Tuesday, August 20, 2013
Re: First party request for records Disposition: Granting defendants' motion for summary judgment
- Adequacy of Search: The court holds that defendants conducted a reasonable and adequate search for records. The court finds that the "searches described in the Declarations were reasonably calculated to uncover all relevant documents." The FBI located "only one file maintained by the Oklahoma City Field Office." The Criminal Division "searched its central index of records, its most comprehensive system of records, and found no records pertaining to Plaintiff." The Criminal Division also searched additional sections and its Electronic Surveillance Unit and found no records. Similarly, ATF searched "its Treasury Enforcement Communications System (TECS) and its case management system (N-Force) using Plaintiff's name for the period of 2002-2008 and found no responsive records." The IRS has no record of a request from plaintiff, but "reviewed documents referred by EOUSA and the FBI."
- Exemption 2: The court finds that "in the absence of an objection by Plaintiff," the FBI properly invoked Exemption 2 to redact "secure/non secure telephone and facsimile numbers of FBI personnel."
- Exemption 3: The court finds the exemption properly invoked for grand jury and firearms transaction records in "absence of an objection" by plaintiff.
- Exemption 5: The court rejects plaintiff's argument that the FBI should not have used Exemption 5 to withhold "an affidavit of an FBI agent and an application for a court order" that the FBI described as "'predecisional and deliberative.'" Plaintiff argued that the documents "may contain information concerning 'whether law enforcement made any search or conducted any investigation as to the whereabouts'" of a third party who disappeared shortly before plaintiff's arrest. The court finds that "Plaintiff's argument does not controvert Defendant's demonstration that the information was subject to the exemption."
- Exemption 7 Threshold: Noting that the Tenth Circuit has "endorsed the 'per se rule' for determining whether materials have been compiled 'for law enforcement purposes,'" the court finds that both ATF's and the FBI's records were compiled for law enforcement purposes. The court notes that if an agency's "primary function is law enforcement," its records are compiled for law enforcement purposes. Here, the FBI is a law enforcement agency and ATF explained that the records "were created by ATF in accordance with ATF's law enforcement function," thus the records were compiled for law enforcement purposes.
- Exemptions 6 and 7C: The court finds that defendants properly applied Exemptions 6 and 7C to names and identifying information of third parties mentioned in the responsive records. "Plaintiff does not provide any factual allegations, and certainly no compelling evidence, to show that the withheld information is necessary to prove government impropriety." "Nor has Plaintiff asserted a public interest of such significance that it outweighs the privacy interests of the third parties mentioned in the records responsive to Plaintiff's request."
- Exemption 7A: The court concludes that the FBI properly withheld information in an investigative file "on a third party of interest who is currently in fugitive status." The FBI argued that release of this information "'would likely endanger an ongoing investigation as to the apprehension of certain individuals who have yet to be sentenced."
- Exemption 7D: The court finds that the FBI properly withheld "name and/or identifying information of certain commercial/private companies which provided information under an expressed assurance of confidentiality during the course of the joint [law enforcement] investigation into Plaintiff's criminal activities."
Adequacy of Search
Updated August 6, 2014