ACKERMAN, District Judge:
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)).
II. FOIA Framework
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).
B. Procedural History
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 Index
Manna argues that the Vaughn index submitted with the Bordley Declaration is inadequate in that it does not provide a detailed justification for the exemption claimed and does not identify the reasons why a particular exemption is relevant to the withheld record. He also argues that the records were not described in sufficient detail.
A court faced only with an agency's claim that documents are exempt cannot conduct a meaningful review of the agency's decision to withhold those documents. Hinton v. United States Dep't of Justice, 844 F.2d 126, 129 (3d Cir. 1988). The requester's ability to challenge the agency's decision is also seriously hindered. Id. Courts have therefore adopted procedures intended to promote efficient judicial review, allow informed adversarial argument, and discourage conclusory claims of exemption. Lame, 654 F.2d at 921. Specifically, in Vaughn v. Rosen, the Court of Appeals for the District of Columbia set forth specific procedures to enable courts to determine the validity of the agency's claim of exemption without physically examining each document., 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973); Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980). These Vaughn procedures have been adopted by the Third Circuit. Hinton, 844 F.2d at 129; Lame, 654 F.2d at 921.
Under Vaughn, an agency is generally required to submit an affidavit setting forth an index of the documents withheld cross-referenced to the relevant portion of the Government's justification. See Patterson v. F.B.I., 893 F.2d 595, 599 n.7 (3d Cir.), cert. denied, 498 U.S. 812, 112 L. Ed. 2d 24, 111 S. Ct. 48 (1990); Vaughn, 484 F.2d at 827. This Vaughn index must be sufficiently detailed to permit the trial court and requester to obtain a "clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." Hinton, 844 F.2d at 129. However, there is no set formula for a Vaughn index. Id. at 128. "All that is required . . . is that the requester and trial judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." Id. at 129. "Courts have generally accepted the use of 'coded' indices--in which agencies break certain FOIA exemptions into several categories, explain the particular nondisclosure rationales for each category, and then correlate the exemption and category to the particular documents at issue." Manna, 815 F. Supp. at 816-17.
As noted above, the DEA submitted the Bordley Declaration, as well as a page-by-page itemization of the exemptions relied upon by the DEA. The Bordley Declaration generally describes the exemptions relied on and how the exemptions relate to the documents withheld. The page-by-page itemization describes the type of document withheld, generally subdivides each document into segments, and indicates the type of material withheld, correlated to the exemption being claimed by the defendants for that particular document or segment thereof. I therefore find the Vaughn index generally acceptable, with two exceptions. As will be discussed in further detail below, the DEA did not describe with sufficient specificity withheld material labelled "personal information" and "internal markings." If the defendants wish to continue withholding this information, a more detailed Vaughn submission must be made.
B. In Camera Review
Manna also argues that the government has acted in bad faith and requests that the court review the withheld documents in camera.
As recognized by the Third Circuit, "in the ordinary case, a Vaughn index correlating justifications for nondisclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court." Lame, 654 F.2d at 922. In certain unusual cases, however, preparation of a sufficiently detailed affidavit might disclose the very information an agency seeks to withhold. Patterson, 893 F.2d at 599. In such situations, in camera review of a more detailed affidavit, or of the documents themselves, may be warranted. Id.14 Nevertheless, in camera review is generally disfavored. See, e.g, Schiller v. N.L.R.B., 296 U.S. App. D.C. 84, 964 F.2d 1205, 1209 (D.C. Cir. 1992); Center for Auto Safety v. E.P.A., 235 U.S. App. D.C. 169, 731 F.2d 16, 23 (D.C. Cir. 1984). As the Court of Appeals for the D.C. Circuit has stated, "'when the agency meets its burden [under FOIA] by means of affidavits, in camera review is neither necessary nor appropriate.'" (quoting Weissman v. C.I.A., 184 U.S. App. D.C. 117, 565 F.2d 692, 696-97 (D.C. Cir. 1977)). Specifically, in camera review is not warranted where the affidavits demonstrate with reasonable specificity why the documents are exempt, if the government's claim of exemption is not contradicted in the record, and there is no evidence of bad faith on the part of the agency. 731 F.2d at 22 (quoting Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980)).
Here, I find that the Bordley Declaration and Vaughn itemization satisfy these principles except with respect to the information characterized as "personal information" and "internal markings." With the exception of this information, the declaration demonstrates with reasonable specificity why the documents are exempt. There is nothing in the record to contradict the government's representations. Nor is there anything in the record to indicate that the defendants have acted in bad faith. Therefore, with regard to the information which was described with sufficient specificity, I find that in camera inspection of the records is not warranted in this case. With regard to the information which was not described with sufficient specificity, I will first permit the government to provide a more detailed public submission before ruling on the issue of in camera review. See Schiller, 964 F.2d at 1209 (in camera review "should be invoked only when issue at hand 'could not be otherwise resolved.'") (quoting Center for Auto Safety, 731 F.2d at 21). Manna's request for in camera review is, therefore, denied.
C. Adequacy of Search
Manna argues that the DEA failed to make an adequate showing that it made a thorough search of its records pursuant to his FOIA request.
"An agency responding to a FOIA request must 'conduct a search reasonably calculated to uncover all relevant documents.'" Truitt v. Department of State, 283 U.S. App. D.C. 86, 897 F.2d 540, 542 (D.C. Cir. 1990) (quoting Weisberg v. United States Dep't of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "'The issue is not whether any further documents might conceivably exist but whether the government's search for responsive documents was adequate.'" Id.; see also Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 956 (D.C. Cir. 1986) ("a search need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request").
An agency may demonstrate the adequacy of its search by means of "reasonably detailed, nonconclusory affidavits submitted in good faith." Weisberg v. United States Dep't of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 ((D.C. Cir. 1984); Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 126 (D.C. Cir. 1982). "The affidavits of the responding agency need not set forth with meticulous documentation the details of an epic search for the requested records." Manna, 815 F. Supp. at 817. "Rather, in the absence of countervailing evidence or apparent inconsistency in proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by FOIA." Perry, 684 F.2d at 126. Moreover, district courts have sanctioned the use of general indices maintained on computer systems or even index cards to locate responsive documents as a reasonable search technique. See, e.g., Manna, 815 F. Supp. at 817-18; Friedman v. F.B.I., 605 F. Supp. 306, 310-11 (N.D. Ga. 1981).
I find that the Bordley Declaration adequately sets forth the scope and methodology of the DEA's search. According to the Declaration, the DEA's "Investigative Reporting and Filing System" contains the administrative, general and investigative files compiled for law enforcement purposes. Upon receipt of a FOIA request, the DEA first performs a search of the computerized indices to the DEA's filing system. This search locates records under the requester's name. As noted above, this search located no documents responsive to Manna's request. The DEA thereafter conducted a search of related, or non-subject, files in which Manna's name was mentioned. Bordley Declaration at P 19. The Bordley Declaration explains the results of the DEA's search. find based on the Bordley Affidavit, that the DEA's search was reasonable and adequate.
Manna's request for a more detailed Vaughn index is, therefore, denied.
The defendants argue that the documents withheld from Manna were properly withheld under the second and seventh exemptions under FOIA. Summary judgment is warranted where the agency can demonstrate that the documents withheld fall within one of the nine statutory exemptions. See National Cable Television Ass'n v. F.C.C., 156 U.S. App. D.C. 91, 479 F.2d 183, 188 (D.C. Cir. 1973). I will consider each of the claimed exemptions in turn.
1. Exemption 7
Exemption 7 generally exempts from disclosure "records or information compiled for law enforcement purposes" to the extent that the government demonstrates that the disclosure would fall within one of six delineated categories. 5 U.S.C. § 552(b)(7). In order for a document to qualify as exempt under Exemption 7, therefore, the court must first make a threshold determination whether the records were "compiled for law enforcement purposes." To meet this threshold, an agency must demonstrate a nexus between the records and the enforcement of federal or state law. See Lewis v. I.R.S., 823 F.2d 375, 379 (9th Cir. 1987). However, courts have accorded deferential treatment to an agency's claim that records were compiled for a "law enforcement purpose" where the agency's principal function is criminal law enforcement. Stern v. F.B.I., 237 U.S. App. D.C. 302, 737 F.2d 84, 89 (D.C. Cir. 1984).
The DEA, as the federal agency charged with the primary responsibility for enforcing federal drug laws, clearly has the requisite criminal law enforcement mandate. The Bordley Declaration indicates that the records requested by Manna were compiled by the DEA during the course of various criminal investigations. Indeed, Manna does not dispute that these records satisfy the threshold requirement of Exemption 7. I therefore find that the withheld records clearly constitute "records or information compiled for law enforcement purposes."
The DEA asserts that various withheld material is exempt pursuant to subsections (C), (D) and (F) of Exemption 7. I will consider these in turn.
a. Exemption 7(D)
Exemption 7(D) exempts