DOJ Reply in Support of Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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CENTER FOR NATIONAL SECURITY )
STUDIES, et al., )
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Plaintiffs, )
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v. )
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
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Judge Kessler

Civil Action No. 01-2500

DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In its motion for summary judgment, the government demonstrated, through detailed and compelling declarations, that the imprudent release of information in the narrow categories not previously disclosed by the government would place in jeopardy one of the most significant law enforcement investigations ever conducted. The effects of any miscalculation with respect to the information at issue could be catastrophic. For example, disclosure of the names and other identifying information of the detainees presents an unacceptable risk to their safety and the safety of the public. Placing the requested information in the public domain and, therefore, in the hands of terrorists threatens to undermine the efficacy of the investigation and our ability to deter future terrorist attacks. Simply stated, the risks are too grave and the margin of error too slim.

Plaintiffs’ response to this evidence is long on rhetoric and short on specifics. Plaintiffs cloak themselves in unsubstantiated allegations of government wrongdoing and broad-based statements regarding the general purposes and goals of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiffs’ tactics fail to conceal that they both misconstrue the applicable legal standards and overlook the government’s legitimate justifications for withholding the requested information. At bottom, plaintiffs seek to transform this straightforward FOIA lawsuit into a more fundamental challenge to the detention and treatment of detainees and the investigation itself, but that challenge has nothing whatsoever to do with FOIA and thus has no legitimate place here.

SUMMARY OF ARGUMENT

Plaintiffs’ brief misconstrues both the government’s justifications for withholding the requested information and the applicable legal standards. Plaintiffs do so first by contending that the detainee information at issue was not “compiled for law enforcement purposes” and therefore does not meet the threshold requirement for application of Exemption 7 of the FOIA, 5 U.S.C. § 552(b)(7). As support, plaintiffs point to the fact that some of the information they seek also can be found in files that are independent of the September 11 investigation. Whether or not this is true, it ignores the critical fact, for purposes of the FOIA, that the information plaintiffs seek indisputably was acquired and compiled by defendant solely as a result of its investigation into the September 11 terrorist attacks – an investigation undertaken for law enforcement purposes and one that is both objectively reasonable and unquestionably legitimate.

Seeking to undermine the government’s legitimate right to withhold the information pursuant to FOIA Exemption 7, plaintiffs argue that, under FOIA Exemptions 7(A) and (F), the government must prove to a certainty that the detainees actually have a connection to terrorism and that disclosure will definitely interfere with enforcement proceedings or endanger physical safety. But plaintiffs’ argument ignores the fundamental purpose of Exemption 7 – to prevent harm before it occurs. The government’s evidence of harm more than satisfies this standard. The threats to the investigation and to safety could spring not only from evidence linking particular detainees to terrorist activity, but also from the disclosure of seemingly innocuous fragments of information that to a trained eye provide critical pieces revealing the full “mosaic” of defendant’s investigative operations. See Declaration of Dale L. Watson, Executive Assistant Director for Counterterrorism and Counterintelligence, Federal Bureau of Investigation (“FBI”), filed in Detroit Free Press v. Department of Justice, Civ. No. 02-70339 (E.D. Mich.) (“Watson Dec.”) (Exh. 7 hereto), 13-15.

Unable to counter the government’s evidence with evidence of their own, plaintiffs rely solely on hearsay accounts in the popular media and their own unfounded speculation to support a privacy analysis under FOIA Exemption 7(C) that is fatally flawed. Plaintiffs contend that, under Exemption 7(C), the public interest calls for disclosure of the information they seek in order to expose alleged government wrongdoing. But plaintiffs fail to offer even a hint of admissible evidence of such wrongdoing, much less the “compelling evidence” required by law. See Computer Prof’ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897, 905 (D.C. Cir. 1996). They fail to show why releasing the names and other details about the detainees to the public would confirm the hypothetical wrongdoing they allege, and, tellingly, they disregard the detainees’ interest in not being permanently tainted by their association with the September 11 investigation, an interest that survives even, and in particular, if they are eventually cleared of any wrongdoing. Even Amnesty International, one of the plaintiffs, has conceded that the safety of the detainees could be jeopardized through public hostility. See http://web.amnesty.org/ai.nsf/Index/AMR510442002?OpenDocument&of=COUNTRIES\USA. Moreover, in the face of evidence sufficient to establish that the information sought is protected by Rule 6 of the Federal Rules of Criminal Procedure and by federal court order, plaintiffs continue their futile quest for information sealed by court order and information regarding material witness warrants.

While ignoring the government’s evidence and relying on unsubstantiated charges, plaintiffs contest the adequacy of defendant’s search – a challenge that is particularly inappropriate given plaintiffs’ own disavowal that they were seeking “all documents” responsive to their request. In any event, defendant’s search for policy directives or guidance regarding making public statements or closing public hearings was adequate. As set forth in the April 12, 2002 second Declaration of Melanie Ann Pustay, Deputy Director of the Office of Information and Privacy, U.S. Department of Justice (“Second Pustay Dec.”) , submitted herewith as Ex. 8, the Supplemental Declaration of Scott A. Hodes, Acting Chief, Litigation Unit, Freedom of Information-Privacy Acts Section, Records Management Division, FBI (“Supp. Hodes Dec.”), submitted herewith as Ex. 9, and the Supplemental Declaration of Raymond Q. Holmes, Acting Chief, Freedom of Information and Privacy Acts Operations Unit, Office of Records Services, Immigration and Naturalization Service (“Supp. Holmes Dec.”) (to be filed on April 16, 2002), defendant’s search of the offices determined to be the ones to maintain such documents, if they exist, was more than reasonably thorough.

Finally, plaintiffs’ reliance on the common law as providing a right of access to the information in question must be rejected for three separate, but equally compelling reasons. First, there is no waiver of sovereign immunity that would permit plaintiffs to sue defendant under a common-law theory. Second, even if their common-law claim were not so barred, the right of access plaintiffs seek to invoke does not apply where, as here, the records are governed by a statutory access scheme such as the FOIA. And even if the common-law right could be invoked here, disclosure would not be warranted because, under the applicable balancing test, the government’s interest in keeping this information confidential outweighs the public’s interest in disclosure.

ARGUMENT

I. DEFENDANT HAS LAWFULLY WITHHELD THE INFORMATION PURSUANT TO APPLICABLE EXEMPTIONS UNDER FOIA

A. The Information In Question Was Indisputably “Compiled For Law Enforcement Purposes” In Accordance With FOIA Exemption 7’s Threshold Requirement

As an initial matter, plaintiffs contend that information they seek about the detainees was not “compiled for law enforcement purposes” as required by FOIA Exemption 7, 5 U.S.C. § 552(b)(7). The only basis for their contention is that the information they seek is contained in INS charging documents themselves rather than solely in the underlying records of investigation. Memorandum of Points and Authorities in Support of Plaintiffs’ Cross-Motion for Summary Judgment and Opposition to Defendant’s Motion for Summary Judgment (“Pl. Memo.”) at 11-12. But plaintiffs misconstrue the government’s basis for withholding the information at issue. Although the detainees may have been in violation of federal immigration laws, the information is being withheld because of its connection to the September 11 investigation and related inquiries into other terrorist activities. See Declaration of James S. Reynolds (“Reynolds Dec.”) (Exh. 1 to Defendant’s Motion for Summary Judgment) 2. Indeed, plaintiffs seek this information only because of its connection to September 11, and thus are disingenuous in suggesting they want access only to unexceptional “INS charging documents.” The fact that this information, compiled in the course of the September 11 investigation, is also contained in INS charging documents is simply irrelevant to a determination of the applicability of Exemption 7 here.

To satisfy Exemption 7’s threshold requirement, defendant must show that it compiled the information “pursuant to an objectively reasonable law enforcement purpose.” Keys v. United States Dep’t of Justice, 830 F.2d 337, 341 (D.C. Cir. 1987); id. at 340 (“[T]he nexus between the agency’s activity . . . and its law enforcement duties must be based on information sufficient to support at least a colorable claim of its rationality”) (internal quotation marks omitted). Such a rational law enforcement purpose is readily apparent in the instant case. The Department of Justice (“DOJ”) compiled information about the detainees pursuant to its world-wide investigation into the September 11 attacks and into threats, conspiracies, and attempts to perpetrate terrorist acts against United States citizens and interests. Reynolds Dec. 2, 5, 10, 27. There is no question (and plaintiffs do not dispute) that the investigation itself is legitimate and conducted for proper law enforcement purposes. See, e.g., Keys, 830 F.2d at 341-42 (subject’s known affiliation with organizations suspected of harboring Communists furnished rational basis for continued collection of whatever information might turn up about his activities); Bevis v. Department of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (Federal law enforcement purpose was supported by public policy interest in facilitating Salvadoran efforts to bring to justice those who have murdered U.S. citizens); see also Keys, 830 F.2d at 340 (“‘[A] criminal law enforcement agency[‘s] invocation of ‘law enforcement purposes’ warrants greater deference than do like claims by other agencies”). Hence, defendant has sustained its burden of showing that the information satisfies the threshold requirement for Exemption 7.

B. Plaintiffs Seek To Impose An Erroneous Legal Standard For FOIA Exemptions 7(A) And (F)

In their effort to gain access to the detainees to pursue their unfounded speculations about alleged government wrongdoing, plaintiffs seek to impose a far greater burden on defendant than FOIA demands. Plaintiffs’ analysis of the legal standard under Exemptions 7(A) and (F) as requiring defendant to establish the possibility of harm to the public and to the investigation, and thereby to justify its withholdings, is flawed in numerous respects. See 5 U.S.C. § 552(b)(7)(A), (F). As discussed further below, plaintiffs

· implicitly rely on an outdated version of Exemption 7, which required defendant to show that disclosure “would” result in harm rather than that it “could reasonably be expected” to do so;

· claim that Exemptions 7(A) and (F) require a showing that each detainee is in fact involved with terrorism, even though such a showing is not necessary to establish a reasonable possibility of harm to the investigation and to public and individual safety;

· ignore the reasonable likelihood that at least some of the detainees are connected to terrorism (even though that fact may never be proven through the investigation) and the dire consequences that would flow from even one unnecessary disclosure;

· raise false concerns about the future by baselessly contending that defendant has secretly jailed these detainees in a “lawless roundup”;

· claim that the information should be released because in some cases it is already in the public domain, while this fact is irrelevant to FOIA and, moreover, does not eliminate the risk of providing terrorists with the means to piece together the full “mosaic” of the government’s investigation; and

· ignore the fact that information regarding the detainees’ attorneys is sufficiently connected to the detainees that its release could harm the investigation and threaten the attorneys’ physical safety and privacy.

1. Defendants are required to demonstrate only a reasonable possibility of harm

Exemption 7(A), unlike its less protective predecessor provision upon which plaintiffs implicitly rely, protects information compiled for law enforcement purposes to the extent that its production “could reasonably be expected to” interfere with law enforcement proceedings. 5 U.S.C. § 552(b)(7)(A). Similarly, Exemption 7(F) protects from disclosure information the release of which “could reasonably be expected to” endanger the life or physical safety of any individual. 5 U.S.C. § 552(b)(7)(F).
Congress adopted the “could reasonably be expected to” standard in 1986, expressly amending a predecessor provision to § 552(b) that protected law enforcement information only where the disclosure “would” result in the specific harms at issue. Pub. L. No. 99-570, 1802, 100 Stat. 3207, 3207-48 to 3207-49 (1986) (emphasis added). This change in language “reliev[ed] the agency of the burden of proving to a certainty” that disclosure will interfere with enforcement proceedings or endanger physical safety. Reporters Comm. for Freedom of the Press v. United States Dep’t of Justice, 816 F.2d 730, 738 (D.C. Cir. 1987); see also North v. Walsh, 881 F.2d 1988, 1098 n.14 (D.C. Cir. 1989). In effect, the amendment broadened the protection of Exemption 7 by easing the agency’s showing of harm. See Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 311 n.18 (D.C. Cir. 1988) (Pre-amendment version of Exemption 7(A) “required [agency] to meet a higher standard than FOIA now demands”).

While plaintiffs give lip service to this standard, they rely on case law interpreting the pre-1986 standard, which employed the more restrictive “would” standard, i.e., requiring that release of the information “would” result in the harms alleged. See Pl. Memo. at 11 (quoting North v. Walsh, 881 F.2d at 1098). Their subsequent analysis further requires this heightened showing. But cases interpreting the 1986 amendments do not require the strict standard called for by the plaintiffs. Although defendant could meet the higher standard if necessary, it need not prove that release of the information “will certainly” interfere with the law enforcement proceedings or cause physical injury in order to justify withholding the information pursuant to Exemptions 7(A) and (F). Alyeska Pipeline Serv. v. EPA, No. 86-2176, 1987 WL 17071, at *3 (D.D.C. Sept. 9, 1987), aff’d, 856 F.2d 309 (D.C. Cir. 1988). Instead, defendant merely “must show that the possibility of [the alleged harms] exists.” Alyeska, No. 86-2176, 1987 WL 17071, at *3; see also Kay v. FCC, 976 F. Supp. at 39 (Agency “need not establish that witness intimidation is certain to occur, only that it is a possibility”). The Supreme Court has clarified that the harms prevented by Exemptions 7(A) and (F) are a risk rather than a certainty, describing Exemption 7(A) as “a prophylactic rule that prevents the harm to a pending enforcement proceeding which flows from a witness’ having been intimidated.” National Labor Relations Bd. v. Robbins Tire and Rubber Co., 437 U.S. 214, 239-40 (1978) (emphasis added); see also Alyeska, No. 86-2176, 1987 WL 17071, at *3 (“’The purpose of national security exemptions to the FOIA is to protect intelligence sources before they are compromised and harmed, not after’”).

Moreover, even under the now defunct “would” standard, the government was not required to “show a particularized risk to its individual enforcement proceeding.” See Robbins Tire, 437 U.S. at 234 (internal quotation marks omitted). This same logic applies with even greater force under the more liberal 1986 amendment. Of course, Exemptions 7(A) and (F) do not authorize the “wholesale” withholding of information simply because material is related to an enforcement proceeding, North v. Walsh, 881 F.2d at 1097 (internal quotation marks omitted), and the government makes no such claim of entitlement here. What the government must demonstrate is how disclosure of particular kinds of information could “generally” interfere with its pending investigation. See Robbins Tire, 437 U.S. at 234.

Plaintiffs’ principal argument in this case is that defendants have not demonstrated a sufficient nexus between the withheld information and the alleged harms. But defendant’s showing in the instant case easily satisfies the standard set forth in Robbins Tire and related cases interpreting Exemption 7. One of the officials responsible for coordinating and supervising the investigation into the September 11 attacks and related matters has explained, in significant detail, the risks entailed in disclosure of this information. See Alyeska Pipeline Serv. Co. v. EPA, 1987 WL 17071, at *2 (“The affidavits of a government agency in FOIA cases are to be given substantial weight by a reviewing court”). Those risks include the potential for (1) interfering with witnesses and evidence, Reynolds Dec. 13-14; see Memorandum in Support of Defendant’s Motion for Summary Judgment (“Def. SJ Memo.”) at 15-16; (2) impairing defendant’s ability to obtain information in the future, Reynolds Dec. 15; Def. SJ Memo. at 16-17; (3) revealing the scope, direction, and nature of the investigation, Reynolds Dec. 16; Def. SJ Memo. at 17-18; (4) enabling terrorist organizations to reorganize and mount future attacks, Reynolds Dec. 16; Def. SJ Memo. at 18-19; and (5) allowing for the creation of false or misleading evidence, Reynolds Dec. 17; Def. SJ Memo. at 19.

These harms set forth by the government are both real and likely to flow from disclosure of the information in question. Plaintiffs’ arguments to the contrary, see Pl. Memo. at 13-14, rest on the fallacious notion that defendants are required to prove that each of the individuals detained as part of the investigation were actually terrorists. But for the reasons stated below, that argument is simply incorrect and misapprehends the nature of the government’s evidence of harm. Accordingly, defendant has satisfied the criteria for showing harm that justifies withholding the requested information pursuant to Exemptions 7(A) and (F).

2. Exemptions 7(A) and (F) do not require defendant to establish the existence of a connection between each detainee and terrorism

Plaintiffs fundamentally misconceive Exemption 7(A) and (F) in implying that defendant must show a connection between each detainee and terrorism. As defendant has previously explained, see Defendant’s Opposition To Plaintiffs’ Motion To Stay Proceedings On Defendant’s Summary Judgment Motion Pending Discovery (“Def. Stay Opp.”), at 13-16, Exemption 7 does not require defendant to show a connection between each detainee and terrorism, but rather between the type of information about the detainees being withheld and possible harm to the terrorism investigation and to human safety. Indeed, Mr. Reynolds’ declarations establish that even disclosure of information about detainees who have been determined to be of no investigative interest regarding the September 11 attacks could potentially harm the investigation or safety in several ways. Each of these harms can be established without establishing the existence of a connection between each detainee and terrorism. See, e.g., Solar Sources, Inc. v. United States, 142 F.3d 1033, 1040 (7th Cir. 1998) (Information compiled against individuals in now closed investigation was exempt from disclosure where it was part of information compiled for ongoing investigation against other targets); New England Med. Ctr. Hosp. v. NLRB, 548 F.2d 377, 385-86 (1st Cir. 1976) (Applicability of exemption does not hinge on “open” or “closed” label agency places on file, and agency properly withheld closed file which was “contemporaneous and . . . intimately connected with that of the pending enforcement proceeding”) ; Cucci v. DEA, 871 F. Supp. 508, 512 (D.D.C. 1994) (Exemption 7(A) protects information pertaining to terminated investigation where it could be used in the prosecution of future subjects of “multiple intermingled investigations”); Engelking v. DEA, No. 91-0165, slip op. at 6 (D.D.C. Nov. 30, 1992) (Records from closed file are exempt where they relate to law enforcement efforts which are still active or prospective), summary affirmance granted in pertinent part, vacated in part & remanded, No. 93-5091, 1993 LEXIS 33824 (D.C. Cir. Oct. 6, 1993); Concrete Constr. Co. v. United States Dep’t of Labor, No. 2-89-649, slip op. at 4 (S.D. Ohio Oct. 26, 1990) (Exemption 7(A) applied when release would permit prospective targets to gauge “potential of being investigated”); Freedberg v. Department of the Navy, 581 F. Supp. 3, 4 (D.D.C. 1982) (Exemption 7(A) remained applicable when two murderers were convicted but two others remained at large).

Specifically, releasing information about detainees in the “inactive” category could nonetheless reveal important information about the direction, progress, focus and scope of the investigation, and serve to assist terrorist organizations in counteracting the Department’s investigative efforts. Supplemental Declaration of James S. Reynolds (“Supp Reynolds Dec.”) (Exh. 1 to Def. Stay Opp.) 6. Disclosure could inform terrorist organizations about what evidence law enforcement has obtained, or, just as importantly, has not obtained. Id. Distributing information about persons who are not currently the subject of investigative interest, for example, may inform terrorist organizations of routes of investigation that were followed but eventually abandoned. Id. In addition, the individuals involved could be subjected to intimidation or harm, thereby discouraging or preventing them from supplying valuable information or leads in the future. Id.

Thus, even the disclosure of seemingly innocuous information poses an unacceptable threat to the investigation and the public safety. As pointed out by Mr. Watson, terrorist organizations that have the sophistication to engage in multiple, simultaneous attacks are involved in gathering intelligence concerning the activities of the U.S. government and its law enforcement activities. Watson Dec. 12. Bits and pieces of information that may appear innocuous in isolation, when assimilated with other information that terrorists may or may not have in hand, will allow the organization to build a picture of the investigation and to thwart the government’s attempts to investigate and prevent terrorism. Id. The situation is thus analogous to situations presented by national security cases, where the courts have recognized that “intelligence gathering . . . is more akin to the construction of a mosaic” and that “[t]housands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.” Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1979); see also Abbotts v. NRC, 766 F.2d 604, 608 (D.C. Cir. 1985) (“What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context”) (quoting United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972)) (internal quotation marks omitted); Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980) (“each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself”).

3. Defendant has established a reasonable likelihood that at least some of the detainees have terrorist associations

In any event, defendant has demonstrated a sufficient likelihood that at least some of the detainees at issue have connections to terrorism. That evidence, in itself, is sufficient to support the invocation of Exemptions 7(A) and (F).

Plaintiffs confuse the applicable legal standards when they argue that the asserted harms could not reasonably be expected to occur unless detainees suspected of terrorism are in fact found to be involved with terrorism or to have material knowledge of it. Pl. Memo. at 13-14. But the law does not require defendants to demonstrate that their well-founded suspicions about terrorist connections and involvement have been confirmed as a prerequisite to invoking Exemption 7. Indeed, the government could not make such a showing without detailing the extent to which its investigation has and has not succeeded in discovering and disrupting terrorist connections and activities. As the Reynolds Declaration makes clear, such information would, by compromising the integrity of the ongoing investigation and putting at risk the lives and safety of the public, undermine the very interests Exemption 7 is designed to protect.

Defendants have made the showing Exemption 7 does require. As Mr. Reynolds explains, the detentions at issue here were not arbitrary or devoid of reasonable justification. All of the detainees “were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States.” Reynolds Dec. 10; see also id. 19, 27; Watson Dec. 8. Regardless of whether these reasonable suspicions have or have not yet produced hard evidence in every or any given case, terrorist involvement or connections by at least some of these individuals simply cannot be ruled out. The likely harms to the investigation and to the public safety outlined in the Reynolds Declaration therefore provide a sufficiently reasonable basis on which to justify withholding under Exemption 7.

Plaintiffs contend that the withholding of the identities of the “inactive” detainees cannot be justified on these grounds. Pl. Memo. at 16-17. But plaintiffs are again mistaken. Because defendant’s investigation is fluid and evolving, the significance to the investigation of a given detainee may change over time. Supp. Reynolds Dec. 7. An “inactive” detainee may return to “active” status as new information is obtained in the course of the investigation. Indeed, by way of example, this change in status occurred with respect to at least one detainee who had been determined to be of no investigative interest in November 2001, but who was returned to the active interest category later that month after a reevaluation of evidence and information by law enforcement components involved in the investigation. Id. The same possibility exists with respect to any of the “inactive” detainees, and further justifies the nondisclosure of information identifying them. See Erb v. United States Dep’t of Justice, 572 F. Supp. 954, 956 (W.D. Mich. 1983) (Withholding was proper when investigation “concluded ‘for the time being’” but was subsequently reopened). Furthermore, release of the names of inactive detainees may tip off terrorists as to what the government has not discovered, leads that have been abandoned, or possibly individuals who have agreed to cooperate. See Supp. Reynolds Dec. 6; see also discussion supra section 2.

4. Application of Exemptions 7(A) and (F) in this case is warranted and necessary

Plaintiffs declare that withholding the information they seek under Exemption 7 would enable the government to conduct unbridled investigations in the future, and in any event, cannot prevent harms which will inevitably occur. See Pl. Memo. at 17-19. These two assertions are groundless. As to the first, the notion that upholding the FOIA exemptions in this case would allow the government to secretly jail anyone on the basis of bare allegations, see Pl. Memo. at 18-19, is unfounded. The detentions here were not the product of bare allegations; all of the detainees were originally questioned because of indications that they may have terrorist associations or information pertinent to the investigation. Reynolds Dec. 4. Their questioning was therefore founded on defendant’s reasonable suspicions, substantiated by evidence from the investigation. They were detained based on evidence that they had violated federal immigration laws. Plaintiffs’ fears that defendant’s fully justified actions in this case portend lawless roundups in the future are therefore extremely far-fetched, and not a basis to overturn the valid withholding decisions made here.

Moreover, plaintiff’s concern about “secret” detentions is specious. As plaintiffs’ exhibits reveal, very little is “secret” about the fact that the United States has detained hundreds of individuals in the context of the investigation into the events of September 11. Defendant has released a significant amount of information about the detainees, such as numbers, countries of birth, and charges upon which they are being held. Reynolds Dec. 7, 8. Thus, the government’s general activities are widely exposed to public inspection.

As to plaintiffs’ second assertion, plaintiffs argue, in effect, that FOIA’s exemptions should be disregarded because information already in the public domain and in the detainees’ control is as likely to cause the projected harms as the granting of plaintiffs’ FOIA request. Pl. Memo. at 17-18; Watson Dec. 12-13. That harm may be caused by factors beyond FOIA’s reach is beside the point. Cf. Bast v. United States Dep’t of Justice, 665 F.2d at 1255 (Fact that information in question had already received substantial public attention did not destroy privacy interest). While defendant has no intention of blocking the otherwise lawful dissemination of information by the detainees or otherwise, neither is defendant obligated to invite the occurrence of the very harms FOIA was designed to prevent.

Moreover, disclosure of the information by the government would have an entirely different impact on the investigation than sporadic disclosure by the detainees themselves. Much more than any piecemeal and potentially erroneous anecdotal accounts of detention by any individuals, a compilation with the government’s imprimatur confirming the identity of detainees and details of their detention and their connection to the September 11 investigation would provide valuable information to terrorists regarding the focus, scope, direction, and location of the investigation. Reynolds Dec. 16-17. In contrast, sporadic, voluntary disclosure would deny terrorists a view of the full “mosaic” of information from which they could make more accurate conclusions about the investigation. For these reasons, the government’s decision to allow individual detainees to come forward if they wish is not inconsistent with its determination to withhold the comprehensive list of names.

5. The possibility that divulging the identities of the detainees’ attorneys would interfere with defendant’s investigation and jeopardize their physical safety justifies withholding this information

Contrary to plaintiffs’ bald assertions, see Pl. Memo. at 19, the same rationales that justify the nondisclosure of information about the detainees themselves provide equally compelling support for defendant’s decision to withhold the names of the detainees’ attorneys pursuant to Exemption 7(A). Publication of their names en masse may facilitate the identification of the detainees themselves, prompting all the ensuing harms to defendant’s investigation and putting at risk the public safety. Reynolds Dec. 18.

Plaintiffs argue that Exemption 7(F) does not protect the names of the detainees’ attorneys and their physical safety because they have allegedly already surrendered their anonymity merely by virtue of taking on a given detainee’s case. See Pl. Memo. at 19. However, the limited exposure that occurs when an attorney represents a client does not approach the broad, full-scale publicity that would result from a FOIA release. Moreover, the fact remains that if the detainees’ attorneys wish to contact plaintiffs, they are free to do so, just as they are otherwise free to disseminate their names as broadly as they see fit. Reynolds Dec. 26. For defendant to promulgate their names, on the other hand, could reasonably be expected to place them in potentially grave peril. The absence of any justification for defendant’s disclosure of their identities is underscored by the fact that the attorneys are presumably adequately equipped, without plaintiffs’ assistance, to address the alleged abuses against their clients which plaintiffs’ FOIA requests are purportedly intended to expose.

C. Defendant Has Made A Valid Constitutional Distinction Between Releasing Information About Criminally Charged Detainees And Protecting The Confidentiality Of Detainees Facing Civil Immigration Charges

Plaintiffs argue that, with regard to the release of information, there is no basis for distinguishing between the individuals held on immigration charges and criminal detainees, whose identities have been revealed. Pl. Memo. at 10. What plaintiffs ignore are the critical distinctions between the two categories of detainees which justify their different treatment. The Constitution requires that all criminal prosecutions be “public.” See U.S. Const. amend. I, VI; Press-Enterprise Co. v. Superior Court of Cal. for the County of Riverside, 478 U.S. 1, 7 (1986) (“The right to an open public trial is a shared right of the accused and the public . . . .”). Consistent with this Constitutional mandate, defendant compiled and released information regarding the detainees charged with criminal offenses. See Exh. 5 to Defendant’s Motion for Summary Judgment; see Congressional News Syndicate v. United States Dep’t of Justice, 438 F. Supp. 538, 544 (D.D.C. 1977) (Court acknowledged the “Justice Department’s traditional practice” of disclosing identities of individuals once investigation as to them “had reached the arrest or indictment stages”).

By contrast, the names of detainees jailed on immigration charges and subject to deportation proceedings have been kept confidential because the deportation proceedings are civil and administrative in nature rather than criminal. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“The [removal] proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect”). INS removal proceedings, which are usually open to the public, 8 C.F.R. § 240.10(b), may be closed at the discretion of the immigration judge “[f]or the purpose of protecting witnesses, parties, or the public interest,” 8 C.F.R. § 3.27(b). See INS v. Lopez-Mendoza, 468 U.S. at 1038 (“Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing”). The immigration judge is, in turn, subject to the authority of the Attorney General. 8 C.F.R. §§ 1.1(l), 2.1, 3.10.

In the present case, the Department of Justice has correctly determined that it is in the interests of the public, the detainees, and persons associated with them to maintain the confidentiality of information about the INS detainees. See Reynolds Dec. 13-26, 37-38. Since the INS detainees are not subject to the Constitutional mandate requiring prosecutions to be public, defendant has properly withheld this information under FOIA.

4. The Detainees’ Strong Privacy Interest In Avoiding Lifelong “Guilt By Association” Far Outweighs The Alleged Public Interest Founded On Speculation About Alleged Government Wrongdoing

1. Disclosure would jeopardize the detainees’ privacy

In challenging defendant’s withholding under Exemption 7(C) of information that indisputably implicates serious privacy concerns with respect to the detainees, plaintiffs rely on unsubstantiated allegations regarding the government’s detention and treatment of the detainees. But this suit, brought pursuant to FOIA, is not the proper forum to address such allegations. In any event, plaintiffs do not come forward with any actual evidence of governmental misconduct sufficient to outweigh the substantial privacy interests at stake here.

To determine whether material falls within Exemption 7(C), a court must balance the public interest in disclosing information against the individual’s interest in personal privacy. Bast v. United States Dep’t of Justice, 665 F.2d at 1254. Importantly, Exemption 7(C) “does not require a balance tilted emphatically in favor of disclosure.” Id. Rather, it “takes particular note of the strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity.” Computer Prof’ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d at 904 (internal quotation marks omitted). Moreover, as plaintiffs themselves acknowledge, see Pl. Memo. at 30, the privacy rights of individuals whose names appear in law enforcement files as suspects, witnesses, or informants have been upheld under FOIA. Specifically, Exemption 7(C) “recognizes the stigma potentially associated with law enforcement investigations and affords broad[] privacy rights to suspects, witnesses, and investigators.” Bast v. Department of Justice, 665 F.2d at 1254; see 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 quotations marks omitted); Computer Prof’ls, 72 F.3d at 904 (Publicly identifying individuals, including nonsuspects, who attracted attention of law enforcement officials would impinge upon their privacy).

Release of the information about the detainees sought by plaintiffs in this case would severely intrude on those detainees’ privacy interests. Plaintiffs’ unsubstantiated speculations and concerns about alleged government misconduct are insufficient to override that interest, particularly in view of the fact that the government already has released certain information about the detainees which adequately informs the public about “what the government is up to” without violating the detainees’ privacy interests.

Plaintiffs’ contention that the detainees have no privacy interest in the fact that they have been arrested and jailed, Pl. Memo. at 30, mischaracterizes the nature of the privacy concerns at issue; the privacy interests rest not on the detainees’ detention, but on the opprobrium that would attach to anyone whose name is linked with the September 11 terrorist investigation. The privacy rights are rooted in the fact that the detentions were related to defendant’s investigation into the September 11 attacks and that the detaineees were questioned because of evidence that they might have terrorist affiliations or knowledge useful to the investigation. Reynolds Dec. 10, 19. Their privacy interests are unconnected to the fact that they were held on unrelated, albeit legitimate, immigration or criminal charges. It is each detainee’s inescapable association with the terrorist investigation that implicates his privacy rights, not the fact that he may also have been detained for separate reasons. Reynolds Dec. 19.

The mere mention of a detainee’s name in connection with the investigation of the worst terrorist attacked ever committed on United States soil would cause the detainee embarrassment, humiliation, risk of retaliation, harassment, and possibly even physical harm in the United States and in his home country. Reynolds Dec. 19. Plaintiffs’ admission that one detainee was threatened and taunted by his fellow prisoners after guards told them he was a terrorist underscores this possibility. See Pl. Memo. at 25 n.52. The potential for harassment of the detainees was highlighted by Amnesty International itself, a group that purports to serve as a watchdog on behalf of the detainees and a plaintiff in this case. Amnesty International has expressly declined to reveal the names of September 11 detainees of which it is aware, concluding that “many fear repercussions from other inmates or the authorities or fear that their or their families’ safety could be jeopardized through public hostility to anyone cited in connection with the 11 September attacks.” See Reynolds Dec. 19.

Moreover, even if the detainees are eventually cleared of any connection to terrorist activity, the original reasons for their detention remain unchanged and connect them irreversibly to the September 11 attacks. The release of their identities would forever stigmatize them and pose the risk that they may be viewed as “guilty” purely by association. Reynolds Dec. 19. Therefore, the detainees have a strong interest in not being associated with alleged criminal activity. See Bast v. Department of Justice, 665 F.2d at 1254 (Documents revealing allegations of wrongdoing by suspects who never were prosecuted or names of third parties who had some role in investigation implicated privacy rights); Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 861-66 (D.C. Cir. 1981) (Release of information identifying those investigated but not charged “represents a severe intrusion on the privacy interests of the individuals in question and should yield only where exceptional interests militate in favor of disclosure”); Congressional News Syndicate, 438 F. Supp. at 545 (The disclosure of investigative records regarding the subject of a criminal investigation, “in the absence of a criminal charge, would expose him to public embarrassment and ridicule and place him in the position of having to defend his conduct without the benefit of a formal judicial proceedings,” thereby invading his privacy).

Plaintiffs contend that the detainees are forever publicly connected to the terrorist attacks by virtue of having been jailed on unrelated immigration charges, and in some cases, deported in the wake of those attacks. See Pl. Memo. at 30 n.61. Plaintiffs ignore the fact that although these individuals were originally questioned because they were suspects or potential sources of evidence in the September 11 investigation, they were taken into custody for violating federal immigration laws. Because their alleged association to the terrorist investigation could not be known unless the detainees’ identities are made public in a context such as the present one, plaintiffs’ assertion implicitly concedes defendant’s point, which is that the identities must be withheld in order to prevent any stigmas from attaching.

2. Plaintiffs offer no compelling evidence of the alleged public interest

The only public interest relevant for purposes of Exemption 7(C) is “the citizens’ right to be informed about what their government is up to.” Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773) (internal quotation marks omitted). Erroneously equating “public interest” with publicity, plaintiffs assert that information about the detainees should be disclosed because of the high volume of attention the media has given them. See Pl. Memo. at 21. Heavy press coverage of events that pique public curiosity, however, is not necessarily evidence of public interest in the sense contemplated by Exemption 7(C).

Plaintiffs also assert that there is sufficient evidence of governmental misconduct here to outweigh the privacy interests. As this Circuit has held, “[a] 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).” McCutchen v. United States Dep’t of Health & Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994) (There was no public interest in disclosure of information based solely on “’allegations in the scientific and political communities’” that agency’s handling of scientific fraud investigations had been inadequate); see also Beck v. Department of Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993) (“A requestor does not have a right to have his case decided on a hypothetical set of facts that strengthen his position; rather he must see his case succeed or fail on the facts before the court”); Fund for Constitutional Gov’t, 686 F.2d at 866 (“[T]he legitimate and substantial privacy interests of individuals . . . cannot be overridden by a general public curiosity”); Manchester v. DEA, 823 F. Supp. 1259, 1271 (E.D. Pa. 1993) (“Merely speculative claims [of governmental misconduct] will not overcome the presumption of good faith to which the government’s affidavits are entitled”). A requester must come forward with “compelling evidence” that the agency is involved in illegal activity “when governmental misconduct is alleged as the justification for disclosure.” Computer Prof’ls, 72 F.3d at 905.

Far from meeting this “compelling evidence” standard, plaintiffs’ sweeping allegations of government wrongdoing are founded instead on unsubstantiated hearsay accounts, largely in news stories, that plaintiffs themselves concede merely raise “questions” about “potential” governmental impropriety. Pl. Memo. at 21-22. Plaintiffs do not explain why they have failed to come forward with even one declaration to support their allegations. Moreover, the detainees obviously have the right to voice their own complaints to rectify alleged abuses. The hearsay accounts of wrongdoing alleged by the detainees, their attorneys, or unnamed third parties are nothing more than “journalistic speculation” whose “accuracy is not established.” Bast v. United States Dep’t of Justice, 665 F.2d at 1255; see also Carter v. District of Columbia, 795 F.2d 116, 128 (D.C. Cir. 1986) (“The specific accounts of allegations contained in newspaper articles were themselves of no probative value”). Hence, they do not constitute evidence, much less “compelling evidence,” of official misconduct.

Even if plaintiffs had produced evidence of wrongdoing, the material plaintiffs request would not add to the available public knowledge of defendant’s conduct. See Safecard Servs. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991); Computer Prof’ls, 72 F.3d at 905. The information already released by the government regarding the detainees, together with the accounts of those detainees who have voluntarily come forward, is sufficient to inform the public about the government’s activities. Release of the limited additional information at issue here (names, ages, lawyers, and dates of incarceration and release) will not add materially to the public’s knowledge. See Safecard Servs. v. SEC, 926 F.2d at 1205-06 (Where agency had already produced stock transaction records, incremental public interest in deleted names and addresses of private individuals would not ever be significant). Moreover, as set forth in note 10 above, the Department of Justice’s Office of Inspector General has initiated an investigation into the allegations voiced by plaintiffs, and those allegations will be thoroughly, and appropriately, aired in that forum.

Finally, plaintiffs argue that the detainees’ attorneys have minimal privacy interests, but that there is a public interest in knowing their names so as to determine whether the government has engaged in misconduct. Pl. Memo. at 32. Given the barbarity of the terrorist attacks, the detainees’ attorneys have a significant privacy interest in not exposing themselves to possible retaliation by the American public. Reynolds Dec. 24-25. By the same token, even if plaintiffs could show evidence of wrongdoing by defendant, they offer no explanation of how the attorneys’ names could possibly “confirm or refute” that evidence. See Computer Prof’ls, 72 F.3d at 905. Hence, they fail to show that the disclosure of the names could serve any public interest within the ambit of Exemption 7.

E. Plaintiffs Are Not Entitled To Information Concerning Cases In Which District Courts Have Issued Sealing Orders

Defendant has withheld information concerning nine cases in which district courts have entered sealing orders, including the identities of the courts involved and the sealing orders themselves. See Reynolds Dec. 39; Supp. Reynolds Dec. 9; Morgan v. United States Dep’t of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991) (a court order sealing records supersedes an agency’s obligation to disclose records under FOIA where the order was issued with the intent to prohibit disclosure) (citing GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386-87 (1980)). Defendant’s declarant, James Reynolds, has previously explained that this information has been withheld because “the orders have been sealed . . . and prohibit the government from releasing any information.” Reynolds Dec. 39.

Because Mr. Reynolds is the agency’s declarant, his statements that the sealing orders are themselves sealed are entitled to a presumption of good faith, and hence to considerable deference from the Court. Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994); see also Lesar v. Department of Justice, 636 F.2d 472, 481 (D.C. Cir. 1980); Kay v. FCC, 976 F. Supp. at 33 (citing Carter v. United States Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)). As plaintiffs provide no countervailing evidence, no further proof is necessary to justify withholding of the information sought.

Nevertheless, to clear up any confusion in the matter, Mr. Reynolds submits herewith a Second Supplemental Declaration, which explains that the sealing orders at issue direct the sealing of indictments that have been returned by a grand jury, pursuant to Federal Rule of Criminal Procedure 6(e)(4), or criminal complaints that have been sealed by federal magistrate judges. Second Supplemental Declaration of James S. Reynolds, attached herewith as Ex. 10 (“Second Supp. Reynolds Dec.”) 3. An indictment may be sealed “for any legitimate prosecutorial need,” United States v. Ramey, 791 F.2d 317, 321 (4th Cir. 1986), including “to protect [the government’s] investigations.” United States v. Mitchell, 769 F.2d 1544, 1547-48 (11th Cir. 1985) (“The sealing of an indictment allows the government to complete an investigation properly . . .”). As Mr. Reynolds explains, the Department of Justice uniformly interprets such orders to protect from disclosure not only the contents of the charging document but the very fact of the existence of the charges. Second Supp. Reynolds Dec. 3, 5; see United States v. Smaldone, 484 F.2d 311, 320 (10th Cir. 1973) (upholding refusal of district court to disclose existence or nonexistence of indictment). Therefore, the information sought by plaintiffs with regard to the nine sealed charging documents is properly withheld, and defendant cannot be required to reveal even the “relevant language of these court orders” (nor is it necessary to do so). See Pl. Memo. at 33.

Moreover, plaintiffs ignore that this information is also validly being withheld pursuant to Exemptions 7(A) and (F) because its disclosure could reveal investigative strategies, thereby harming the investigation and putting at risk the public safety. Reynolds Dec. 40. In addition, of course, the identities of the detainees who are the subject of these sealed charging documents are being withheld pursuant to Exemption 7(C), to protect their privacy.

F. Plaintiffs Are Not Entitled To Information Regarding Those Detained On Material Witness Warrants

Defendant has also withheld all information regarding certain individuals who are being detained on material witness warrants. As Mr. Reynolds explained in his original Declaration, disclosure of information regarding these warrants would reveal identities of grand jury witnesses as well as the scope and direction of the grand jury proceedings. Reynolds Dec. 34. In his Second Supplemental Declaration he further elaborates that each of the warrants were specifically issued to procure a witness’s testimony for the appropriate grand jury. Second Supp. Reynolds Dec. 4. Accordingly, the information is properly withheld pursuant to Federal Rule of Criminal Procedure 6(e)(2) and FOIA Exemption 3, 5 U.S.C. § 552(b)(3). In addition, for the reasons set forth in sections A and C above with respect to detainees and their attorneys, revealing information regarding “material witnesses” and their attorneys could reasonably be expected to hamper the pending law enforcement investigation, threaten the safety of the public, the detainees, and people associated with them, and violate the individual privacy rights of the detainees. Indeed, these concerns are even stronger here, as the individuals involved have been unmistakably identified (by virtue of the issuance of the warrants) as being of special interest to the investigation. This information is therefore also properly withheld pursuant to FOIA Exemptions 7(A), 7(C), and 7(F).

FOIA Exemption 3 permits an agency to withhold information “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). Fed. R. Crim. P. 6(e), which prohibits disclosure of “matters occurring before a grand jury,” is one of the statutes incorporated within this exemption. Senate of Commonw. of P.R. v. United States Dep’t of Justice, 823 F.2d 574, 582 & n.23 (D.C. Cir. 1987) (hereinafter, “Senate of P.R.”). Subsection (2) of Rule 6(e) specifically provides that

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made . . . shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. . . . A knowing violation of Rule 6 may be punished as a contempt of court.

Rule 6(e) thus prohibits disclosure of grand jury information that would “reveal anything concerning the inner workings of the grand jury.” Senate of P.R., 823 F.2d at 583. In determining what matters are protected, “the touchstone is whether disclosure would tend to reveal some secret aspect of the grand jury’s investigation[,] such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” Id. at 582 (quoting SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)) (internal quotation marks omitted). The prohibition “includes not only what has occurred and what is occurring, but also what is likely to occur” before the grand jury. In re Motions of Dow Jones & Co., 142 F.3d 496, 500 (D.C. Cir. 1998). Furthermore, “records, orders and subpoenas relating to grand jury proceedings shall remain under seal to the extent and for such time as necessary to prevent disclosure of matters occurring before a grand jury.” Fed. R. Crim. P. 6(e)(6).

As plaintiffs themselves concede (Pl. Memo. at 36), the identities of witnesses are almost always considered protected by Rule 6(e). See Senate of P.R., 823 F.2d at 582 (listing “the identities of witnesses or jurors” as a “matter” that “would tend to reveal some aspect of the grand jury’s investigation”) (internal quotation marks and citation omitted); see also In re Motions of Dow Jones & Co., 142 F.3d at 502 (“We have held that ‘matters occurring before the grand jury’ include ‘the identities of witnesses”) (citing Fund for Constitutional Gov’t, 656 F.2d at 869); Durham v. United States Dep’t of Justice, 829 F. Supp. 428, 432 (D.D.C. 1993) (holding that information that “would enable identification of witnesses” before the grand jury was properly withheld). Thus, the government is required here to withhold information regarding the material witness warrants, which would otherwise reveal the identity of grand jury witnesses. The government is likewise required to withhold information regarding even those individuals who were eventually not called to appear, as the information that they were proposed as grand jury witnesses would also reveal important information about the nature of the grand jury’s investigation.

Fed. R. Crim. P. 6(e)(6) also applies here. This part of Rule 6 protects “records, orders and subpoenas relating to grand jury proceedings,” which “shall remain under seal to the extent and for such time as necessary to prevent disclosure of matters occurring before a grand jury.” A material witness warrant is issued by a court and therefore qualifies as an “order” required to remain under seal. Indeed, the express purpose of Rule 6(e)(6) is to prevent disclosure of the identities of grand jury witnesses and targets. See Fed. R. Crim. P. 6, 1983 Advisory Committee Notes. In accordance with this rule, the relevant courts have issued orders prohibiting the government from releasing any information about these proceedings. Reynolds Dec. 32. As Mr. Reynolds explains, the Department of Justice uniformly interprets such orders to protect not only the contents of the warrants but the very fact of the existence of the warrants from disclosure. Second Supp. Reynolds Dec. 5. Therefore, with regard to these warrants, no further information may be disclosed. Id.

Plaintiffs argue that the government could have revealed information regarding those being held on material witness warrants without exposing them as grand jury witnesses and therefore should not now be allowed to claim an exemption for the information based on the grand jury connection. Pl. Memo. at 36. However, unlike in Senate v. P.R., here plaintiffs specifically sought identification of those witnesses held on material witness warrants by asking for the “basis for detaining” for each detainee “including material witness warrants.” Plaintiffs’ argument that such information does not reveal the grand jury connection relies on an unduly narrow reading of the material witness statute, 18 U.S.C. § 3144. Plaintiffs point out that the statute authorizes detention generally of persons whose testimony “is material to a criminal proceeding,” which includes, but is not limited to, grand jury proceedings. They argue that identifying someone as a material witness in the present case links him or her only to general “criminal proceedings,” and not necessarily to grand jury proceedings. To the contrary, where, as here, it is well known that the terrorism investigation is in progress, the only reasonable conclusion that could be drawn is that the material witness warrants pertain to a grand jury investigation. Notably, plaintiffs cite no case in which witness information was considered to have no nexus to grand jury proceedings and was ordered to be revealed. Revealing information regarding the material witness warrants here would reveal the inner workings of the grand jury, and disclosure is therefore prohibited.

G. Defendant’s Search For Policy Directives or Guidance About Making Public Disclosures or Sealing Proceedings Was Adequate

Plaintiffs contest the adequacy of defendant’s search in response to part 4 of their FOIA request, seeking “[a]ll policy directives or guidance issued to officials about making public statements or disclosures” or about “sealing . . . judicial or immigration proceedings.” As an initial matter, plaintiffs should be barred from complaining that defendant has not conducted an adequate search to find individual documents because plaintiffs agreed at the outset to limit the scope of their FOIA request to the underlying “information,” and disavowed any desire to receive “all documents” responsive to their requests. In any event, however, defendant’s search for documents responsive to this particular part of their request was adequate.

In the opening paragraph of their original FOIA request letters, plaintiffs requested disclosure of specific “information,” not of documents. See Exh. A to Declaration of Scott Hodes, Acting Chief of the Litigation Unit, Freedom of Information-Privacy Acts Section, FBI (Exh. 2 to Defendant’s Motion for Summary Judgment (filed Jan. 11, 2002)). At the close of the letters, plaintiffs re-emphasized that they were “interested in obtaining the key information outlined above rather than all the relevant documents.” Id. at 2. In making this statement, plaintiffs did not distinguish between request 4 and their other requests. In light of these and other representations made in the course of this litigation, and plaintiffs’ push for expedition in the FOIA process and in this litigation, defendant undertook to provide plaintiffs only with the non-exempt “key information” that plaintiffs sought and understood that the issues in this litigation would be confined to the validity of the exemptions defendant was claiming. Moreover, defendant took the unusual step of actually collating a portion of the information responsive to parts 1-3 of their request (rather than collecting the underlying documents) and preparing a new document summarizing this information – actions not mandated by FOIA. See Ex. 5 to Defendant’s Motion for Summary Judgment.

Plaintiffs now reverse course and raise an entirely new issue about the adequacy of defendant’s search. Having represented that this case is about “information,” not “documents,” and about the validity of the exemptions claimed, however, plaintiffs should not now be allowed to bring this issue into the litigation. Plaintiffs are bound by the representations they made in their initial letters with regard to the scope of the search – representations which they have never sought to correct – and their subsequent conduct. Since plaintiffs indicated that they did not desire production of each and every responsive document and wished only to litigate the validity of the exemptions, they are barred now from complaining that defendant has not produced each and every such document. See Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) (“The agency was bound to read [the FOIA request] as drafted, not as either agency officials or [plaintiff] might wish it was drafted.”); Nation Magazine v. Department of State, No. 92-2303, slip op. at 11-12 (D.D.C. Aug. 18, 1995) (plaintiffs bound by representations made in the course of the litigation that “partially limited” their request); id. at 15-16 (same; plaintiffs prohibited from reasserting requests that they had previously waived); see also Otiji v. Heyman, 47 F.3d 6, 7 (D.D.C. 1998) (plaintiff’s statement on appeal form denying any claim of discrimination was waiver of right to proceed on that claim).

In any event, defendant’s search was adequate. To meet its burden to show that a FOIA search was adequate, “the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The standard is one of reasonableness, Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and the issue to be resolved is “whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” SafeCard Services, Inc. v. SEC, 926 F.2d at 1201 (citing Meeropol v. Meese, 790 F.2d 942, 950?51 (D.C. Cir. 1986); Weisberg v. Department of Justice, 705 F.2d 1344, 1357 (D.C. Cir. 1983)). Thus, “the search need only be reasonable; it does not have to be exhaustive.” Miller v. United States Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985).

Defendant’s search, as conducted by the three components to whom plaintiffs addressed their FOIA requests, meets this standard. First, DOJ’s Office of Information and Privacy (“OIP”) determined that the documents plaintiffs seek, policy directives or guidance regarding making public statements about the detainees or closing the detainees’ immigration proceedings, are mostly likely to be found in the Office of the Attorney General or the Office of the Deputy Attorney General. Second Pustay Dec. 6. Both of these Offices were therefore directed to conduct a search for responsive documents. Id. In addition, OIP located one responsive documents in its files. Id. 5. The Offices of the Attorney General and the Deputy Attorney General found no responsive documents. Id. 6. Ms. Pustay, OIP Deputy Director, recently confirmed that the appropriate searches were conducted and that no responsive documents were found, and further personally searched the relevant files in the Office of the Attorney General and herself found no responsive documents. Id. 7. In short, this search was reasonably directed to those offices most likely to maintain relevant documents, and was more than reasonably thorough, and therefore fully satisfies FOIA’s requirements.

Likewise, the FBI also consulted with the individual most likely to be aware of any FBI records responsive to this portion of plaintiffs’ request, FBI Assistant Director for the Office of Public and Congressional Affairs, John Collingwood. Supplemental Declaration of Scott Hodes, Acting Chief, Litigation Unit, Freedom of Information-Privacy Acts Section, Records Management Division, FBI, 3 (Ex. 9 hereto). Following this consultation, it was determined that the FBI did not have any documents responsive to this part of plaintiffs’ FOIA request. Id. 3-4; Ex. G to Hodes Dec. at 2.

Finally, the INS determined that responsive documents would be found in the Office of General Counsel and the Office of Field Operations, and directed searches of those offices.

In addition, the declaration and attachments submitted by INS demonstrate that it conducted a reasonably thorough search for responsive documents, locating and releasing one responsive document. See Declaration of Raymond Q. Holmes, Acting Chief, Freedom of Information and Privacy Acts Operations Unit, Office of Records Services, Headquarters Office, INS, Exh. 3 to Defendant’s Motion for Summary Judgment (“Holmes Dec.”), 8-9, 13 & Exh. C & G; Supp. Holmes Dec. 7, 8 (Exh. 14 hereto). Potentially responsive documents were located. Holmes Dec. 14, 16 & Exh. I; Supp. Holmes Dec. 9. However, upon review, these documents were found not to be responsive, and no documents were released. Id.

Plaintiffs argue that questions regarding the adequacy of defendant’s search arise from examination of the documents that defendant released. First, plaintiffs contend that the fact that defendant released only one document addressing “policy directives or guidance . . . about making public statements or disclosures” raises the question as to how “all Justice Department and FBI offices around the country were informed that they must reveal no information about the detainees.” Pl. Memo. at 39. In other words, plaintiffs are hypothesizing that other documents must exist. But this contention amounts to no more than speculation — there is no direct countervailing evidence that the documents that plaintiffs imagine do in fact exist. Such “hypothetical assertions” that documents “must exist” “are insufficient to raise a material question of fact with respect to the adequacy of the agency’s search.” Oglesby, 920 F.2d at 67 n.13; see also Safecard Servs., Inc. v. SEC, 926 F.2d at 1201 (“[m]ere speculation that as yet uncovered documents exist does not undermine the finding that the agency conducted a reasonable search”); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 10 (D.D.C. 1995) (“unsupported inferences that other documents must have been created” do not justify discovery). Indeed, plaintiffs’ argument leaves no room for the possibility that “directives or guidance” can be given verbally.

Second, plaintiffs contend that the phrase “[a]s some of you already know” in a September 21, 2001, memorandum (or e-mail) from Michael Creppy, Chief Immigration Judge, to all immigration judges “plainly indicates that there are other, undisclosed, documents setting forth procedures implemented by the Attorney General.” Pl. Memo. at 39-40. Again, plaintiffs are merely speculating. The polite, boilerplate phrase “as some of you already know” does not prove the existence of a prior document – this phrase may refer to earlier informal communications, or it may refer to nothing at all. As above, this speculation is insufficient to undermine the finding that the agency conducted a reasonable search. See Oglesby; Safecard Servs.

Finally, plaintiffs complain that defendant has failed to account for all detainees and that this alleged failure indicates defendant’s response was inadequate. Pl. Memo. at 40-41. This contention is based on plaintiffs’ comparison of the numbers of detainees announced by the Justice Department at various times with the number of detainees included in the information released by defendant in response to plaintiffs’ FOIA request. However, the futility of such a comparison was addressed by Mr. Reynolds in his Supplemental Declaration. In that declaration, Mr. Reynolds explained that because “[t]he total number of individuals detained pursuant to the investigation is fluid” and “because public officials have used different sets of numbers and different definitions of the term ‘detainee’ over time, comparisons of public statements by various officials about the total number of detainees is bound to produce different, and imprecise, numbers.” Reynolds Supp. Dec. 3. Plaintiffs’ discussion of numbers of detainees is therefore not probative.

II. PLAINTIFFS DO NOT HAVE A COMMON LAW RIGHT OF ACCESS TO THE RECORDS IN QUESTION

Plaintiffs’ assertion that they have a common-law right of access to the records in question is easily disposed of. First, plaintiffs identify no waiver of sovereign immunity that would permit them to sue the Department of Justice under this theory, and therefore their claim is barred. Even if it were not so barred, the common-law right of access does not apply where, as here, the records are governed by a statutory access scheme, such as the FOIA. And even if the common-law right did come into play, disclosure would not be warranted because, under the applicable balancing test, the government’s interest in keeping this information confidential outweighs the public’s interest in disclosure

A. Sovereign Immunity Bars Plaintiffs’ Common-Law Claim

The immediate obstacle to plaintiffs’ attempt to assert a common-law right of access is the sovereign immunity of the United States. The United States retains sovereign immunity from lawsuits unless the government has consented to suit. See United States v. Mitchell, 463 U.S. 206, 212 (1983). Such a waiver of sovereign immunity must be unequivocal, and is to be strictly construed in favor of the government. Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999).

The Administrative Procedure Act, 5 U.S.C. § 702, has been held to constitute a waiver of sovereign immunity for actions against government agencies or officers “seeking relief other than money damages.” Blue Fox, 525 U.S. at 260-61; Cobell v. Norton, 240 F.3d 1081, 1094 (D.C. Cir. 2001). Plaintiffs have a cause of action under section 702 of the APA, however, only if “there is no other adequate remedy in a court.” 5 U.S.C. § 704; see Washington Legal Found. v. Alexander, 984 F.2d 483, 486 (D.C. Cir. 1993). Hence, the APA does not waive sovereign immunity “where another statute provides a form of relief which is expressly or impliedly exclusive.” Dew v. United States, 192 F.3d 366, 371 (2d Cir.) (quoting Sprecher v. Graber, 716 F.2d 968, 974 (2d Cir. 1983)) (internal quotation marks omitted); see also Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action”). Here, plaintiffs have an “adequate remedy in a court” through the FOIA. Thus, they have no cause of action under section 702 based on the common-law right of access, and the Court lacks subject-matter jurisdiction because of defendant’s sovereign immunity. Cf. Washington Legal Found. v. United States Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996) (holding that immunity might not apply where plaintiff seeks a writ of mandamus).

B. Plaintiffs Do Not Have a Common-Law Right of Access to Records Governed by FOIA

In asserting that they have a common-law right of access here, plaintiffs rely on Nixon v. Warner Communications, Inc., 435 U.S. 570, 597 (1978), in which the Supreme Court recognized the existence of a common-law “general right to inspect and copy public records and documents, including judicial records and documents.” Plaintiffs fail to mention, however, that in Nixon the Court denied access to the documents at issue (Nixon tapes that had been used as evidence in court) because Congress had provided an administrative avenue for access – specifically, the Presidential Recordings and Materials Preservation Act, 44 U.S.C. § 2107 note (“Presidential Recordings Act”). The Court held that “[t]he presence of an alternative [congressionally prescribed] means of public access tips the scales in favor of denying release.” Id. at 605-06.

The situation is identical here. The records at issue are subject to the extensive congressionally prescribed administrative and judicial scheme set forth in FOIA. For the same reasons present in Nixon, therefore, plaintiffs’ assertion that the common-law right of access applies here should be denied. Indeed, this Circuit has already indicated in dicta that the existence of the FOIA “would likely tip the scales in the second-step [of the] balancing test against requiring disclosure of [a document covered by the FOIA],” if not altogether “preclude[] the application of the federal common law altogether.” Washington Legal Found. v. United States Sentencing Comm’n, 89 F.3d at 903 note. As the Supreme Court stated in Nixon, “[t]he Executive and Legislative Branches . . . possess superior resources for assessing the proper implementation of public access and the competing rights” of interested parties and that releasing materials covered by a statutory scheme under the common law “might frustrate the achievement of the legislative goals of orderly processing and protection of the rights of all affected persons.” 435 U.S. at 606. Plaintiffs should not be allowed to evade the comprehensive scheme created by the FOIA by relying on an ill-defined and rarely litigated common-law principle. See Washington Legal Found. v. United States Sentencing Comm’n, 89 F.3d at 903 note (noting that the federal case law on this subject is “limited” and that applying it leads into “uncharted waters”); Nixon, 435 U.S. at 607 n.18 (common-law right of access not to be “utilized as a substitute for the procedures and safeguards set forth in” the Presidential Recordings Act).

C. Even If It Applied Here, the Common-Law Right of Access Would Not Require Disclosure Because the Harms Following From Disclosure Would Outweigh the Public Interest in Disclosure

Even if it were appropriate to rely on the common law here, the balancing test prescribed by Nixon would prevent disclosure. “[T]he common law right of access involves a two step inquiry. First the court must decide whether the document sought is a public record. If the answer is yes, then the court should proceed to balance the government’s interest in keeping the document secret against the public’s interest in disclosure.” Washington Legal Found. v. United States Sentencing Comm’n, 89 F.3d at 907. In the present case, even assuming arguendo that the records at issue are “public records,” the records are not required to be disclosed under step two of the balancing test. As discussed earlier, and in the government’s opening brief, the harms following from disclosure greatly outweigh the public interest in disclosure of the particular information at issue.

CONCLUSION

For the foregoing reasons, in addition to those set forth in the memorandum in support of defendant’s motion for summary judgment, defendant’s motion should be granted, and plaintiffs’ motion for summary judgment should be denied.
Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD, JR.
United States Attorney

SHANNEN W. COFFIN
Deputy Assistant Attorney General

JOSEPH H. HUNT
ANNE L. WEISMANN (D.C. Bar No. 298190)
LISA A. OLSON (D.C. Bar No. 384266)
CAROL FEDERIGHI
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: April 15, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that, on April 15, 2002, copies of the foregoing Defendant’s Reply In Support Of Motion For Summary Judgment, And Opposition To Plaintiffs’ Motion For Summary Judgment Motion, with attached exhibits, were served by hand delivery on:

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036

and by overnight delivery on:

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004

and I further certify that, on April 15, 2002, copies of the foregoing documents were scheduled for hand delivery on April 16, 2002, to the following:

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037

Elliot M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009

__________________________
CAROL FEDERIGHI

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