Schultz v. FBI, No. 05-0180, 2016 WL 829154 (E.D. Cal. Mar. 3, 2016) (Ishii, S.J.)

Schultz v. FBI, No. 05-0180, 2016 WL 829154 (E.D. Cal. Mar. 3, 2016) (Ishii, S.J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendant's motion for summary judgment

• Searching for Responsive Records:  The court first considers the intersection of the scope of defendant's search and privacy concerns of third parties.  The court explains that this consideration is due to the fact that "[p]laintiff's requests pursuant to FOIA sought information on persons he acknowledged were paid informants under the employ of Defendant."  "The court concludes that Defendant acted lawfully in limiting the search for records pertaining to [the third parties] to those records that were generated as part of [the] investigation and prosecution of the case against Plaintiff."  "From a practical perspective, this means that Defendant is obliged to acknowledge the existence of responsive records that contain, for example, the criminal history of either [of the third parties] that were generated during the investigation and prosecution of Plaintiff’s criminal case but not similar documents that may have been generated either before or after the involvement of the two informants in the investigation and prosecution of Plaintiff."
   
• Exemption 7(D):  "The court finds that Defendant, to the extent it has described documents in the Index as containing the phrase 'information provided by a confidential source' or 'interviews with a confidential source,' or equivalent description, has described such documents adequately to justifying the withholding of such documents under Exemption (7)(D)."  "Further, to the extent Defendants have described responsive documents as containing 'confidential source symbol numbers' or the equivalent, the court finds that Exemption 7(D) applies so as to justify the withholding of at least the informant-identifying features of the documents."  The court explains that "[a]s a threshold matter, there is no dispute that [the third parties] functioned during the time applicable to Plaintiff's FOIA request as confidential informants."  "Also as an initial matter, there is no dispute that [the third parties] provided information to FBI in connection with a lawful criminal investigation."  "Thus, Defendant has satisfied at least the preliminary requirements for application of exemption 7(D)."  The court finds that "[p]laintiff has failed to provide any indication of what may have been disclosed through testimony at trial."  "The court must therefore presume that nothing other than the names of the confidential informants [was] officially disclosed."  "Therefore, the court must conclude that subsection 7(D), when applied to the documents identified by Defendants justifies the withholding of all information except for the names of the two paid confidential informants."
   
• Exemptions 6 and 7(C):  The court holds that "[p]laintiff has failed to show there is any concern of a Brady violation and Plaintiff has presented no evidence of official misconduct beyond bare allegations of misconduct."  "Plaintiff has therefore failed to show that there exists any public interest in the records he requested."  "Because there is no showing of public interest, the privacy interest protected by Exemption 7(C) remain[s] paramount."  The court explains that its "prior speculation that a Brady issue could arise from the facts of this case was based to a significant extent on the court's supposition that [the third parties] had testified for the government during the government's case in chief."  "Plaintiff’s admission that only [one third party] testified, and then only as a witness called by the defense in the defense's case in chief substantially undercuts the proposition that a Brady issue could arise from the facts of this case."  Additionally, the court finds that "to the extent Plaintiff contends that the alleged misconduct by [an] AUSA . . . or [a] FBI agent . . . are matters of public concern sufficient to overcome the privacy protections of Exemption 7(C), Plaintiff's allegations fall far short of what is required to state a public interest in official misconduct."  The court explains that "the requester must establish more than a bare suspicion in order to obtain disclosure."  "Rather, the requester must produce evidence that would warrant a belief [by] a reasonable person that the alleged Government impropriety might have occurred."  As to the privacy interests at issue, the court finds that, "although the court need not analyze the applicability of Exemption 7(F) to documents for which that exemption is claimed, the court may look to the purpose of that exemption, the protection of third parties, in making its decision as to the weight of the privacy interests of [the two third parties] and other third party individuals whose private information may be at risk of disclosure."
   
• Exemptions 7(E) & 7(F):  "The court has examined Defendant's Index and concludes that there are no documents listed for which exemption under either 7(E) or 7(F) are claimed where exemption under Exemption 7(C) is not also claimed."  "Since the court has determined that Exemption 7(C) applies because the public has no discernable interest in the information requested, it follows that the application of exemption 7(C) to all documents for which that exemption is claimed will necessarily exclude all documents or information that would be subject to exclusion under Exemption 7(F)."
   
• Litigation Considerations, "Reasonably Segregable" Requirements & In Camera Inspection:  "The court concludes that, based on the scope of what Plaintiff requested and the scope of information that is subject to exemption, there is no conceivable information that would be responsive to Plaintiff's FOIA requests, as originally worded, that would not be properly withheld under Exemptions 6/7(C) and 7(F)."  "Therefore, the court concludes that it need not conduct an in camera review of documents to determine if they contain segregable information."
   
• Exclusions: The court finds that, "[b]y inspection, it is apparent that a great deal of the information requested by Plaintiff is information Defendant is not required to produce because it was generated before or following the period of Plaintiff’s investigation or prosecution."  "Because subsection 522(c)(2) justifies the non-disclosure of the existence of information that either predated or postdated the period of time covered by the investigation and prosecution of Plaintiff, the absence of [the third partis'] rap sheets, histories of prior (or later) involvement as confidential informants, or disciplinary issues in the Index indicates that none of the information sought by Plaintiff was generated during the time relevant to Plaintiff's FOIA request, if it was ever generated at all."