VENKATARAM v. OFFICE OF INFORMATION POLICY et al

Filing 26

OPINION. Signed by Judge Jerome B. Simandle on 10/13/2011. (dmr)(n.m.) Modified on 10/14/2011 (dmr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NATARAJAN VENKATARAM,
Plaintiff,

HON. JEROME B. SIMANDLE
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
This matter is before the Court on the Defendant Office of

Information Policy's response to the Court's order to show cause
[Docket Item 23.]

In its order dated May 25, 2011, the Court

ordered Defendant Office of Information Policy to show cause in a
written submission to the Court why the remaining matter,

specifically Plaintiff Natarajan Venkataram's original exhausted
Freedom of Information Act record requests, should not be
remanded to the Department of Justice.

[Docket Item 19.]

For

the reasons discussed below, the Court finds the Defendant's
response insufficient and will remand this matter to the
Department of Justice for a more particularized analysis of the
Plaintiff Natarajan Venkataram's document requests.
II.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
The facts underlying this action were set forth in the

Court's previous opinion in this matter. [Docket Item 18.] The
instant case involves a claim under the Freedom of Information
Act, 5 U.S.C. § 552(a)(4)(B) (hereinafter "FOIA").

The Plaintiff

Natarajan Venkataram ("Plaintiff") seeks records from the Office
of Information Policy, United States Department of Justice,
pertaining to the indictment and subsequent cancellation of the
indictment of Mr. D.V.S. Raju.

Mr. Raju was a co-defendant with

the Plaintiff in a federal criminal indictment charging
embezzlement and money laundering.
The Court issued an opinion denying Defendants' motion for
summary judgment on May 25, 2011. [Docket Item 18.]

The Court

rejected the Defendants' argument that Exception 6 or 7(C) to
FOIA applied categorically to the records sought by the
Plaintiff.

The Court held that "the mere fact that a document

contains information related to a private individual does not

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mean it contains private personal information, much less that it
can categorically be reasonably expected to constitute an
unwarranted invasion of personal privacy." [Docket Item 18 at 9.]
The Court then issued an order requiring Defendant Office of
Information Policy ("Defendant") to show cause why the remaining
matter should not be remanded to the Department of Justice for
further determinations in light of the Court's opinion. [Docket
Item 19.]
The Defendant Office of Information Policy filed a response
to the Court's order to show cause on July 1, 2011. [Docket Item
23.]

The Defendant's main argument is that its response to

Plaintiff's FOIA request was consistent with DOJ regulation and
the policy of Executive Office of the United States Attorneys
("EOUSA").

EOUSA's policy provides that any person requesting

records about a third party must present either the written
authorization of the third party or proof that the third party is
deceased.

Otherwise, the request would violate the Privacy Act,

5 U.S.C. § 552(a).
The Defendant did acknowledge that there is an exception
under the Privacy Act for documents subject to disclosure under
FOIA.

However, the Defendant maintains that EOUSA's policy is

that records requested pertaining to third parties are also
categorically exempt from FOIA under exceptions (b)(6) or (7) and
therefore the Privacy Act applies.

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(Def.'s Br. at 4-5, 7-8.)

The Defendant also argues that a Glomar response neither
confirming nor denying the existence of responsive records was
necessary in this case to protect Mr. Raju from being associated
with criminal activity.

Therefore, the Defendants contend that

a remand would be improper.
The Plaintiff replied to Defendant's Response to the Court's
Order to Show Cause on July 21, 2011. [Docket Item 24.]

The

Plaintiff maintains that Defendant's response is essentially
arguing that EOUSA policy should supersede the FOIA statute.

The

Plaintiff contends that the Court should not give deference to
EOUSA's agency interpretation of FOIA and relies on Nat'l Cable &
Telecommunication Assoc. v. Brand X Internet Servs., 545 U.S. 967
(2005).
This case held that where there is a prior judicial
construction of a statute, that construction, "trumps an agency
construction otherwise entitled to Chevron deference only if
prior court decision holds that its construction follows from the
unambiguous terms of the statute and leaves no room for agency
discretion." Id. at 982.

The Plaintiff argues that United States

Dept. of Justice v. Reports Committee for Freedom of the Press,
489 U.S. 749 (1989) addressed exemptions involving third party
privacy interests under FOIA and trumps any agency interpretation
of these exemptions.
The Plaintiff also argues that the Defendant's Glomar

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response was improper.

The Plaintiff maintains that no possible

harm can attach to Mr. Raju in being associated with criminal
activity because he was formally indicted and consequently, was
in fact associated with such criminal activity.

Therefore, the

Plaintiff contends that a remand is proper.

III.

DISCUSSION
The Defendant puts forth two arguments in response to the

Court's order to show cause.

First, the Defendant argues that

EOUSA's policy supports the categorical denial of Plaintiff's
record requests.

Second, the Defendant contends that a Glomar

response was appropriate since the Plaintiff requested records
pertaining to a living third party without the third party's
consent and the requested records might associate the third party
with criminal activity.

The Court will address each of these

arguments separately.
A. EOUSA POLICY
The Defendant's argument that its response to Plaintiff's
FOIA request was consistent with DOJ regulation and the policy of
Executive Office of the United States Attorneys ("EOUSA")raises
the same argument that was rejected in the Defendant's motion to
dismiss under a different legal theory.

The Defendant still

maintains that the exemptions under (b)(6) and (b)(7) of FOIA
apply categorically to Plaintiff's claims.

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This time, however,

the Defendant argues that the requested records should be
withheld because EOUSA's policy in categorically withholding
these requested documents relies primarily on the Privacy Act,
not FOIA.
This argument is without merit.

The Privacy Act expressly

states that:
No agency shall disclose any record which is contained in
a system of records by any means of communication to any
person, or to another agency, except pursuant to a
written request by, or with the prior written consent of,
the individual to whom the record pertains, unless
disclosure of the record would be required under section
552 of this title.
5 U.S.C. § 552a(b)(2).
Act.

Section 552 is the Freedom of Information

Therefore, the Defendant is in essence arguing that the

Court give deference to EOUSA's policy interpreting the
exemptions under (b)(6) and (b)(7) of FOIA.
This argument is contrary to the plain language of the FOIA
statute which grants the court de novo review of an agency's
refusal to disclose requested records.

Importantly, the statute

provides:
On complaint, the district court of the United States in
the district in which the complainant resides, or has his
principal place of business, or in which the agency
records are situated, or in the District of Columbia, has
jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records
improperly withheld from the complainant. In such a case
the court shall determine the matter de novo, and may
examine the contents of such agency records in camera to
determine whether such records or any part thereof shall
be withheld under any of the exemptions set forth in
subsection (b) of this section, and the burden is on the
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agency to sustain its action. In addition to any other
matters to which a court accords substantial weight, a
court shall accord substantial weight to an affidavit of
an agency concerning the agency's determination as to
technical feasibility under paragraph (2)(C) and
subsection (b) and reproducibility under paragraph
(3)(B).
5 U.S.C.A. § 552(a)(4)(B).

Under the statute, the agency is

entitled to no deference with regard to whether records should be
withheld under any of the subsection(b) exemptions.

Indeed, the

agency has the burden to sustain its action of withholding the
documents.

Therefore, Defendant's argument that EOUSA's policy

of categorical non-disclosure is entitled to deference is without
merit and unsupported by the plain statutory language requiring
de novo review by the court.
B. GLOMAR RESPONSE
The Defendant also argues that its response neither
confirming nor denying the existence of documents requested by
Plaintiff's FOIA request was in accordance with The National
Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885,
894 (U.S. App. D.C. 1995).

The Defendant maintains this response

was necessary because confirmation of the documents would
associate Mr. Raju with criminal activity and denial of the
documents would allow adverse inferences to be drawn.
A response to a FOIA request which neither confirms nor
denies the existence of responsive records is referred to as a
Glomar Response.

The Glomar Response received its name from a
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case involving a FOIA request for records relating to the
underwater sea craft called the "Glomar Explorer." Phillippi v.
CIA,546 F.2d 1009 (D.C. Cir. 1976).
Exception 7(C) under FOIA allows an agency to withhold from
disclosure "investigatory records compiled for law enforcement
purposes, or information which if written would be contained in
such records, but only to the extent that the production of such
records or information would . . . constitute an unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

Under

this exemption, "a Glomar response may be issued in place of a
statement acknowledging the existence of responsive records but
withholding them, if confirming or denying the existence of the
records would associate the individual named in the request with
criminal activity." The National Magazine, 71 F.3d at 893.
In order to determine if a Glomar response is warranted, the
court must balance the private and public interests at stake.
Courts have continually held that individuals have an "obvious
privacy interest cognizable under Exemption 7(C) in keeping
secret the fact that they were subjects of a law enforcement
investigation" and this "privacy interest also extends to third
parties who may be mentioned in investigatory files, as well as
to witnesses and informants who provided information during the
course of an investigation."
894.

The National Magazine, 71 F.3d at

Individuals have a strong privacy interest in not being

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"associated unwarrantedly with alleged criminal activity."
Fizgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990).
In this case, the Defendant's argument essentially seeks to
enlarge Glomar's protection of persons' identities who may have
been investigated for criminal activity to include persons who
were actually indicted for it.

Here, the Plaintiff, pursuant to

FOIA, requested records "pertaining to Mr. D.V.S. Raju, codefendant in the criminal case of U.S. v. Venkataram, Case # 06CR-102." (Supp. Stearns Dec. Ex A. ¶1).

Mr. Raju was not merely

investigated for criminal activity; he was formally indicted for
charges of conspiracy involving the fraudulent awarding of
software contracts, as well as embezzlement, theft and other
offenses related to the conspiracy.

Disclosure of the requested

records would not associate Mr. Raju "unwarrantedly with alleged
criminal activity" because Mr. Raju is already associated with
such criminal activity by virtue of his indictment.
911 at 767.

Fizgibbon,

Indeed, it is hard to see any privacy rationale at

stake for an individual such as Mr. Raju who was actually
indicted for the criminal activity associated with the requested
documents.
It is only when the privacy concerns addressed by an
exemption are present that the requestor must establish a
sufficient reason for the disclosure. National Archives and
Records Administration v. Favish, 541 U.S. 157, 171 (2004).

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Accordingly, the Court will not address the Plaintiff's asserted
public interest in the propriety of Mr. Raju's dismissal since
the Court does not find that responsive documents would
categorically contain private information about Mr. Raju
protected under Exemption 7(C).
Therefore, the Court finds the Defendant's argument that a
Glomar response was categorically necessary is without merit.

IV.

CONCLUSION
The Defendant's response to the Court's order to show cause

continues to argue for the categorical exemptions of Plaintiff's
record requests under different legal theories. In its previous
opinion, the Court specifically instructed the Defendant that the
purpose of the Order to Show Cause was to give "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 is not inviting Defendant to reargue
for the categorical exemptions which this Opinion rejects."
[Docket Item 18 n.7 at 12-13.]
The Defendant has not complied with the mandate of this
Court's previous opinion and instead continues to argue for the
exemptions under FOIA to categorically bar Plaintiff's record

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requests.

The Defendant's arguments are insufficient and

unpersuasive.
However, nothing in this opinion should be construed as a
determination on whether the requested records should be
released.

This opinion only addresses whether Plaintiff's record

requests were categorically barred under FOIA.
Therefore, the Court will remand this matter to the
Department of Justice for a more particularized analysis of the
documents requested by the Plaintiff.

If the Plaintiff is

dissatisfied with the final decision after remand, the Plaintiff
may reopen the docket.

This Court will retain jurisdiction.

The accompanying Order will be entered.

October 13, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

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