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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )
Plaintiffs, )
)
v. ) Civil Action
) No. 01-2500
UNITED STATES DEPARTMENT OF JUSTICE, )
) Judge Kessler
Defendant. )
______________________________________)
MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiffs' complaint challenges the federal government's efforts to protect
from public disclosure a narrow class of information arising from a massive,
ongoing investigation focused on the September 11 terrorist attacks on the United
States, as well as related terrorist conspiracies against the United States
and its citizens by the Al Qaeda terrorist network and other international terrorist
groups. Under the Freedom of Information Act ("FOIA"), plaintiffs
have sought a variety of sensitive information regarding individuals detained
in connection with the investigation, including, for instance, the identity
of the individuals, their national origin, where they are detained, and the
identity of their lawyers. After carefully reviewing plaintiffs' request and
releasing much of the information requested, the Department of Justice has determined
that the disclosure of the narrow remaining classes of information could severely
hamper the ongoing investigation, could threaten the safety of the public and
the national security, and could violate the privacy interests of the detainees
at issue.
In response to plaintiffs' FOIA request, Defendant has undertaken a review
of the relevant law enforcement files and has produced a substantial part of
the information sought in plaintiffs* FOIA requests. The released material,
much of which was publicly disclosed prior to this lawsuit, includes the names
of certain of the detainees, the reason they were taken into custody, and when
charges were filed against them. The Department of Justice has also previously
disclosed and continues to disclose periodically anonymous general information
regarding the number of detainees, the various national origins of the detainees,
etc.
While FOIA supports access to government information, it does not purport to
require public disclosure of materials where that disclosure would disrupt a
federal terrorism task force investigation, especially where, as here, that
investigation has such important public safety implications. Consequently, the
statute precludes disclosure where, as here, it would place the federal government's
investigative function in jeopardy, could lead to potential threats to the health
and safety of the public, and could invade personal privacy of participants
in an investigation. See 5 U.S.C. * 552(b)(7)(A), (C), and (F).
In this case, plaintiffs seek specifically to know the identities of the suspects
detained in the wake of the September 11 attacks and the circumstances of their
detention or arrest. Every one of the detainees was placed in custody for one
of three compelling reasons: violations of immigration statutes, violations
of federal criminal laws, or status as a material witness to a potential prosecution.
Information as to each of these three groups was withheld to preserve the effectiveness
of a law enforcement investigation, to promote the public safety, and to preserve
the privacy and the safety of the detainees. The basis for withholding the requested
information may vary slightly depending upon the reason for the detention. In
general, however, there are three basic reasons, each protected by FOIA Exemption
7, for withholding the information.
First, FOIA protects from disclosure law enforcement records and information
where that information "could reasonably be expected to interfere with
enforcement proceedings." 5 U.S.C. * 552(b)(7)(A). Here, it is readily
apparent that disclosure of the identity of the detainees, their location, and
related information could substantially undermine the government's investigation
into the events of September 11 and related terrorist threats. For instance,
broadcasting the names of detainees and other identifying information could
enable terrorist leaders to determine the current focus or thrust of the investigation
and to devise a plan to foil it. Potential subjects or targets could be alerted
and could abscond. Potential witnesses could be intimidated, and evidence could
be destroyed. Similarly, disclosure of the identity of detainees could undermine
the ability of law enforcement to infiltrate terrorist networks or to obtain
information disclosed by terrorist sources to cooperative former detainees upon
their release.
Second, FOIA prevents the disclosure of law enforcement related information
where the release of that information "could reasonably be expected to
endanger the life or physical safety of any individual." 5 U.S.C. * 552(b)(7)(F).
Here, given the nature of the terrorist threats at issue * as evidenced by the
devastation of September 11 * the threat to human life from the release of this
information is apparent. Release of the requested information could allow terrorist
leaders to formulate alternative plans to accomplish future terrorist objectives
based upon the likely compromise of existing plans or cell members. Similarly,
upon learning that their associates are detained, terrorist groups might decide
to retaliate against the United States and its citizens or against detainees
or their associates who could serve as potential witnesses. This threat would
be all the more serious if the location of the detainees were released, leading
to possible attacks on the detention centers and harm to the detainees, their
guards and anyone in the vicinity.
Third, release of the requested information could unduly interfere with the
privacy interests of the detainees and their attorneys. FOIA prevents disclosure
of law enforcement related information where that disclosure "could reasonably
be expected to constitute an unwarranted invasion of personal privacy."
5 U.S.C. * 552(b)(7)(C). Privacy concerns are reflected in the nightly media
debate on the wisdom of televising terrorist trials and disclosing the identities
of witnesses or jurors. Here, full compliance with plaintiffs* requests would
disclose the names of hundreds of individuals, without their consent, who, although
potentially innocent of any terrorist activity, could be placed at risk in the
United States and abroad merely by their association with the investigation.
Similarly, release of the attorneys' names without their consent may bring a
notoriety and safety risk which those attorneys have consciously sought to avoid.
At bottom, plaintiffs' argument ignores the fact that both detainees and their
attorneys can voluntarily publicize their own identities and related information
and have not chosen to do so. Consequently, the privacy interests of these individuals
should be respected and this information protected from disclosure.
Finally, information regarding detainees who are material witnesses to the
investigation is properly withheld for two additional reasons. First, that information
has been sealed from public disclosure by the United States District Court before
which the material witnesses have appeared. It is thus beyond the control of
the Department of Justice and therefore not subject to disclosure under FOIA.
See International B'Hood of Teamsters v. National Med. Bd., 712 F.2d 1495 (D.C.
Cir. 1983). Second, disclosure of the information is prohibited by Federal Rule
of Criminal Procedure 6(e), which preserves the confidentiality and integrity
of the grand jury process. FOIA Exemption 3 similarly protects against disclosure
of this information.
For these reasons, as set forth more fully below, defendant*s motion for summary
judgment should be granted.
BACKGROUND
The FOIA Requests
On October 29, 2001, plaintiffs submitted three FOIA requests to the Department
of Justice, sending the first to the INS, a second to the FBI, and a third to
the Office of Information and Privacy ("OIP"). Hodes Dec. ** 2, 4;
Holmes Dec. * 6; Pustay Dec. * 3. Each of these requests sought expedited processing
of the following four items of information regarding individuals "arrested
or detained" in the wake of the September 11 attacks on the World Trade
Center and Pentagon:
1. (1) their names and citizenship status; (2) the location where each individual
was arrested or detained initially and the location where they are currently
held; (3) the dates they were detained or arrested, the dates any charges were
filed, and the dates they were released, if they have been released; and (4)
the nature of any criminal or immigration charges filed against them or other
basis for detaining them, including material witnesses warrants and the disposition
of such charges or warrants.
2. The identity of any lawyers representing any of these individuals, including
their names and addresses.
3. The identities of any courts, which have been requested to enter orders
sealing any proceedings in connection with any of these individuals, any such
orders which have been entered, and the legal authorities that the government
has relied upon in seeking any such secrecy orders.
4. All policy directives or guidance issued to officials about making public
statements or disclosures about these individuals or about the sealing of judicial
or immigration proceedings.
Hodes Dec. * 2; Holmes Dec. * 6; Pustay Dec. * 3.
INS acknowledged receipt of the request on November 1, 2001. Holmes Dec. *
7. Id. * 13. It further responded on November 23, approving expedited treatment
but indicating that completing a response would be an "enormous undertaking."
It therefore asked plaintiffs to narrow the scope of their request so that fewer
records would have to be retrieved and reviewed. Id. Plaintiffs ignored that
request and instead filed this lawsuit.1 Id.
On November 1, 2001, the FBI informed plaintiffs that it was withholding material
responsive to their requests pursuant to Exemption 7(A) of FOIA, 5 U.S.C. *
552(b)(7)(A). Hodes Dec. * 4. Plaintiffs appealed, but, on December 10, the
FBI affirmed its original denial under both Exemption 7(A) and 7(C), 5 U.S.C.
* 552(b)(7)(A), (C). Hodes Dec. * 4.
OIP acknowledged receipt of plaintiffs* request and granted expedited processing
on November 1, 2001. Pustay Dec. * 4. OIP was still processing the request at
the time plaintiffs filed this suit on December 5. Id.
Information Defendant Has Produced
The persons who were "arrested or detained" as a result of the investigation
into the September 11, 2001 attacks fall into three categories: (1) persons
held on immigration-related charges by INS, (2) persons charged with federal
crimes, and (3) material witnesses. Reynolds Dec. * 4. Defendant has provided
plaintiffs with much of the information they seek in their FOIA requests regarding
these individuals, but the remainder is exempt from disclosure.
a. The INS Detainees
The first category of detainees are persons being held on immigration-related
charges by INS. Reynolds Dec. * 10. These individuals were originally apprehended
because evidence suggested they might have connections with, or possess information
pertaining to, terrorist activity against the United States, including, particularly,
the September 11 attacks and/or the individuals and organizations who perpetrated
them. Id. For example, they may have been questioned because they were identified
as having interacted with the hijackers, or were believed to have evidence relating
to other aspects of the investigation. Id. In the course of questioning them,
law enforcement agents learned, often from the subjects themselves, that they
were in violation of federal immigration laws, and, in some instances, also
determined that they may have links to other facets of the investigation. Id.
With respect to INS detainees, DOJ has already disclosed to plaintiffs (1)
their place of birth, (2) citizenship status, (3) the immigration charges brought
against them, and (4) the date charges were filed. Reynolds Decl. * 7.
b. The Federally Charged Detainees
The second category of detainees consists of individuals held on federal criminal
charges. Reynolds Dec. * 27. One individual, Zaccharias Moussaui, has been charged
with violations of federal criminal laws in connection with the September 11
attacks. Id. Like the INS detainees, these individuals were originally apprehended
by federal, state, or local law enforcement as a result of the federal investigation
into the September 11 attacks. Id. While the nature of the charges pending against
each of these detainees varies, until these investigations are concluded, none
can be eliminated as a potential source of relevant or probative information.
Id.
With respect to this category of detainees, defendant has already disclosed
to plaintiffs (1) their names, (2) the dates any charges were filed, (3) the
date the detainee was released, if released, (4) the nature of the criminal
charges filed against them, and (5) their lawyer's identity.2 Reynolds Dec.
* 8.
Material Witnesses
The third category of detainees consists of persons who have been the subject
of a material witness warrant issued by a federal court. Reynolds Dec. * 31.
Plaintiffs have requested their names, citizenship status, the location of their
arrest or detention, the location where they are being held, the dates of their
arrest or detention, the date any charges were filed, the date of their release,
if released, the nature of the charges against them, and the names of their
lawyers. Id. All of this information has been withheld. Id.
First, the United States District Courts before which the material witnesses
have appeared have all issued sealing orders prohibiting the government from
releasing any information about these proceedings. Reynolds Dec. * 32. Moreover,
information pertaining to material witnesses has also been withheld pursuant
to Federal Rule of Criminal Procedure 6(e). Id. * 33.
ARGUMENT
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE THE REQUESTED INFORMATION
HAS BEEN LAWFULLY WITHHELD PURSUANT TO APPLICABLE EXEMPTIONS UNDER FOIA
Fed. R. Civ. P. 56 mandates that summary judgment be entered whenever "the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c); Heller v. Fortis Benefits Ins. Co.,
142 F.3d 487, 492 (D.C. Cir. 1998). "[T]he burden on the moving party may
be discharged by 'showing' -- that is, pointing out to the district court --
that there is an absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The opposing party may not
rest upon mere allegations or denials in the pleadings but must set forth specific
facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248-49; Doe v. Gates, 981 F.2d 1316, 1323 (D.C. Cir. 1993).
"By its terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment: the requirement is that there is no genuine
issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-248 (1986). Consequently, "[o]nly disputes over the facts that might
affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment." Id. at 248. In this action, summary judgment
for defendant should be granted, because there are no genuine issues of material
fact, and defendant has, as a matter of law, properly denied plaintiffs' FOIA
requests with respect to the documents it has withheld.3
I. DEFENDANT HAS PROPERLY WITHHELD CERTAIN INFORMATION ABOUT THE DETAINEES
PURSUANT TO EXEMPTION 7
FOIA exempts from disclosure any records or information "compiled for
law enforcement purposes," whenever
the production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceedings, . . . (C) could reasonably
be expected to constitute an unwarranted invasion of personal privacy, . . .
or (F) could reasonably be expected to endanger the life or physical safety
of any individual . . . .
5 U.S.C. * 552(b)(7)(A), (C), (F).
Here, the information in question meets the threshold requirement that it be
"compiled for law enforcement purposes." 5 U.S.C. * 552(b)(7). Because,
as discussed below, each of the three specified interests protected by Exemptions
7(A), (C), and (F) would flow from disclosure of the information at issue here,
defendant has properly withheld the information.
A. The Information Was Compiled for Law Enforcement Purposes
As a threshold matter, the information plaintiffs seek was compiled for law
enforcement purposes. See Keys v. United States Dep*t of Justice, 830 F.2d 337,
340 (D.C. Cir. 1987) (Agency must demonstrate a rational nexus between its activity
and its law enforcement duties). It was gathered pursuant to DOJ*s extensive,
broad based, and world-wide investigation into the September 11, 2001 hijackings
and terrorist attacks on the World Trade Center and Pentagon, and related terrorist
conspiracies and threats. Reynolds Dec. ** 2, 5. That investigation, which is
ongoing at this time, involves 4000 FBI agents who, with their international
counterparts, are engaged in a worldwide effort to detect, disrupt, and dismantle
terrorist organizations. Id. * 2.
The information that plaintiffs seek is contained in DOJ records created as
a result of the investigation. Reynolds Dec. * 5. DOJ and its individual components,
including INS and FBI, have opened and maintained these records, which pertain
to the ongoing immigration proceedings of the detainees and related investigations.
Id. * 5.
The information sought therefore falls within the scope of FOIA's "law
enforcement" exemption. See 5 U.S.C. * 552(b)(7). See also Rural Hous.
Alliance v. USDA, 498 F.2d 73, 81 (D.C. Cir. 1974) (Investigation which focuses
on specific illegal acts which could result in civil or criminal penalties meets
threshold of Exemption 7); Wickline v. FBI, No. 92-1189, 1994 WL 549756, at
*2 (D.D.C. Sept. 30, 1994) (FBI met requirement for "nexus between the
agency*s activity and its law enforcement duties" when it compiled requested
information through its investigation of series of murders involving organized
crime); Stone v. Defense Investigative Serv., 816 F. Supp. 782, 787 (D.D.C.
1993) (Foreign counterintelligence and criminal investigations satisfied threshold
requirement of Exemption 7); Center for Nat*l Sec. Studies v. INS, No. 87-2068,
1990 WL 236133, at *6 (D.D.C. Dec. 19, 1990) (accepting INS*s claim that preparation
of documents was related to "legitimate concerns that federal immigration
laws have been or may be violated").
B. Disclosure of the Information Sought Would Interfere With Ongoing Law Enforcement
Proceedings
The Department of Justice is justified in withholding the information at issue
in this dispute because its release would seriously compromise an ongoing federal
investigation. Thus, disclosure of this information is protected by FOIA Exemption
7(A), which applies "whenever the government*s case in court would be harmed
by the premature release of evidence or information." NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 232 (1978).
Release of the information in question could harm the Justice Department's
terrorism investigation in numerous ways. Reynolds Dec. * 13. First, releasing
the information sought could compromise the United States' ability to obtain
cooperation from knowledgeable witnesses, follow up on investigative leads,
and pursue the full range of investigative options. Id.; see Rosenglick v. IRS,
No. 97-747-18A, 1998 WL 773629, at *2 (M.D. Fla. Mar. 10, 1998) ("[C]ourts
have liberally interpreted the term interference" because early access
could "aid a wrongdoer in secreting or tampering with evidence" and
reveal the nature, scope, strategy and direction of the investigation").
Disclosing the names of the detainees who may have knowledge of or a connection
to terrorism could lead to the public identification of individuals associated
with them, other investigative sources, and potential witnesses. Reynolds Dec.
* 14; see Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) ("Agencies must
evaluate the risk of disclosing records to some particular FOIA requester not
simply in terms of what the requester might do with the information, but also
in terms of what anyone else might do with it"). Terrorist organizations
that discover the identities of these individuals could subject them to intimidation
or harm, thereby preventing them from supplying valuable information or further
leads. Id.; see Judicial Watch, Inc. v. United States Dep*t of Justice, No.
97-2869, slip op. at 19 (D.D.C. Feb. 22, 2000) (Prematurely disclosing documents
related to witnesses could result in witness tampering or intimidation and could
discourage continued cooperation); Kansi v. United States Dep*t of Justice,
11 F. Supp. 2d 42, 44 (D.D.C. 1998) (Disclosure provides "potential for
interference with witnesses and highly sensitive evidence"); Kay v. FCC,
976 F. Supp. 23, 39 (D.D.C. 1997) (Release would "potentially create witness
intimidation and further discourage future witness cooperation").
Second, divulging the detainees' identities may deter them from cooperating
with the Department of Justice once they are released from custody and eliminate
valuable sources of information for the investigation. Reynolds Dec. * 15; see
Timkin Co. v. United States Customs Serv., 531 F. Supp. 194, 199 (D.D.C. 1981)
(Disclosure of investigatory records would interfere with the agency*s ability
"in the future to obtain this kind of information"). As a result of
their public identification, terrorist organizations with whom they have a connection
may refuse to deal further with them. Reynolds Dec. * 15. Release of the information
would similarly impair the government's ability to infiltrate terrorist organizations
engaged in ongoing criminal activities. Id. Moreover, a detainee who knows his
name will be made public may be deterred from cooperating for fear of retaliation
by terrorist organizations against him or his family and associates. Id.
Third, releasing the names of the detainees who may be associated with terrorism
and their place and date of arrest would reveal the direction and progress of
the investigations by identifying where DOJ is focusing its efforts. Reynolds
Dec. * 16. In effect, it would allow terrorist organizations to map the progress
of the investigations and thereby develop the means to impede them. Id. Even
disclosing the identities of those detainees who have been released may reveal
details about the focus and scope of the investigation and thereby allow terrorists
to counteract it. Id. This may cause terrorists, who learn that their associates
or even people who know their associates have been detained, to alter their
plans in a way that presents an even greater threat to the United States. Id.;
see Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (Exemption 7(A) allows an
agency to keep secret those records which "could reveal much about the
focus and scope" of the investigation); Kay v. FCC, 976 F. Supp. 23, 38-39
(D.D.C. 1997) (Exemption 7(A) protects records whose release would "reveal
the scope, direction and nature" of the investigation and thereby provide
insight into the agency*s evidence, reveal the focus of the investigation, assist
in circumventing the investigation, and create witness intimidation); see also
Vosburgh v. IRS, No. 93-1493, 1994 WL 564699, at *3 (D. Or. July 5, 1994) (Exemption
7(A) applies where disclosure would reveal nature, scope, and direction of investigation,
evidence obtained, and government*s strategies, and would provide opportunity
to create defenses and tamper with potential evidence); International Collision
Specialists, Inc. v. IRS, No. 93-2500, 1994 WL 395310, at **2, 4 (D.N.J. Mar.
2, 1994) (Under Exemption 7(A) disclosure would interfere with enforcement proceedings
by enabling requester "to determine nature, source, direction, and limits"
of IRS investigation and to "fabricate defenses and tamper with evidence").
Fourth, official verification that a cell member has been detained and therefore
can no longer carry out the plans of his terrorist organization may enable the
organization to find a substitute who can achieve its goals more effectively,
thereby thwarting the government's ability to frustrate ongoing conspiracies.
Reynolds Dec. * 16; cf. Moorefield v. United States Secret Serv., 611 F.2d 1021,
1026 (5th Cir. 1980) (Disclosure is barred where it would enable targets to
keep abreast of investigations and to elude their scrutiny). For example, upon
learning that a particular terrorist cell has been compromised through the detention
of some or all of its members, terrorists may switch to an alternative cell,
thereby retaining the ability to mount future terrorist attacks. Reynolds Dec.
* 16.
Fifth, the public release of names, and place and date of arrest, of detainees
who may have knowledge of or connections to terrorism, could allow terrorist
organizations and others to interfere with the pending proceedings by creating
false or misleading evidence. Reynolds Dec. * 17. As a consequence, the investigations
will be hindered by unnecessary and burdensome confusion. Id. Revealing the
location of the detainees may facilitate contact between detainees and terrorist
organizations. Id.
The rationale that underlies the withholding of the names of the INS detainees
similarly supports the nondisclosure of their lawyers' identities under 5 U.S.C.
* 552(b)(7)(A). Reynolds Dec. * 18. Although some attorneys may voluntarily
reveal their own names and/or the names of their clients, such sporadic, piecemeal
disclosures are qualitatively different from DOJ's publication of a comprehensive
list of all lawyers' names. Id. Release of such a list may facilitate the identification
of the detainees themselves. Id. Once a list of the detainees is generated,
the harms described above could ensue. Id.
Finally, federal law enforcement's interest in preserving the efficacy of its
investigation is particularly compelling with respect to those persons detained
as material witnesses. Disclosure of the information sought regarding material
witnesses * who are believe to have evidence directly relevant to acts of terrorism
* could send clear signals regarding the strategy or direction of the investigation.
Reynolds Dec. * 35. Therefore the information is properly withheld pursuant
to 5 U.S.C. * 552(b)(7)(A).
C. Disclosure of the Information Sought Would Endanger the Public Safety and
the Safety of the Detainees, Their Attorneys, and Other Individuals, Including
the General Public And is Exempt Pursuant to FOIA Exemption 7(F)
Disclosure of the identities of the INS detainees, the identities of those
being held on material witness warrants, the detention location of those who
have been charged with a federal crime, and the identities of the detainees*
lawyers "could reasonably be expected to endanger the life or physical
safety of . . . individual[s]." Reynolds Dec. * 37. As such FOIA Exemption
7(F), 5 U.S.C. * 552(b)(7)(F) protects this information from disclosure.
Revealing the names of the detainees could pose a substantial threat to the
public safety. If terrorist organizations learn that their associates or even
people who know their associates have been detained, they may alter their plans
in a way that presents an even greater danger to the United States. Reynolds
Decl. * 16.
In addition, all of the detainees were apprehended in connection with the investigation
emanating from the September 11 attacks. Id. Revealing their identities could
subject them to physical danger both in the United States and in their home
countries if they are deported. Id. Detainees who are, in fact, affiliated with
a terrorist group could be perceived by such groups as informants for the United
States whose death or injury would foreclose their future cooperation. Id. In
addition, the safety of detainees* family members and friends could be compromised
through threats of physical violence by terrorists in an effort to deter the
detainees from cooperating. Id. Moreover, disclosing the detention facilities
where these individuals are being detained could place at risk not only the
detainees, but the facilities themselves and their employees. Id.
This same threat to the physical safety of the detainees also applies to their
attorneys in that they could also face physical harm if their identities are
revealed. Reynolds Dec. * 38. Aside from terrorist organizations or their sympathizers,
others might construe that the detainees' attorneys, even though professionally
representing the interests of their clients, are working against the interests
of the United States. Id.
Members of terrorist organizations may fear that detainees are supplying their
attorneys with too much information and, lacking the ability to communicate
with the detainees while they are imprisoned, may instead choose to harm their
attorneys. Id. In light of the extraordinary brutality of the acts committed
against the United States, even the mere possibility of retaliation against
these lawyers justifies withholding their identities. Id., see Russell v. Barr,
No. 92-2546, slip op. at 11-12 (D.D.C. Aug. 28, 1998) (Exemption 7(F) protected
the identities of individuals who cooperated in investigation and prosecution
involving spousal murder where requester had reputation for violent behavior);
Isley v. Executive Office for United States Attorneys, No. 96-0123, slip op.
at 8-9 (D.D.C. Mar. 27, 1997) (Exemption 7(A) shielded agency*s nondisclosure
of information identifying individuals who provided evidence during murder investigation,
when reasonable likelihood existed that disclosure would threaten their lives),
appeal dismissed, No. 97-5105 (D.C. Cir. Sept. 8, 1997); Bruscino v. Federal
Bureau of Prisons, No. 94-1955, 1995 WL 444406, at *11 (D.D.C. May 12, 1995)
(Exemption 7(F) protected from disclosure investigatory information obtained
from prison informants whose lives would otherwise be endangered by "rough
justice" rendered by other inmates), summary affirmance granted in pertinent
part, vacated and remanded in part, No 95-5213, 1996 WL 393101 (D.C. Cir. June
24, 1996); Dickie v. Department of the Treasury, No. 86-649, slip op. at 13
(D.D.C. Mar. 31, 1987) (Exemption 7(F) was applicable given agency judgment
of "very strong likelihood of harm").
D. Disclosure of the Requested Information Would Violate the Detainees' Right
to Privacy Under Exemption 7(C).
Even aside from the compelling interests of the government and the public in
withholding the requested information, DOJ's decision to withhold the requested
information is necessary in order to protect the privacy interests of the detainees
themselves. The detainees * many of whom have or may be cleared of any wrongdoing
* have strong privacy interests in preventing disclosure of certain information
about themselves and their locations. Release of information regarding the detainees
could forever stigmatize them by associating them with the worst terrorist incident
in United States history * even if the detainees are ultimately cleared of any
wrongdoing. While the detainees (or their attorneys) are free to release this
information voluntarily, the FOIA does not require that the government release
it against their wills.
Exemption 7(C) of the FOIA protects from disclosure "records or information
compiled for law enforcement purposes" whose production "could reasonably
be expected to constitute an unwarranted invasion of personal privacy."
5 U.S.C. * 552(b)(7)(C). In order to apply Exemption 7(C), a court must balance
the public interest in disclosure against the interest in privacy that the exemption
protects, i.e. the individual*s control of information concerning his or her
person. Department of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 762-63 (1989); Goldstein, 1999 WL 570862, at *9. The standard of public
interest to consider is one specifically limited to FOIA*s "core purpose"
of "shed[ding] light on an agency*s performance of its statutory duties."
See Reporters Comm., 489 U.S. at 773.
Here, DOJ correctly determined that the individual privacy interests of each
detainee greatly outweighed any public interest in disclosure. Each of the detainees
was detained because of their possible connection to, or knowledge regarding,
the worst terrorist attack ever committed on United States soil. Reynolds Dec.
* 19. Although they may eventually be found to have no connection to terrorist
activity, release of their names and personal information at this time would
forever connect them to the September 11 attacks. Id.
Given the nature of these investigations, the mere mention of the detainees'
names in connection with these investigations may likely cause the detainees
embarrassment, humiliation, risk of retaliation, harassment and possibly even
physical harm in the United States and in their home countries. They could be
stigmatized by being viewed as "guilty by association." Id. The nature
of this investigation and the viciousness of these attacks is unprecedented.
Id. The interests of these detainees in not being connected with such activity
is overwhelming. Id.; see Reporters Comm., 489 U.S. at 765 ("[D]isclosure
of records regarding private citizens, identifiable by name, is not what the
framers of the FOIA had in mind"); Fitzgibbon v. CIA, 911 F.2d 755, 767
(D.C. Cir. 1990) ("[T]he mention of an individual*s name in a law enforcement
file will engender comment and speculation and carries a stigmatizing connotation")
(internal quotation marks omitted); Lesar v. United States Dep*t of Justice,
636 F.2d 472, 488 (D.C. Cir. 1980) ("It is difficult if not impossible,
to anticipate all respects in which disclosure might damage reputations or lead
to personal embarrassment and discomfort") (internal quotation marks omitted);
Tanks, 1996 WL 293531, at *3 (D.D.C. 1996) ("Exemption
7(C) does not require a balance tilted emphatically in favor of disclosure,
but rather recognizes the stigma potentially associated with law enforcement
investigations and affords broader privacy rights to suspects, witnesses, and
investigators") (internal quotation marks omitted); Congressional News
Syndicate v. United States Dep*t of Justice, 438 F. Supp. 538, 541 (D.D.C. 1977)
("[A]n individual whose name surfaces in connection with an investigation
may, without more, become the subject of rumor and innuendo").
Information pertaining to the detainees charged with federal crimes is also
exempt from release under Exemption 7(C). Reynolds Dec. * 29. Because of these
individuals' association with the terrorist investigation, disclosing their
detention location could subject them to possible harassment, intimidation and
even physical harm. Id. It is not unusual for prisoners in a facility to attempt
to harm or harass those they believe have been involved in particularly heinous
crimes. Id. If a prisoner learns that an individual who was detained as a result
of the investigation into the September 11 attacks is in their own prison facility
they may try to retaliate against this individual. Id.
In addition, the detention location is an item of information about each of
these individuals, Reynolds Dec. * 30, and therefore implicates a privacy interest.
This interest is increased because the detainees have no voice in the determination
as to where they are detained. Id. In any event, the location of an individual's
detention will not shed light on the agency's operations and activities.
Release of the names of the attorneys representing the detainees could jeopardize
their own privacy interests. Reynolds Dec. * 24. Unlike the more routine immigration
cases where attorneys readily and openly represent clients, these particular
lawyers are representing individuals who have been detained in connection with
what has been described as an act of war against the United States. Id. * 25.
The overwhelming grief and anger of the American public could be directed at
these attorneys even more than at the detainees themselves. Id. While there
may be some other public interest * not applicable under the FOIA * in ensuring
that the detainees are properly represented, that interest is not vindicated
here. Id. * 24. In fact, there is no public interest cognizable under the FOIA
in involuntary disclosure of the identities of those attorneys who have consciously
chosen to remain anonymous because of the risks described above. Id.; cf. Quinon
v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996) ("Persons involved in FBI investigations
- even if they are not the subject of the investigation - have a substantial
interest in seeing that their participation remains secret) (internal quotation
marks omitted). In stark contrast to the powerful privacy interests of the detainees
stands the plaintiffs' generalized assertions of public interest. Reynolds Dec.
* 20. Plaintiffs assert that "there is an overriding public interest in
knowing the activities of the government in detaining people in connection with
the September 11 attack." Id. Plaintiffs fail, however, to demonstrate
why * in light of the extensive information already provided by DOJ * the detainee-specific
information at issue is essential to public understanding of the activities
of the government. To the contrary, release of the detainees' names and personal
information about them would not shed light on the operations and activities
of the government. Id.; see SafeCard Servs. v. SEC. 926 F.2d 1197, 1206 (D.C.
Cir. 1991) (Personal information would serve a "significant" public
interest only if "there is compelling evidence that the agency . . . is
engaged in illegal activity"); Alexander & Alexander Servs. v. SEC,
No. 92-1112, 1993 WL 439799, at *10 (D.D.C. Oct. 19, 1993) (Records containing
personal information should be categorically withheld when no compelling evidence
of illegal agency activity exists), appeal dismissed, No. 93-5398 (D.C. Cir.
Jan. 4, 1996); see also Reporters Comm, 489 U.S. at 763 (The public interest
in disclosure is to "ensure that the Government*s activities be opened
to the sharp eye of public scrutiny, not that information about private citizens
that happens to be in the warehouse of the Government be so disclosed").
Indeed, because the Department of Justice has released much information about
"the activities of the government in detaining people," such as the
number of people detained and the charges brought against them, the disclosure
of further information such as their names and their current location * which
could lead to their identification * would add nothing to the public's understanding
of the activities of the government. Reynolds Dec. * 20; see Reporters Comm.,
489 U.S. at 763 (The identities of individuals who appear in law enforcement
files are virtually never "very probative of an agency*s behavior or performance").
As a result, when the strong privacy interests of the detainees are balanced
against any public interest in disclosure, the privacy interests in protection
greatly outweigh any perceived public interest in release. Reynolds Dec. * 20.
The D.C. Circuit has held "categorically" that, "unless access
to the names and addresses of private individuals appearing in files within
the ambit of Exemption 7(C) is necessary in order to confirm, or refute compelling
evidence that the agency is engaged in illegal activity, such information is
exempt from disclosure." SafeCard, 926 F.2d at 1206; see also Quinion v.
FBI, 86 F.3d 1222, 1231 (D.C. Cir. 1996) (There was insufficient public interest
in revealing individuals mentioned in FBI files absent evidence of agency wrongdoing);
McCutchen v. United States Dep*t of Health and Human Servs., 30 F.3d 183, 188
(D.C. Cir. 1994) ("The mere desire to review how an agency is doing its
job, coupled with allegations that it is not, does not create a public interest
sufficient to override the privacy interests protected by Exemption 7(C)");
Senate of P.R. v. United States Dep*t of Justice, 823 F.2d 574, 588 (D.C. Cir.
1987) (General interest of legislature in "getting to the bottom"
of highly controversial investigation was not sufficient to overcome "substantial
privacy interests"); Goldstein v. Office of Indep. Counsel, No. 87-2028,
1999 WL 570862, at *9 (D.D.C. July 29, 1999) (Public interest in documents relating
to FBI*s terrorism investigation was significant, but third-party names were
properly withheld absent compelling evidence of illegal activity by FBI).
II. THE INFORMATION RESPONSIVE TO FOIA REQUEST ITEM NO. 3 IS NOT UNDER AGENCY
CONTROL AND IS SUBJECT TO EXEMPTIONS 3 & 7(A)
DOJ has properly denied plaintiffs' request for the identity of any courts
which have been asked to enter orders sealing any proceedings in connection
with individuals arrested or detained in the wake of the September 11 attack,
any such orders which have been entered, and the legal authorities that the
government has relied upon in seeking any such secrecy orders. See Reynolds
Dec. * 39; Complaint * 29(c). Nationwide, there are ten orders responsive to
plaintiffs' request. Reynolds Dec. * 39. However, neither the orders themselves
nor any of the other information plaintiffs request about them is under DOJ's
control. Id. Rather, the orders have been sealed by the relevant United States
District Courts and prohibit the government from releasing any information.
Id. Thus, the Department of Justice cannot properly provide the information
plaintiffs request. Id.
To be subject to FOIA, 5 U.S.C. * 552, "agency records" must be under
agency control at the time of the FOIA request. United States Dep't of Justice
v. Tax Analysts, 492 U.S. 136, 145 (1989). The crucial question is whether "the
document has passed . . . and become property subject to the free disposition
of the agency with which the document resides." Goland v. CIA, 607 F.2d
339, 347 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); see also Tax Analysts
v. United States Dep't of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff'd,
492 U.S. 136 (1989) (Factor in determining whether record is under agency control
is the ability of the agency to use and dispose of the record as it sees fit).
Because the information in question is prohibited from disclosure by Court
order, it is not under defendant's control. See International Bhd. of Teamster
v. Nation Mediation Bd., 712 F.2d 1495, 1496 (D.C. Cir. 1983) (Where court required
airline to submit information to agency only for particular use ordered by court,
agency*s possession of the information did not constitute "control");
KDKA v. Thornburgh, No. 90-1536, 1992 U.S. Dist. LEXIS 22438, at **16-17 (D.D.C.
Sept. 30, 1992) (Agency lacked "control" over documents it was prohibited
from releasing by international agreement). Therefore this information is not
subject to the disclosure requirement of FOIA.
Moreover, this information is also protected from disclosure by Exemption 3
of the FOIA, 5 U.S.C. * 552(b)(3). Reynolds Dec. * 33. This exemption protects
information exempted from disclosure by statute. Id. In this case, information
pertaining to material witnesses was withheld pursuant to Federal Rule of Criminal
Procedure 6(e). Reynolds Dec. * 33.
Rule 6(e) prohibits the disclosure of information that would reveal the inner
workings of the grand jury. Reynolds Dec. * 34. This prohibition includes the
identities of witnesses and the substance of testimony, as well as information
that would reveal the scope, focus and direction of the grand jury proceedings.
Id. To reveal any information pertaining to the material witnesses, including
their identities and any information which would lead to their identities, would
violate Rule 6(e) by revealing witness names as well as the scope and direction
of the grand jury proceedings. Reynolds Dec. * 34.
Even if the information could be disclosed, it is exempt from disclosure pursuant
to 5 U.S.C. * 552(b)(7)(A). Reynolds Dec. * 40. Publicizing this information
would reveal investigative strategy or an unusual level of law enforcement interest
in a detainee which would impair investigative efforts, as further described
above; see Swan v. SEC, 96 F.3d 498, 500-01 (D.C. Cir. 1996) (Harm in disclosing
information "flows mainly from the fact that it reflects the [SEC] staff*s
selective recording . . . and thereby reveals the scope and focus of the investigation").
Therefore, its publication would interfere with enforcement efforts and is not
required. See 5 U.S.C. * 552(b)(7)(A).
III. ONE DRAFT DOCUMENT RESPONSIVE TO FOIA REQUEST ITEM NO. 4 IS SUBJECT TO
THE DELIBERATIVE PROCESS PRIVILEGE AND EXEMPTION 5
In response to the third item in plaintiffs' FOIA request, Complaint * 29(d),
defendant has produced - but only with appropriate redactions - one draft document
which is protected by the deliberative process privilege and is therefore exempt
from disclosure pursuant to 5 U.S.C. * 552(b)(5); see Goldstein, 1999 WL 570862,
at *7 ("Exemption 5 has been construed to exempt those documents . . .
normally privileged in the civil discovery context"). The deliberative
process privilege protects from disclosure all "intra-governmental documents
reflecting advisory opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are formulated."
N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975), quoting Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966),
aff'd, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 962 (1967). Disclosure
of intra-agency deliberations and advice is injurious to the federal government's
decision-making functions because it tends to inhibit the frank and candid discussion
necessary to effective government. See NLRB v. Sears Roebuck & Co., 421
U.S. at 150-51. The privilege is thus "predicated on the recognition that
the quality of administrative decision making would be seriously undermined
if agencies were forced to operate in a fishbowl." Dow Jones & Co.
v. Department of Justice 917 F.2d 571, 573 (D.C. Cir. 1990) (internal quotation
marks omitted); see also Dudman Communications Corp. v. Department of the Air
Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987).
In order to qualify for the privilege, an agency document must be (1) predecisional
and (2) deliberative in nature, containing opinions, recommendations, or advice
about agency decisions. See, e.g., Renegotiations Bd. v. Grumman Aircraft Engineering
Corp., 421 U.S. 168, 184 (1975); Coastal States Gas Corp. v. Department of Energy,
617 F.2d 854, 866 (D.C. Cir. 1980). The record in question falls squarely within
the deliberative process privilege. The two-page document consists of draft
talking points prepared by OIP at the request of an official in the Office of
the Deputy Attorney General, for the ultimate use of the Attorney General, regarding
the legal bases for nondisclosure of information regarding INS detainees. Pustay
Dec. ** 5-6. The record is clearly labeled "DRAFT" and includes bracketed
comments and recommendations addressed to the official in the Office of the
Deputy Attorney General with whom the talking points were being coordinated.
Id. * 6. This draft contains preliminary views and legal analysis of the FOIA
and the Privacy Act, 5 U.S.C. * 552a (1994 & Supp. V 1999), as these statutes
relate to disclosure of information pertaining to the detainees. Pustay Dec.
* 6. As a draft document, it is inherently pre-decisional. Id. Moreover, within
the draft itself are bracketed recommendations and suggestions concerning the
content of the talking points. Id. This document, on its face, represents a
work in process and reflects the give and take of the deliberative process.
Id.
Disclosure of this record would inhibit advisors to the Attorney General from
freely expressing their recommendations and giving advice about current legal
issues and preferred courses of action. Pustay Dec. * 6. This inhibition would
be extremely detrimental to the Attorney General who relies on such advisors
for their complete, candid opinions. Id. By affording confidentiality to agency
deliberations such as these, decision makers, including the Attorney General
himself, can operate most effectively. Id.
In addition, due to the nature of this document, it contains only an incomplete
view of the ultimate position to be taken by the Department on these legal issues.
Pustay Dec. * 6. Public release of this draft could thus lead to erroneous conclusions
about the position of the Department of Justice. Id. Therefore, defendant has
properly redacted the document and produced only this excised version in response
to plaintiffs' FOIA request.
IV. PLAINTIFFS' FIRST AMENDMENT CLAIM IS WITHOUT MERIT
Plaintiffs' contention that defendant's alleged failure to release agency records
violates the First Amendment must fail. The First Amendment does not "mandate[]
a right of access to government information or sources of information within
the government's control." Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978);
Pfeiffer v. CIA, 1994 WL 80869, at *4 (D.D.C. 1994) ("There is no inherent
constitutional right of access to government information - whether classified
or unclassified - as the existence of the Freedom of Information Act, and its
host of exemptions, both amply demonstrate"). Therefore, "a litigant
seeking release of government information under FOIA . . . relies upon a statutory
entitlement - as narrowed by statutory exceptions - and not upon his constitutional
right to free statement." McHehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir.
1983).
In the present case, the First Amendment provides plaintiffs with no right to
the information they seek, and their claim should be dismissed. Instead, their
rights must be derived from FOIA. However, since that statute affords them no
entitlement to the information either, their FOIA claims should be dismissed
as well.4
CONCLUSION
For the foregoing reasons, defendant*s motion for summary judgment should be
granted.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
ROSCOE C. HOWARD
United States Attorney
DAVID J. ANDERSON
ANNE L. WEISMANN
LISA A. OLSON
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail:
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
Dated: Jan. 11, 2002 Counsel for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on January 11, 2002, copies of the Consent Motion to
Modify Scheduling Order and proposed Order were served by facsimile and by first-class
mail, postage pre-paid, upon plaintiffs' counsel as follows:
David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248
Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868
Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994-7005
Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549-2651
Ellior M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293-2672
__________________________
LISA A. OLSON
1 Only after they filed this lawsuit did plaintiffs agree that production of
the information rather than the documents containing it would be sufficient
to satisfy their requests.
2 Prior to the filing of this lawsuit, DOJ released to the public the names
of detainees who had been charged with federal crimes, the district where the
complaint or indictment was filed, whether the defendant was the subject of
a complaint or an indictment, the charges, the Assistant United States Attorney
assigned to the prosecution, and whether or not the defendant was in custody.
Reynolds Dec. * 25.
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