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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CENTER FOR NATIONAL SECURITY )
STUDIES, et al., )
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Plaintiffs, )
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v. )
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
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Judge Kessler
Civil Action No. 01-2500
DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
AND OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
In its motion for summary judgment, the government demonstrated,
through detailed and compelling declarations, that the imprudent release of
information in the narrow categories not previously disclosed by the government
would place in jeopardy one of the most significant law enforcement investigations
ever conducted. The effects of any miscalculation with respect to the information
at issue could be catastrophic. For example, disclosure of the names and other
identifying information of the detainees presents an unacceptable risk to their
safety and the safety of the public. Placing the requested information in the
public domain and, therefore, in the hands of terrorists threatens to undermine
the efficacy of the investigation and our ability to deter future terrorist
attacks. Simply stated, the risks are too grave and the margin of error too
slim.
Plaintiffs' response to this evidence is long on rhetoric and short on specifics.
Plaintiffs cloak themselves in unsubstantiated allegations of government wrongdoing
and broad-based statements regarding the general purposes and goals of the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs' tactics
fail to conceal that they both misconstrue the applicable legal standards and
overlook the government's legitimate justifications for withholding the requested
information. At bottom, plaintiffs seek to transform this straightforward FOIA
lawsuit into a more fundamental challenge to the detention and treatment of
detainees and the investigation itself, but that challenge has nothing whatsoever
to do with FOIA and thus has no legitimate place here.
SUMMARY OF ARGUMENT
Plaintiffs' brief misconstrues both the government's justifications
for withholding the requested information and the applicable legal standards.
Plaintiffs do so first by contending that the detainee information at issue
was not "compiled for law enforcement purposes" and therefore does
not meet the threshold requirement for application of Exemption 7 of the FOIA,
5 U.S.C. § 552(b)(7). As support, plaintiffs point to the fact that some
of the information they seek also can be found in files that are independent
of the September 11 investigation. Whether or not this is true, it ignores the
critical fact, for purposes of the FOIA, that the information plaintiffs seek
indisputably was acquired and compiled by defendant solely as a result of its
investigation into the September 11 terrorist attacks - an investigation undertaken
for law enforcement purposes and one that is both objectively reasonable and
unquestionably legitimate.
Seeking to undermine the government's legitimate right to withhold the information
pursuant to FOIA Exemption 7, plaintiffs argue that, under FOIA Exemptions 7(A)
and (F), the government must prove to a certainty that the detainees actually
have a connection to terrorism and that disclosure will definitely interfere
with enforcement proceedings or endanger physical safety. But plaintiffs' argument
ignores the fundamental purpose of Exemption 7 - to prevent harm before it occurs.
The government's evidence of harm more than satisfies this standard. The threats
to the investigation and to safety could spring not only from evidence linking
particular detainees to terrorist activity, but also from the disclosure of
seemingly innocuous fragments of information that to a trained eye provide critical
pieces revealing the full "mosaic" of defendant's investigative operations.
See Declaration of Dale L. Watson, Executive Assistant Director for Counterterrorism
and Counterintelligence, Federal Bureau of Investigation ("FBI"),
filed in Detroit Free Press v. Department of Justice, Civ. No. 02-70339 (E.D.
Mich.) ("Watson Dec.") (Exh. 7 hereto), 13-15.
Unable to counter the government's evidence with evidence of their own, plaintiffs
rely solely on hearsay accounts in the popular media and their own unfounded
speculation to support a privacy analysis under FOIA Exemption 7(C) that is
fatally flawed. Plaintiffs contend that, under Exemption 7(C), the public interest
calls for disclosure of the information they seek in order to expose alleged
government wrongdoing. But plaintiffs fail to offer even a hint of admissible
evidence of such wrongdoing, much less the "compelling evidence" required
by law. See Computer Prof'ls for Soc. Responsibility v. United States Secret
Serv., 72 F.3d 897, 905 (D.C. Cir. 1996). They fail to show why releasing the
names and other details about the detainees to the public would confirm the
hypothetical wrongdoing they allege, and, tellingly, they disregard the detainees'
interest in not being permanently tainted by their association with the September
11 investigation, an interest that survives even, and in particular, if they
are eventually cleared of any wrongdoing. Even Amnesty International, one of
the plaintiffs, has conceded that the safety of the detainees could be jeopardized
through public hostility. See http://web.amnesty.org/ai.nsf/Index/AMR510442002?OpenDocument&of=COUNTRIES\USA.
Moreover, in the face of evidence sufficient to establish that the information
sought is protected by Rule 6 of the Federal Rules of Criminal Procedure and
by federal court order, plaintiffs continue their futile quest for information
sealed by court order and information regarding material witness warrants.
While ignoring the government's evidence and relying on unsubstantiated charges,
plaintiffs contest the adequacy of defendant's search - a challenge that is
particularly inappropriate given plaintiffs' own disavowal that they were seeking
"all documents" responsive to their request. In any event, defendant's
search for policy directives or guidance regarding making public statements
or closing public hearings was adequate. As set forth in the April 12, 2002
second Declaration of Melanie Ann Pustay, Deputy Director of the Office of Information
and Privacy, U.S. Department of Justice ("Second Pustay Dec.") , submitted
herewith as Ex. 8, the Supplemental Declaration of Scott A. Hodes, Acting Chief,
Litigation Unit, Freedom of Information-Privacy Acts Section, Records Management
Division, FBI ("Supp. Hodes Dec."), submitted herewith as Ex. 9, and
the Supplemental Declaration of Raymond Q. Holmes, Acting Chief, Freedom of
Information and Privacy Acts Operations Unit, Office of Records Services, Immigration
and Naturalization Service ("Supp. Holmes Dec.") (to be filed on April
16, 2002), defendant's search of the offices determined to be the ones to maintain
such documents, if they exist, was more than reasonably thorough.
Finally, plaintiffs' reliance on the common law as providing a
right of access to the information in question must be rejected for three separate,
but equally compelling reasons. First, there is no waiver of sovereign immunity
that would permit plaintiffs to sue defendant under a common-law theory. Second,
even if their common-law claim were not so barred, the right of access plaintiffs
seek to invoke does not apply where, as here, the records are governed by a
statutory access scheme such as the FOIA. And even if the common-law right could
be invoked here, disclosure would not be warranted because, under the applicable
balancing test, the government's interest in keeping this information confidential
outweighs the public's interest in disclosure.
ARGUMENT
I. DEFENDANT HAS LAWFULLY WITHHELD THE INFORMATION PURSUANT TO
APPLICABLE EXEMPTIONS UNDER FOIA
A. The Information In Question Was Indisputably "Compiled For Law Enforcement
Purposes" In Accordance With FOIA Exemption 7's Threshold Requirement
As an initial matter, plaintiffs contend that information they seek about the
detainees was not "compiled for law enforcement purposes" as required
by FOIA Exemption 7, 5 U.S.C. § 552(b)(7). The only basis for their contention
is that the information they seek is contained in INS charging documents themselves
rather than solely in the underlying records of investigation. Memorandum of
Points and Authorities in Support of Plaintiffs' Cross-Motion for Summary Judgment
and Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.")
at 11-12. But plaintiffs misconstrue the government's basis for withholding
the information at issue. Although the detainees may have been in violation
of federal immigration laws, the information is being withheld because of its
connection to the September 11 investigation and related inquiries into other
terrorist activities. See Declaration of James S. Reynolds ("Reynolds Dec.")
(Exh. 1 to Defendant's Motion for Summary Judgment) 2. Indeed, plaintiffs seek
this information only because of its connection to September 11, and thus are
disingenuous in suggesting they want access only to unexceptional "INS
charging documents." The fact that this information, compiled in the course
of the September 11 investigation, is also contained in INS charging documents
is simply irrelevant to a determination of the applicability of Exemption 7
here.
To satisfy Exemption 7's threshold requirement, defendant must show that it
compiled the information "pursuant to an objectively reasonable law enforcement
purpose." Keys v. United States Dep't of Justice, 830 F.2d 337, 341 (D.C.
Cir. 1987); id. at 340 ("[T]he nexus between the agency's activity . .
. and its law enforcement duties must be based on information sufficient to
support at least a colorable claim of its rationality") (internal quotation
marks omitted). Such a rational law enforcement purpose is readily apparent
in the instant case. The Department of Justice ("DOJ") compiled information
about the detainees pursuant to its world-wide investigation into the September
11 attacks and into threats, conspiracies, and attempts to perpetrate terrorist
acts against United States citizens and interests. Reynolds Dec. 2, 5, 10, 27.
There is no question (and plaintiffs do not dispute) that the investigation
itself is legitimate and conducted for proper law enforcement purposes. See,
e.g., Keys, 830 F.2d at 341-42 (subject's known affiliation with organizations
suspected of harboring Communists furnished rational basis for continued collection
of whatever information might turn up about his activities); Bevis v. Department
of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (Federal law enforcement purpose
was supported by public policy interest in facilitating Salvadoran efforts to
bring to justice those who have murdered U.S. citizens); see also Keys, 830
F.2d at 340 ("'[A] criminal law enforcement agency['s] invocation of 'law
enforcement purposes' warrants greater deference than do like claims by other
agencies"). Hence, defendant has sustained its burden of showing that the
information satisfies the threshold requirement for Exemption 7.
B. Plaintiffs Seek To Impose An Erroneous Legal Standard For FOIA Exemptions
7(A) And (F)
In their effort to gain access to the detainees to pursue their unfounded speculations
about alleged government wrongdoing, plaintiffs seek to impose a far greater
burden on defendant than FOIA demands. Plaintiffs' analysis of the legal standard
under Exemptions 7(A) and (F) as requiring defendant to establish the possibility
of harm to the public and to the investigation, and thereby to justify its withholdings,
is flawed in numerous respects. See 5 U.S.C. § 552(b)(7)(A), (F). As discussed
further below, plaintiffs
· implicitly rely on an outdated version of Exemption 7, which required
defendant to show that disclosure "would" result in harm rather than
that it "could reasonably be expected" to do so;
· claim that Exemptions 7(A) and (F) require a showing that each detainee
is in fact involved with terrorism, even though such a showing is not necessary
to establish a reasonable possibility of harm to the investigation and to public
and individual safety;
· ignore the reasonable likelihood that at least some of the detainees
are connected to terrorism (even though that fact may never be proven through
the investigation) and the dire consequences that would flow from even one unnecessary
disclosure;
· raise false concerns about the future by baselessly contending that
defendant has secretly jailed these detainees in a "lawless roundup";
· claim that the information should be released because in some cases
it is already in the public domain, while this fact is irrelevant to FOIA and,
moreover, does not eliminate the risk of providing terrorists with the means
to piece together the full "mosaic" of the government's investigation;
and
· ignore the fact that information regarding the detainees' attorneys
is sufficiently connected to the detainees that its release could harm the investigation
and threaten the attorneys' physical safety and privacy.
1. Defendants are required to demonstrate only a reasonable possibility of harm
Exemption 7(A), unlike its less protective predecessor provision upon which
plaintiffs implicitly rely, protects information compiled for law enforcement
purposes to the extent that its production "could reasonably be expected
to" interfere with law enforcement proceedings. 5 U.S.C. § 552(b)(7)(A).
Similarly, Exemption 7(F) protects from disclosure information the release of
which "could reasonably be expected to" endanger the life or physical
safety of any individual. 5 U.S.C. § 552(b)(7)(F).
Congress adopted the "could reasonably be expected to" standard in
1986, expressly amending a predecessor provision to § 552(b) that protected
law enforcement information only where the disclosure "would" result
in the specific harms at issue. Pub. L. No. 99-570, 1802, 100 Stat. 3207, 3207-48
to 3207-49 (1986) (emphasis added). This change in language "reliev[ed]
the agency of the burden of proving to a certainty" that disclosure will
interfere with enforcement proceedings or endanger physical safety. Reporters
Comm. for Freedom of the Press v. United States Dep't of Justice, 816 F.2d 730,
738 (D.C. Cir. 1987); see also North v. Walsh, 881 F.2d 1988, 1098 n.14 (D.C.
Cir. 1989). In effect, the amendment broadened the protection of Exemption 7
by easing the agency's showing of harm. See Alyeska Pipeline Serv. v. EPA, 856
F.2d 309, 311 n.18 (D.C. Cir. 1988) (Pre-amendment version of Exemption 7(A)
"required [agency] to meet a higher standard than FOIA now demands").
While plaintiffs give lip service to this standard, they rely on case law interpreting
the pre-1986 standard, which employed the more restrictive "would"
standard, i.e., requiring that release of the information "would"
result in the harms alleged. See Pl. Memo. at 11 (quoting North v. Walsh, 881
F.2d at 1098). Their subsequent analysis further requires this heightened showing.
But cases interpreting the 1986 amendments do not require the strict standard
called for by the plaintiffs. Although defendant could meet the higher standard
if necessary, it need not prove that release of the information "will certainly"
interfere with the law enforcement proceedings or cause physical injury in order
to justify withholding the information pursuant to Exemptions 7(A) and (F).
Alyeska Pipeline Serv. v. EPA, No. 86-2176, 1987 WL 17071, at *3 (D.D.C. Sept.
9, 1987), aff'd, 856 F.2d 309 (D.C. Cir. 1988). Instead, defendant merely "must
show that the possibility of [the alleged harms] exists." Alyeska, No.
86-2176, 1987 WL 17071, at *3; see also Kay v. FCC, 976 F. Supp. at 39 (Agency
"need not establish that witness intimidation is certain to occur, only
that it is a possibility"). The Supreme Court has clarified that the harms
prevented by Exemptions 7(A) and (F) are a risk rather than a certainty, describing
Exemption 7(A) as "a prophylactic rule that prevents the harm to a pending
enforcement proceeding which flows from a witness' having been intimidated."
National Labor Relations Bd. v. Robbins Tire and Rubber Co., 437 U.S. 214, 239-40
(1978) (emphasis added); see also Alyeska, No. 86-2176, 1987 WL 17071, at *3
("'The purpose of national security exemptions to the FOIA is to protect
intelligence sources before they are compromised and harmed, not after'").
Moreover, even under the now defunct "would" standard, the government
was not required to "show a particularized risk to its individual enforcement
proceeding." See Robbins Tire, 437 U.S. at 234 (internal quotation marks
omitted). This same logic applies with even greater force under the more liberal
1986 amendment. Of course, Exemptions 7(A) and (F) do not authorize the "wholesale"
withholding of information simply because material is related to an enforcement
proceeding, North v. Walsh, 881 F.2d at 1097 (internal quotation marks omitted),
and the government makes no such claim of entitlement here. What the government
must demonstrate is how disclosure of particular kinds of information could
"generally" interfere with its pending investigation. See Robbins
Tire, 437 U.S. at 234.
Plaintiffs' principal argument in this case is that defendants have not demonstrated
a sufficient nexus between the withheld information and the alleged harms. But
defendant's showing in the instant case easily satisfies the standard set forth
in Robbins Tire and related cases interpreting Exemption 7. One of the officials
responsible for coordinating and supervising the investigation into the September
11 attacks and related matters has explained, in significant detail, the risks
entailed in disclosure of this information. See Alyeska Pipeline Serv. Co. v.
EPA, 1987 WL 17071, at *2 ("The affidavits of a government agency in FOIA
cases are to be given substantial weight by a reviewing court"). Those
risks include the potential for (1) interfering with witnesses and evidence,
Reynolds Dec. 13-14; see Memorandum in Support of Defendant's Motion for Summary
Judgment ("Def. SJ Memo.") at 15-16; (2) impairing defendant's ability
to obtain information in the future, Reynolds Dec. 15; Def. SJ Memo. at 16-17;
(3) revealing the scope, direction, and nature of the investigation, Reynolds
Dec. 16; Def. SJ Memo. at 17-18; (4) enabling terrorist organizations to reorganize
and mount future attacks, Reynolds Dec. 16; Def. SJ Memo. at 18-19; and (5)
allowing for the creation of false or misleading evidence, Reynolds Dec. 17;
Def. SJ Memo. at 19.
These harms set forth by the government are both real and likely to flow from
disclosure of the information in question. Plaintiffs' arguments to the contrary,
see Pl. Memo. at 13-14, rest on the fallacious notion that defendants are required
to prove that each of the individuals detained as part of the investigation
were actually terrorists. But for the reasons stated below, that argument is
simply incorrect and misapprehends the nature of the government's evidence of
harm. Accordingly, defendant has satisfied the criteria for showing harm that
justifies withholding the requested information pursuant to Exemptions 7(A)
and (F).
2. Exemptions 7(A) and (F) do not require defendant to establish the existence
of a connection between each detainee and terrorism
Plaintiffs fundamentally misconceive Exemption 7(A) and (F) in implying that
defendant must show a connection between each detainee and terrorism. As defendant
has previously explained, see Defendant's Opposition To Plaintiffs' Motion To
Stay Proceedings On Defendant's Summary Judgment Motion Pending Discovery ("Def.
Stay Opp."), at 13-16, Exemption 7 does not require defendant to show a
connection between each detainee and terrorism, but rather between the type
of information about the detainees being withheld and possible harm to the terrorism
investigation and to human safety. Indeed, Mr. Reynolds' declarations establish
that even disclosure of information about detainees who have been determined
to be of no investigative interest regarding the September 11 attacks could
potentially harm the investigation or safety in several ways. Each of these
harms can be established without establishing the existence of a connection
between each detainee and terrorism. See, e.g., Solar Sources, Inc. v. United
States, 142 F.3d 1033, 1040 (7th Cir. 1998) (Information compiled against individuals
in now closed investigation was exempt from disclosure where it was part of
information compiled for ongoing investigation against other targets); New England
Med. Ctr. Hosp. v. NLRB, 548 F.2d 377, 385-86 (1st Cir. 1976) (Applicability
of exemption does not hinge on "open" or "closed" label
agency places on file, and agency properly withheld closed file which was "contemporaneous
and . . . intimately connected with that of the pending enforcement proceeding")
; Cucci v. DEA, 871 F. Supp. 508, 512 (D.D.C. 1994) (Exemption 7(A) protects
information pertaining to terminated investigation where it could be used in
the prosecution of future subjects of "multiple intermingled investigations");
Engelking v. DEA, No. 91-0165, slip op. at 6 (D.D.C. Nov. 30, 1992) (Records
from closed file are exempt where they relate to law enforcement efforts which
are still active or prospective), summary affirmance granted in pertinent part,
vacated in part & remanded, No. 93-5091, 1993 LEXIS 33824 (D.C. Cir. Oct.
6, 1993); Concrete Constr. Co. v. United States Dep't of Labor, No. 2-89-649,
slip op. at 4 (S.D. Ohio Oct. 26, 1990) (Exemption 7(A) applied when release
would permit prospective targets to gauge "potential of being investigated");
Freedberg v. Department of the Navy, 581 F. Supp. 3, 4 (D.D.C. 1982) (Exemption
7(A) remained applicable when two murderers were convicted but two others remained
at large).
Specifically, releasing information about detainees in the "inactive"
category could nonetheless reveal important information about the direction,
progress, focus and scope of the investigation, and serve to assist terrorist
organizations in counteracting the Department's investigative efforts. Supplemental
Declaration of James S. Reynolds ("Supp Reynolds Dec.") (Exh. 1 to
Def. Stay Opp.) 6. Disclosure could inform terrorist organizations about what
evidence law enforcement has obtained, or, just as importantly, has not obtained.
Id. Distributing information about persons who are not currently the subject
of investigative interest, for example, may inform terrorist organizations of
routes of investigation that were followed but eventually abandoned. Id. In
addition, the individuals involved could be subjected to intimidation or harm,
thereby discouraging or preventing them from supplying valuable information
or leads in the future. Id.
Thus, even the disclosure of seemingly innocuous information poses an unacceptable
threat to the investigation and the public safety. As pointed out by Mr. Watson,
terrorist organizations that have the sophistication to engage in multiple,
simultaneous attacks are involved in gathering intelligence concerning the activities
of the U.S. government and its law enforcement activities. Watson Dec. 12. Bits
and pieces of information that may appear innocuous in isolation, when assimilated
with other information that terrorists may or may not have in hand, will allow
the organization to build a picture of the investigation and to thwart the government's
attempts to investigate and prevent terrorism. Id. The situation is thus analogous
to situations presented by national security cases, where the courts have recognized
that "intelligence gathering . . . is more akin to the construction of
a mosaic" and that "[t]housands of bits and pieces of seemingly innocuous
information can be analyzed and fitted into place to reveal with startling clarity
how the unseen whole must operate." Halkin v. Helms, 598 F.2d 1, 8 (D.C.
Cir. 1979); see also Abbotts v. NRC, 766 F.2d 604, 608 (D.C. Cir. 1985) ("What
may seem trivial to the uninformed, may appear of great moment to one who has
a broad view of the scene and may put the questioned item of information in
its proper context") (quoting United States v. Marchetti, 466 F.2d 1309,
1318 (4th Cir. 1972)) (internal quotation marks omitted); Halperin v. CIA, 629
F.2d 144, 150 (D.C. Cir. 1980) ("each individual piece of intelligence
information, much like a piece of jigsaw puzzle, may aid in piecing together
other bits of information even when the individual piece is not of obvious importance
in itself").
3. Defendant has established a reasonable likelihood that at least some of the
detainees have terrorist associations
In any event, defendant has demonstrated a sufficient likelihood that at least
some of the detainees at issue have connections to terrorism. That evidence,
in itself, is sufficient to support the invocation of Exemptions 7(A) and (F).
Plaintiffs confuse the applicable legal standards when they argue that the
asserted harms could not reasonably be expected to occur unless detainees suspected
of terrorism are in fact found to be involved with terrorism or to have material
knowledge of it. Pl. Memo. at 13-14. But the law does not require defendants
to demonstrate that their well-founded suspicions about terrorist connections
and involvement have been confirmed as a prerequisite to invoking Exemption
7. Indeed, the government could not make such a showing without detailing the
extent to which its investigation has and has not succeeded in discovering and
disrupting terrorist connections and activities. As the Reynolds Declaration
makes clear, such information would, by compromising the integrity of the ongoing
investigation and putting at risk the lives and safety of the public, undermine
the very interests Exemption 7 is designed to protect.
Defendants have made the showing Exemption 7 does require. As Mr. Reynolds explains,
the detentions at issue here were not arbitrary or devoid of reasonable justification.
All of the detainees "were originally questioned because there were indications
that they might have connections with, or possess information pertaining to,
terrorist activity against the United States." Reynolds Dec. 10; see also
id. 19, 27; Watson Dec. 8. Regardless of whether these reasonable suspicions
have or have not yet produced hard evidence in every or any given case, terrorist
involvement or connections by at least some of these individuals simply cannot
be ruled out. The likely harms to the investigation and to the public safety
outlined in the Reynolds Declaration therefore provide a sufficiently reasonable
basis on which to justify withholding under Exemption 7.
Plaintiffs contend that the withholding of the identities of the "inactive"
detainees cannot be justified on these grounds. Pl. Memo. at 16-17. But plaintiffs
are again mistaken. Because defendant's investigation is fluid and evolving,
the significance to the investigation of a given detainee may change over time.
Supp. Reynolds Dec. 7. An "inactive" detainee may return to "active"
status as new information is obtained in the course of the investigation. Indeed,
by way of example, this change in status occurred with respect to at least one
detainee who had been determined to be of no investigative interest in November
2001, but who was returned to the active interest category later that month
after a reevaluation of evidence and information by law enforcement components
involved in the investigation. Id. The same possibility exists with respect
to any of the "inactive" detainees, and further justifies the nondisclosure
of information identifying them. See Erb v. United States Dep't of Justice,
572 F. Supp. 954, 956 (W.D. Mich. 1983) (Withholding was proper when investigation
"concluded 'for the time being'" but was subsequently reopened). Furthermore,
release of the names of inactive detainees may tip off terrorists as to what
the government has not discovered, leads that have been abandoned, or possibly
individuals who have agreed to cooperate. See Supp. Reynolds Dec. 6; see also
discussion supra section 2.
4. Application of Exemptions 7(A) and (F) in this case is warranted and necessary
Plaintiffs declare that withholding the information they seek under Exemption
7 would enable the government to conduct unbridled investigations in the future,
and in any event, cannot prevent harms which will inevitably occur. See Pl.
Memo. at 17-19. These two assertions are groundless. As to the first, the notion
that upholding the FOIA exemptions in this case would allow the government to
secretly jail anyone on the basis of bare allegations, see Pl. Memo. at 18-19,
is unfounded. The detentions here were not the product of bare allegations;
all of the detainees were originally questioned because of indications that
they may have terrorist associations or information pertinent to the investigation.
Reynolds Dec. 4. Their questioning was therefore founded on defendant's reasonable
suspicions, substantiated by evidence from the investigation. They were detained
based on evidence that they had violated federal immigration laws. Plaintiffs'
fears that defendant's fully justified actions in this case portend lawless
roundups in the future are therefore extremely far-fetched, and not a basis
to overturn the valid withholding decisions made here.
Moreover, plaintiff's concern about "secret" detentions is specious.
As plaintiffs' exhibits reveal, very little is "secret" about the
fact that the United States has detained hundreds of individuals in the context
of the investigation into the events of September 11. Defendant has released
a significant amount of information about the detainees, such as numbers, countries
of birth, and charges upon which they are being held. Reynolds Dec. 7, 8. Thus,
the government's general activities are widely exposed to public inspection.
As to plaintiffs' second assertion, plaintiffs argue, in effect, that FOIA's
exemptions should be disregarded because information already in the public domain
and in the detainees' control is as likely to cause the projected harms as the
granting of plaintiffs' FOIA request. Pl. Memo. at 17-18; Watson Dec. 12-13.
That harm may be caused by factors beyond FOIA's reach is beside the point.
Cf. Bast v. United States Dep't of Justice, 665 F.2d at 1255 (Fact that information
in question had already received substantial public attention did not destroy
privacy interest). While defendant has no intention of blocking the otherwise
lawful dissemination of information by the detainees or otherwise, neither is
defendant obligated to invite the occurrence of the very harms FOIA was designed
to prevent.
Moreover, disclosure of the information by the government would have an entirely
different impact on the investigation than sporadic disclosure by the detainees
themselves. Much more than any piecemeal and potentially erroneous anecdotal
accounts of detention by any individuals, a compilation with the government's
imprimatur confirming the identity of detainees and details of their detention
and their connection to the September 11 investigation would provide valuable
information to terrorists regarding the focus, scope, direction, and location
of the investigation. Reynolds Dec. 16-17. In contrast, sporadic, voluntary
disclosure would deny terrorists a view of the full "mosaic" of information
from which they could make more accurate conclusions about the investigation.
For these reasons, the government's decision to allow individual detainees to
come forward if they wish is not inconsistent with its determination to withhold
the comprehensive list of names.
5. The possibility that divulging the identities of the detainees' attorneys
would interfere with defendant's investigation and jeopardize their physical
safety justifies withholding this information
Contrary to plaintiffs' bald assertions, see Pl. Memo. at 19, the same rationales
that justify the nondisclosure of information about the detainees themselves
provide equally compelling support for defendant's decision to withhold the
names of the detainees' attorneys pursuant to Exemption 7(A). Publication of
their names en masse may facilitate the identification of the detainees themselves,
prompting all the ensuing harms to defendant's investigation and putting at
risk the public safety. Reynolds Dec. 18.
Plaintiffs argue that Exemption 7(F) does not protect the names of the detainees'
attorneys and their physical safety because they have allegedly already surrendered
their anonymity merely by virtue of taking on a given detainee's case. See Pl.
Memo. at 19. However, the limited exposure that occurs when an attorney represents
a client does not approach the broad, full-scale publicity that would result
from a FOIA release. Moreover, the fact remains that if the detainees' attorneys
wish to contact plaintiffs, they are free to do so, just as they are otherwise
free to disseminate their names as broadly as they see fit. Reynolds Dec. 26.
For defendant to promulgate their names, on the other hand, could reasonably
be expected to place them in potentially grave peril. The absence of any justification
for defendant's disclosure of their identities is underscored by the fact that
the attorneys are presumably adequately equipped, without plaintiffs' assistance,
to address the alleged abuses against their clients which plaintiffs' FOIA requests
are purportedly intended to expose.
C. Defendant Has Made A Valid Constitutional Distinction Between Releasing
Information About Criminally Charged Detainees And Protecting The Confidentiality
Of Detainees Facing Civil Immigration Charges
Plaintiffs argue that, with regard to the release of information, there is
no basis for distinguishing between the individuals held on immigration charges
and criminal detainees, whose identities have been revealed. Pl. Memo. at 10.
What plaintiffs ignore are the critical distinctions between the two categories
of detainees which justify their different treatment. The Constitution requires
that all criminal prosecutions be "public." See U.S. Const. amend.
I, VI; Press-Enterprise Co. v. Superior Court of Cal. for the County of Riverside,
478 U.S. 1, 7 (1986) ("The right to an open public trial is a shared right
of the accused and the public . . . ."). Consistent with this Constitutional
mandate, defendant compiled and released information regarding the detainees
charged with criminal offenses. See Exh. 5 to Defendant's Motion for Summary
Judgment; see Congressional News Syndicate v. United States Dep't of Justice,
438 F. Supp. 538, 544 (D.D.C. 1977) (Court acknowledged the "Justice Department's
traditional practice" of disclosing identities of individuals once investigation
as to them "had reached the arrest or indictment stages").
By contrast, the names of detainees jailed on immigration charges and subject
to deportation proceedings have been kept confidential because the deportation
proceedings are civil and administrative in nature rather than criminal. See
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ("A deportation proceeding is
a purely civil action to determine eligibility to remain in this country, not
to punish an unlawful entry"); Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
("The [removal] proceedings at issue here are civil, not criminal, and
we assume that they are nonpunitive in purpose and effect"). INS removal
proceedings, which are usually open to the public, 8 C.F.R. § 240.10(b),
may be closed at the discretion of the immigration judge "[f]or the purpose
of protecting witnesses, parties, or the public interest," 8 C.F.R. §
3.27(b). See INS v. Lopez-Mendoza, 468 U.S. at 1038 ("Consistent with the
civil nature of the proceeding, various protections that apply in the context
of a criminal trial do not apply in a deportation hearing"). The immigration
judge is, in turn, subject to the authority of the Attorney General. 8 C.F.R.
§§ 1.1(l), 2.1, 3.10.
In the present case, the Department of Justice has correctly determined that
it is in the interests of the public, the detainees, and persons associated
with them to maintain the confidentiality of information about the INS detainees.
See Reynolds Dec. 13-26, 37-38. Since the INS detainees are not subject to the
Constitutional mandate requiring prosecutions to be public, defendant has properly
withheld this information under FOIA.
4. The Detainees' Strong Privacy Interest In Avoiding Lifelong "Guilt
By Association" Far Outweighs The Alleged Public Interest Founded On Speculation
About Alleged Government Wrongdoing
1. Disclosure would jeopardize the detainees' privacy
In challenging defendant's withholding under Exemption 7(C) of information
that indisputably implicates serious privacy concerns with respect to the detainees,
plaintiffs rely on unsubstantiated allegations regarding the government's detention
and treatment of the detainees. But this suit, brought pursuant to FOIA, is
not the proper forum to address such allegations. In any event, plaintiffs do
not come forward with any actual evidence of governmental misconduct sufficient
to outweigh the substantial privacy interests at stake here.
To determine whether material falls within Exemption 7(C), a court must balance
the public interest in disclosing information against the individual's interest
in personal privacy. Bast v. United States Dep't of Justice, 665 F.2d at 1254.
Importantly, Exemption 7(C) "does not require a balance tilted emphatically
in favor of disclosure." Id. Rather, it "takes particular note of
the strong interest of individuals, whether they be suspects, witnesses, or
investigators, in not being associated unwarrantedly with alleged criminal activity."
Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d
at 904 (internal quotation marks omitted). Moreover, as plaintiffs themselves
acknowledge, see Pl. Memo. at 30, the privacy rights of individuals whose names
appear in law enforcement files as suspects, witnesses, or informants have been
upheld under FOIA. Specifically, Exemption 7(C) "recognizes the stigma
potentially associated with law enforcement investigations and affords broad[]
privacy rights to suspects, witnesses, and investigators." Bast v. Department
of Justice, 665 F.2d at 1254; see 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 quotations marks omitted); Computer
Prof'ls, 72 F.3d at 904 (Publicly identifying individuals, including nonsuspects,
who attracted attention of law enforcement officials would impinge upon their
privacy).
Release of the information about the detainees sought by plaintiffs in this
case would severely intrude on those detainees' privacy interests. Plaintiffs'
unsubstantiated speculations and concerns about alleged government misconduct
are insufficient to override that interest, particularly in view of the fact
that the government already has released certain information about the detainees
which adequately informs the public about "what the government is up to"
without violating the detainees' privacy interests.
Plaintiffs' contention that the detainees have no privacy interest in the fact
that they have been arrested and jailed, Pl. Memo. at 30, mischaracterizes the
nature of the privacy concerns at issue; the privacy interests rest not on the
detainees' detention, but on the opprobrium that would attach to anyone whose
name is linked with the September 11 terrorist investigation. The privacy rights
are rooted in the fact that the detentions were related to defendant's investigation
into the September 11 attacks and that the detaineees were questioned because
of evidence that they might have terrorist affiliations or knowledge useful
to the investigation. Reynolds Dec. 10, 19. Their privacy interests are unconnected
to the fact that they were held on unrelated, albeit legitimate, immigration
or criminal charges. It is each detainee's inescapable association with the
terrorist investigation that implicates his privacy rights, not the fact that
he may also have been detained for separate reasons. Reynolds Dec. 19.
The mere mention of a detainee's name in connection with the investigation of
the worst terrorist attacked ever committed on United States soil would cause
the detainee embarrassment, humiliation, risk of retaliation, harassment, and
possibly even physical harm in the United States and in his home country. Reynolds
Dec. 19. Plaintiffs' admission that one detainee was threatened and taunted
by his fellow prisoners after guards told them he was a terrorist underscores
this possibility. See Pl. Memo. at 25 n.52. The potential for harassment of
the detainees was highlighted by Amnesty International itself, a group that
purports to serve as a watchdog on behalf of the detainees and a plaintiff in
this case. Amnesty International has expressly declined to reveal the names
of September 11 detainees of which it is aware, concluding that "many fear
repercussions from other inmates or the authorities or fear that their or their
families' safety could be jeopardized through public hostility to anyone cited
in connection with the 11 September attacks." See Reynolds Dec. 19.
Moreover, even if the detainees are eventually cleared of any connection to
terrorist activity, the original reasons for their detention remain unchanged
and connect them irreversibly to the September 11 attacks. The release of their
identities would forever stigmatize them and pose the risk that they may be
viewed as "guilty" purely by association. Reynolds Dec. 19. Therefore,
the detainees have a strong interest in not being associated with alleged criminal
activity. See Bast v. Department of Justice, 665 F.2d at 1254 (Documents revealing
allegations of wrongdoing by suspects who never were prosecuted or names of
third parties who had some role in investigation implicated privacy rights);
Fund for Constitutional Gov't v. National Archives & Records Serv., 656
F.2d 856, 861-66 (D.C. Cir. 1981) (Release of information identifying those
investigated but not charged "represents a severe intrusion on the privacy
interests of the individuals in question and should yield only where exceptional
interests militate in favor of disclosure"); Congressional News Syndicate,
438 F. Supp. at 545 (The disclosure of investigative records regarding the subject
of a criminal investigation, "in the absence of a criminal charge, would
expose him to public embarrassment and ridicule and place him in the position
of having to defend his conduct without the benefit of a formal judicial proceedings,"
thereby invading his privacy).
Plaintiffs contend that the detainees are forever publicly connected to the
terrorist attacks by virtue of having been jailed on unrelated immigration charges,
and in some cases, deported in the wake of those attacks. See Pl. Memo. at 30
n.61. Plaintiffs ignore the fact that although these individuals were originally
questioned because they were suspects or potential sources of evidence in the
September 11 investigation, they were taken into custody for violating federal
immigration laws. Because their alleged association to the terrorist investigation
could not be known unless the detainees' identities are made public in a context
such as the present one, plaintiffs' assertion implicitly concedes defendant's
point, which is that the identities must be withheld in order to prevent any
stigmas from attaching.
2. Plaintiffs offer no compelling evidence of the alleged public interest
The only public interest relevant for purposes of Exemption 7(C) is "the
citizens' right to be informed about what their government is up to." Davis
v. United States Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting
Reporters Comm., 489 U.S. at 773) (internal quotation marks omitted). Erroneously
equating "public interest" with publicity, plaintiffs assert that
information about the detainees should be disclosed because of the high volume
of attention the media has given them. See Pl. Memo. at 21. Heavy press coverage
of events that pique public curiosity, however, is not necessarily evidence
of public interest in the sense contemplated by Exemption 7(C).
Plaintiffs also assert that there is sufficient evidence of governmental misconduct
here to outweigh the privacy interests. As this Circuit has held, "[a]
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)." McCutchen v. United States
Dep't of Health & Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994) (There
was no public interest in disclosure of information based solely on "'allegations
in the scientific and political communities'" that agency's handling of
scientific fraud investigations had been inadequate); see also Beck v. Department
of Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993) ("A requestor does not
have a right to have his case decided on a hypothetical set of facts that strengthen
his position; rather he must see his case succeed or fail on the facts before
the court"); Fund for Constitutional Gov't, 686 F.2d at 866 ("[T]he
legitimate and substantial privacy interests of individuals . . . cannot be
overridden by a general public curiosity"); Manchester v. DEA, 823 F. Supp.
1259, 1271 (E.D. Pa. 1993) ("Merely speculative claims [of governmental
misconduct] will not overcome the presumption of good faith to which the government's
affidavits are entitled"). A requester must come forward with "compelling
evidence" that the agency is involved in illegal activity "when governmental
misconduct is alleged as the justification for disclosure." Computer Prof'ls,
72 F.3d at 905.
Far from meeting this "compelling evidence" standard, plaintiffs'
sweeping allegations of government wrongdoing are founded instead on unsubstantiated
hearsay accounts, largely in news stories, that plaintiffs themselves concede
merely raise "questions" about "potential" governmental
impropriety. Pl. Memo. at 21-22. Plaintiffs do not explain why they have failed
to come forward with even one declaration to support their allegations. Moreover,
the detainees obviously have the right to voice their own complaints to rectify
alleged abuses. The hearsay accounts of wrongdoing alleged by the detainees,
their attorneys, or unnamed third parties are nothing more than "journalistic
speculation" whose "accuracy is not established." Bast v. United
States Dep't of Justice, 665 F.2d at 1255; see also Carter v. District of Columbia,
795 F.2d 116, 128 (D.C. Cir. 1986) ("The specific accounts of allegations
contained in newspaper articles were themselves of no probative value").
Hence, they do not constitute evidence, much less "compelling evidence,"
of official misconduct.
Even if plaintiffs had produced evidence of wrongdoing, the material plaintiffs
request would not add to the available public knowledge of defendant's conduct.
See Safecard Servs. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991); Computer Prof'ls,
72 F.3d at 905. The information already released by the government regarding
the detainees, together with the accounts of those detainees who have voluntarily
come forward, is sufficient to inform the public about the government's activities.
Release of the limited additional information at issue here (names, ages, lawyers,
and dates of incarceration and release) will not add materially to the public's
knowledge. See Safecard Servs. v. SEC, 926 F.2d at 1205-06 (Where agency had
already produced stock transaction records, incremental public interest in deleted
names and addresses of private individuals would not ever be significant). Moreover,
as set forth in note 10 above, the Department of Justice's Office of Inspector
General has initiated an investigation into the allegations voiced by plaintiffs,
and those allegations will be thoroughly, and appropriately, aired in that forum.
Finally, plaintiffs argue that the detainees' attorneys have minimal privacy
interests, but that there is a public interest in knowing their names so as
to determine whether the government has engaged in misconduct. Pl. Memo. at
32. Given the barbarity of the terrorist attacks, the detainees' attorneys have
a significant privacy interest in not exposing themselves to possible retaliation
by the American public. Reynolds Dec. 24-25. By the same token, even if plaintiffs
could show evidence of wrongdoing by defendant, they offer no explanation of
how the attorneys' names could possibly "confirm or refute" that evidence.
See Computer Prof'ls, 72 F.3d at 905. Hence, they fail to show that the disclosure
of the names could serve any public interest within the ambit of Exemption 7.
E. Plaintiffs Are Not Entitled To Information Concerning Cases In Which District
Courts Have Issued Sealing Orders
Defendant has withheld information concerning nine cases in which district
courts have entered sealing orders, including the identities of the courts involved
and the sealing orders themselves. See Reynolds Dec. 39; Supp. Reynolds Dec.
9; Morgan v. United States Dep't of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991)
(a court order sealing records supersedes an agency's obligation to disclose
records under FOIA where the order was issued with the intent to prohibit disclosure)
(citing GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386-87 (1980)).
Defendant's declarant, James Reynolds, has previously explained that this information
has been withheld because "the orders have been sealed . . . and prohibit
the government from releasing any information." Reynolds Dec. 39.
Because Mr. Reynolds is the agency's declarant, his statements that the sealing
orders are themselves sealed are entitled to a presumption of good faith, and
hence to considerable deference from the Court. Carney v. United States Dep't
of Justice, 19 F.3d 807, 812 (2d Cir. 1994); see also Lesar v. Department of
Justice, 636 F.2d 472, 481 (D.C. Cir. 1980); Kay v. FCC, 976 F. Supp. at 33
(citing Carter v. United States Dep't of Commerce, 830 F.2d 388, 393 (D.C. Cir.
1987)). As plaintiffs provide no countervailing evidence, no further proof is
necessary to justify withholding of the information sought.
Nevertheless, to clear up any confusion in the matter, Mr. Reynolds submits
herewith a Second Supplemental Declaration, which explains that the sealing
orders at issue direct the sealing of indictments that have been returned by
a grand jury, pursuant to Federal Rule of Criminal Procedure 6(e)(4), or criminal
complaints that have been sealed by federal magistrate judges. Second Supplemental
Declaration of James S. Reynolds, attached herewith as Ex. 10 ("Second
Supp. Reynolds Dec.") 3. An indictment may be sealed "for any legitimate
prosecutorial need," United States v. Ramey, 791 F.2d 317, 321 (4th Cir.
1986), including "to protect [the government's] investigations." United
States v. Mitchell, 769 F.2d 1544, 1547-48 (11th Cir. 1985) ("The sealing
of an indictment allows the government to complete an investigation properly
. . ."). As Mr. Reynolds explains, the Department of Justice uniformly
interprets such orders to protect from disclosure not only the contents of the
charging document but the very fact of the existence of the charges. Second
Supp. Reynolds Dec. 3, 5; see United States v. Smaldone, 484 F.2d 311, 320 (10th
Cir. 1973) (upholding refusal of district court to disclose existence or nonexistence
of indictment). Therefore, the information sought by plaintiffs with regard
to the nine sealed charging documents is properly withheld, and defendant cannot
be required to reveal even the "relevant language of these court orders"
(nor is it necessary to do so). See Pl. Memo. at 33.
Moreover, plaintiffs ignore that this information is also validly being withheld
pursuant to Exemptions 7(A) and (F) because its disclosure could reveal investigative
strategies, thereby harming the investigation and putting at risk the public
safety. Reynolds Dec. 40. In addition, of course, the identities of the detainees
who are the subject of these sealed charging documents are being withheld pursuant
to Exemption 7(C), to protect their privacy.
F. Plaintiffs Are Not Entitled To Information Regarding Those Detained On Material
Witness Warrants
Defendant has also withheld all information regarding certain individuals who
are being detained on material witness warrants. As Mr. Reynolds explained in
his original Declaration, disclosure of information regarding these warrants
would reveal identities of grand jury witnesses as well as the scope and direction
of the grand jury proceedings. Reynolds Dec. 34. In his Second Supplemental
Declaration he further elaborates that each of the warrants were specifically
issued to procure a witness's testimony for the appropriate grand jury. Second
Supp. Reynolds Dec. 4. Accordingly, the information is properly withheld pursuant
to Federal Rule of Criminal Procedure 6(e)(2) and FOIA Exemption 3, 5 U.S.C.
§ 552(b)(3). In addition, for the reasons set forth in sections A and C
above with respect to detainees and their attorneys, revealing information regarding
"material witnesses" and their attorneys could reasonably be expected
to hamper the pending law enforcement investigation, threaten the safety of
the public, the detainees, and people associated with them, and violate the
individual privacy rights of the detainees. Indeed, these concerns are even
stronger here, as the individuals involved have been unmistakably identified
(by virtue of the issuance of the warrants) as being of special interest to
the investigation. This information is therefore also properly withheld pursuant
to FOIA Exemptions 7(A), 7(C), and 7(F).
FOIA Exemption 3 permits an agency to withhold information "specifically
exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). Fed. R.
Crim. P. 6(e), which prohibits disclosure of "matters occurring before
a grand jury," is one of the statutes incorporated within this exemption.
Senate of Commonw. of P.R. v. United States Dep't of Justice, 823 F.2d 574,
582 & n.23 (D.C. Cir. 1987) (hereinafter, "Senate of P.R."). Subsection
(2) of Rule 6(e) specifically provides that
A grand juror, an interpreter, a stenographer, an operator of a recording device,
a typist who transcribes recorded testimony, an attorney for the government,
or any person to whom disclosure is made . . . shall not disclose matters occurring
before the grand jury, except as otherwise provided for in these rules. . .
. A knowing violation of Rule 6 may be punished as a contempt of court.
Rule 6(e) thus prohibits disclosure of grand jury information that would "reveal
anything concerning the inner workings of the grand jury." Senate of P.R.,
823 F.2d at 583. In determining what matters are protected, "the touchstone
is whether disclosure would tend to reveal some secret aspect of the grand jury's
investigation[,] such matters as the identities of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the
deliberations or questions of jurors, and the like." Id. at 582 (quoting
SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc))
(internal quotation marks omitted). The prohibition "includes not only
what has occurred and what is occurring, but also what is likely to occur"
before the grand jury. In re Motions of Dow Jones & Co., 142 F.3d 496, 500
(D.C. Cir. 1998). Furthermore, "records, orders and subpoenas relating
to grand jury proceedings shall remain under seal to the extent and for such
time as necessary to prevent disclosure of matters occurring before a grand
jury." Fed. R. Crim. P. 6(e)(6).
As plaintiffs themselves concede (Pl. Memo. at 36), the identities of witnesses
are almost always considered protected by Rule 6(e). See Senate of P.R., 823
F.2d at 582 (listing "the identities of witnesses or jurors" as a
"matter" that "would tend to reveal some aspect of the grand
jury's investigation") (internal quotation marks and citation omitted);
see also In re Motions of Dow Jones & Co., 142 F.3d at 502 ("We have
held that 'matters occurring before the grand jury' include 'the identities
of witnesses") (citing Fund for Constitutional Gov't, 656 F.2d at 869);
Durham v. United States Dep't of Justice, 829 F. Supp. 428, 432 (D.D.C. 1993)
(holding that information that "would enable identification of witnesses"
before the grand jury was properly withheld). Thus, the government is required
here to withhold information regarding the material witness warrants, which
would otherwise reveal the identity of grand jury witnesses. The government
is likewise required to withhold information regarding even those individuals
who were eventually not called to appear, as the information that they were
proposed as grand jury witnesses would also reveal important information about
the nature of the grand jury's investigation.
Fed. R. Crim. P. 6(e)(6) also applies here. This part of Rule 6 protects "records,
orders and subpoenas relating to grand jury proceedings," which "shall
remain under seal to the extent and for such time as necessary to prevent disclosure
of matters occurring before a grand jury." A material witness warrant is
issued by a court and therefore qualifies as an "order" required to
remain under seal. Indeed, the express purpose of Rule 6(e)(6) is to prevent
disclosure of the identities of grand jury witnesses and targets. See Fed. R.
Crim. P. 6, 1983 Advisory Committee Notes. In accordance with this rule, the
relevant courts have issued orders prohibiting the government from releasing
any information about these proceedings. Reynolds Dec. 32. As Mr. Reynolds explains,
the Department of Justice uniformly interprets such orders to protect not only
the contents of the warrants but the very fact of the existence of the warrants
from disclosure. Second Supp. Reynolds Dec. 5. Therefore, with regard to these
warrants, no further information may be disclosed. Id.
Plaintiffs argue that the government could have revealed information regarding
those being held on material witness warrants without exposing them as grand
jury witnesses and therefore should not now be allowed to claim an exemption
for the information based on the grand jury connection. Pl. Memo. at 36. However,
unlike in Senate v. P.R., here plaintiffs specifically sought identification
of those witnesses held on material witness warrants by asking for the "basis
for detaining" for each detainee "including material witness warrants."
Plaintiffs' argument that such information does not reveal the grand jury connection
relies on an unduly narrow reading of the material witness statute, 18 U.S.C.
§ 3144. Plaintiffs point out that the statute authorizes detention generally
of persons whose testimony "is material to a criminal proceeding,"
which includes, but is not limited to, grand jury proceedings. They argue that
identifying someone as a material witness in the present case links him or her
only to general "criminal proceedings," and not necessarily to grand
jury proceedings. To the contrary, where, as here, it is well known that the
terrorism investigation is in progress, the only reasonable conclusion that
could be drawn is that the material witness warrants pertain to a grand jury
investigation. Notably, plaintiffs cite no case in which witness information
was considered to have no nexus to grand jury proceedings and was ordered to
be revealed. Revealing information regarding the material witness warrants here
would reveal the inner workings of the grand jury, and disclosure is therefore
prohibited.
G. Defendant's Search For Policy Directives or Guidance About Making Public
Disclosures or Sealing Proceedings Was Adequate
Plaintiffs contest the adequacy of defendant's search in response to part 4
of their FOIA request, seeking "[a]ll policy directives or guidance issued
to officials about making public statements or disclosures" or about "sealing
. . . judicial or immigration proceedings." As an initial matter, plaintiffs
should be barred from complaining that defendant has not conducted an adequate
search to find individual documents because plaintiffs agreed at the outset
to limit the scope of their FOIA request to the underlying "information,"
and disavowed any desire to receive "all documents" responsive to
their requests. In any event, however, defendant's search for documents responsive
to this particular part of their request was adequate.
In the opening paragraph of their original FOIA request letters, plaintiffs
requested disclosure of specific "information," not of documents.
See Exh. A to Declaration of Scott Hodes, Acting Chief of the Litigation Unit,
Freedom of Information-Privacy Acts Section, FBI (Exh. 2 to Defendant's Motion
for Summary Judgment (filed Jan. 11, 2002)). At the close of the letters, plaintiffs
re-emphasized that they were "interested in obtaining the key information
outlined above rather than all the relevant documents." Id. at 2. In making
this statement, plaintiffs did not distinguish between request 4 and their other
requests. In light of these and other representations made in the course of
this litigation, and plaintiffs' push for expedition in the FOIA process and
in this litigation, defendant undertook to provide plaintiffs only with the
non-exempt "key information" that plaintiffs sought and understood
that the issues in this litigation would be confined to the validity of the
exemptions defendant was claiming. Moreover, defendant took the unusual step
of actually collating a portion of the information responsive to parts 1-3 of
their request (rather than collecting the underlying documents) and preparing
a new document summarizing this information - actions not mandated by FOIA.
See Ex. 5 to Defendant's Motion for Summary Judgment.
Plaintiffs now reverse course and raise an entirely new issue about the adequacy
of defendant's search. Having represented that this case is about "information,"
not "documents," and about the validity of the exemptions claimed,
however, plaintiffs should not now be allowed to bring this issue into the litigation.
Plaintiffs are bound by the representations they made in their initial letters
with regard to the scope of the search - representations which they have never
sought to correct - and their subsequent conduct. Since plaintiffs indicated
that they did not desire production of each and every responsive document and
wished only to litigate the validity of the exemptions, they are barred now
from complaining that defendant has not produced each and every such document.
See Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) ("The agency was
bound to read [the FOIA request] as drafted, not as either agency officials
or [plaintiff] might wish it was drafted."); Nation Magazine v. Department
of State, No. 92-2303, slip op. at 11-12 (D.D.C. Aug. 18, 1995) (plaintiffs
bound by representations made in the course of the litigation that "partially
limited" their request); id. at 15-16 (same; plaintiffs prohibited from
reasserting requests that they had previously waived); see also Otiji v. Heyman,
47 F.3d 6, 7 (D.D.C. 1998) (plaintiff's statement on appeal form denying any
claim of discrimination was waiver of right to proceed on that claim).
In any event, defendant's search was adequate. To meet its burden to show that
a FOIA search was adequate, "the agency must show that it made a good faith
effort to conduct a search for the requested records, using methods which can
be reasonably expected to produce the information requested." Oglesby v.
United States Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The standard
is one of reasonableness, Weisberg v. United States Dep't of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984), and the issue to be resolved is "whether the
search was reasonably calculated to discover the requested documents, not whether
it actually uncovered every document extant." SafeCard Services, Inc. v.
SEC, 926 F.2d at 1201 (citing Meeropol v. Meese, 790 F.2d 942, 950?51 (D.C.
Cir. 1986); Weisberg v. Department of Justice, 705 F.2d 1344, 1357 (D.C. Cir.
1983)). Thus, "the search need only be reasonable; it does not have to
be exhaustive." Miller v. United States Dep't of State, 779 F.2d 1378,
1383 (8th Cir. 1985).
Defendant's search, as conducted by the three components to whom plaintiffs
addressed their FOIA requests, meets this standard. First, DOJ's Office of Information
and Privacy ("OIP") determined that the documents plaintiffs seek,
policy directives or guidance regarding making public statements about the detainees
or closing the detainees' immigration proceedings, are mostly likely to be found
in the Office of the Attorney General or the Office of the Deputy Attorney General.
Second Pustay Dec. 6. Both of these Offices were therefore directed to conduct
a search for responsive documents. Id. In addition, OIP located one responsive
documents in its files. Id. 5. The Offices of the Attorney General and the Deputy
Attorney General found no responsive documents. Id. 6. Ms. Pustay, OIP Deputy
Director, recently confirmed that the appropriate searches were conducted and
that no responsive documents were found, and further personally searched the
relevant files in the Office of the Attorney General and herself found no responsive
documents. Id. 7. In short, this search was reasonably directed to those offices
most likely to maintain relevant documents, and was more than reasonably thorough,
and therefore fully satisfies FOIA's requirements.
Likewise, the FBI also consulted with the individual most likely to be aware
of any FBI records responsive to this portion of plaintiffs' request, FBI Assistant
Director for the Office of Public and Congressional Affairs, John Collingwood.
Supplemental Declaration of Scott Hodes, Acting Chief, Litigation Unit, Freedom
of Information-Privacy Acts Section, Records Management Division, FBI, 3 (Ex.
9 hereto). Following this consultation, it was determined that the FBI did not
have any documents responsive to this part of plaintiffs' FOIA request. Id.
3-4; Ex. G to Hodes Dec. at 2.
Finally, the INS determined that responsive documents would be found in the
Office of General Counsel and the Office of Field Operations, and directed searches
of those offices.
In addition, the declaration and attachments submitted by INS demonstrate that
it conducted a reasonably thorough search for responsive documents, locating
and releasing one responsive document. See Declaration of Raymond Q. Holmes,
Acting Chief, Freedom of Information and Privacy Acts Operations Unit, Office
of Records Services, Headquarters Office, INS, Exh. 3 to Defendant's Motion
for Summary Judgment ("Holmes Dec."), 8-9, 13 & Exh. C & G;
Supp. Holmes Dec. 7, 8 (Exh. 14 hereto). Potentially responsive documents were
located. Holmes Dec. 14, 16 & Exh. I; Supp. Holmes Dec. 9. However, upon
review, these documents were found not to be responsive, and no documents were
released. Id.
Plaintiffs argue that questions regarding the adequacy of defendant's search
arise from examination of the documents that defendant released. First, plaintiffs
contend that the fact that defendant released only one document addressing "policy
directives or guidance . . . about making public statements or disclosures"
raises the question as to how "all Justice Department and FBI offices around
the country were informed that they must reveal no information about the detainees."
Pl. Memo. at 39. In other words, plaintiffs are hypothesizing that other documents
must exist. But this contention amounts to no more than speculation -- there
is no direct countervailing evidence that the documents that plaintiffs imagine
do in fact exist. Such "hypothetical assertions" that documents "must
exist" "are insufficient to raise a material question of fact with
respect to the adequacy of the agency's search." Oglesby, 920 F.2d at 67
n.13; see also Safecard Servs., Inc. v. SEC, 926 F.2d at 1201 ("[m]ere
speculation that as yet uncovered documents exist does not undermine the finding
that the agency conducted a reasonable search"); Judicial Watch, Inc. v.
Clinton, 880 F. Supp. 1, 10 (D.D.C. 1995) ("unsupported inferences that
other documents must have been created" do not justify discovery). Indeed,
plaintiffs' argument leaves no room for the possibility that "directives
or guidance" can be given verbally.
Second, plaintiffs contend that the phrase "[a]s some of you already know"
in a September 21, 2001, memorandum (or e-mail) from Michael Creppy, Chief Immigration
Judge, to all immigration judges "plainly indicates that there are other,
undisclosed, documents setting forth procedures implemented by the Attorney
General." Pl. Memo. at 39-40. Again, plaintiffs are merely speculating.
The polite, boilerplate phrase "as some of you already know" does
not prove the existence of a prior document - this phrase may refer to earlier
informal communications, or it may refer to nothing at all. As above, this speculation
is insufficient to undermine the finding that the agency conducted a reasonable
search. See Oglesby; Safecard Servs.
Finally, plaintiffs complain that defendant has failed to account for all detainees
and that this alleged failure indicates defendant's response was inadequate.
Pl. Memo. at 40-41. This contention is based on plaintiffs' comparison of the
numbers of detainees announced by the Justice Department at various times with
the number of detainees included in the information released by defendant in
response to plaintiffs' FOIA request. However, the futility of such a comparison
was addressed by Mr. Reynolds in his Supplemental Declaration. In that declaration,
Mr. Reynolds explained that because "[t]he total number of individuals
detained pursuant to the investigation is fluid" and "because public
officials have used different sets of numbers and different definitions of the
term 'detainee' over time, comparisons of public statements by various officials
about the total number of detainees is bound to produce different, and imprecise,
numbers." Reynolds Supp. Dec. 3. Plaintiffs' discussion of numbers of detainees
is therefore not probative.
II. PLAINTIFFS DO NOT HAVE A COMMON LAW RIGHT OF ACCESS TO THE RECORDS IN QUESTION
Plaintiffs' assertion that they have a common-law right of access to the records
in question is easily disposed of. First, plaintiffs identify no waiver of sovereign
immunity that would permit them to sue the Department of Justice under this
theory, and therefore their claim is barred. Even if it were not so barred,
the common-law right of access does not apply where, as here, the records are
governed by a statutory access scheme, such as the FOIA. And even if the common-law
right did come into play, disclosure would not be warranted because, under the
applicable balancing test, the |
