The opinion of the court was delivered by: HAROLD A. ACKERMAN
Plaintiff pro se Louis Anthony Manna ("Manna") commenced this action against defendants United States Department of Justice ("DOJ") and the Drug Enforcement Administration ("DEA")
pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") to obtain certain records in the possession of the DEA. Specifically, plaintiff seeks any records "in reference to the plaintiff or any records making reference to the plaintiff." Compl. at P 1.
Before me now are the following motions: 1) Manna's motion to "reopen the case"; 2) defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56; 3) Manna's cross-motion for partial summary judgment pursuant to Fed. R. Civ. P. 56;
and 4) Manna's motion to strike a declaration submitted by the defendants in support of their summary judgment motion.
For the reasons set forth below, Manna's motion to reopen the case is granted, defendants' motion for summary judgment is granted except as to information designated in the defendants' Vaughn itemization as "personal information" and "internal markings," Manna's cross-motion for partial summary judgment is denied, and Manna's motion to strike defendants' declaration is denied.
I. Summary Judgment Standard
Summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052 (1987). Put differently, "summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir. 1988), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988). An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248.
Within the framework set out above, the moving party essentially bears two burdens. First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This may be done either by demonstrating that there is no genuine issue of fact and that as a matter of law, the moving party must prevail, or by demonstrating that the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Advisory Committee's Notes on Fed. Rule of Civ. Pro. 56(e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).
Summary judgment is typically used to adjudicate FOIA cases. Struth v. F.B.I., 673 F. Supp. 949, 953 (E.D. Wis. 1987). Moreover, a district court may award summary judgment on the basis of agency affidavits alone where the affidavits are sufficiently detailed and are submitted in good faith. See Simmons v. United States Dep't of Justice, 796 F.2d 709, 711-712 (4th Cir. 1986) (citing Goland v. C.I.A., 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980)).
FOIA provides citizens access to government information, thereby insuring an informed citizenry, N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978), and "was enacted in furtherance of the belief that 'an informed electorate is vital to the proper operation of a democracy.'" Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 974 (3d Cir. 1981) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)).
Under FOIA, a government agency must promptly release agency documents, upon request, subject to nine specific statutory exemptions. Id. These statutory exemptions are exclusive and must be narrowly construed. Department of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Moreover, an entire document is not exempt from release merely because a portion is exempt. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 825 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). "Any reasonably segregable, non-exempt portion of a record is to be made available to the person requesting that record." Lame v. United States Dep't of Justice, 654 F.2d 917, 921 (3d Cir. 1981).
If the agency fails to release the requested information, and all administrative remedies have been exhausted, the individual seeking the information can obtain review of the agency's denial in federal district court. Lame, 654 F.2d at 921. The court must review the agency's decision to withhold requested documents de novo, and the burden is on the agency to justify its action. See 5 U.S.C. § 552(a)(4)(B); Lame, 654 F.2d at 921.
III. Factual and Procedural Background
Plaintiff is a former high-ranking member of a powerful Mafia crime family known as the Genovese Crime Family. Manna v. United States Dep't of Justice, 815 F. Supp. 798, 802 (D.N.J. 1993).
In 1989, Manna was convicted in the United States District Court for the District of New Jersey of various federal crimes relating to his organized crime activity. See United States v. Manna, Crim. Act. No. 88-239 (D.N.J.). Specifically, Manna was convicted of various 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 the Taft-Hartley Act (bribery), organized gambling and three murders. Manna was sentenced to prison for a term of 80 years and received a fine in the amount of $ 250,000. See Judgment Including Sentence Under the Sentencing Reform Act, United States v. Manna, Crim. Act. 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). Manna now seeks to obtain records in the possession of the DEA in an effort to obtain information to overturn his conviction.
On February 11, 1991, Manna sent a request to the DEA for documents pursuant to FOIA and the Privacy Act of 1974, 5 U.S.C. § 552a.
The request seeks "a copy of all electronic surveillance information contained within any set of records, including computers, wherein [Manna has] been subject to any type of electronic surveillance, either legal or illegal." On February 27, 1992, the DEA informed Manna that he had never been the subject of a DEA investigation but that his name was mentioned in nine related files, that is, non-subject files, maintained by the DEA. By letter dated March 5, 1991, Manna requested that the nine files be searched and also expanded his original request to include all information about Manna "from any source within any system of records maintained by the [DEA]."
By letter dated October 25, 1991, the DEA informed Manna that his request had been processed and that a determination had been made to release a portion of the requested information upon receipt of payment of the balance of search fees assessed by the DEA. After receiving the requested payment, the DEA released portions of various documents on December 17, 1991. The DEA also informed Manna that it was withholding certain information pursuant to FOIA exemptions 2, 5, 7(C), 7(D), and 7(F),
and Privacy Act exemption j(2).
It also indicated that certain DEA files contained information furnished by another government agency and that Manna's request for that information had been referred to that agency for a decision as to access.
Manna was advised that the agency would respond to him directly.
On December 23, 1991, Manna appealed the DEA's decision to the Office of Information and Privacy ("OIP"), Department of Justice. On May 27, 1992, OIP informed Manna that he was entitled to a supplemental release of records from the DEA, but that the decision of the DEA was otherwise affirmed. The OIP informed Manna that the material continued to be withheld was exempt pursuant to Privacy Act exemption j(2) and FOIA exemptions 2, 7(C), 7(D), and 7(F). The DEA made the supplemental release of documents on June 2, 1992.
The DEA submitted the Declaration of William E. Bordley, DEA Attorney Advisor ("Bordley Declaration"),
as its "Vaughn Index."
Exhibit Q to the Bordley Declaration contains a page-by-page itemization of the exemptions relied upon by the DEA. According to the Declaration, the DEA located a total of 29 pages in its files in which Manna's name is mentioned. The DEA withheld 24 pages in their entirety and released 5 pages in redacted form. Specifically, the DEA withheld the following types of information pursuant to the following FOIA exemptions.
Pursuant to Exemption 2, the DEA redacted all "violator identifiers," that is, codes used by the DEA to facilitate administrative and record-keeping procedures. These codes refer to such matters as the priority of DEA narcotics investigations, types of criminal activities, geographic areas, types of controlled substances involved, and violator ratings.
According to the DEA, disclosure of these internal codes would help identify particular narcotics investigations and impede the DEA's investigative and enforcement efforts. The DEA also withheld what is characterized in its Vaughn itemization as "internal markings."
Pursuant to Exemption 7(C), the DEA withheld the identities of persons who were implicated, involved or associated with an individual who was investigated by the DEA. According to the DEA, disclosure of the names, descriptions or other personal information about such individuals could cause undue harassment and/or physical harm to those individuals and would constitute an unwarranted invasion of privacy. In some instances, the DEA withheld the titles of criminal case files which would identify targets suspected of illegal drug activity.
Pursuant to Exemption 7(D), the DEA withheld the identities of and information supplied by local law enforcement personnel who cooperated with DEA. According to the Bordley Declaration, "these law enforcement sources knowingly provided DEA agents with intelligence information under circumstances where it was plainly implied that their identities and the information would be held in maximum confidence." P 25. According to the DEA, any release of information that could identify these individuals would constitute an invasion of privacy, subject them to harassment and danger, and would thwart the DEA's future investigative efforts.
Finally, the DEA withheld the identities of DEA special agents, supervisory special agents and other law enforcement officers pursuant to Exemption 7(F).
As noted above, this matter came before the court on the defendants' motion for summary judgment, Manna's cross-motion for partial summary judgment, and Manna's motion to strike the Bordley Declaration. On May 3, 1993, this court administratively stayed those motions pending a decision by the United States Supreme Court reviewing a Third Circuit decision, Landano v. United States Dep't of Justice, 956 F.2d 422 (3d Cir. 1992), on the scope of one of the FOIA exemptions relevant in this case, Exemption 7(D). The Supreme Court has since handed down the decision, see United States Dep't of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993),
and Manna's motion to reopen the case on that basis is, therefore, granted. I will now consider the remaining motions.
A. Sufficiency of Vaughn ...