The opinion of the court was delivered by: DICKINSON R. DEBEVOISE
DEBEVOISE, District Judge
Plaintiff, Louis A. Manna, presently incarcerated in the United States Penitentiary at Leavenworth, Kansas, instituted this action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") to obtain certain records in the possession of the United States Department of Justice (the "Justice Department"). The Justice Department and the United States Attorney for the District of New Jersey (collectively referred to as "defendants") move for summary judgment and plaintiff cross-moves for summary judgment and for an index of the withheld documents in accordance with Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974) ("Vaughn index").
The FOIA confers jurisdiction on this court pursuant to 5 U.S.C. § 552(a)(4)(B).
For the reasons provided below, defendants' motion for partial summary judgment is granted in its entirety except with respect to the information described in the Turner Declaration. Defendants may resubmit their application regarding this information as directed below in this opinion. Plaintiff's cross-motion for summary judgment is denied and plaintiff's cross-motion for a Vaughn index is also denied.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
In order to fully appreciate defendants' reluctance to comply with plaintiff's document demand, a brief background of plaintiff's criminal activities is useful.
Before being incarcerated, plaintiff held the number three position of "consigliere"
for over eight years in a powerful Mafia crime family--the Genovese Crime Family.
(Declaration of Robert C. Stewart, October 2, 1992 at P 28.) In the Northern New Jersey-New York Metropolitan area, the Genovese LCN Family has historically been one of the most powerful of the American Mafia criminal organizations. Today, the New Jersey contingent of the Genovese Family, through an entrenched network of racketeering operations, preys upon the transportation, shipping and construction industries. The Genovese LCN Family uses violence, intimidation and obstruction to further its organized criminal activities.
The single most efficacious law enforcement technique in combatting the LCN has been the utilization of historical materials in conjunction with electronic surveillance evidence. (Id. at P 13.) The Federal Bureau of Investigation ("FBI") used electronic surveillance investigation to collect evidence regarding plaintiff's domination over New Jersey construction unions which eventually led to a successful prosecution. Id. at P 29.) In 1989, a jury in this District found plaintiff guilty of serious offenses including, but not limited to, offenses under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO") involving predicate violations of the Hobbs Act (extortion) and Taft-Hartley Act (bribery), organized gambling and three separate murder predicates relating to the affairs of the Genovese LCN Family. (Id. at 29.) The convictions for conspiracy to murder in aid of racketeering involved the planned murders of John and Gene Gotti, high-ranking members of another crime family, the "Gambino Family" of the LCN, and the notorious murder of Irwin Schiff, which was carried out on August 8, 1987 in a New York City restaurant. (Id. at P 30.); see United States v. Manna, et al., Cr. 88-239 (D.N.J. Oct. 12, 1989), aff'd without opinion, 919 F.2d 733 (3d Cir. 1990), cert. denied, 111 S. Ct. 1418, 113 L. Ed. 2d 471 (1991). Following the conviction, Judge Barry sentenced plaintiff, then sixty years old, to a total of eighty (80) years imprisonment. (Id. at P 31.) The court also imposed a fine of $ 250,000 and a special assessment of $ 350, immediately payable. (Id.)
By letter dated May 27, 1991 and addressed to the United States Attorney for the District of New Jersey, plaintiff made a general request for "all records in reference to [him]self" and specifically for "all records in regard to any electronic surveillance, whether legal or illegal" pursuant to the FOIA and the Privacy Act, 5 U.S.C. § 552a ("PA").
(Declaration of Virginia L. Wright, October 1, 1992 at P 2.) The Executive Office for United states Attorneys ("EOUSA"),
in conjunction with the United States Attorney's Office, processed plaintiff's record request and located records responsive to his request (the "Responsive Records"). Defendants understood plaintiff's general request to mean records which refer to him by name (including nicknames and initials), records of his image (e.g photographs) or voice (e.g. audio tapes) (Oct 1, Wright Decl. at P 9.) Defendants searched for the files compiled for the investigation and subsequent prosecution of plaintiff in the case captioned United States v. Manna, Cr. 88-239. (Id.) However, records which merely cited the case caption of plaintiff's criminal prosecution, but did not otherwise refer to plaintiff were excluded. (Id.)
On or about October 25, 1991, the EOUSA provided plaintiff with some of the Responsive Records and provided additional records on or about June 10, 1992 and September 30, 1992. (See Oct. 1, Wright Decl. PP 10-14 and Exhibits G, J & K attached thereto.)
Copies of the following Responsive Records were made available to plaintiff:
1. Trial transcripts in Criminal Action No. 88-239;
2. Trial exhibits in Criminal Action No. 88-239 (excluding tangible objects, which are not considered "agency records" under FOIA);
3. Pre-trial transcripts and motions, orders, judgments, notices of alibi, indictments, and correspondence in Criminal Action No. 88-239; and
4. Miscellaneous records which refer to plaintiff:
a. Plaintiff's tax returns, other tax information, checks, money orders, bills, receipts and like documents;
b. Documents relating to proceedings holding plaintiff in contempt of the New Jersey State Commission of Investigation for refusal to answer questions pursuant to a subpoena;
c. An FBI arrest record for plaintiff;
d. Written statements of Vincent ("Fish") Cafaro;
e. Newspaper clippings and a June 28, 1988 press release from the United States Attorney's Office; and
f. Miscellaneous trial transcripts.
(See Oct. 1, Wright Decl. Exhibits G, J & K attached thereto).
Although other Responsive Records were found, defendants withheld them from plaintiff based on one of five grounds: (1) Exempted by 5 U.S.C. § 552(b)(7); (2) Title III Materials, (3) Grand Jury Materials, (4) Pen Register Materials and (5) Privileged Materials.
Certain records which originated either from the FBI or the Bureau of Prisons ("BOP") were also withheld. Pursuant to 28 C.F.R. § 16.42
these documents were referred to the FBI and BOP respectively for review and a direct response to plaintiff. The FBI and BOP subsequently made their own determination as to which documents were disclosable. (See Dec. 16, 1992 Declaration of Michael D. Turner; Dec. 11, 1992 Declaration of Marcus Williams.) On November 10, 1992, the BOP forwarded seventeen pages to plaintiff with certain personal identifiers redacted. (Williams Decl. at P 5.) Defendants released a copy of an FBI 1965 "rap sheet." (Def. Rpl. Let. Br. Jan. 6, 1993 at p. 3; see also Turner Decl. at P 3, n.2.) On October 21, 1992, the FBI also released to plaintiff seven documents, six with redactions, received from the EOUSA. (Id. at P 15.)
By letter dated October 28, 1991, plaintiff appealed the EOUSA's disclosure determination to the Office of Information and Privacy ("OIP"). (Oct. 1, Wright Decl. at P 11 and Exhibit H attached thereto.) By letter dated March 25, 1992, the OIP affirmed the EOUSA's disclosure determination and advised plaintiff that he had the option of a judicial review of his appeal in the United States District Court. (Id. at P 12.)
On May 1, 1992, plaintiff filed this action for declaratory and injunctive relief under the Freedom of Information Act, 5 U.S.C. § 552, to compel defendants to produce all records in their possession and control which referred to him in connection with his criminal conviction. See United States v. Manna, Crim. No. 88-239 (D.N.J. Oct. 12, 1989), aff'd without opinion, 919 F.2d 733 (3d Cir. 1990), cert. denied, 111 S. Ct. 1418 (1991).
In August 1992, plaintiff moved for an order directing the DOJ to provide an index of the withheld documents pursuant to Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). The DOJ, cross-moved for dismissal of the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). In an unpublished letter opinion filed August 24, 1992, I denied both motions. Manna v. U.S. Dep't of Justice et al., Civ. No. 92-1840, slip op. (D.N.J. August 4, 1992). I concluded that granting plaintiff's motion for a Vaughn index would be premature in light of defendants' intention to move promptly for summary judgment. I reasoned that a summary judgment might moot the need for a Vaughn index. Id. at 2. Moreover, a Vaughn index in this case might present the same risks that production of the underlying documents would present. Id. Lastly, I denied defendants' motion to dismiss after rejecting defendants' argument that plaintiff failed to sue the agency as opposed to a federal officer. Id. at 3.
The Supreme Court has recognized that the FOIA sets forth a policy of broad disclosure of government documents in order "'to ensure an informed citizenry, vital to the functioning of a democratic society.'" FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978)). As a result, the FOIA requires federal agencies to make promptly available any records requested of it by any person so long as the request "reasonably describes such records." Landano v. U.S. Dep't of Justice et al., 956 F.2d 422, 425 (3d Cir. 1992) (quoting 5 U.S.C. § 552(a)(3)). If an agency improperly withholds the requested documents, a federal district court may order production. Id. However, there are nine specific exemption categories that justify an agency's withholding documents. Id; see 5 U.S.C. § 552(b)(7). Since "the Act creates a presumption in favor of disclosure," the agency has the burden of demonstrating that a statutory exemption is applicable. See Ferri v. Bell, 645 F.2d 1213, 1221 (3d Cir. 1981), modified on other grounds 671 F.2d 769 (3d Cir. 1982); Committee on Masonic Homes of the R.W. Grand Lodge v. NLRB, 556 F.2d 214, 218 (3d Cir. 1977).
The documents withheld from plaintiff fall into the following FOIA exemption categories: Exemption 7, Exemption 3 and Exemption 5. These categories and the documents defendants claim they protect from disclosure will be discussed seriatim.
Defendants assert that some of the documents they seek to withhold from plaintiff are exempted by FOIA Exemptions 7(A), 7(C) and 7(F) which provide:
(7) records or information compiled for law enforcement purposes, but only to the extent that 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 . . .
5 U.S.C. 552(b)(7)(A), (C) & (F).
"The language of the Exemption indicates that judicial review of an asserted Exemption 7 privilege, requires a two-part inquiry. First, a requested document must be shown to have been an investigatory record 'compiled for law enforcement purposes.' If so, the agency must demonstrate that release of the material would have one of the six results specified in the Act." FBI v. Abramson, 456 U.S. at 621 (quoting 5 U.S.C. § 552(b)(7)).
Affidavits submitted to the court supporting the agency's decision to withhold documents must contain more than general and conclusory language. Ferri v. Bell, 645 F.2d at 1221. Rather, the affidavit must provide a relatively detailed analysis in manageable segments of the basis for the claimed exemption. Id. (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974)). If the affidavits are sufficiently detailed, the district court is not required to look further. Lewis v. I.R.S., 823 F.2d 375, 378 (9th Cir. 1987). The agency "need not specify its objections [to disclosure] in such detail as to compromise the secrecy of the information." Lewis, 823 F.2d at 377 (quoting Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1979)). "But if the affidavits are 'too generalized,' the district court may, in its discretion, examine the disputed documents in camera in order to make 'a first-hand determination of their exempt status.'" Lewis, 823 F.2d at 378 (emphasis in original). However, in camera inspection should not be resorted to lightly.
Id.; see Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 825 (D.C. Cir. 1973).
In support of its motion, defendants have provided the declarations of Robert C. Stewart, an Assistant United States Attorney and Chief of the Organized Crime Strike Force Division of the United States Attorney's Office for the District of New Jersey, the declarations of Virginia L. Wright, a supervisory paralegal specialist for the EOUSA, the declarations of Evelyn F. Block, a paralegal specialist employed by the Office of the United States Attorney for the District of New Jersey, the declarations of Robert M. Hanna, an Assistant United States Attorney for the District of New Jersey, the declaration of Marcus Williams, an Attorney-Advisor in the Employment Law and Information Branch of the Office of General Counsel for the Federal Bureau of Prisons and the declaration of Michael D. Turner, a Special Agent assigned to the Freedom of Information-Privacy Acts section of the Information Management Division at FBI Headquarters ("FBIHQ") in Washington, D.C.
sufficiently distinct to allow a court to grasp "how each . . . category of documents, if disclosed, would interfere with the investigation." Campbell [v. Department of Health & Human Services], 682 F.2d  at 265 [(D.C. Cir. 1982)]. The hallmark of an acceptable category is thus that it is functional; it allows the court to trace a rational link between the nature of the document and the alleged likely inference.
Bevis, 801 F.2d at 1389 (quoting Crooker v. Bureau of Alcohol, Tobacco and Firearms, 252 U.S. App. D.C. 232, 789 F.2d 64, 67 (D.C. Cir. 1986)) (emphasis in original). When an agency elects the generic approach, the agency must satisfy a tripartite standard. See Bevis v. United States Dep't of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389-90 (D.C. Cir. 1986). "First, it must define its categories functionally. Second, it must conduct a document-by-document review in order to assign documents to the proper category. Finally, it must explain to the court how the release of each category would interfere with enforcement proceedings." Id. at 1389-90.
For most of the documents, defendants have met the Bevis tripartite standard. The declarations submitted in support of defendants' summary judgment motion functionally group the documents in the following defined categories: FBI Reports, Labor Reports, Surveillance Records, Privileged Materials, BOP Materials etc. The declarants have conducted a document-by-document review and assigned documents to a particular category. Lastly, they have explained how the release of the documents in each category would interfere with law enforcement proceedings. In the few instances where a declarant has failed to do so, summary judgment has been denied.
Based on the October 2, 1992 and December 18, 1992 Stewart Declarations and the November 18, 1992 Sealed Declaration, defendants have adequately met their burden of showing that the following documents ...