Evans v. Legislative Affairs Division

Filing 33

ORDER adopting 29 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks, granting 21 Motion for Summary Judgment and finding as moot 3 Motion to Compel. This complaint is dismissed without prejudice. Signed by Honorable J Michelle Childs on 2/26/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Verdell Evans, Jr.,

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Plaintiff,
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v.
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Legislative Affairs Division, ATF,
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Defendant.
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___________________________________ )

Civil Action No.: 6:12-cv-00641-JMC
OPINION AND ORDER

This matter is now before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) [Dkt. No. 29] regarding two motions: 1) a Motion to Compel [Dkt.
No. 3], filed by Plaintiff Verdell Evans, Jr., (“Plaintiff”); and 2) a Motion for Summary
Judgment [Dkt. No. 21] filed by Defendant, the Legislative Affairs Division of the Bureau of
Alcohol, Tobacco and Firearms (“Defendant”). Plaintiff, a prisoner currently housed at the
Federal Correctional Institute in Estill, South Carolina, and proceeding pro se, filed a Freedom of
Information Act (“FOIA”) request pursuant to 5 U.S.C. § 552 seeking various documents related
to one Adam Bruzzese, an agent employed by the Bureau of Alcohol, Tobacco and Firearms
(“ATF”), who was involved in Plaintiff’s arrest.
Plaintiff’s Complaint [Dkt. No. 1] arises from Defendant’s decision to deny the requested
production. In his Complaint, Plaintiff states that he seeks to obtain the following information:
A. Production of written authorization for the joint task force operation regarding
Adam Bruzzese’s assistance with the Greenville Police Department (“GPD”)
as an ATF agent.
B. Production of Adam Bruzzese’s immediate reporting supervisor with the GPD
and the ATF.
C. Production of Adam Bruzzese’s written report describing his account of the
August 29, 2002, arrest of the Plaintiff (Verdell Evans).
D. Production of Adam Bruzzese’s Grand Jury testimony.
E. Production of any and all written notices as to why Adam Bruzzese was not

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present during Plaintiff’s Preliminary Hearing and his Probable Cause
Hearing when the Indictment was handed down.
Complaint [Dkt. No. 1, at 6].
On the same day he filed his Complaint [Dkt. No. 1], Plaintiff also filed a Motion to
Compel [Dkt. No. 3] seeking verification of Bruzzese’s employment with the ATF and the
release of a Vaughn Index1 pursuant to his FOIA request. Plaintiff seeks this information in an
effort to illuminate his theory that Agent Bruzzese engaged in criminal misconduct by planting
drugs on Plaintiff in an effort to force Plaintiff’s cooperation in a separate police investigation.
Plaintiff’s Freedom of Information Act Request. [Dkt. No. 1-3, at 7].
Defendant filed a Motion for Summary Judgment [Dkt. No. 21] seeking dismissal on the
ground that the information requested is exempt from disclosure.

The Magistrate Judge

subsequently issued a Report and Recommendation. [Dkt. No. 29]. The Magistrate Judge
recommends that items A and B are exempt from disclosure pursuant to 5 U.S.C § 552 (b)(7)(C)2
(“Exemption 7(C)”) because they request the identity of ATF agents. The Magistrate Judge also
determined that Defendant presented sufficient evidence that it had no responsive documents
related to items C, D, and E. As a result, the Magistrate Judge recommends that this court grant
Defendant’s Motion for Summary Judgment and deny Plaintiff’s Motion to Compel. The Report

1
“The Vaughn index is a list which describes each document withheld by an agency with
sufficiently detailed information to enable a district court to rule whether it falls within an
exemption provided by FOIA.” Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1244 (4th Cir. 1994)
2

Under FOIA, an agency must disclose agency records to any person under § 552(a) unless they
may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b). Section
552(b)(7)(C) exempts “records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or information . . . (C) could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(7)(C).
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sets forth in detail the relevant facts and legal standards on this matter, which the court
incorporates herein without a recitation.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S. C. § 636 (b)(1).
Plaintiff filed timely Objections to the Magistrate Judge’s Report and Recommendation.
[Dkt. No. 49]. Plaintiff’s objections primarily reassert the arguments made in his Complaint
[Dkt. No. 1]. However, Plaintiff now states that he wishes to withdraw the production requests
made in items A, B, D and E as enumerated in his Complaint and recited herein. He further
states that he now “only seeks confirmation from the Defendant agency, ATF, that Adam
Bruzzese was employed as an ATF agent” when he gave sworn testimony at Plaintiff’s criminal
trial on April 23, 2003.3 Objections to Report and Recommendation [Dkt. No. 31, at 2]. Given
this specific request, it is unclear whether Plaintiff still seeks production of Bruzzese’s written
report regarding Plaintiff’s arrest as described in Item C, which Plaintiff has not explicitly
withdrawn.

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In that testimony, Bruzzese stated that he was a Special Agent with ATF and had been
employed by ATF for three years. Plaintiff states that confirmation of Bruzzese’s employment
status by Defendant will be instrumental in making his case of misconduct, though it is unclear
how this particular piece of information will assist Plaintiff.
3

The Magistrate Judge recommends denying any of Plaintiff’s requests that seek the
identity of ATF agents or employees. The Magistrate Judge cites case law from this circuit
standing for the proposition that the identity of federal law enforcement officers is generally
exempt from disclosure under § 552(b)(7)(C) absent a “compelling allegation of agency
corruption or illegality.” Neely v. F.B.I., 208 F.3d 461, 464-65 (4th Cir. 2000) (recognizing that
“FBI agents, government employees” and other parties involved in an investigation “have wellrecognized and substantial privacy interests . . . in the nondisclosure of their identities and their
connection with particular investigations because of the potential for future harassment,
annoyance, or embarrassment.”); see also Nix v. United States, 572 F.2d 998, 1006 (4th Cir.
1978) (“Public identification of any of [the FBI Agents who investigated Plaintiff’s claims]
could conceivably subject them to harassment and annoyance in the conduct of their official
duties and in their private lives”).
Furthermore, “[t]he disclosure of the names of individuals mentioned in law enforcement
files serves a significant public interest only where ‘there is compelling evidence that the agency
denying the FOIA request is engaged in illegal activity,’ and where the requested information ‘is
necessary in order to confirm or refute that evidence.’” Lewis-Bey v. U.S. Dept. of Justice, 595 F.
Supp. 2d 120, 136 (D.D.C. 2009) (quoting Davis v. United States Dep't of Justice, 968 F.2d
1276, 1282 (D.C. Cir. 1992)). Bald allegations and unsubstantiated claims of misconduct do not
constitute compelling evidence for the purposes of Exemption 7(C). See Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Instead, the requester must “produce
evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred” in order to obtain disclosure of information protected by
Exemption 7(C). Id.

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In this case, Plaintiff claims that the information requested will help him shed light on the
alleged misconduct of Agent Bruzzese. He further contends that such information is important
not only for his case but because the public has an interest in knowing whether public servants
carry out their duties in an efficient and law-abiding manner.
Plaintiff presents no actual or circumstantial evidence of misconduct; he presents only
conclusory assertions that Agent Bruzzese framed him for drug possession.

Furthermore,

Plaintiff does not explain how confirmation that Adam Bruzzese worked for ATF at the time of
the arrest will “confirm or refute” evidence of the alleged misconduct. See Lewis-Bey, 595 F.
Supp. 2d at 136. For these reasons, the court finds that Plaintiff cannot demonstrate that he is
entitled to the employment verification sought on the grounds that such information is in the
public’s interest.
Additionally, Plaintiff contends that the information he is now seeking is not exempt
from production because it is already in the public domain.4 Under the public-domain doctrine,
“materials normally immunized from disclosure under FOIA lose their protective cloak once
disclosed and preserved in a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554
(D.C. Cir. 1999). Plaintiff contends that Defendant has waived its right to assert Exemption 7(C)
because Bruzzese testified at Plaintiff’s criminal trial that he was “a special agent with the
Bureau of Alcohol, Tobacco and Firearms” and that he had been employed with ATF “for almost
three years.”
The case law does not support Plaintiff’s argument. Courts have held that even if the
identities of agents and witnesses have become known during a trial, an agency's decision to
withhold names and other identifying information under Exemption 7(C) is justified. See Sellers

Plaintiff made this argument in his original complaint, but the Magistrate Judge did not
specifically address it.
4

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v. U.S. Dept. of Justice, 684 F. Supp. 2d 149, 159-60 (D.D.C. 2010) (finding the FBI’s decision
to withhold the identities of FBI Special Agents who testified at a defendant’s criminal trial was
justified); Jones v. Fed. Bureau of Investigation, 41 F.3d 238, 247 (6th Cir. 1994) (concluding
that a law enforcement employee who chooses or is required to testify does not waive personal
privacy); see also Lardner v. U.S. Dep't of Justice, 2005 WL 758267, at *19 (D.D.C. Mar. 31,
2005) (concluding that the name of a witness who testified at a public trial was properly withheld
under Exemption 7(C)). Furthermore, the cases cited by Plaintiff in support of his public domain
argument do not address the application of the doctrine to the identities of law enforcement
personnel. See Davis, 968 F.2d at 1276 (assessing FBI tape recordings made during criminal
investigation); Cottone, 193 F.3d at 550 (assessing FBI wiretaps). Therefore, the court finds that
Plaintiff is not entitled to information verifying Bruzzese’s employment with ATF.
Since the court determines that Plaintiff is not entitled to the employment verification
information requested, his objection that Defendant did not conduct an adequate search because
it did not search for “Adam Bruzzese” in its system is moot. Additionally, having found that
Defendant is not required to produce the information requested, there is no reason to compel the
release of the Vaughn Index.
Finally, to the extent Plaintiff still seeks the information described in Item C – production
of Bruzzese’s written report describing his account of Plaintiff’s arrest – the court agrees with
the Magistrate Judge that Defendant produced sufficient evidence to show that it was not in
control of these records, if it ever had such records. Defendant claims that a search of its records
produced no information about Verdell Evans, and further asserted that information related to his
arrest and criminal trial would likely reside with the prosecuting assistant United States Attorney.
CONCLUSION

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Upon a careful consideration of the record before the court, the court ACCEPTS the
Magistrate Judge’s Report and Recommendation and incorporates it herein by reference. It is
hereby ORDERED that Defendant’s Motion for Summary Judgment [Dkt. No. 21] is
GRANTED and Plaintiff’s Complaint [Dkt. No. 1] is DISMISSED without prejudice.
Plaintiff’s Motion to Compel [Dkt. No. 3] is also DISMISSED as moot.
IT IS SO ORDERED.

United States District Court Judge
February 26, 2013
Greenville, South Carolina

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