VENKATARAM v. OFFICE OF INFORMATION POLICY et al
Filing
18
OPINION. Signed by Judge Jerome B. Simandle on 5/25/2011. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATARAJAN VENKATARAM,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 09-6520 (JBS/AMD)
v.
OPINION
OFFICE OF INFORMATION POLICY &
JANICE GALLI MCLEOD,
Defendants.
APPEARANCES:
Natarajan Venkataram, Pro Se
# 58513-054
Federal Correctional Institution
P.O. Box 2000
Camp Bldg. 6695
Fort Dix, NJ 08640
Paul J. Fishman
United States Attorney
By: John Andrew Ruymann
Assistant United States Attorney
OFFICE OF THE US ATTORNEY
402 East State Street
Suite 430
Trenton, NJ 08608
Counsel for Defendants
SIMANDLE, District Judge:
I.
INTRODUCTION
In this case, Plaintiff seeks records from the United
States Department of Justice pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. § 552.
The matter is before the
Court on Defendants' motion to dismiss or, as appropriate, grant
Defendants summary judgment.
[Docket Item 11.]
The question
before the Court is whether either of the exceptions to FOIA
invoked by Defendants apply categorically to Plaintiff's request,
such that Defendants may deny the entire request before searching
for responsive documents.
II.
BACKGROUND
Plaintiff, Natarajan Venkataram, is an inmate at the Federal
Correctional Institution at Fort Dix, New Jersey, and he is
representing himself without counsel.
He seeks records from the
Department of Justice concerning an individual, D.V.S. Raju, who
was his co-defendant in a criminal case, United States v.
Venkataram, 06-cr-102 (RPP) (S.D.N.Y. July 16, 2008).
According to the superceding indictment in that criminal
case, in the years following the terrorist attacks of September
11, 2001, the New York City Office of the Medical Examiner
awarded millions of dollars in contracts to software companies
for work related to the task of identifying victims of the
attacks through the forensic analysis of body parts and other
evidence collected at the World Trade Center site, and some of
this money was reimbursed by the federal government.
Item 24 ¶2, 06-cr-102 (RPP) (S.D.N.Y.).]
[Docket
Venkataram was a city
official in charge of the Office of the Medical Examiner's
acquisition of software, and D.V.S. Raju was the Chairman and
Managing Director of an India-based software and programming
2
company.
The two men, among others, were charged with a
conspiracy involving the fraudulent awarding of software
contracts, as well as embezzlement, theft, and other offenses
related to the conspiracy.
The indictment states that the
conspirators wired approximately $6 million of New York City's
funds to D.V.S. Raju on the basis of fraudulent invoices.
[Id. ¶
13h.]
D.V.S. Raju was subsequently dismissed from the indictment
by the federal prosecutors, and Plaintiff entered a guilty plea.
Plaintiff maintains that Raju's dismissal from the case is
suspicious, and wants to learn about the circumstances
surrounding it.1
Plaintiff filed a request pursuant to 5 U.S.C.
§ 552,2 requesting the following documents:
a. All documents, papers pertaining to Mr.
D.V.S. Raju, co-defendant in the criminal case
of U.S. v. Venkataram, Case # 06-CR-102(RPP).
b. All justifications, explanations regarding
1
Plaintiff alleges in his present Complaint that "Federal
Court records show that the $6.2 million [wired to Raju] was
invested in an International Shipping Port," (Compl. ¶ 16) but it
is not clear whether Plaintiff believes that Raju was dismissed
from the criminal case in return for Raju investing the stolen
money in some way favorable to the United States, or whether he
includes this allegation for some other reason.
2
The statute provides with some exceptions that "[e]ach
agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly
available to any person." 5 U.S.C. § 552(a)(3)(A).
3
the Nolle-Prosequi given to Mr. D.V.S. Raju.
(Stearns Dec. Ex-A.)
The ostensible public interest in these
documents is learning why the Department of Justice did not seek
to recover the millions of dollars alleged to be wrongfully in
Raju's possession, and whether the decision not to prosecute Raju
was somehow improper.
The Department of Justice responded to Plaintiff's request,
informing him that it is their policy not to confirm or deny that
records concerning living third parties exist, that disclosure of
such records would violate the Privacy Act, 5 U.S.C. § 552(a),
and that the records are exempt from release under 5 U.S.C. §
552(b)(6) and (b)(7)(C).
(Stearns Decl. Ex-B.)
Plaintiff
appealed that denial using the agency's internal appeals process.
The initial decision was affirmed, relying solely on the
exceptions at 5 U.S.C. § 552(b)(6) and (b)(7)(C), which are the
exceptions pressed by Defendants on this motion.
Exception 6
applies to "personnel and medical files and similar files when
the disclosure of such information would constitute a clearly
unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6).
Exception 7(C) applies to "records or information compiled for
law enforcement purposes . . . to the extent that the production
of such law enforcement records or information . . . could
reasonably be expected to constitute an unwarranted invasion of
4
personal privacy."
5 U.S.C. § 552(b)(7)(C).3
In the present suit, Plaintiff argues that Exceptions 6 and
7(C) do not apply to the records he seeks, because he does not
seek "personnel" records, and because the information he seeks
could not reasonably be expected to constitute an unwarranted
invasion of personal privacy.
Defendants argue that any
responsive document would necessarily damage Mr. Raju's privacy
for unwarranted reasons, and therefore that Plaintiff's entire
request may be categorically denied.
III.
DISCUSSION
A.
Standard of Review
Under the provisions of 5 U.S.C. § 552, this Court has
jurisdiction to perform its own review of Plaintiff's request for
information and to determine whether the claimed exceptions
apply.
5 U.S.C. § 552(a)(4)(B).
The Court is empowered to
enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from the
complainant.
Id.
The district court reviews all agency
exemptions based on its own review, without deference to the
agency's decision.
Id.
The burden is on the agency to justify
its decision to withhold the requested material.
3
Id.
The agency
Defendants assert no other exception or privilege related
to the documents, including Exception 5, which applies to
attorney work-product, among other things.
5
may meet this burden by filing affidavits describing the material
withheld and detailing why it fits within the claimed exemption.
McDonnell v. United States, 4 F.3d 1227, 1241 (3d Cir. 1993)
(citing King v. Department of Justice, 830 F.2d 210, 217-18 (D.C.
Cir. 1987)).
Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
P. 56(a).
Fed. R. Civ.
Summary judgment will not be denied based on mere
allegations or denials in the pleadings; instead, some evidence
must be produced to support a material fact.
Fed. R. Civ. P.
56(c)(1)(A); United States v. Premises Known as 717 S. Woodward
Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993).
The
question on this motion is therefore whether Defendants have
shown that the undisputed facts show that one or more FOIA
exceptions apply to the entirety of Plaintiff's request.
B.
Proper Defendants and Scope of the Complaint
As an initial matter, "[a] plaintiff may not assert a FOIA
claim against individual federal officials."
Stone v. Defense
Investigative Service, 816 F. Supp. 782, 785 (D.D.C. 1993); see
also 5 U.S.C. § 552(a)(4)(B) (providing the Court with
jurisdiction to "enjoin the agency").
Consequently, the Court
will dismiss the Complaint as against Defendant McLeod.
6
Additionally, the Court's jurisdiction is limited to
circumstances in which an agency has withheld requested
information.
To the extent Plaintiff now seeks documents beyond
those sought in his exhausted FOIA requests, including documents
related to a civil case against Plaintiff and D.V.S. Raju, he
must first file the proper request with the agency.
Oglesby v.
U.S. Dept. of Army, 920 F.2d 57, 61 (D.C. Cir. 1990) ("Courts
have consistently confirmed that the FOIA requires exhaustion of
this appeal process before an individual may seek relief in the
courts.").
Therefore, the Court will grant Defendants summary
judgment with respect to Plaintiff's Complaint to the extent it
seeks review of the propriety of unexhausted FOIA requests,
including Plaintiff's search for records related to the civil
case against him.
C.
Categorical Exemption
Ordinarily, "when an agency seeks to withhold information,
it must provide a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a
withheld document to which they apply."
McDonnell, 4 F.3d at
1241 (quoting King, 830 F.2d at 218-19); see also Davin v. U.S.
Dept. of Justice, 60 F.3d 1043, 1060 (3d Cir. 1995) ("'[T]here
can be no question that the 7(C) balancing test must be conducted
7
with regard to each document, because the privacy interest and
the interest of the public in disclosure may vary from document
to document.
Indeed, these interests may vary from portion to
portion of an individual document.'") (quoting Lame v. U.S. Dept.
of Justice, 654 F.2d 917, 923 (3d Cir. 1981)).
In this case, however, Defendants have not compiled an index
of responsive documents to which they seek to apply these
exceptions; instead, Defendants seek to apply the exceptions to
Plaintiff's entire request.
Agencies may exempt specific kinds
of records categorically when that type of record fits "into a
genus in which the balance characteristically tips in one
direction," as the Supreme Court found to be the case with
respect to documents compiling an individual's criminal record —
so-called rap sheets.
See U.S. Dept. of Justice v. Reporters
Committee For Freedom of the Press, 489 U.S. 749 (1989).
A type
of document fits into such a genus when it will "always be true
that the damage to a private citizen's privacy interest" from
disclosure of any responsive document in the category "outweighs
the FOIA-based public value of such disclosure."
Id. at 779.
Thus, since a rap sheet necessarily contains private information
about an individual and since disclosure of a rap sheet does not
shed light on the conduct of government, rap sheets are
categorically exempt from disclosure.
Id. at 762-80.
The
question for this Court is whether Plaintiff's request seeks
8
records for which disclosure of any responsive document would
similarly damage a private citizen's privacy interests in a way
that always outweighs the public interest in disclosure.
Here, Defendants attempt to exclude from production a much
broader category of documents than any previously recognized
categorical exception under Exception 6 or 7(C).
They seek to
categorically exempt all records pertaining to a particular
individual, as well as any records containing justifications or
explanations for dismissing that individual from a criminal
action.
Defendants maintain that any responsive document would,
by the definition of the request, necessarily contain information
about Mr. Raju, and therefore all responsive documents are
categorically exempt under both Exception 6 and 7(C).
But the
mere fact that a document contains information related to a
private individual does not mean it contains private personal
information, much less that it can categorically be reasonably
expected to constitute an unwarranted invasion of personal
privacy.
See Davin, 60 F.3d at 1060 (refusing to extend per se
exemption under 7(C) to names and identifying data of non-federal
law enforcement officers, and noting that the Court previously
declined to extend the categorical rule to the names of FBI
informants and agents being disclosed in connection to a criminal
9
investigation).4
In the extreme case, suppose that the
Department of Justice had a memorandum explaining their discovery
that no such individual exists, and that the indictment was
mistaken.
This document would not be exempt from disclosure on
the basis that it revealed Raju's private information even though
it would be responsive to Plaintiff's request.
Even in more
plausible circumstances, some responsive documents may contain no
private information about D.V.S. Raju (for example, a document
stating the agency's belief that, based on the allegations in the
superseding indictment, the United States lacks jurisdiction over
D.V.S. Raju).
Indeed, even if such documents contained more
information about Raju that in the above suppositions, the
balance may not inexorably tip toward privacy; the individual in
question in this case was indicted for a serious federal crime,
as contrasted with some mere witness or person of interest who
was not charged.
There may be a heightened public interest in
learning about the government's conduct with respect to a
criminal defendant and a diminished expectation of personal
privacy residing in the accused.
4
Thus, the government's
In Landano v. U.S. Dept. of Justice, 956 F.2d 422 (3d
Cir. 1992) the Court of Appeals determined that it would not
afford the FBI a presumption that its informants were all
"confidential sources" under Exception 7(D). The Supreme Court
upheld this ruling, but found that the Court of Appeals should
have assessed whether the other circumstances of the case would
have permitted a narrower presumption about the confidentiality
of the informants relevant to that case. 508 U.S. 165 (1993).
10
justification for a categorical exclusion in this circumstance is
of less weight.5
Were it the case that an agency could exempt all documents
with information related to private individuals without any
inquiry into whether the records contained protected private
information about the individuals, and without determining
whether the private information could be redacted, the Supreme
Court's decision in Reporters Committee could have simply
observed that the claimants sought information about a particular
private individual.
Instead, the Supreme Court performed a
lengthy examination of whether the aggregation of information in
a "rap sheet" made the record one that contains private
information.6
5
As a general matter, mere unsupported suspicion of
government impropriety does not raise a sufficient public
interest to overcome an individual's privacy interest under FOIA.
See National Archives and Records Administration v. Favish, 541
U.S. 157, 173-74 (2004). However, the Court does not reach the
question of whether Plaintiff's asserted public interest in the
propriety of Mr. Raju's dismissal has adequate support to
outweigh Mr. Raju's interest in personal privacy, since the Court
does not find that responsive documents would all necessarily
contain private information about Mr. Raju. It is only when the
privacy concerns addressed by an exemption are present that the
requestor must establish a sufficient reason for the disclosure.
Id. at 171.
6
Although the Court need not reach the question because
both Exception 6 and 7(C) require a showing that the records
contain private information, it is also not clear that Defendants
may invoke 7(C) categorically in this circumstance even if all of
the responsive records necessarily contained private information.
While it is very likely that some or all of the records
maintained by the Department of Justice relating to D.V.S. Raju
11
Plaintiff's FOIA requests cannot be categorically denied on
the basis of Exception 6 or Exception 7(C), because it is quite
possible that there are responsive documents that would not
implicate either exception.
However, this does not mean that any
particular documents must be produced, if they even exist.
The
Court will therefore order the remaining Defendant to show cause
why the Court should not remand Plaintiff's original, exhausted
FOIA request to the Department of Justice so that the agency may
review it in light of this Opinion and determine what documents,
if any, must be produced for Plaintiff, with any exemption to be
claimed with specificity.
Cf. Horizons Int'l, Inc. v. Baldrige,
811 F.2d 154, 162 (3d Cir. 1987) (explaining that if the
reviewing court is not able to evaluate a challenged agency
action on the administrative record presented, the proper course
is to remand the matter to the agency for additional
investigation or explanation).7
are sufficiently related to law enforcement matters to invoke the
first prong of Exception 7(C), the Court cannot categorically
presume that all such records are law enforcement-related. See,
e.g., Abdelfattah v. U.S. Dept. of Homeland Sec., 488 F.3d 178,
186 (3d Cir. 2007) (requiring that agency do more than simply
assert the documents were "compiled for law enforcement
purposes").
7
The Court is essentially giving the Department of Justice
the opportunity to assemble and review all responsive documents,
to disclose those that are not exempt under FOIA Exceptions 6 or
7(C), and to stake out a particularized claim of exemption with
respect to each document (or part thereof) that is withheld. The
Court seeks Defendant's response to this opportunity not later
than June 17, 2011. The Court is not inviting Defendant to
12
IV.
CONCLUSION
Defendant Janice Galli McLeod is entitled to summary
judgment because 5 U.S.C. § 552 does not provide for a cause of
action against an individual government employee.
And to the
extent that the Complaint asks this Court to assess Plaintiff's
unexhausted FOIA requests, the Office of Information Policy is
entitled to summary judgment as to those requests.
However, the
Office of Information Policy is not entitled to summary judgment
with respect to the exhausted request, because Defendant has not
shown that the exceptions asserted apply categorically to the
records sought by Plaintiff, and Defendant has made no documentby-document determinations.
Because it is now clear that
Defendant must either rely on some other basis for withholding
the records, or else perform a document-by-document review of
responsive records, the Court will order Defendant to show cause
why the matter should not be remanded to it for further
determinations in light of this Opinion.
The accompanying Order will be entered.
May 25, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
reargue for the categorical exemptions which this Opinion
rejects.
13
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