Clemente v. FBI, No. 08-1252, 2014 WL 4066222 (D.D.C. Aug. 18, 2014) (Rothstein, J.)

Clemente v. FBI, No. 08-1252, 2014 WL 4066222 (D.D.C. Aug. 18, 2014) (Rothstein, J.)

Re: Request for FBI's file on late high-ranking Mafia member who served as FBI informant

Disposition: Granting in part and denying in part defendant's second renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[p]laintiff's Rule 54(b) motion is denied."  The court relates that plaintiff requests that the court "reconsider the Court's earlier determination that the FBI's search for documents responsive to Plaintiff's FOIA request was sufficient."  The court finds that "[p]laintiff's arguments regarding the adequacy of the FBI's search have been addressed on three separate occasions" and "[e]ach time, the Court affirmed that the FBI's search was adequate because it was 'reasonably calculated to uncover all relevant documents.'"
   
• Exemption 7, Threshold:  The court "agrees with Judge Friedman's assessment of the records and will not disturb his decision on this issue."  The court relates that "Judge Friedman . . . held that even if the 'Court were to assume that the FBI's deployment of [the informant] sometimes contravened the law, there is no evidence that the records were compiled for any purpose other than that supplied by the FBI: documenting the activities of a criminal informant.'"  "'Such documentation advances the FBI's interest in monitoring the behavior and interactions of an important source of information and so serves a law enforcement purpose.'"
   
• Exemption 7(C):  The court first addresses the FBI's efforts to ascertain the life status of individuals identified in the responsive documents.  The court holds that "the FBI is instructed to supplement its Vaughn Index to address [certain] concerns."  The court finds that "[t]he FBI fails to address [plaintiff's] objections in any manner whatsoever."  These objections include concerns over "the manner in which the FBI searched its Automated Case Support System to locate identifiable dates of birth and/or social security numbers for those individuals for whom such information is not contained in the responsive documents," the fact "that the FBI 'does not indicate whether the search of the ACS employed the Electronic Case File' . . . something that Plaintiff alleges 'would presumably be far more effective in determining life status,'" the fact "that the FBI does 'not mention using the Social Security Death Index' . . . an index that [plaintiff] claims 'is most likely to be effective in determining whether someone has died,'" and "the manner in which the FBI conducted its search on the Consolidated Lead Evaluation and Reporting . . . database and Google."  "Without input from the Government, this Court is unable to ascertain the validity of Plaintiff's concerns, nor determine, as a matter of law, that the FBI 'has made a reasonable effort to account for the death of a person on whose behalf the FBI invokes exemption 7(C).'"

Second, the court addresses disclosure of identifying information.  The court finds "that the individuals whose identifying information is redacted from the documents that are responsive to Plaintiff's FOIA request have a substantial interest in keeping their information private."  "However, as noted above, the FBI must address Plaintiff's concerns regarding its attempt to ascertain the life status of these individuals."  "The Court is unable to appropriately balance the privacy interest at stake against the public interest in disclosure until this Court knows the life status of the affected individuals."

Third, regarding the withholding of certain FBI agent names, the court holds that "[g]iven the facts of this particular FOIA request—namely that Plaintiff implicates FBI agents in wrongdoing and that the document in question dates back to 1965—this Court finds that the public's interest in disclosure [of certain FBI agent names] outweighs the FBI agent's privacy interest."  The court holds that "[t]he FBI shall disclose this information."

The court also directs "the FBI . . . to supplement its Vaughn Index to address Plaintiff's arguments" that "'five or six lines . . . of material includes more than just a name and basic identifying information, yet the FBI has failed to provide any description of the nature of the withheld material.'"  Similarly, "the Court instructs the FBI to re-examine [one document] to determine whether more information may be disclosed, and if it determines that further information may not be disclosed without revealing identifying information, explain why that is the case."

Finally, the court finds that "where the information relates to individuals who are associated with the Mafia, disclosing the job could very well reveal the identity of the individual" and, "[t]herefore, the Court finds that the FBI has satisfied its burden under Exemption 7(C) and the information shall remain redacted."

• Exemption 7(D):  The court holds that "the FBI is entitled, pursuant to Exemption 7(D), to withhold information provided by 'source symbol numbered informants' and the names and information of third parties who were interviewed under an implied grant of confidentiality."  The court finds that "'[a]s to "source symbol numbered informants," [defendant] explains in [its] declaration that it is the FBI's practice to assign source symbols to informants only if those individuals "report information to the FBI on a regular basis pursuant to an 'express' grant of confidentiality.'"  "This averment is sufficient to demonstrate that those informants qualify as 'confidential source[s]' within the meaning of the FOIA.'"  Additionally, the court finds that "'[i]ndividuals who provide information on the Mafia to the FBI . . . are to be considered confidential sources.'"

• Exemption 7(E):  The court holds that "the FBI's redactions were appropriate."  The court relates that the FBI "avers that '[r]eleasing the details of these specific law enforcement techniques and procedures in the context of these records will provide criminals with a vivid picture of the context and circumstances in which a specific technique is employed, what actions and/or circumstances would trigger the use of specific techniques, the reasoning behind the use of the techniques, and specific information about the implementation of the techniques.'"  "The FBI further asserts that disclosure of this information may 'aid individuals in circumventing the law by promoting the invention and implementation of countermeasures, development of methods to more effectively cover their criminal activities thus avoiding detection, adjustment of behavior to mislead investigations, concealment of evidence, and prevention of future infiltration of informants into criminal organizations .... disclosure ... [could] divert FBI investigative methods from intended targets, severely hamper the ability to effectively investigate and prosecute criminals, and endanger the life and/or physical integrity of informants.'"  The court relates that the FBI also stated that "'the techniques employed by confidential informants and their handlers [during the time that [the informant at issue] was an FBI informant] are still effectively used by informants and their handlers in current investigations.'" The court finds that "[a]lthough the FBI does not directly state that the techniques are not publicly known, the Court infers that they are not, otherwise the techniques could not be 'effectively used' by the FBI in 'current investigations.'"  The court holds that "[t]his is sufficient to satisfy the FBI's burden of proof under Exemption 7(E)."