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Natarajan Venkataram v. Office of Information Policy & Janice Galli Mcleod

October 13, 2011

NATARAJAN VENKATARAM, PLAINTIFF,
v.
OFFICE OF INFORMATION POLICY & JANICE GALLI MCLEOD, DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, District Judge:

I. INTRODUCTION

This matter is before the Court on the Defendant Office of Information Policy's response to the Court's order to show cause [Docket Item 23.] In its order dated May 25, 2011, the Court ordered Defendant Office of Information Policy to show cause in a written submission to the Court why the remaining matter, specifically Plaintiff Natarajan Venkataram's original exhausted Freedom of Information Act record requests, should not be remanded to the Department of Justice. [Docket Item 19.] For the reasons discussed below, the Court finds the Defendant's response insufficient and will remand this matter to the Department of Justice for a more particularized analysis of the Plaintiff Natarajan Venkataram's document requests.

II. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

The facts underlying this action were set forth in the Court's previous opinion in this matter. [Docket Item 18.] The instant case involves a claim under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B) (hereinafter "FOIA"). The Plaintiff Natarajan Venkataram ("Plaintiff") seeks records from the Office of Information Policy, United States Department of Justice, pertaining to the indictment and subsequent cancellation of the indictment of Mr. D.V.S. Raju. Mr. Raju was a co-defendant with the Plaintiff in a federal criminal indictment charging embezzlement and money laundering.

The Court issued an opinion denying Defendants' motion for summary judgment on May 25, 2011. [Docket Item 18.] The Court rejected the Defendants' argument that Exception 6 or 7(C) to FOIA applied categorically to the records sought by the Plaintiff. The Court held that "the mere fact that a document contains information related to a private individual does not mean it contains private personal information, much less that it can categorically be reasonably expected to constitute an unwarranted invasion of personal privacy." [Docket Item 18 at 9.]

The Court then issued an order requiring Defendant Office of Information Policy ("Defendant") to show cause why the remaining matter should not be remanded to the Department of Justice for further determinations in light of the Court's opinion. [Docket Item 19.]

The Defendant Office of Information Policy filed a response to the Court's order to show cause on July 1, 2011. [Docket Item

23.] The Defendant's main argument is that its response to Plaintiff's FOIA request was consistent with DOJ regulation and the policy of Executive Office of the United States Attorneys ("EOUSA"). EOUSA's policy provides that any person requesting records about a third party must present either the written authorization of the third party or proof that the third party is deceased. Otherwise, the request would violate the Privacy Act, 5 U.S.C. § 552(a).

The Defendant did acknowledge that there is an exception

under the Privacy Act for documents subject to disclosure under FOIA. However, the Defendant maintains that EOUSA's policy is that records requested pertaining to third parties are also categorically exempt from FOIA under exceptions (b)(6) or (7) and therefore the Privacy Act applies. (Def.'s Br. at 4-5, 7-8.)

The Defendant also argues that a Glomar response neither confirming nor denying the existence of responsive records was necessary in this case to protect Mr. Raju from being associated with criminal activity. Therefore, the Defendants contend that a remand would be improper.

The Plaintiff replied to Defendant's Response to the Court's Order to Show Cause on July 21, 2011. [Docket Item 24.] The Plaintiff maintains that Defendant's response is essentially arguing that EOUSA policy should supersede the FOIA statute. The Plaintiff contends that the Court should not give deference to EOUSA's agency interpretation of FOIA and relies ...


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