or declarations when they describe “the documents

and the justifications for nondisclosure with reasonably specific detail, 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). Such affidavits or declarations are

accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims

about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. &

Exch. Comm’n,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency,

(D.C. Cir. 1981)).

4 B. The Defendant Fails to Justify its Withholding Based on the Sealing Order

With respect to sealing orders in the FOIA context, this Circuit has held that

the mere existence of a court seal is, without more, insufficient to justify nondisclosure under the FOIA. Instead, only those sealing orders intended to operate as the functional equivalent of an injunction prohibiting disclosure can justify an agency’s decision to withhold records that do not fall within one of the specific FOIA exemptions.

Morgan v. United States,

(D.C. Cir. 1991); cf. GTE Sylvania, Inc. v.

Consumers Union of the U.S., Inc.,

(1980) (concluding that the Consumer

Product Safety Commission properly withheld accident reports under the FOIA because a district

court had issued a preliminary injunction prohibiting the release of such records pending trial).

The agency bears “the burden of demonstrating that the court issued the seal with the intent to

prohibit the [agency] from disclosing the [document] as long as the seal remains in effect.”

Morgan,

. The agency may meet this burden

by referring to, inter alia: (1) the sealing order itself; (2) extrinsic evidence, such as transcripts and papers filed with the sealing court, casting light on the factors that motivated the court to impose the seal; (3) sealing orders of the same court in similar cases that explain the purpose for the imposition of the seals; or (4) the court’s general rules or procedures governing the imposition of seals.

(footnote omitted); see also Senate of the Commonwealth of P.R. v. U.S. Dep’t of Justice,

, at *7 (D.D.C. Aug. 24, 1993) (directing the defendants to inform the court as to how

many documents were under court seal, when they had been placed under seal and in what case,

and any and all further information necessary for the court to determine whether the documents

allegedly under seal were properly withheld). If the court concludes that the sealing order does

not prohibit disclosure, “the [agency] should have the opportunity to show that one of the FOIA

exemptions authorizes it to withhold the [information.]” Morgan,

n.5; see, e.g.,

5 Odle v. Dep’t of Justice,

, at *14 (N.D. Cal. May 17, 2006) (concluding that,

although the defendant’s reliance on court sealing orders was unwarranted, the same information

was properly withheld under Exemption 7(C)).

The defendant states that “[b]ecause the text of the signed version of the Affidavit is

identical to the text of the unsigned version, [it] is withholding the Affidavit [in full] pursuant to

the . . . sealing order.” 5th Hardy Decl. ¶ 11. Relying on the terms of the Sealing Order, the

defendant argues that the presiding judge intended that the final affidavit remain sealed until he

ordered otherwise. See

Ex. A. In addition, the defendant asserts, the contents of the

affidavit, which include detailed information about the plaintiff’s drug trafficking activities

provided by various confidential sources whose identities could be discerned if the document

were disclosed, “strongly support the conclusion that the Sealing Order was meant to prohibit

any future disclosure of the final affidavit.” Def.’s Mot. at 4. Moreover, the defendant

represents that the District of New Jersey’s Local Civil Rule 16 prohibits disclosure of a sealed

document to the public through electronic or other means.

.

The court is not persuaded by the defendant’s arguments. The Sealing Order itself

presents no rationale for its issuance, see generally Sealing Order, and the defendant presents no

transcript or other documentation to cast light on the factors that motivated the court to impose

the seal, see Morgan,

(holding that the agency may satisfy the burden required to

withhold the document by referring to, inter alia, the sealing order and extrinsic evidence). In

sum, the defendant fails to justify its decision to withhold the draft affidavit in full pursuant to

the Sealing Order, and the court will deny the renewed motion for summary judgment on this

ground.

6 C. The Court Properly Withheld Certain Information Under Exemptions 7(C) and 7(D) of the FOIA4

The court turns next to the defendant’s alternative argument that certain information

contained in the draft affidavit is exempt from disclosure under Exemptions 7(C) and 7(D). See

Def.’s Mot. at 5.

1. Exemption 7(C)

The defendant invokes Exemption 7(C) to protect the name of the FBI Special Agent who

supervised the investigation of the plaintiff and his co-conspirators.5

This exemption protects

from disclosure information in law enforcement records that “could reasonably be expected to

constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). In

determining whether this exemption applies to particular material, the court must balance the

interest in privacy of individuals mentioned in the records against the public interest in

disclosure. Beck v. Dep’t of Justice,

(D.C. Cir. 1993). Individuals have a

“strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern v.

FBI,

(D.C. Cir. 1984). “[T]he only public interest relevant for purposes of

Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what their

government is up to.’” Davis v. U.S. Dep’t of Justice,

(D.C. Cir. 1992)

(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

, 773

4 The court previously determined that all of the responsive records at issue in this case, including the draft affidavit, were compiled for law enforcement purposes. See Mem. Op. (Mar. 27, 2009) at 27-30. 5 The name of and identifying information about a FBI Special Agent appear on pages 183 and 191 of the Vaughn Index. See 2d Hardy Decl. ¶ 51; 5th Hardy Decl. ¶ 14.

7 (1989)).

The names of and identifying information about law enforcement officers are routinely

withheld under Exemption 7(C) on the ground that such disclosure could reasonably be expected

to constitute an unwarranted invasion of the officers’ personal privacy. See, e.g., Sellers v. U.S.

Dep’t of Justice,

(D.D.C. Feb. 17, 2010) (concluding that the

defendant properly withheld the names of and identifying information about FBI Special Agents);

accord Amuso v. U.S. Dep’t of Justice,

(D.D.C. 2009); Fischer v. U.S.

Dep’t of Justice,

(D.D.C. 2009). Indeed, the court previously determined

that the defendant properly withheld the names, Social Security numbers and telephone numbers

of FBI Special Agents, including those which appear on the draft affidavit. See Mem. Op. (Mar.

27, 2009) at 27-30. Accordingly, the defendant properly invoked Exemption 7(C) to withhold

the name of the FBI Special Agent who supervised the investigation of the plaintiff and his co-

conspirators.

2. Exemption 7(D)

The defendant invoked Exemption 7(D) to withhold to protect the identifying information

of its confidential sources and information received from those sources. Def.’s Mot. at 5. This

exemption protects from disclosure those records or information compiled for law enforcement

purposes that

could reasonably be expected to disclose the identity of a confidential source . . . [who] 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.

(b)(7)(D). There is no assumption that a source is confidential for purposes of

8 Exemption 7(D) whenever a source provides information to a law enforcement agency in the

course of a criminal investigation. See U.S. Dep’t of Justice v. Landano,

(1993). Rather, “[a] source is confidential within the meaning of [Exemption] 7(D) if the source

provided information . . . in circumstances from which such an assurance could reasonably be

inferred.” Williams v. FBI,

(D.C. Cir. 1995) (citing Landano,

).

Hardy states that the draft affidavit contains “[i]nformation provided by [a] confidential

source[] [that is] singular in nature,” and that the release of the information “could reveal the

informant’s identity.” 5th Hardy Decl. ¶ 16. For the same reasons the court upheld the

defendant’s decision to withhold information pertaining to confidential sources previously, see

Mem. Op. (Mar. 27, 2009) at 36-39, the court concludes that the defendant properly withheld the

name of, identifying information about and information provided by a cooperating witness from

the draft affidavit.6

IV. CONCLUSION

The court concludes that, although the defendant does not justify its decision to withhold

the draft affidavit in full pursuant to the Sealing Order, it properly withholds certain information

contained in the draft affidavit under Exemptions 7(C) and 7(D) of the FOIA. Accordingly, the

court grants in part and denies in part the defendant’s renewed motion for summary judgment.

6 The name of, identifying information about and information provided by a confidential source are contained on pages 184-90 of the draft affidavit. See 2d Hardy Decl. ¶ 66; 5th Hardy Decl. ¶ 16.

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

this 30th day of March, 2010.

RICARDO M. URBINA United States District Judge

10