Hetzler v. Record/Information Dissemination Section et al
Filing
34
DECISION AND ORDER granting in part and denying in part Defendants' motion for summary judgment 24 and granting in part and denying in part Plaintiff's motion for summary judgment 25 . (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/6/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEIDRE McKIERNAN HETZLER,
Plaintiff,
No. 07-CV-6399(MAT)
DECISION AND ORDER
-vsRECORD/INFORMATION DISSEMINATION
SECTION, FEDERAL BUREAU OF
INVESTIGATION AND DIRECTOR, OFFICE
OF INFORMATION AND PRIVACY, U.S.
DEPARTMENT OF JUSTICE,
Defendants,
I.
Introduction
This
case
arises
under
the
Freedom
of
Information
Act
(“FOIA”), 5 U.S.C. § 552, and pertains to a request made by pro se
plaintiff Déirdre McKiernan Hetzler (“Hetzler” or “Plaintiff”) for
records maintained by the Federal Bureau of Investigation (“FBI”).
After searching its records, the FBI determined that 187 pages were
responsive to Plaintiff’s request. It released 99 pages in full,
released
67
pages
in
part,
and
withheld
21
pages
in
full.
Defendants claim that the redacted information falls within one or
more categories exempting it from disclosure under FOIA.
Defendants have moved for summary judgment under Federal Rule
of
Civil
Procedure
(“F.R.C.P.”)
56
asserting
that
they
have
established that the redacted material properly is withheld under
FOIA
exemptions
protecting
classified
information
affecting
national security interests of the United States; confidential
-1-
source information; information concerning internal agency rules
and
procedures;
privacy
of
and
third
information
parties.
that
Defendants
potentially
have
affects
asserted
the
multiple
justifications for non-disclosure of some of the same items.
Plaintiff
opposed Defendants’
motion
and
cross-moved
for
summary judgment. In her Motion for Summary Judgment, Plaintiff
generally argues that Defendants applied the national security and
privacy exemptions in an over broad manner, and specifically argues
that six of the 187 pages of documents reviewed by the FBI as
responsive to her FOIA request were improperly redacted: documents
Bates-stamped McKiernan 42, 46, 50, 64, 65, and 97.1 Defendants
opposed Plaintiff’s motion and submitted a reply to Plaintiff’s
opposition to their summary judgment motion.
Finding that Defendants’ Vaughn2 index was insufficient to
determine whether Defendants had complied with the strictures of
FOIA and were entitled to summary judgment, the Court directed
Defendants to submit, for an in camera review, unredacted copies of
the 67 pages that were partially redacted, along with unredacted
1
The responsive documents, are compiled and reproduced in the form
that they were disclosed to Plaintiff as Exhibit N to the Declaration of
David M. Hardy, Esq.
2
Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (“In a large
document it is vital that the agency specify in detail which portions of
the document are disclosable and which are allegedly exempt. This could
be achieved by formulating a system of itemizing and indexing that would
correlate statements made in the Government’s refusal justification with
the actual portions of the document.”).
-2-
copies of the 21 pages that were fully withheld. The Court denied
without prejudice the parties’ competing summary judgment motions
until it had an opportunity to view the redacted documents.
On
August
23,
2012,
Defendants,
through
their
attorney,
submitted unredacted copies of 80 of the 88 pages requested by the
Court. The remaining 8 pages were deemed “Secret” by the FBI,
meaning that an individual with the appropriate security clearance
was required to transport the documents and remain with them during
the in camera review. Accordingly, on August 24, 2012, Special
Agent Joseph Testani brought the remaining eight documents for the
Court to review and then returned them to the local FBI field
office.
The matter is now fully submitted and ready for decision. For
the reasons that follow, Defendants’ Motion for Summary Judgment is
granted in part and denied in part. Plaintiff’s Cross-Motion for
Summary Judgment is granted in part and denied in part.
III. Discussion
A.
General Legal Principles Applicable to FOIA
FOIA provides that “each agency, upon any request for records
which (i) reasonably describes such records and (ii) is made in
accordance with published rules . . . , shall make the records
promptly
available
Consistent
with
to
this
any
person.”
statutory
5
U.S.C.
mandate,
§
federal
552(a)(3)(A).
courts
have
jurisdiction to order the production of records that an agency
-3-
improperly withholds. See 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters
Comm.
for
Freedom
of
the
Press,
489
U.S.
749,
755
(1989)
(“Reporters Comm.”). “Unlike the review of other agency action that
must be
upheld
if
supported by substantial
evidence
and
not
arbitrary and capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action’ and directs the district courts
to ‘determine the matter de novo.’” Reporters Comm., 489 U.S. at
755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times, courts must
bear in mind that FOIA mandates a ‘strong presumption in favor of
disclosure’. . . .” Nat’l Ass’n of Home Builders v. Norton, 309
F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S.
Dep’t of State v. Ray,
502 U.S. 164, 173 (1991)).
B.
To
“beyond
Adequacy of the FBI’s Search
obtain
summary
material
judgment,
doubt”
that
Defendants
they
have
must
demonstrate
“conducted
a
search
reasonably calculated to uncover all relevant documents.” Morley v.
CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. DOJ,
705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal quotation mark
omitted) (alteration in original)). “[A]ffidavits that explain in
reasonable detail the scope and method of the search conducted by
the
agency
will
suffice
to
demonstrate
compliance
with
the
obligations imposed by FOIA.” Meeropol v. Meese, 790 F.2d 942, 952
(D.C. Cir. 1986) (quotation omitted).
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David M. Hardy, Esq., Section Chief of the Record/Information
Dissemination
Section
(“RIDS”),
Investigation
(“FBI”),
submitted
of
a
the
Federal
declaration
in
Bureau
of
support
of
Defendants’ motion for summary judgment explains in detail the
multiple searches conducted in order to locate documents responsive
to Plaintiff’s request. See Declaration of David M. Hardy, Esq.
(“Hardy Decl.”) at 3-11. In her motion for summary judgment,
Plaintiff has not challenged the adequacy of Defendants’ search.
Moreover, there is no suggestion that Defendants acted in bad faith
in conducting the search. See Ground Saucer Watch, Inc. v. CIA, 692
F.2d 770, 771 (D.C. Cir. 1981) (citations omitted). Therefore, the
Court will grant Defendants’ motion for summary judgment on the
adequacy-of-search issue. See Judicial Watch, Inc. v. U.S. Dep’t of
Defense, Civil Action No. 11–890 (JEB), ___ F. Supp.2d ___, 2012 WL
1438688, at *7 (D. D.C. Apr. 26, 2012).
C.
The Propriety of the FBI’s Withholdings
Congress exempted nine categories of documents from FOIA’s
expansive scope. “[T]he statutory exemptions, which are exclusive,
are to be ‘narrowly construed[.]’” Norton, 309 F.3d at 32 (quoting
Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). The
government has the burden of showing that any withheld documents
fall within an exemption to FOIA. Carney v. U.S. Dep’t of Justice,
19 F.3d 807, 812 (2d Cir. 1994) (citing 5 U.S.C. § 552(a)(4)(B);
EPA
v.
Mink,
410
U.S.
73,
79
-5-
(1973)).
“‘[C]onclusory
and
generalized
allegations
of
exemptions’
are
unacceptable[.]”
Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec.
Agency, 610 F.2d 824, 830 (D.C. Cir. 1979) (quoting Vaughn, 484
F.2d at 826).
The FBI here relies on Exemptions 1, 2, 6, and 7. See
generally
Morley,
exemptions).
508
Exemption
F.3d
1
at
1123,
applies
to
et
seq.
(discussing
materials
that
are
“specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or
foreign policy and . . . are in fact properly classified pursuant
to
such Executive
order.”
5
U.S.C. §
552(b)(1).
Exemption
2
protects from disclosure records that are “related solely to the
internal personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2). Under Exemption 6, a federal agency may withhold
“personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). Exemption 7 protects records
compiled for law enforcement purposes but only to the extent that
disclosure of such records would cause one of six statutorilyenumerated harms. 5 U.S.C. § 552(b)(7); see also FBI v. Abramson,
456 U.S. 615, 622 (1982).
Defendants
have
further
segregated
the
redacted
material
according to various categories within each exemption. See Hardy
Decl. at 12-14, ¶¶ 32-33. The documents that contain redactions
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contain, on their face, coded categories detailing the nature of
the information withheld. See id. Attached as Appendix 1 to this
Decision and Order is a table summarizing the exemption categories
and the pages on which the exemption categories) are applied. This
table
is
based
on
the
“Summary
of
Justification
Categories”
contained in the Hardy Declaration.
1.
Exemption
Security
1:
Information
Pertinent
to
National
An agency may invoke Exemption 1, see 5 U.S.C. § 552(b)(1),
“only if it complies with classification procedures established by
the relevant executive order and withholds only such material as
conforms to the order’s substantive criteria for classification.”
King v. DOJ, 830 F.2d 210, 214 (D.C. Cir. 1987). The Executive
Order (“EO”) applicable in this case is EO 13526, which “prescribes
a uniform system for classifying, safeguarding, and declassifying
national security information.” Exec. Order No. 13526, 75 Fed. Reg.
707, 707, 2009 WL 6066989 (Pres. Exec. Order Dec. 29, 2009). In
order for information to be properly classified, and thus properly
withheld from disclosure pursuant to Exemption 1, it must meet the
requirements set forth in E.O. 13526, § 1.1(a):
(l) an original classification authority is classifying
the information;
(2) the information is owned by, produced by or for, or
is under the control of the United States Government;
(3) the information falls within one or more of the
categories of information listed in § 1.4 of this order;
and
-7-
(4) the original classification authority determines that
the unauthorized disclosure of the information reasonably
could be expected to result in damage to the national
security, which includes defense against transnational
terrorism, and the original classification authority is
able to identify or describe the damage.
E.O. 13526, § 1.1(a)(1)-(4), 2009 WL 6066989. Section 6.1(cc) of
E.O. l3526 defines “[n]ational [s]ecurity” as “the national defense
or foreign relations of the United States.” E.O. 13526, § 6.1(cc),
2009 WL 6066989.
In addition to these substantive requirements, E.O. 13526
contains certain procedural and administrative requirements that
must be
properly
observed
before information
classified.
FOIA
requires
can
be
that
considered
“[a]ny
to
be
reasonably
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt.” 5 U.S.C. § 552(b).
Hardy, who is an “original classification authority,” avers
that he followed the requisite procedures and “determined that this
classified information continues to warrant classification at the
‘Secret’ or ‘Confidential’ level, and is exempt from disclosure
pursuant to E.O. 13526, §3.3, categories (b)(l) and (b)(6).” Hardy
Decl. at 17, ¶ 38. Executive Order 13526, §3.3(b)(l) exempts from
automatic
declassification
certain
intelligence
activities,
including special activities, that may reveal information about the
application of intelligence sources and methods. The FBI here
withheld information pursuant to E.O. 13526, §3.3 (b)(l) where it
-8-
found that the information (1)
contained file numbers assigned to
a specific intelligence activity or method; (2) contained standard
FBI terminology or phraseology appearing in the most recent FBI
investigations;
(3)
described
the
character
of
the
case
by
identifying the specific type of intelligence activity directed at
a specific target and the identity of the target of national
security
interest;
counterintelligence
(4)
identified
investigation;
and
targets
(5)
of
foreign
protected
an
intelligence source. Hardy Decl. at 18, ¶ 42. Hardy contends that
“[t]he unauthorized disclosure of the information could reasonably
be expected to cause serious damage to the national security.”
Hardy Decl. at 17, ¶ 38. Hardy avers that no additional reasonably
segregable portions could be declassified and released. Hardy Decl.
at 16-17, ¶¶ 37-37 & n.10; see also id., Ex. N. After personally
reviewing the responsive documents, Hardy
Plaintiff argues that Defendants have mistakenly asserted the
national security exemption as to information concerning, inter
alia, the method of investigation and character of the case. noting
that “for purposes of historical accuracy” in the biography of
Dr. McKiernan she is writing, “it is essential to know of what
crime Dr. McKiernan was suspected, if any, and, in particular,
whether the [Federal] Bureau [of Investigation] suspected him of
IRA membership and if it has any proof.” Plaintiff’s Response to
Defendants’ Motion for Summary Judgment (“Pl. Resp.”) at 2, ¶ 2.
-9-
Plaintiff
contends
that
because
the
investigation
into
Dr. McKierance is decades-old, the information gleaned “cannot be
that current or useful, nor can any related security threat any
longer exist.” Pl. Resp. at 4, ¶¶ 3-4.
Plaintiff also asserts that for the purpose of historical
accuracy, “it is essential to know whether the foreign country (or
an
agency
thereof)
requesting
information/surveillance
was
England/Great Britain (or another country), since they later sought
[Dr. McKiernan’s] assistance regarding a Northern Ireland peace.”
Pl. Resp. at 3, ¶ 2. Plaintiff states that she does “not need the
exact source of the foreign intelligence (e.g.[,] England’s MI5),
but the fact and identit [sic] of the country are critical to” the
biography. Id. (emphasis in original).
2.
Documents Fully Withheld Under Exemption 1
Exemption 1 has been asserted to withhold fully McKiernan
96-97 and 159-162. With regard to McKiernan 96-97, Defendants have
asserted
Exemption
(b)(1)-1
to
protect
the
following:
an
intelligence method used for gathering data, the character of the
case, and intelligence source information. See Hardy Decl. at 18
n.11; id. at 22 n.14; id. at 23 n.16. On McKiernan 96, Exemption
(b)(1)-1 also has been asserted to protect standard FBI terminology
and phraseology.
-10-
a.
McKiernan 96-97
McKiernan 96-97 is a two-page FBI field memorandum concerning
that agency’s investigation of Dr. McKiernan’s activities and
associations. All of the information therein was declassified
decades ago apart from several lines, highlighted in red, which
remain
classified.
That
a
document
has
been
declassified
or
unclassified does not necessarily preempt the government agency
from asserting the national security exemption. See ACLU v. U.S.
Dep’t of Justice, 321 F. Supp.2d 24, 35 (D. D.C. 2004) (“[T]he
issue now before the Court is whether the Attorney General’s
September 2003 decision to declassify the number of section 215
applications granted by the FISA court means that the information
that plaintiffs seek can no longer be withheld under Exemption 1.
While the resolution of this issue is hardly free from doubt, the
Court will uphold the government’s claim of exemption because it is
mindful of the ‘long-recognized deference to the executive on
national security issues,’ and the need to accord ‘substantial
weight’ to an agency’s affidavit attesting to the classified status
of documents implicating security issues.”) (quoting Ctr. for Nat’l
Security Studies v. DOJ, 331 F.3d 918, 927-28 (D.C. Cir. 2003)
(further quotation omitted)).
After reviewing the documents in camera, the Court surmises
that the information in which Plaintiff is interested on McKiernan
96-97 are the observations made by the FBI regarding Dr. McKiernan.
-11-
It would appear that this information falls within the “character
of the case” category and/or the “intelligence method” category.
(Defendants have not specifically identified which portions of the
documents are protected by which aspect of exemption category
(b)(1)).
Hardy asserts in general terms that “disclosure of this
specific information could reasonably be expected to cause serious
damage
to
particular
the
national
intelligence
security
or
as
it
would
counterintelligence
(a)
disclose
a
investigation;
(b) disclose the nature, scope or thrust of the investigation and
(c) reveal
the
manner
of
acquisition
of
the
intelligence
or
counterintelligence information.” Hardy Decl. at 22, ¶ 46. The
Court is not persuaded that Defendants have carried their burden of
showing that disclosure of this information could cause serious
damage to national security in light of (1) the age of McKiernan
96-97; (2) the fact that the investigation has been closed for some
time and the subject of the investigation (Dr. McKiernan) is
deceased; and (3) the fact that the PIRA,3 with which Dr. McKiernan
3
The Irish Republican Army (“IRA”), formed in 1969 as the clandestine
armed wing of the political movement Sinn Fein, is also known as the
Provisional Irish Republican Army (“PIRA”) or “the Provos”. This
appellation is intended to distinguish it from two, more radical,
splinter groups–the Continuity IRA (“CIRA”), formed in 1995; and the Real
IRA (“RIRA”), formed in 1997. See Chapter 6 (“Terrorist Organizations”),
in Country Reports on Terrorism, Office of the Coordinator for Counter
terrorism, available at http://www.state.gov/j/ct/rls/crt/2006/82738.htm
(last accessed Aug. 29, 2012). The IRA, or PIRA, conducted attacks until
the 1997 cease-fire. Id. It agreed to disarm as part of the 1998 Belfast
Agreement, which established the basis for peace in Northern Ireland.
-12-
was believed to sympathize, is not on the Department of State’s
Foreign
Terrorist
Organization
(“FTO”)
list
as
a
group
that
currently poses a threat to the United States or its interests.
Therefore, the Court denies summary judgment as to Defendants’
invocation of exemption category (b)(1) as to the declassified
information on McKiernan 96-97 that relates to the FBI’s findings
and observations regarding Dr. McKiernan. The Court grants summary
judgment to Defendants with regard to (1) the information on
McKiernan
96-97
that
remains
classified;
(2)
any
standard
terminology or phraseology that appears on McKiernan 96; and
(3) any intelligence source information that appears on McKiernan
96-97.
Defendants
are
directed
to
re-process
McKiernan
96-97
accordingly and re-release those pages to Plaintiff.
b.
McKiernan 159-160
McKiernan 159-160 comprise a two-page list of confidential
sources, including their names and code numbers. As Plaintiff has
waived
any
confidential
request
sources,
for
the
the
identities
Court
grants
or
code
summary
numbers
of
judgment
to
Defendants with regard to their withholding of McKiernan 159-160
under exemption category (b)(1).
Dissension within the IRA/PIRA over support for the peace process
resulted in the formation of the CIRA and the RIRA. Id.
-13-
c.
McKiernan 161-162
McKiernan 161 is a 1977 letter from a foreign government
representative to a Legal Attache in the American Embassy enclosing
a list of individuals (McKieran 162) who are described as known
PIRA sympathizers. Dr. McKiernan is identified on McKiernan 162.
McKiernan 161-162 were declassified in 1988. On McKieran 161-162,
the
FBI
has
asserted
exemption
category
(b)(1)
to
protect
information regarding an intelligence method used for gathering
data,
the
character
counterintelligence,
of
the
case,
intelligence
the
targets
source
of
foreign
information,
and
information pertaining to foreign relations or foreign activities.
With regard to information concerning the foreign intelligence
source, and information pertaining to foreign relations or foreign
activities, the Court concludes that Defendants have met their
burden
of
exemption
establishing
category
that
withholding
(b)(1)-1
as
is
disclosure
warranted
could
under
discourage
potential intelligence sources from cooperating with the FBI for
fear that their identities would be publicly revealed. With regard
to
the
information
concerning
foreign
relations
or
foreign
activities (i.e., the identity of the addressee, the sender, and
the
government
of
which
the
sender
was
a
representative),
Defendants have met their burden under exemption category (b)(1)-1
because
it
information
is
reasonable
could
to
demonstrably
conclude
impair
-14-
that
release
relations
of
between
this
the
United States and a foreign government by compromising cooperative
foreign sources and curtailing the flow of information from these
sources. It is not a question of whether the Court agrees with
Defendants’ assessment of the risk, but rather, “whether on the
whole record the Agency’s judgment objectively survives the test of
reasonableness, good faith, specificity, and plausibility in this
field of foreign intelligence in which the [Agency] is expert and
given by Congress a special role.” Gardels v. CIA, 689 F.2d 1100,
1105 (D.C. Cir. 1982). As to these redactions on McKiernan 161-162,
Hardy’s declaration satisfies this standard.
Plaintiff asserts that she needs to know whether the foreign
government who provided information regarding her father was Great
Britain because, she states, Great Britain later sought his help in
connection with the peace accord. Plaintiff does not provide any
further explanation as to why the identity of the country whose
representative compiled and sent McKiernan 161-162 is “critical” to
the biography Plaintiff is writing. This conclusory statement does
not provide a basis for the Court to reject Defendants’ arguments,
which need only be “plausible” and “logical”, ACLU v. DOD, 628 F.3d
612, 624 (D.C. Cir. 2011) (citing Wolf v. CIA, 473 F.3d 370, 374-75
(D.C. Cir. 2007)).
With regard to the alleged intelligence methods on McKiernan
161-162,
the
Court
concludes,
for
the
reasons
discussed
in
connection with McKiernan 96-97, that redaction is not justified
-15-
under exemption category (b)(1)-1. That is, Defendants have not
carried their burden of showing that disclosure of this information
reasonably
could
be
expected
to
cause
serious
damage
to
the
national security. Summary judgment is therefore denied as to
Defendants’ use of exemption category (b)(1)-1 to justify the
withholding of the text in the body of letter (McKiernan 161) and
Dr. McKiernan’s name on McKiernan 162.
Summary
judgment
is
granted
with
regard
to
Defendants’
invocation of Exemption (b)(1) to justify the withholding of the
names of the individuals besides Dr. McKiernan listed on McKiernan
162
on
the
basis
that
they
are
or
were
targets
of
foreign
counterintelligence.
d.
McKiernan
McKiernan 178-179
178-179
contain
information
concerning
the
identities and other personal information of various FBI informants
in New York, along with the names of their contacting agents.
Defendants have asserted exemption category (b)(1)-1 to withhold
some of the informants’ names on McKiernan 178-179, while other
names
and
identifying
information
have
been
protected
under
Exemptions 2, 6, or 7, or a combination thereof. Because Plaintiff
has waived any request for identifying information concerning
confidential
informants,
summary
-16-
judgment
is
granted
as
to
Defendants’ use of exemption category (b)(1) on McKiernan 178-179.4
2.
Exemption
Exemption 2: Information Related Solely
Internal Rules and Practices of an Agency
2 exempts
from
disclosure
information
to
the
“related
solely to the internal personnel rules and practices of an agency.”
8 U.S.C. § 552(b)(2). In the context of the documents here at
issue, the FBI has asserted Exemption 2 in two categories: The
first is exemption category (b)(2)-1, which has been asserted to
“protect informant file numbers of permanent confidential symbol
number sources of the FBI.” Hardy Decl. at 27, ¶ 56. These
confidential source file numbers are assigned in sequential order
to confidential informants who report information to the FBI on a
regular basis, pursuant to an express assurance of confidentiality.
Id.
The second is exemption category (b)(2)-2, which has been
asserted to protect the permanent source symbol numbers of FBI
sources. Id. at 28, ¶ 59. Again, these FBI sources provided
information under an express assurance of confidentiality.
Plaintiff has “stipulate[d] that she is not interested in file
numbers or source symbols, e.g. (b)(2)-1, (b)(2)-2, (b)(7)(D)-2,
(b)(7)(D)-3. . . .” Pl. Resp. at 5, ¶ 4. Therefore, summary
judgment is granted as to Defendants’ redaction of confidential
source file numbers pursuant to exemption category (b)(2)-1 on
4
As discussed further below, the Court likewise grants summary
judgment to Defendants with regard to its reliance Exemptions 2, 6, and
7 in connection with McKiernan 178-179.
-17-
McKiernan
179.
Summary
judgment
likewise
is
granted
as
to
Defendants’ redaction of permanent source symbol numbers of FBI
sources pursuant to exemption category (b)(2)-2 on McKiernan 53-56,
59, 66, 67-67, 70, 74-77, 82, 97, 164, and 178-179.
3.
Exemptions 6 and 7(C): Privacy Interests
FOIA Exemptions 6 and 7(C) protect against disclosures that
implicate
personal
privacy
interests.
United
States
Dept.
of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
755-56 (1989) (“Reporters Comm.”). Exemption 6 shields “personnel
and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). Exemption 7(C) allows non-disclosure of
“investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would . . .
constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). Thus, although similar, Exemptions 6 and 7(C) are
not coextensive. Beck v. Department of Justice, 997 F.2d 1489, 1492
(D.C. Cir. 1993). The Supreme Court has explained that
[e]xemption 7(C)’s privacy language is broader than the
comparable language in Exemption 6 in two respects.
First, whereas Exemption 6 requires that the invasion of
privacy be “clearly unwarranted,” the adverb “clearly” is
omitted from Exemption 7(C). . . . Second, whereas
Exemption 6 refers to disclosures that “would constitute”
an invasion of privacy, Exemption 7(C) encompasses any
disclosure that “could reasonably be expected to
constitute” such an invasion.
-18-
Reporters Comm., 489 U.S. at 756 (footnotes omitted). See also
Schoenman v. Federal Bureau of Investigation, 576 F. Supp.2d 3,
(D. D.C. 2008) (“Exemption 6’s stronger language ‘tilt[s] the
balance (of disclosure interests against privacy interests) in
favor of disclosure,’ and creates a ‘heavy burden’ for an agency
invoking Exemption 6.”) (quoting Morley v. Central Intelligence
Agency, 508 F.3d 1108, 1128 (D.C. Cir. 2007)).
There are six categories under both Exemptions 6 and 7(C)
claimed
by
Defendants
to
protect
names
and/or
identifying
information of various categories of individuals. The exemption
categories are as follows: (b)(6)-1 and (b)(7)(C)-1 (FBI special
agents and FBI support personnel); (b)(6)-2 and (b)(7)(C)-2 (third
parties of investigative interest); (b)(6)-3 and (b)(7)(C)-3 (third
parties
who
provided
information
to
the
FBI);
(b)(6)-4
and
(b)(7)(C)-4 (third parties merely mentioned in FBI documents);
(b)(6)-5
and
personnel);
(b)(7)(C)-5
and
(b)(6)-6
(state
and
or
local
(b)(7)(C)-6
law
enforcement
(federal
government
personnel not affiliated with the FBI). See, e.g., Hardy Decl. at
13-14.
a.
McKiernan 42
Plaintiff has raised arguments in opposition to Defendants’
invocation of (b)(6)-3, (b)(6)-4, (b)(7)(C)-3, and (b)(7)(C)-4 on
McKiernan
42.
Plaintiff
states
-19-
that
she
seeks
“clarity
of
allegations about the source of mail (ibid. pp. 42, 50)5[.]” Pl.
Resp. at 1 (Preliminary Remarks). The Court is unclear as to the
nature of Plaintiff’s request. The Court has reviewed an unredacted
copy of McKiernan 42, and there are no “sources of mail” listed
thereon. That document summarizes FBI interviews with several mail
carriers, but it does not identify the names of any individuals who
sent mail to Dr. McKiernan. Therefore, it does not appear that
there is information responsive to Plaintiff’s request on McKiernan
42, and the Court finds that she has not made a sufficient showing
to overcome the named individuals’ privacy interests. Summary
judgment is granted as to Exemptions (b)(6)-3, (b)(6)-4, (b)(7)(C)3, and (b)(7)(C)-4 on McKiernan 42.
b.
McKiernan 46
Plaintiff has raised arguments in opposition to Defendants’
invocation of (b)(6)-1, (b)(6)-3, (b)(6)-4, (b)(7)(C)-1, (b)(7)(C)3, and (b)(7)(C)-4 on McKiernan 46. Plaintiff states that she seeks
“the contents of the mail covers placed, especially the foreign
letter (cf. McKiernan pp 46, 50)6[.]” Pl. Resp. at 1 (Preliminary
Remarks). The first three names redacted on McKiernan 46 pertain to
5
With
categories
categories
applied to
regard to McKiernan 50, Defendants have invoked exemption
(b)(7)(D)-1 and -4, as discussed further below. Exemption
(b)(6)-3, (b)(6)-4, (b)(7)(C)-3, and (b)(7)(C)-4 were not
McKiernan 50.
6
McKiernan 50 does not contain information pertinent to mail covers
placed on Dr. McKiernan.
-20-
the mail cover placed by the FBI on one Harry Short. Plaintiff
states that
the
redactions
concerning
Harry Short are
of
no
interest to her and do not pertain to her FOIA request. The last
name redacted
on
McKiernan 46
is
an
individual
who
provided
information to the FBI. This individual has nothing to do with any
planned mail cover on Dr. McKiernan and therefore the Court assumes
that this individual’s name is not of interest to Plaintiff.
Although McKiernan 46 indicates that a mail cover is to be
placed
on
Dr.
McKiernan,
no
mail
cover
had
been
placed
on
Dr. McKiernan at the time that McKiernan 46 was created. Thus,
there is no redacted information on McKiernan 46 that is responsive
to Plaintiff’s request for the “contents of the mail covers” placed
on her father.
Summary judgment accordingly is granted as to Defendants’
invocation of (b)(6)-1, (b)(6)-3, (b)(6)-4, (b)(7)(C)-1, (b)(7)(C)3, and (b)(7)(C)-4 on McKiernan 46.
c.
McKiernan 64-66
Plaintiff has raised arguments in opposition to Defendants’
invocation of (b)(6)-4 and (b)(7)(C)-4 only with regard to the
clergy members that she states are mentioned on McKiernan 64-66.
See Pl. Resp. at 4, ¶ 1. With regard to McKiernan 64, Plaintiff
informed Defendants that she believed the name of the individual
redacted thereon was Monsignor John P. Monaghan. Plaintiff and
Defendants independently have confirmed that Monaghan died in the
-21-
1970s. Finding that its initial privacy concerns were no longer
applicable, the FBI re-processed and released McKiernan 64 to
Plaintiff. See Defendants’ Corrected Memorandum in Response to
Plaintiff’s Motion for Summary Judgment (“Defs’ Corrected Mem.”) at
5 & Ex. 2.
There
is
another
clergy
member
listed
on
McKiernan
64.
According to statements by Dr. McKiernan recorded in McKiernan 64,
this
individual
was
the
pastor
of
his
church,
Our
Lady
of
Assumption in New York City, in the time frame of the late 1930s
and early 1940s. This individual falls into the category of someone
who was “merely mentioned” in the FBI document at issue. The Court
cannot see what possible stigma could inure to this person if his
identity were released. In addition, there is a high probability
that this individual is already dead. Accordingly, the Court denies
summary judgment as to exemption categories (b)(6)-4 and (b)(7)(C)4 on McKiernan 64 and directs Defendants to release a fully
unredacted copy of this document to Plaintiff.
With regard to McKiernan 65, there is one clergy member
mentioned on that page–Monaghan. Defendants are directed to reprocess McKiernan 65 by unredacting Monaghan’s name. McKiernan 65
then shall be re-released to Plaintiff.
The other two names redacted on McKiernan 65 are that of an
individual
who
ran
a
local
draft
board
and
processed
Dr. McKiernan’s Selective Service file and that of a personnel
-22-
manager at R.H. Macy’s Company, where Dr. McKiernan worked for a
time.
Neither
of
these
individuals
are
clergy
members,
and
Plaintiff has not requested their names. Summary judgment as to
Exemptions (b)(6)-4 and (b)(7)(C)-4 on McKiernan 65 is granted, in
light of Plaintiff’s failure to request the names of non-clergy
members.
On McKiernan 66, there are no clergy members mentioned. The
names redacted on McKiernan 66 are those of two of Dr. McKiernan’s
co-workers
R.H.
Macy’s
Company
in
1921,
and
those
of
two
confidential informants. As noted above, Plaintiff has waived any
demand for identifying information as to confidential informants.
The
only
remaining
names
on
McKiernan
65
are
non-clergy
members–that is, the former co-workers. In light of Plaintiff’s
failure
to
request
the
names
of
non-clergy
members,
summary
judgment as to Exemptions (b)(6)-4 and (b)(7)(C)-4 on McKiernan 65
is granted.
Plaintiff
has
not
challenged
Defendants’
invocation
of
Exemptions (b)(6)-1 and (b)(7)(C)-1; (b)(6)-2 and (b)(7)(C)-2;
(b)(6)-3 and (b)(7)(C)-3; (b)(6)-4 and (b)(7)(C)-4; (b)(6)-5 and
(b)(7)(C)-5; and (b)(6)-6 and (b)(7)(C)-6 on any other pages apart
from McKiernan 42 and McKiernan 64-66. It appears to this Court
that Defendants applied these subexemptions appropriately on the
remaining
pages
of
the
McKiernan
documents
where
they
were
asserted, e.g., McKiernan 98-116. Summary judgment is therefore
-23-
granted as to the (b)(6) and (b)(7)(C) exemption categories except
as otherwise stated in this Decision and Order, supra.
4.
Exemption 7(D): Confidential Source Information
Exemption 7(D) authorizes the government to withhold law
enforcement investigatory records if production thereof
could reasonably be expected to disclose the identity of
a confidential source, including a State, local, or
foreign agency or authority or any private institution
which furnished information on a confidential basis, and,
in the case of a record or information compiled by
criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a
lawful national security intelligence investigation,
information furnished by a confidential source. . . .
5
U.S.C.
§
552(b)(7)(D).
“The
mere
fact
that
a
person
or
institution provides information to a law enforcement agency does
not render that person a ‘confidential source’ within the meaning
of exemption 7(D).” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20,
34 (D.C. Cir. 1998) (citing U.S. Dep’t of Justice v. Landano, 508
U.S. 165, 178 (1993)). Rather, this exemption applies only when
“the
particular
source
spoke
with
an
understanding
that
the
communication would remain confidential.” Landano, 508 U.S. at 178.
“Such understandings are reasonable when the law enforcement agency
receiving
information
provides
either
an
express
or
implied
assurance of confidentiality.” Campbell, 164 F.3d at 34 (citation
omitted).
Defendants here have redacted names and identifying data for
individuals who provided information under an express assurance of
-24-
confidentiality,
as
well
as
the
information
they
provided
((b)(7)(D)-1); confidential source file numbers ((b)(7)(D)-2);
confidential source symbol numbers ((b)(7)(D)-3); and identifying
data for foreign authorities and the names of their employing
agencies as well as the information they provided ((b)(7)(D)-4).
a.
Exemption category (b)(7)(D)-1
Defendants asserted exemption category (b)(7)(D)-1 (protecting
names of, and information provided by, individuals operating under
an express assurance of confidentiality) on McKiernan 49-51, 54-55,
79, 92, 97-116, 159, 161, 168, and 177-170. Plaintiff states that
she has “waived any request for informants’ names.” Pl. Resp. at 5,
¶ 4. Summary judgment accordingly is granted as to Defendants’ use
of
exemption
category
(b)(7)(D)-1
to
redact
the
names
of
confidential informants on these pages.
In addition to the individual informants’ names,(b)(7)(D)-1
covers the information that they supplied to the FBI. See Wilkinson
v. Federal Bureau of Investigation, 633 F. Supp. 336, 347 (C.D.
Cal. 1986) (“[Exemption 7(D)] does not entitle the government to
make blanket redactions upon this basis. Only the [confidential]
source’s name and that information with a realistic likelihood of
disclosing the source’s identity may be redacted.”).
Construing
Plaintiff’s
pro
se
papers
broadly,
as
it
is
required to do under the law, see Burgos v. Hopkins, 14 F .3d 787,
790 (2d Cir. 1994), the Court has interpreted them as arguing that
-25-
(b)(7)(D)-1 has been asserted in an over broad manner to redact
information supplied by a confidential source on various pages. The
Court considers the documents in turn below.
1.
McKiernan 49-51
Plaintiff specifically contests Defendants’ redactions on
McKiernan 50 which, she contends, contains information about the
contents
of
mail
covers
placed
on
her
father.
Contrary
to
Plaintiff’s contention, there is no information concerning mail
covers on McKieran 50.
McKiernan 50 is an internal FBI memorandum from February 1942,
summarizing information received from a foreign source. McKiernan
49 and 51 are closely related and must be considered in tandem with
McKiernan 50. McKiernan 51 appears to be the same information that
is summarized in McKiernan 50. McKiernan 49 identifies the name of
the
strictly
confidential
foreign
source
who
provided
the
information. Exemption category (b)(7)(D)-1 was properly applied on
McKiernan 49-51 to redact the name of the person denominated as a
“strictly
confidential
foreign
source”
on
the
face
of
the
documents. See Campbell, 164 F.3d at 34 (“To withhold information
under Exemption 7(D) by express assurances of confidentiality, the
FBI must present ‘probative evidence that the source did in fact
receive an express grant of confidentiality.’ Such evidence can
take a wide variety of forms, including notations on the face of a
withheld document, the personal knowledge of an official familiar
-26-
with the source, a statement by the source, or contemporaneous
documents discussing practices or policies for dealing with the
source
or
similarly
situated
sources.”)
(internal
quotation
omitted; other citations omitted).
Exemption category (b)(7)(D)-1 has been asserted on all three
documents to protect the information provided by the foreign source
as well. In light of the age of these documents, and the fact that
they have been unclassified by the FBI, the Court cannot discern in
Defendants’ moving papers a sufficient justification for redacting
the information provided by the confidential foreign source.
See
Wilkinson, 633 F. Supp. at 348 (“The FBI’s redactions also require
additional justification when they involve events contained in
20–40 year-old documents. While there may have been a danger of
identifying the informant when the events were recent, that danger
clearly fades as the documents become decades old. . . .”).
Defendants have failed to make “a specific showing of how the
remaining
information
would
identify
the
source[,]”
id.,
and
therefore the Court finds that Defendants have not fulfilled their
burden of proof, see 5 U.S.C. § 552(a)(4)(B). Accordingly, summary
judgment is denied as to Defendants’ invocation of Exemption
(b)(7)(D)-1 and (b)(7)(D)-4 to protect the substantive information
provided by the strictly confidential foreign source named on
McKiernan 50 and 51.
-27-
As noted above, Plaintiff has waived production of the names
of the confidential sources. Therefore, summary judgment is granted
as to Defendants’ invocation of (b)(7)(D)-1 to protect the name of
the strictly confidential foreign source where it appears on
McKiernan 49 and 51.
Defendants are directed to re-process McKiernan 50 and 51 to
remove the redactions with regard to the information provided by
the strictly confidential foreign source, and re-release these
documents to Plaintiff.
2.
Plaintiff
has
Other Pages On Which Defendants
Exemption Category(b)(7)(D)-1
not
specifically
contested
Assert
Defendants’
assertions of exemption category (b)(7)(D)-1 (names, identifying
data, and other information provided under an express assurance of
confidentiality) on any of the other pages on which it was asserted
by
Defendants.
Therefore,
summary
judgment
is
granted
as
to
(b)(7)(D)-1 on McKiernan 54-55, 79, 92, 97-116, 159, 161, 168, 177180.
b.
Exemption Categories (b)(7)(D)-2 and (b)(7)(D)-3
Plaintiff states that she is not interested in confidential
source file numbers (protected under (b)(7)(D)-2) or confidential
source symbol numbers (protected under (b)(7)(D)-3). It appears
from the Court’s review of the pertinent documents (McKiernan 179,
(b)(7)(D)-2, confidential source file numbers; and McKiernan 53-56,
59, 66-67, 70, 74-77, 82, 87, 164, 179, (b)(7)(D)-3, confidential
-28-
source symbol numbers), that Defendants properly utilized these
exemptions.
Accordingly,
Defendants’
use
of
summary
(b)(7)(D)-2)
judgment
and
is
granted
(b)(7)(D)-3
to
as
to
redact
confidential source file numbers and confidential source symbol
numbers on McKiernan 53-56, 59, 66-67, 70, 74-77, 82, 87, 164, and
179.
c.
Exemption Category (b)(7)(D)-4
Defendants have asserted exemption category (b)(7)(D)-4, on
McKiernan 49-51, 98-116, 159-162, 164, and 166 to “withhold the
identity of and the information provided by foreign law enforcement
authorities
to
the
FBI
under
an
‘express’
assurance
of
confidentiality.” Hardy Decl. at 44, ¶ 85. Defendants have also
asserted (b)(7)(D)-4 to “protect investigative information provided
to the FBI by foreign governments and foreign agencies with the
expectation and understanding that this confidential information
would not be disclosed outside of the FBI.” Id. at 45, ¶ 86.
1.
McKiernan 49-51
The Court has discussed McKiernan 49-51 above in this Decision
and Order in the context of Defendants’ assertion of Exemption
category (b)(7)(D)-1. There does not appear to information on
McKiernan 49-51 that is not covered under the Court’s discussion of
the redactions made pursuant to exemption category (b)(7)(D)-1.
Accordingly,
the
Court
need
not
-29-
address
the
propriety
of
Defendants’
reliance
upon
exemption
category
(b)(7)(D)-4
to
withhold information contained in McKiernan 49-51.
2.
McKiernan 98-116
These documents were withheld in their entirety. McKiernan 98
is a letter from a foreign law enforcement authority to the Legal
Attache at the American Embassy enclosing a mailing list (McKiernan
99-116) of a political group. McKiernan 98 is marked “SECRET” and
is
stamped
enforcement
with
a
notation
authority
that
by
the
the
transmitting
information
foreign
therein
“has
law
been
communicated in confidence to your agency. . . .” McKiernan 98. The
Court concludes that this is sufficient to establish that the
information was provided by the foreign law enforcment authority
under an express grant of confidentiality. See Billington v. U.S.
Dep’t of Justice, 233 F.3d 581, 585 (D.C. Cir. 2000) (“The FBI’s.
. . declaration at least avers that evidence of express assurances
exists, recorded either on the document containing the information
or
in
some
other
place.
Such
a
memorialization
made
contemporaneously with a report summarizing information received
from a confidential source certainly suffices.”) (citing Campbell,
164 F.3d at 34). Summary judgment therefore is granted as to
Defendants’ use of (b)(7)(D)-4 to fully withhold McKiernan 98-116.
3.
McKiernan 159-162
These documents were withheld in their entirety. The Court has
already discussed McKiernan 159-162 above in this Decision and
-30-
Order in context of Defendants’ assertion of Exemption (b)(1).
There does not appear to information on McKiernan 159-162 that is
not covered under the Court’s discussion of the redactions made
pursuant to Exemption (b)(1). Accordingly, the Court need not
address
the
propriety
of
Defendants’
reliance
upon
Exemption
(b)(7)(D)-4 to withhold information contained in McKiernan 159-162.
IV.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Dkt. #24) is granted in part and denied in part, and
Plaintiff’s Motion for Summary Judgment (Dkt. #25) is granted in
part and denied in part. Defendants are directed to re-process and
re-release documents to Plaintiff as specified in detail in the
Decision and Order. This re-processing and re-release of documents
shall be accomplished without delay and not later than thirty (30)
days following entry of this Decision and Order. The Clerk of the
Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
September 6, 2012
-31-
APPENDIX 1: SUMMARY OF EXEMPTION CATEGORIES
EXEMPTION
CATEGORIES
INFORMATION WITHHELD
PAGES ON WHICH EXEMPTION
APPLIED
Category(b)
(1)
Classified Material Covered Under Classification
Guidelines
(b)(1)-1
Information Properly
Classified by an FBI
Official Pursuant to
Executive Order 13526
Category(b)
(2)
Information Related Solely to the Internal Rules and
Practices of an Agency
(b)(2)-1
Confidential Source File
Number. Cited in
conjunction with
(b)(7)(D)-2
179
(b)(2)-2
Confidential Source
Symbol Number. Cited in
conjunction with
(b)(7)(D)-3
53, 54, 55, 56, 59, 66, 67,
70, 74, 75, 76, 77, 82, 97,
164, 178, 179
Categories
(b)(6) and
(b)(7)(C)
(b)(6): Clearly Unwarranted Invasion of Personal
Privacy (in medical/personnel records)
96, 97, 159, 160, 161, 162,
178
(b)(7)(C): Unwarranted Invasion of Personal Privacy
(in law enforcement records)
(b)(6)-1
Names and/or Identifying
Information of FBI
Special Agents and
Support Personnel
36, 39, 46, 53, 68, 73, 81,
83, 87, 95, 169-171, 175180, 187
(b)(7)(C)-1
Names and/or Identifying
Information of FBI
Special Agents and
Support Personnel.
36, 39, 46, 53, 68, 73, 81,
83, 87, 95, 169-171, 175180, 187
(b)(6)-2
Names and/or Identifying
Information of Third
Parties of Investigative
Interest.
8, 44, 61, 75, 77, 97, 99116, 159-162, 164-167, 169170, 176-177, 180
(b)(7)(C)-2
Names and/or Identifying
Information of Third
Parties of Investigative
Interest.
8, 44, 61, 75, 77, 97, 99116, 159-162, 164-167, 169170, 176-177, 180
-32-
(b)(6)-3
Names and/or Identifying
Information of Third
Parties who Provided
Information to FBI. May
be cited in conjunction
with (b)(7)(D)-1, and-4.
8, 20, 39, 41-44, 46-49, 5761, 63, 65-66, 74, 79, 82,
85, 92-93, 98, 161, 166,
169, 177-178
(b)(7)(C)-3
Names and/or Identifying
Information of Third
Parties who Provided
Information to FBI. May
be cited in conjunction
with (b)(7)(D)-1, and-4.
8, 20, 39, 41-44, 46-49, 5761, 63, 65-66, 74, 79, 82,
85, 92-93, 98, 161, 166,
169, 177-178
(b)(6)-4
Names and/or Identifying
Information of Third
Parties Merely Mentioned.
8, 40-46, 55, 59, 62, 64-66,
73-77, 97-116, 161-162, 167
(b)(7)(C)-4
Names and/or Identifying
Information of Third
Parties Merely Mentioned.
8, 40-46, 55, 59, 62, 64-66,
73-77, 97-116, 161-162, 167
(b)(6)-5
Names and/or Identifying
Information Concerning
State or Local Law
Enforcement Personnel.
169
(b)(7)(C)-5
Names and/or Identifying
Information Concerning
State or Local Law
Enforcement Personnel.
169
(b)(6)-6
Names and/or Identifying
Information Concerning
Non-FBI Federal
Government Personnel.
15, 117
(b)(7)(C)-6
Names and/or Identifying
Information Concerning
Non-FBI Federal
Government Personnel.
15, 117
-33-
Category
(b)(7)(D)
Confidential Source Information
(b)(7)(D)-1
Names, Identifying Data
and/or Information
Provided by Individual(s)
Under an “Express”
Assurance of
Confidentiality. May be
cited in conjunction with
(b)(6)-3 and (b)(7)(C)-3.
49-51, 54-55, 79, 92, 97116, 159, 161, 169, 177-179
(b)(7)(D)-2
Confidential Source File
Number. Cited in
conjunction with (b)(2)1.
179
(b)(7)(D)-3
Confidential Source
Symbol Number. May be
cited in conjunction with
(b)(2)-2.
53-56, 59, 66-67, 70, 74-77,
92, 97, 164, 179
(b)(7)(D)-4
Identifying Data for, and
Information Provided by
Foreign Authorities and
the Names of Their
Employing Agencies. May
be cited in conjunction
with (b)(6)-3 and
(b)(7)(C)-3.
49-51, 98-116, 159-162, 164,
166
-34-
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