Memorandum in Support of Defendant’s Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________

)

CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )

Plaintiffs, )
)

v. ) Civil Action
) No. 01-2500

UNITED STATES DEPARTMENT OF JUSTICE, )

) Judge Kessler

Defendant. )

______________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiffs’ complaint challenges the federal government’s efforts to protect from public disclosure a narrow class of information arising from a massive, ongoing investigation focused on the September 11 terrorist attacks on the United States, as well as related terrorist conspiracies against the United States and its citizens by the Al Qaeda terrorist network and other international terrorist groups. Under the Freedom of Information Act (“FOIA”), plaintiffs have sought a variety of sensitive information regarding individuals detained in connection with the investigation, including, for instance, the identity of the individuals, their national origin, where they are detained, and the identity of their lawyers. After carefully reviewing plaintiffs’ request and releasing much of the information requested, the Department of Justice has determined that the disclosure of the narrow remaining classes of information could severely hamper the ongoing investigation, could threaten the safety of the public and the national security, and could violate the privacy interests of the detainees at issue.

In response to plaintiffs’ FOIA request, Defendant has undertaken a review of the relevant law enforcement files and has produced a substantial part of the information sought in plaintiffs* FOIA requests. The released material, much of which was publicly disclosed prior to this lawsuit, includes the names of certain of the detainees, the reason they were taken into custody, and when charges were filed against them. The Department of Justice has also previously disclosed and continues to disclose periodically anonymous general information regarding the number of detainees, the various national origins of the detainees, etc.

While FOIA supports access to government information, it does not purport to require public disclosure of materials where that disclosure would disrupt a federal terrorism task force investigation, especially where, as here, that investigation has such important public safety implications. Consequently, the statute precludes disclosure where, as here, it would place the federal government’s investigative function in jeopardy, could lead to potential threats to the health and safety of the public, and could invade personal privacy of participants in an investigation. See 5 U.S.C. * 552(b)(7)(A), (C), and (F).

In this case, plaintiffs seek specifically to know the identities of the suspects detained in the wake of the September 11 attacks and the circumstances of their detention or arrest. Every one of the detainees was placed in custody for one of three compelling reasons: violations of immigration statutes, violations of federal criminal laws, or status as a material witness to a potential prosecution. Information as to each of these three groups was withheld to preserve the effectiveness of a law enforcement investigation, to promote the public safety, and to preserve the privacy and the safety of the detainees. The basis for withholding the requested information may vary slightly depending upon the reason for the detention. In general, however, there are three basic reasons, each protected by FOIA Exemption 7, for withholding the information.

First, FOIA protects from disclosure law enforcement records and information where that information “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. * 552(b)(7)(A). Here, it is readily apparent that disclosure of the identity of the detainees, their location, and related information could substantially undermine the government’s investigation into the events of September 11 and related terrorist threats. For instance, broadcasting the names of detainees and other identifying information could enable terrorist leaders to determine the current focus or thrust of the investigation and to devise a plan to foil it. Potential subjects or targets could be alerted and could abscond. Potential witnesses could be intimidated, and evidence could be destroyed. Similarly, disclosure of the identity of detainees could undermine the ability of law enforcement to infiltrate terrorist networks or to obtain information disclosed by terrorist sources to cooperative former detainees upon their release.

Second, FOIA prevents the disclosure of law enforcement related information where the release of that information “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. * 552(b)(7)(F). Here, given the nature of the terrorist threats at issue * as evidenced by the devastation of September 11 * the threat to human life from the release of this information is apparent. Release of the requested information could allow terrorist leaders to formulate alternative plans to accomplish future terrorist objectives based upon the likely compromise of existing plans or cell members. Similarly, upon learning that their associates are detained, terrorist groups might decide to retaliate against the United States and its citizens or against detainees or their associates who could serve as potential witnesses. This threat would be all the more serious if the location of the detainees were released, leading to possible attacks on the detention centers and harm to the detainees, their guards and anyone in the vicinity.

Third, release of the requested information could unduly interfere with the privacy interests of the detainees and their attorneys. FOIA prevents disclosure of law enforcement related information where that disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. * 552(b)(7)(C). Privacy concerns are reflected in the nightly media debate on the wisdom of televising terrorist trials and disclosing the identities of witnesses or jurors. Here, full compliance with plaintiffs* requests would disclose the names of hundreds of individuals, without their consent, who, although potentially innocent of any terrorist activity, could be placed at risk in the United States and abroad merely by their association with the investigation. Similarly, release of the attorneys’ names without their consent may bring a notoriety and safety risk which those attorneys have consciously sought to avoid. At bottom, plaintiffs’ argument ignores the fact that both detainees and their attorneys can voluntarily publicize their own identities and related information and have not chosen to do so. Consequently, the privacy interests of these individuals should be respected and this information protected from disclosure.

Finally, information regarding detainees who are material witnesses to the investigation is properly withheld for two additional reasons. First, that information has been sealed from public disclosure by the United States District Court before which the material witnesses have appeared. It is thus beyond the control of the Department of Justice and therefore not subject to disclosure under FOIA. See International B’Hood of Teamsters v. National Med. Bd., 712 F.2d 1495 (D.C. Cir. 1983). Second, disclosure of the information is prohibited by Federal Rule of Criminal Procedure 6(e), which preserves the confidentiality and integrity of the grand jury process. FOIA Exemption 3 similarly protects against disclosure of this information.
For these reasons, as set forth more fully below, defendant*s motion for summary judgment should be granted.

BACKGROUND

The FOIA Requests

On October 29, 2001, plaintiffs submitted three FOIA requests to the Department of Justice, sending the first to the INS, a second to the FBI, and a third to the Office of Information and Privacy (“OIP”). Hodes Dec. ** 2, 4; Holmes Dec. * 6; Pustay Dec. * 3. Each of these requests sought expedited processing of the following four items of information regarding individuals “arrested or detained” in the wake of the September 11 attacks on the World Trade Center and Pentagon:

1. (1) their names and citizenship status; (2) the location where each individual was arrested or detained initially and the location where they are currently held; (3) the dates they were detained or arrested, the dates any charges were filed, and the dates they were released, if they have been released; and (4) the nature of any criminal or immigration charges filed against them or other basis for detaining them, including material witnesses warrants and the disposition of such charges or warrants.

2. The identity of any lawyers representing any of these individuals, including their names and addresses.

3. The identities of any courts, which have been requested to enter orders sealing any proceedings in connection with any of these individuals, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders.

4. All policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial or immigration proceedings.

Hodes Dec. * 2; Holmes Dec. * 6; Pustay Dec. * 3.

INS acknowledged receipt of the request on November 1, 2001. Holmes Dec. * 7. Id. * 13. It further responded on November 23, approving expedited treatment but indicating that completing a response would be an “enormous undertaking.” It therefore asked plaintiffs to narrow the scope of their request so that fewer records would have to be retrieved and reviewed. Id. Plaintiffs ignored that request and instead filed this lawsuit.1 Id.

On November 1, 2001, the FBI informed plaintiffs that it was withholding material responsive to their requests pursuant to Exemption 7(A) of FOIA, 5 U.S.C. * 552(b)(7)(A). Hodes Dec. * 4. Plaintiffs appealed, but, on December 10, the FBI affirmed its original denial under both Exemption 7(A) and 7(C), 5 U.S.C. * 552(b)(7)(A), (C). Hodes Dec. * 4.

OIP acknowledged receipt of plaintiffs* request and granted expedited processing on November 1, 2001. Pustay Dec. * 4. OIP was still processing the request at the time plaintiffs filed this suit on December 5. Id.

Information Defendant Has Produced

The persons who were “arrested or detained” as a result of the investigation into the September 11, 2001 attacks fall into three categories: (1) persons held on immigration-related charges by INS, (2) persons charged with federal crimes, and (3) material witnesses. Reynolds Dec. * 4. Defendant has provided plaintiffs with much of the information they seek in their FOIA requests regarding these individuals, but the remainder is exempt from disclosure.

a. The INS Detainees

The first category of detainees are persons being held on immigration-related charges by INS. Reynolds Dec. * 10. These individuals were originally apprehended because evidence suggested they might have connections with, or possess information pertaining to, terrorist activity against the United States, including, particularly, the September 11 attacks and/or the individuals and organizations who perpetrated them. Id. For example, they may have been questioned because they were identified as having interacted with the hijackers, or were believed to have evidence relating to other aspects of the investigation. Id. In the course of questioning them, law enforcement agents learned, often from the subjects themselves, that they were in violation of federal immigration laws, and, in some instances, also determined that they may have links to other facets of the investigation. Id.

With respect to INS detainees, DOJ has already disclosed to plaintiffs (1) their place of birth, (2) citizenship status, (3) the immigration charges brought against them, and (4) the date charges were filed. Reynolds Decl. * 7.

b. The Federally Charged Detainees

The second category of detainees consists of individuals held on federal criminal charges. Reynolds Dec. * 27. One individual, Zaccharias Moussaui, has been charged with violations of federal criminal laws in connection with the September 11 attacks. Id. Like the INS detainees, these individuals were originally apprehended by federal, state, or local law enforcement as a result of the federal investigation into the September 11 attacks. Id. While the nature of the charges pending against each of these detainees varies, until these investigations are concluded, none can be eliminated as a potential source of relevant or probative information. Id.

With respect to this category of detainees, defendant has already disclosed to plaintiffs (1) their names, (2) the dates any charges were filed, (3) the date the detainee was released, if released, (4) the nature of the criminal charges filed against them, and (5) their lawyer’s identity.2 Reynolds Dec. * 8.

Material Witnesses

The third category of detainees consists of persons who have been the subject of a material witness warrant issued by a federal court. Reynolds Dec. * 31. Plaintiffs have requested their names, citizenship status, the location of their arrest or detention, the location where they are being held, the dates of their arrest or detention, the date any charges were filed, the date of their release, if released, the nature of the charges against them, and the names of their lawyers. Id. All of this information has been withheld. Id.
First, the United States District Courts before which the material witnesses have appeared have all issued sealing orders prohibiting the government from releasing any information about these proceedings. Reynolds Dec. * 32. Moreover, information pertaining to material witnesses has also been withheld pursuant to Federal Rule of Criminal Procedure 6(e). Id. * 33.

ARGUMENT

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE THE REQUESTED INFORMATION HAS BEEN LAWFULLY WITHHELD PURSUANT TO APPLICABLE EXEMPTIONS UNDER FOIA

Fed. R. Civ. P. 56 mandates that summary judgment be entered whenever “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir. 1998). “[T]he burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-49; Doe v. Gates, 981 F.2d 1316, 1323 (D.C. Cir. 1993).

“By its terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment: the requirement is that there is no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). Consequently, “[o]nly disputes over the facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. In this action, summary judgment for defendant should be granted, because there are no genuine issues of material fact, and defendant has, as a matter of law, properly denied plaintiffs’ FOIA requests with respect to the documents it has withheld.3

I. DEFENDANT HAS PROPERLY WITHHELD CERTAIN INFORMATION ABOUT THE DETAINEES PURSUANT TO EXEMPTION 7

FOIA exempts from disclosure any records or information “compiled for law enforcement purposes,” whenever
the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, . . . or (F) could reasonably be expected to endanger the life or physical safety of any individual . . . .
5 U.S.C. * 552(b)(7)(A), (C), (F).

Here, the information in question meets the threshold requirement that it be “compiled for law enforcement purposes.” 5 U.S.C. * 552(b)(7). Because, as discussed below, each of the three specified interests protected by Exemptions 7(A), (C), and (F) would flow from disclosure of the information at issue here, defendant has properly withheld the information.

A. The Information Was Compiled for Law Enforcement Purposes

As a threshold matter, the information plaintiffs seek was compiled for law enforcement purposes. See Keys v. United States Dep*t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (Agency must demonstrate a rational nexus between its activity and its law enforcement duties). It was gathered pursuant to DOJ*s extensive, broad based, and world-wide investigation into the September 11, 2001 hijackings and terrorist attacks on the World Trade Center and Pentagon, and related terrorist conspiracies and threats. Reynolds Dec. ** 2, 5. That investigation, which is ongoing at this time, involves 4000 FBI agents who, with their international counterparts, are engaged in a worldwide effort to detect, disrupt, and dismantle terrorist organizations. Id. * 2.

The information that plaintiffs seek is contained in DOJ records created as a result of the investigation. Reynolds Dec. * 5. DOJ and its individual components, including INS and FBI, have opened and maintained these records, which pertain to the ongoing immigration proceedings of the detainees and related investigations. Id. * 5.

The information sought therefore falls within the scope of FOIA’s “law enforcement” exemption. See 5 U.S.C. * 552(b)(7). See also Rural Hous. Alliance v. USDA, 498 F.2d 73, 81 (D.C. Cir. 1974) (Investigation which focuses on specific illegal acts which could result in civil or criminal penalties meets threshold of Exemption 7); Wickline v. FBI, No. 92-1189, 1994 WL 549756, at *2 (D.D.C. Sept. 30, 1994) (FBI met requirement for “nexus between the agency*s activity and its law enforcement duties” when it compiled requested information through its investigation of series of murders involving organized crime); Stone v. Defense Investigative Serv., 816 F. Supp. 782, 787 (D.D.C. 1993) (Foreign counterintelligence and criminal investigations satisfied threshold requirement of Exemption 7); Center for Nat*l Sec. Studies v. INS, No. 87-2068, 1990 WL 236133, at *6 (D.D.C. Dec. 19, 1990) (accepting INS*s claim that preparation of documents was related to “legitimate concerns that federal immigration laws have been or may be violated”).

B. Disclosure of the Information Sought Would Interfere With Ongoing Law Enforcement Proceedings

The Department of Justice is justified in withholding the information at issue in this dispute because its release would seriously compromise an ongoing federal investigation. Thus, disclosure of this information is protected by FOIA Exemption 7(A), which applies “whenever the government*s case in court would be harmed by the premature release of evidence or information.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978).

Release of the information in question could harm the Justice Department’s terrorism investigation in numerous ways. Reynolds Dec. * 13. First, releasing the information sought could compromise the United States’ ability to obtain cooperation from knowledgeable witnesses, follow up on investigative leads, and pursue the full range of investigative options. Id.; see Rosenglick v. IRS, No. 97-747-18A, 1998 WL 773629, at *2 (M.D. Fla. Mar. 10, 1998) (“[C]ourts have liberally interpreted the term interference” because early access could “aid a wrongdoer in secreting or tampering with evidence” and reveal the nature, scope, strategy and direction of the investigation”). Disclosing the names of the detainees who may have knowledge of or a connection to terrorism could lead to the public identification of individuals associated with them, other investigative sources, and potential witnesses. Reynolds Dec. * 14; see Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (“Agencies must evaluate the risk of disclosing records to some particular FOIA requester not simply in terms of what the requester might do with the information, but also in terms of what anyone else might do with it”). Terrorist organizations that discover the identities of these individuals could subject them to intimidation or harm, thereby preventing them from supplying valuable information or further leads. Id.; see Judicial Watch, Inc. v. United States Dep*t of Justice, No. 97-2869, slip op. at 19 (D.D.C. Feb. 22, 2000) (Prematurely disclosing documents related to witnesses could result in witness tampering or intimidation and could discourage continued cooperation); Kansi v. United States Dep*t of Justice, 11 F. Supp. 2d 42, 44 (D.D.C. 1998) (Disclosure provides “potential for interference with witnesses and highly sensitive evidence”); Kay v. FCC, 976 F. Supp. 23, 39 (D.D.C. 1997) (Release would “potentially create witness intimidation and further discourage future witness cooperation”).

Second, divulging the detainees’ identities may deter them from cooperating with the Department of Justice once they are released from custody and eliminate valuable sources of information for the investigation. Reynolds Dec. * 15; see Timkin Co. v. United States Customs Serv., 531 F. Supp. 194, 199 (D.D.C. 1981) (Disclosure of investigatory records would interfere with the agency*s ability “in the future to obtain this kind of information”). As a result of their public identification, terrorist organizations with whom they have a connection may refuse to deal further with them. Reynolds Dec. * 15. Release of the information would similarly impair the government’s ability to infiltrate terrorist organizations engaged in ongoing criminal activities. Id. Moreover, a detainee who knows his name will be made public may be deterred from cooperating for fear of retaliation by terrorist organizations against him or his family and associates. Id.

Third, releasing the names of the detainees who may be associated with terrorism and their place and date of arrest would reveal the direction and progress of the investigations by identifying where DOJ is focusing its efforts. Reynolds Dec. * 16. In effect, it would allow terrorist organizations to map the progress of the investigations and thereby develop the means to impede them. Id. Even disclosing the identities of those detainees who have been released may reveal details about the focus and scope of the investigation and thereby allow terrorists to counteract it. Id. This may cause terrorists, who learn that their associates or even people who know their associates have been detained, to alter their plans in a way that presents an even greater threat to the United States. Id.; see Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (Exemption 7(A) allows an agency to keep secret those records which “could reveal much about the focus and scope” of the investigation); Kay v. FCC, 976 F. Supp. 23, 38-39 (D.D.C. 1997) (Exemption 7(A) protects records whose release would “reveal the scope, direction and nature” of the investigation and thereby provide insight into the agency*s evidence, reveal the focus of the investigation, assist in circumventing the investigation, and create witness intimidation); see also Vosburgh v. IRS, No. 93-1493, 1994 WL 564699, at *3 (D. Or. July 5, 1994) (Exemption 7(A) applies where disclosure would reveal nature, scope, and direction of investigation, evidence obtained, and government*s strategies, and would provide opportunity to create defenses and tamper with potential evidence); International Collision Specialists, Inc. v. IRS, No. 93-2500, 1994 WL 395310, at **2, 4 (D.N.J. Mar. 2, 1994) (Under Exemption 7(A) disclosure would interfere with enforcement proceedings by enabling requester “to determine nature, source, direction, and limits” of IRS investigation and to “fabricate defenses and tamper with evidence”).

Fourth, official verification that a cell member has been detained and therefore can no longer carry out the plans of his terrorist organization may enable the organization to find a substitute who can achieve its goals more effectively, thereby thwarting the government’s ability to frustrate ongoing conspiracies. Reynolds Dec. * 16; cf. Moorefield v. United States Secret Serv., 611 F.2d 1021, 1026 (5th Cir. 1980) (Disclosure is barred where it would enable targets to keep abreast of investigations and to elude their scrutiny). For example, upon learning that a particular terrorist cell has been compromised through the detention of some or all of its members, terrorists may switch to an alternative cell, thereby retaining the ability to mount future terrorist attacks. Reynolds Dec. * 16.

Fifth, the public release of names, and place and date of arrest, of detainees who may have knowledge of or connections to terrorism, could allow terrorist organizations and others to interfere with the pending proceedings by creating false or misleading evidence. Reynolds Dec. * 17. As a consequence, the investigations will be hindered by unnecessary and burdensome confusion. Id. Revealing the location of the detainees may facilitate contact between detainees and terrorist organizations. Id.

The rationale that underlies the withholding of the names of the INS detainees similarly supports the nondisclosure of their lawyers’ identities under 5 U.S.C. * 552(b)(7)(A). Reynolds Dec. * 18. Although some attorneys may voluntarily reveal their own names and/or the names of their clients, such sporadic, piecemeal disclosures are qualitatively different from DOJ’s publication of a comprehensive list of all lawyers’ names. Id. Release of such a list may facilitate the identification of the detainees themselves. Id. Once a list of the detainees is generated, the harms described above could ensue. Id.

Finally, federal law enforcement’s interest in preserving the efficacy of its investigation is particularly compelling with respect to those persons detained as material witnesses. Disclosure of the information sought regarding material witnesses * who are believe to have evidence directly relevant to acts of terrorism * could send clear signals regarding the strategy or direction of the investigation. Reynolds Dec. * 35. Therefore the information is properly withheld pursuant to 5 U.S.C. * 552(b)(7)(A).

C. Disclosure of the Information Sought Would Endanger the Public Safety and the Safety of the Detainees, Their Attorneys, and Other Individuals, Including the General Public And is Exempt Pursuant to FOIA Exemption 7(F)

Disclosure of the identities of the INS detainees, the identities of those being held on material witness warrants, the detention location of those who have been charged with a federal crime, and the identities of the detainees* lawyers “could reasonably be expected to endanger the life or physical safety of . . . individual[s].” Reynolds Dec. * 37. As such FOIA Exemption 7(F), 5 U.S.C. * 552(b)(7)(F) protects this information from disclosure.

Revealing the names of the detainees could pose a substantial threat to the public safety. If terrorist organizations learn that their associates or even people who know their associates have been detained, they may alter their plans in a way that presents an even greater danger to the United States. Reynolds Decl. * 16.

In addition, all of the detainees were apprehended in connection with the investigation emanating from the September 11 attacks. Id. Revealing their identities could subject them to physical danger both in the United States and in their home countries if they are deported. Id. Detainees who are, in fact, affiliated with a terrorist group could be perceived by such groups as informants for the United States whose death or injury would foreclose their future cooperation. Id. In addition, the safety of detainees* family members and friends could be compromised through threats of physical violence by terrorists in an effort to deter the detainees from cooperating. Id. Moreover, disclosing the detention facilities where these individuals are being detained could place at risk not only the detainees, but the facilities themselves and their employees. Id.

This same threat to the physical safety of the detainees also applies to their attorneys in that they could also face physical harm if their identities are revealed. Reynolds Dec. * 38. Aside from terrorist organizations or their sympathizers, others might construe that the detainees’ attorneys, even though professionally representing the interests of their clients, are working against the interests of the United States. Id.

Members of terrorist organizations may fear that detainees are supplying their attorneys with too much information and, lacking the ability to communicate with the detainees while they are imprisoned, may instead choose to harm their attorneys. Id. In light of the extraordinary brutality of the acts committed against the United States, even the mere possibility of retaliation against these lawyers justifies withholding their identities. Id., see Russell v. Barr, No. 92-2546, slip op. at 11-12 (D.D.C. Aug. 28, 1998) (Exemption 7(F) protected the identities of individuals who cooperated in investigation and prosecution involving spousal murder where requester had reputation for violent behavior); Isley v. Executive Office for United States Attorneys, No. 96-0123, slip op. at 8-9 (D.D.C. Mar. 27, 1997) (Exemption 7(A) shielded agency*s nondisclosure of information identifying individuals who provided evidence during murder investigation, when reasonable likelihood existed that disclosure would threaten their lives), appeal dismissed, No. 97-5105 (D.C. Cir. Sept. 8, 1997); Bruscino v. Federal Bureau of Prisons, No. 94-1955, 1995 WL 444406, at *11 (D.D.C. May 12, 1995) (Exemption 7(F) protected from disclosure investigatory information obtained from prison informants whose lives would otherwise be endangered by “rough justice” rendered by other inmates), summary affirmance granted in pertinent part, vacated and remanded in part, No 95-5213, 1996 WL 393101 (D.C. Cir. June 24, 1996); Dickie v. Department of the Treasury, No. 86-649, slip op. at 13 (D.D.C. Mar. 31, 1987) (Exemption 7(F) was applicable given agency judgment of “very strong likelihood of harm”).

D. Disclosure of the Requested Information Would Violate the Detainees’ Right to Privacy Under Exemption 7(C).

Even aside from the compelling interests of the government and the public in withholding the requested information, DOJ’s decision to withhold the requested information is necessary in order to protect the privacy interests of the detainees themselves. The detainees * many of whom have or may be cleared of any wrongdoing * have strong privacy interests in preventing disclosure of certain information about themselves and their locations. Release of information regarding the detainees could forever stigmatize them by associating them with the worst terrorist incident in United States history * even if the detainees are ultimately cleared of any wrongdoing. While the detainees (or their attorneys) are free to release this information voluntarily, the FOIA does not require that the government release it against their wills.

Exemption 7(C) of the FOIA protects from disclosure “records or information compiled for law enforcement purposes” whose production “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. * 552(b)(7)(C). In order to apply Exemption 7(C), a court must balance the public interest in disclosure against the interest in privacy that the exemption protects, i.e. the individual*s control of information concerning his or her person. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762-63 (1989); Goldstein, 1999 WL 570862, at *9. The standard of public interest to consider is one specifically limited to FOIA*s “core purpose” of “shed[ding] light on an agency*s performance of its statutory duties.” See Reporters Comm., 489 U.S. at 773.

Here, DOJ correctly determined that the individual privacy interests of each detainee greatly outweighed any public interest in disclosure. Each of the detainees was detained because of their possible connection to, or knowledge regarding, the worst terrorist attack ever committed on United States soil. Reynolds Dec. * 19. Although they may eventually be found to have no connection to terrorist activity, release of their names and personal information at this time would forever connect them to the September 11 attacks. Id.

Given the nature of these investigations, the mere mention of the detainees’ names in connection with these investigations may likely cause the detainees embarrassment, humiliation, risk of retaliation, harassment and possibly even physical harm in the United States and in their home countries. They could be stigmatized by being viewed as “guilty by association.” Id. The nature of this investigation and the viciousness of these attacks is unprecedented. Id. The interests of these detainees in not being connected with such activity is overwhelming. Id.; see Reporters Comm., 489 U.S. at 765 (“[D]isclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind”); Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (“[T]he mention of an individual*s name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation”) (internal quotation marks omitted); Lesar v. United States Dep*t of Justice, 636 F.2d 472, 488 (D.C. Cir. 1980) (“It is difficult if not impossible, to anticipate all respects in which disclosure might damage reputations or lead to personal embarrassment and discomfort”) (internal quotation marks omitted); Tanks, 1996 WL 293531, at *3 (D.D.C. 1996) (“Exemption

7(C) does not require a balance tilted emphatically in favor of disclosure, but rather recognizes the stigma potentially associated with law enforcement investigations and affords broader privacy rights to suspects, witnesses, and investigators”) (internal quotation marks omitted); Congressional News Syndicate v. United States Dep*t of Justice, 438 F. Supp. 538, 541 (D.D.C. 1977) (“[A]n individual whose name surfaces in connection with an investigation may, without more, become the subject of rumor and innuendo”).

Information pertaining to the detainees charged with federal crimes is also exempt from release under Exemption 7(C). Reynolds Dec. * 29. Because of these individuals’ association with the terrorist investigation, disclosing their detention location could subject them to possible harassment, intimidation and even physical harm. Id. It is not unusual for prisoners in a facility to attempt to harm or harass those they believe have been involved in particularly heinous crimes. Id. If a prisoner learns that an individual who was detained as a result of the investigation into the September 11 attacks is in their own prison facility they may try to retaliate against this individual. Id.

In addition, the detention location is an item of information about each of these individuals, Reynolds Dec. * 30, and therefore implicates a privacy interest. This interest is increased because the detainees have no voice in the determination as to where they are detained. Id. In any event, the location of an individual’s detention will not shed light on the agency’s operations and activities.
Release of the names of the attorneys representing the detainees could jeopardize their own privacy interests. Reynolds Dec. * 24. Unlike the more routine immigration cases where attorneys readily and openly represent clients, these particular lawyers are representing individuals who have been detained in connection with what has been described as an act of war against the United States. Id. * 25. The overwhelming grief and anger of the American public could be directed at these attorneys even more than at the detainees themselves. Id. While there may be some other public interest * not applicable under the FOIA * in ensuring that the detainees are properly represented, that interest is not vindicated here. Id. * 24. In fact, there is no public interest cognizable under the FOIA in involuntary disclosure of the identities of those attorneys who have consciously chosen to remain anonymous because of the risks described above. Id.; cf. Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996) (“Persons involved in FBI investigations – even if they are not the subject of the investigation – have a substantial interest in seeing that their participation remains secret) (internal quotation marks omitted). In stark contrast to the powerful privacy interests of the detainees stands the plaintiffs’ generalized assertions of public interest. Reynolds Dec. * 20. Plaintiffs assert that “there is an overriding public interest in knowing the activities of the government in detaining people in connection with the September 11 attack.” Id. Plaintiffs fail, however, to demonstrate why * in light of the extensive information already provided by DOJ * the detainee-specific information at issue is essential to public understanding of the activities of the government. To the contrary, release of the detainees’ names and personal information about them would not shed light on the operations and activities of the government. Id.; see SafeCard Servs. v. SEC. 926 F.2d 1197, 1206 (D.C. Cir. 1991) (Personal information would serve a “significant” public interest only if “there is compelling evidence that the agency . . . is engaged in illegal activity”); Alexander & Alexander Servs. v. SEC, No. 92-1112, 1993 WL 439799, at *10 (D.D.C. Oct. 19, 1993) (Records containing personal information should be categorically withheld when no compelling evidence of illegal agency activity exists), appeal dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996); see also Reporters Comm, 489 U.S. at 763 (The public interest in disclosure is to “ensure that the Government*s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed”).

Indeed, because the Department of Justice has released much information about “the activities of the government in detaining people,” such as the number of people detained and the charges brought against them, the disclosure of further information such as their names and their current location * which could lead to their identification * would add nothing to the public’s understanding of the activities of the government. Reynolds Dec. * 20; see Reporters Comm., 489 U.S. at 763 (The identities of individuals who appear in law enforcement files are virtually never “very probative of an agency*s behavior or performance”). As a result, when the strong privacy interests of the detainees are balanced against any public interest in disclosure, the privacy interests in protection greatly outweigh any perceived public interest in release. Reynolds Dec. * 20. The D.C. Circuit has held “categorically” that, “unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm, or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.” SafeCard, 926 F.2d at 1206; see also Quinion v. FBI, 86 F.3d 1222, 1231 (D.C. Cir. 1996) (There was insufficient public interest in revealing individuals mentioned in FBI files absent evidence of agency wrongdoing); McCutchen v. United States Dep*t of Health and Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994) (“The mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not create a public interest sufficient to override the privacy interests protected by Exemption 7(C)”); Senate of P.R. v. United States Dep*t of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987) (General interest of legislature in “getting to the bottom” of highly controversial investigation was not sufficient to overcome “substantial privacy interests”); Goldstein v. Office of Indep. Counsel, No. 87-2028, 1999 WL 570862, at *9 (D.D.C. July 29, 1999) (Public interest in documents relating to FBI*s terrorism investigation was significant, but third-party names were properly withheld absent compelling evidence of illegal activity by FBI).

II. THE INFORMATION RESPONSIVE TO FOIA REQUEST ITEM NO. 3 IS NOT UNDER AGENCY CONTROL AND IS SUBJECT TO EXEMPTIONS 3 & 7(A)

DOJ has properly denied plaintiffs’ request for the identity of any courts which have been asked to enter orders sealing any proceedings in connection with individuals arrested or detained in the wake of the September 11 attack, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders. See Reynolds Dec. * 39; Complaint * 29(c). Nationwide, there are ten orders responsive to plaintiffs’ request. Reynolds Dec. * 39. However, neither the orders themselves nor any of the other information plaintiffs request about them is under DOJ’s control. Id. Rather, the orders have been sealed by the relevant United States District Courts and prohibit the government from releasing any information. Id. Thus, the Department of Justice cannot properly provide the information plaintiffs request. Id.

To be subject to FOIA, 5 U.S.C. * 552, “agency records” must be under agency control at the time of the FOIA request. United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 145 (1989). The crucial question is whether “the document has passed . . . and become property subject to the free disposition of the agency with which the document resides.” Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); see also Tax Analysts v. United States Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989) (Factor in determining whether record is under agency control is the ability of the agency to use and dispose of the record as it sees fit).

Because the information in question is prohibited from disclosure by Court order, it is not under defendant’s control. See International Bhd. of Teamster v. Nation Mediation Bd., 712 F.2d 1495, 1496 (D.C. Cir. 1983) (Where court required airline to submit information to agency only for particular use ordered by court, agency*s possession of the information did not constitute “control”); KDKA v. Thornburgh, No. 90-1536, 1992 U.S. Dist. LEXIS 22438, at **16-17 (D.D.C. Sept. 30, 1992) (Agency lacked “control” over documents it was prohibited from releasing by international agreement). Therefore this information is not subject to the disclosure requirement of FOIA.

Moreover, this information is also protected from disclosure by Exemption 3 of the FOIA, 5 U.S.C. * 552(b)(3). Reynolds Dec. * 33. This exemption protects information exempted from disclosure by statute. Id. In this case, information pertaining to material witnesses was withheld pursuant to Federal Rule of Criminal Procedure 6(e). Reynolds Dec. * 33.
Rule 6(e) prohibits the disclosure of information that would reveal the inner workings of the grand jury. Reynolds Dec. * 34. This prohibition includes the identities of witnesses and the substance of testimony, as well as information that would reveal the scope, focus and direction of the grand jury proceedings. Id. To reveal any information pertaining to the material witnesses, including their identities and any information which would lead to their identities, would violate Rule 6(e) by revealing witness names as well as the scope and direction of the grand jury proceedings. Reynolds Dec. * 34.

Even if the information could be disclosed, it is exempt from disclosure pursuant to 5 U.S.C. * 552(b)(7)(A). Reynolds Dec. * 40. Publicizing this information would reveal investigative strategy or an unusual level of law enforcement interest in a detainee which would impair investigative efforts, as further described above; see Swan v. SEC, 96 F.3d 498, 500-01 (D.C. Cir. 1996) (Harm in disclosing information “flows mainly from the fact that it reflects the [SEC] staff*s selective recording . . . and thereby reveals the scope and focus of the investigation”). Therefore, its publication would interfere with enforcement efforts and is not required. See 5 U.S.C. * 552(b)(7)(A).

III. ONE DRAFT DOCUMENT RESPONSIVE TO FOIA REQUEST ITEM NO. 4 IS SUBJECT TO THE DELIBERATIVE PROCESS PRIVILEGE AND EXEMPTION 5

In response to the third item in plaintiffs’ FOIA request, Complaint * 29(d), defendant has produced – but only with appropriate redactions – one draft document which is protected by the deliberative process privilege and is therefore exempt from disclosure pursuant to 5 U.S.C. * 552(b)(5); see Goldstein, 1999 WL 570862, at *7 (“Exemption 5 has been construed to exempt those documents . . . normally privileged in the civil discovery context”). The deliberative process privilege protects from disclosure all “intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975), quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 962 (1967). Disclosure of intra-agency deliberations and advice is injurious to the federal government’s decision-making functions because it tends to inhibit the frank and candid discussion necessary to effective government. See NLRB v. Sears Roebuck & Co., 421 U.S. at 150-51. The privilege is thus “predicated on the recognition that the quality of administrative decision making would be seriously undermined if agencies were forced to operate in a fishbowl.” Dow Jones & Co. v. Department of Justice 917 F.2d 571, 573 (D.C. Cir. 1990) (internal quotation marks omitted); see also Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987).

In order to qualify for the privilege, an agency document must be (1) predecisional and (2) deliberative in nature, containing opinions, recommendations, or advice about agency decisions. See, e.g., Renegotiations Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The record in question falls squarely within the deliberative process privilege. The two-page document consists of draft talking points prepared by OIP at the request of an official in the Office of the Deputy Attorney General, for the ultimate use of the Attorney General, regarding the legal bases for nondisclosure of information regarding INS detainees. Pustay Dec. ** 5-6. The record is clearly labeled “DRAFT” and includes bracketed comments and recommendations addressed to the official in the Office of the Deputy Attorney General with whom the talking points were being coordinated. Id. * 6. This draft contains preliminary views and legal analysis of the FOIA and the Privacy Act, 5 U.S.C. * 552a (1994 & Supp. V 1999), as these statutes relate to disclosure of information pertaining to the detainees. Pustay Dec. * 6. As a draft document, it is inherently pre-decisional. Id. Moreover, within the draft itself are bracketed recommendations and suggestions concerning the content of the talking points. Id. This document, on its face, represents a work in process and reflects the give and take of the deliberative process. Id.

Disclosure of this record would inhibit advisors to the Attorney General from freely expressing their recommendations and giving advice about current legal issues and preferred courses of action. Pustay Dec. * 6. This inhibition would be extremely detrimental to the Attorney General who relies on such advisors for their complete, candid opinions. Id. By affording confidentiality to agency deliberations such as these, decision makers, including the Attorney General himself, can operate most effectively. Id.
In addition, due to the nature of this document, it contains only an incomplete view of the ultimate position to be taken by the Department on these legal issues. Pustay Dec. * 6. Public release of this draft could thus lead to erroneous conclusions about the position of the Department of Justice. Id. Therefore, defendant has properly redacted the document and produced only this excised version in response to plaintiffs’ FOIA request.

IV. PLAINTIFFS’ FIRST AMENDMENT CLAIM IS WITHOUT MERIT

Plaintiffs’ contention that defendant’s alleged failure to release agency records violates the First Amendment must fail. The First Amendment does not “mandate[] a right of access to government information or sources of information within the government’s control.” Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978); Pfeiffer v. CIA, 1994 WL 80869, at *4 (D.D.C. 1994) (“There is no inherent constitutional right of access to government information – whether classified or unclassified – as the existence of the Freedom of Information Act, and its host of exemptions, both amply demonstrate”). Therefore, “a litigant seeking release of government information under FOIA . . . relies upon a statutory entitlement – as narrowed by statutory exceptions – and not upon his constitutional right to free statement.” McHehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983).
In the present case, the First Amendment provides plaintiffs with no right to the information they seek, and their claim should be dismissed. Instead, their rights must be derived from FOIA. However, since that statute affords them no entitlement to the information either, their FOIA claims should be dismissed as well.4

CONCLUSION

For the foregoing reasons, defendant*s motion for summary judgment should be granted.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD
United States Attorney

DAVID J. ANDERSON

ANNE L. WEISMANN

LISA A. OLSON

U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail: lisa.olson@usdoj.gov
Dated: Jan. 11, 2002 Counsel for Defendant

 

CERTIFICATE OF SERVICE

I hereby certify that on January 11, 2002, copies of the Consent Motion to Modify Scheduling Order and proposed Order were served by facsimile and by first-class mail, postage pre-paid, upon plaintiffs’ counsel as follows:

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994-7005

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549-2651

Ellior M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293-2672

__________________________
LISA A. OLSON

1 Only after they filed this lawsuit did plaintiffs agree that production of the information rather than the documents containing it would be sufficient to satisfy their requests.

2 Prior to the filing of this lawsuit, DOJ released to the public the names of detainees who had been charged with federal crimes, the district where the complaint or indictment was filed, whether the defendant was the subject of a complaint or an indictment, the charges, the Assistant United States Attorney assigned to the prosecution, and whether or not the defendant was in custody. Reynolds Dec. * 25.

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