United States District Court, Western District of New York
February 7, 1991
JAN-XIN ZANG, PLAINTIFF,
FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Skretny, District Judge.
DECISION AND ORDER
Now before this Court is the defendant's motion ("motion") for
dismissal of plaintiff's lawsuit pursuant to Fed.R.Civ.P.
12(b)(6) and 12(b)(1). Because both parties have submitted
affidavits beyond the pleadings which this Court has considered
in ruling on the motion, pursuant to Fed.R. Civ.P. 12(c) this
Court shall treat the motion as one for summary judgment.
This Court has jurisdiction over this lawsuit pursuant to
5 U.S.C. § 552(a)(4)(B).
Jan-Xin Zang ("plaintiff") sued the Federal Bureau of
Investigation ("FBI") of the United States Department of Justice
pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et
seq. ("FOIA"), alleging that the FBI and United States
Department of State (for sake of convenience referred to
collectively as "the government") improperly withheld information
pertaining to plaintiff which plaintiff requested pursuant to the
FOIA.*fn1 Plaintiff seeks the following relief: that this Court
conduct an in camera examination of all withheld materials to
determine whether the government properly withheld from
disclosure all or part of the materials under FOIA, actual
damages and attorneys' fees.
The government contends that its submission of Vaughn
indices*fn2 satisfies its burden under the FOIA and, therefore,
asks this Court to decline an in camera examination and dismiss
plaintiff's lawsuit as a matter of law.
In support of its motion, the government submits three Vaughn
indices in the form of affidavits with exhibits from: FBI Special
Agent Timothy L. Sullivan ("Sullivan"); Acting Deputy Director of
Mandatory Review of the Classification/Declassification Center of
the U.S. Department of State, Frederick Smith, Jr. ("Smith"); and
FBI Special Agent Paul M. Moskal ("Moskal"). The government also
submits a chart ("Chart") briefly describing each item of
information withheld keyed to the exemption under which the
government withheld it and cross-referenced to the relevant
portions of the Vaughn indices supporting the claimed
exemption. The government further submits a legal memorandum and
supplemental memorandum ("government's memo," "government's supp.
memo") and a Statement of Material Undisputed Facts
("government's fact statement").
In opposition to the motion, the plaintiff submits a legal
memorandum ("plaintiff's memo") and its Affidavit In Opposition
with exhibits ("plaintiff's affidavit").
Conclusion: For the reasons set forth below, this Court
grants defendant's motion in its entirety.
The following material facts are not in dispute.
Plaintiff is a Chinese national presently in the United States
pursuant to a visa. Plaintiff is a graduate student in the
Department of Physics at the State University of New York at
By letter dated July 29, 1988, and addressed to the Freedom of
Information Officer, Federal Bureau of Investigation, 111 West
Huron Street, Buffalo, New York plaintiff requested "all records
filed under my name." (plaintiff's affidavit, Exh. 1). By letter
dated August 3, 1988, the FBI at Buffalo responded by requesting
additional information from plaintiff to assist in processing
plaintiff's request. (plaintiff's affidavit, Exh. 2). By letter
dated August 8, 1988, plaintiff supplied the FBI the requested
additional information. (plaintiff's affidavit, Exh. 3).
By letter dated August 17, 1988, FBI Assistant Special Agent
Van Harp notified plaintiff that a search of the government's
central records system located six documents responsive to
plaintiff's request although only three of the documents
originated with the FBI. The FBI referred plaintiff's request to
the Department of State, where the other three documents
originated, for that agency's independent determination.
(plaintiff's affidavit, Exh. 3). The FBI withheld from disclosure
the three documents originating with it, totaling four pages,
pursuant to four separate statutory exemptions from disclosure
contained in the FOIA. (plaintiff's affidavit, Exh. 3). By letter
dated August 31, 1988, addressed to the Assistant Attorney
General, Office of Legal Policy, plaintiff appealed the FBI's
decision. (plaintiff's affidavit, Exh. 4).
By letter dated September 9, 1988, the United States Department
of Justice acknowledged receipt of plaintiff's administrative
appeal. However, the processing of plaintiff's administrative
appeal was delayed due to a backlog of pending FOIA appeals.
(Moskal, Exhs. G, I, and K).
On June 26, 1989, the Department of State responded to that
portion of plaintiff's request which located three documents
originating with it; the Department of State withheld two of the
three documents on the grounds that they pertained to the
issuance or refusal of a visa pursuant to 8 U.S.C. § 1202(f) and
therefore were exempt from disclosure under the FOIA. The State
Department released to plaintiff the third document, plaintiff's
visa application, with redactions. (government's fact statement,
On August 23, 1989, the Buffalo office of the FBI declassified
portions of the three documents originating with the FBI which
the FBI had originally withheld from disclosure to plaintiff. The
FBI released these documents to plaintiff with redactions.
(government's fact statement, ¶ 8).
On April 6, 1989, plaintiff commenced this lawsuit*fn3
seeking, inter alia, this Court's in camera examination of
all withheld materials to determine whether the government
properly withheld this information pursuant to the FOIA.
1. Summary Judgment Standards
Fed.R.Civ.P. 56(c) provides that summary judgment is
appropriate where "there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law." The burden is upon the moving party to
demonstrate the absence of a material factual dispute. Fed.
R.Civ.P. 56(e). Once that burden is met, the non-moving party
"must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). This Court must draw all
reasonable inferences in favor of the non-moving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598,
1608-09, 26 L.Ed.2d 142 (1970). Courts should not be reluctant to
grant summary judgment in appropriate cases since "one of the
principal purposes of the summary judgment rule is to isolate and
dispose of factually unsupported claims," Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
265 (1986), thereby permitting courts to avoid "protracted,
expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91,
88 L.Ed.2d 74 (1985).
Applying this standard to the present case, the Court must
dismiss plaintiff's lawsuit.
2. The FOIA and Its Exemptions
By enacting the FOIA, Congress "sought `to open agency action
to the light of public scrutiny' . . . by requiring agencies to
adhere to `a general philosophy of full agency disclosure.'"
Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct.
2841, 2846, 106 L.Ed.2d 112 (1989) (citations omitted).
Therefore, upon public request federal agencies must disclose
records and related materials in their possession unless the
material falls within one of the FOIA's nine exemptions contained
at 5 U.S.C. § 552(b)(1)-(b)(9).
5 U.S.C. § 552(a)(4)(B) provides that a district court review
de novo the government's exemption claims and also authorizes
district courts to examine records in camera "to determine
whether such records or any part thereof shall be withheld under
any of the exemptions set forth in [§ 552(b)]. . . ."
When withholding requested information, the government bears
the burden of demonstrating the applicability of a claimed
exemption. See, Lawyers Committee for Human Rights v. I.N.S.,
721 F. Supp. 552, 560 (S.D.N.Y. 1989).
3. Sufficiency of Vaughn Indices and In Camera Examination
The government may sustain its burden of proof as to the
applicability of any FOIA exemption contained in
5 U.S.C. § 552(b) by submission of a Vaughn index which
describe[s] with reasonable specificity the nature of
the documents at issue and the claimed justification
for nondisclosure, and that indicate[s] the requested
material logically comes within the claimed
Malizia v. U.S. Dept. of Justice, 519 F. Supp. 338, 342
(S.D.N.Y. 1981). See, Vaughn v. Rosen, 484 F.2d 820
1973), cert. denied, 415 U.S. 977
, 94 S.Ct. 1564
, 39 L.Ed.2d
However, as several federal courts have emphasized, a Vaughn
index provided by the government in support of a claimed
exemption must be specific enough so that this Court may rule on
the propriety of the claimed exemption. Recently, the Southern
Specificity is the defining requirement of the
Vaughn index and affidavit; affidavits cannot
support summary judgment if they are `conclusory,
merely reciting statutory standards, or if they are
too vague and sweeping.'
Lawyers Committee for Human Rights, 721 F. Supp. at 560 (quoting
King v. U.S. Dept. of Justice, 830 F.2d 210, 219 (D.C. Cir.
1987) (further citations omitted)). For each withheld portion of
information, the government's Vaughn index must describe the
redaction, the exemption under which the government withheld the
information and explain the applicability of the claimed
exemption. See, Donovan v. FBI, 625 F. Supp. 808, 810 (S.D.N Y
1986) (citations omitted), modified, 806 F.2d 55
1986); King v. U.S. Dept. of Justice, 830 F.2d at 224
Although 5 U.S.C. § 552(a)(4)(B) authorizes this Court to
examine in camera material withheld by the government in this
case, if the government's Vaughn indices sufficiently detail
the nature of the material withheld and the applicability of the
relevant exemption(s), as discussed immediately
above, the government has met its burden and this Court's inquiry
Moreover, a district court should be generally reluctant to
conduct an in camera examination since "[i]n camera
inspections are burdensome and are conducted without the benefit
of an adversary proceeding." Weissman v. Central Intelligence
Agency, 565 F.2d 692, 697 (D.C.Cir. 1977) (citing Vaughn v.
Rosen, 484 F.2d at 824). Also, as discussed below, this Court's
reluctance is substantially magnified with respect to material
withheld pursuant to Exemption One since this Court has little
working grasp of national security matters and related
In this case, plaintiff asks this Court to conduct an in
camera examination to determine whether the government properly
withheld from disclosure all or part of the material under FOIA.
The government contends the Vaughn indices satisfy its FOIA
obligations and, therefore, that this Court decline in camera
examination and dismiss plaintiff's lawsuit.
Therefore, this Court must examine the government's Vaughn
indices with respect to all material withheld. If the Vaughn
indices are sufficient in accordance with the above standards,
this Court must dismiss plaintiff's lawsuit.
4. Material Withheld
As noted above, in response to plaintiff's request, the
government identified six documents cross-referencing plaintiff's
name. Three documents originated with the FBI (numbered below for
convenience 1-3) and three documents originated with the
Department of State (numbered below for convenience 4-6).
According to the government's Vaughn indices and Chart, the
six documents may be briefly described as follows: a routing slip
from FBI headquarters to FBI Buffalo ("Document 1"); an internal
FBI memorandum ("Document 2"); an FBI computer printout
("Document 3"); a Department of State document — a telegram from
the U.S. Embassy at Beijing, China dated June 13, 1988, relating
to various visa applicants, including plaintiff, and their visa
eligibility ("Document 4"); a Department of State document — a
telegram from the U.S. Embassy at Beijing, China dated October 4,
1984, relating to the processing of plaintiff's visa application
and plaintiff's visa eligibility ("Document 5"); and a Department
of State document — plaintiff's visa application containing notes
of a Department of State official relating to plaintiff's visa
eligibility ("Document 6").
Only documents 4 and 5 were withheld in their entirety.
Documents 1, 2, 3 and 6 were released to plaintiff with portions
redacted, pursuant to various exemptions as discussed below.
5. Claimed Exemptions
a. Exemption One
5 U.S.C. § 552(b)(1) ("Exemption One") exempts from disclosure
(A) specifically authorized under criteria
established by an Executive Order to be kept secret
in the interest of national defense or foreign policy
(B) are in fact properly classified pursuant to such
Executive Order. . . .
Pursuant to Exemption One, the government has withheld portions
of documents 1, 2 and 3, all originating with the FBI, pursuant
to Executive Order 12356 § 1.3(a)(4).
Generally, Executive Order ("E.O.") 12356 of April 2, 1982, 47
Fed.Reg. 14874 (1982), as amended at 47 Fed.Reg. 15557 (1982),
codified at 3 C.F.R. § 166 (1983), inter alia, categorizes
certain types of information as classified; the President has
determined that "the interests of the United States and its
citizens require" that classified information "be protected
against unauthorized disclosure." Only certain government
officials designated by the President have authority to classify
information and, of course, only certain authorized persons may
have access to information classified pursuant to Executive Order
E.O. 12356 § 1.3(a)(4) ("§ 1.3(a)(4)") provides that
intelligence activities (including special
activities), or intelligence sources or methods
constitutes classified information and, as such, is not
accessible to the public.
In this case, FBI Special Agent Sullivan is a classification
authority responsible for classifying FBI information as mandated
by E.O. 12356. (Sullivan, p. 1). Before withholding information
pursuant to Exemption One, Sullivan determined that the
information ultimately withheld from documents 1, 2 and 3 fell
within the scope of § 1.3(a)(4). (Sullivan, pp. 2-3). According
to Sullivan, all the information withheld pursuant to Exemption
One in this case is information pertaining to intelligence
activities, sources or methods, information not only squarely
within § 1.3(a)(4) but "needed by the FBI to carry out its
mission" and which must be kept confidential to be useful.
(Sullivan, p. 6). Furthermore, Sullivan asserts, "any greater
specificity in the descriptions and justifications set forth with
respect to intelligence sources, methods and activities . . .
could reasonably be expected to jeopardize the national security
of the United States." (Sullivan, p. 9).
The Vaughn index of FBI Special Agent Sullivan, as well as
the Chart, identifies four types of intelligence information
claimed within E.O. 12356 § 1.3(a)(4) which the FBI redacted from
Documents 1, 2 and 3 pursuant to Exemption One: (i) information
pertaining to intelligence activities or methods; (ii)
intelligence file number(s); (iii) intelligence source
information; and (iv) "other detailed information which could
identify a source." (Chart, p. 2; Sullivan, p. 14).
(i). Intelligence Activities or Methods
According to FBI Special Agent Sullivan, the FBI utilizes
certain intelligence activities or methods in order to fulfill
its intelligence responsibilities. (Sullivan, p. 15). The
information includes assessments of intelligence sources in
various areas of intelligence interest. (Sullivan, p. 15).
Sullivan has identified several ways disclosure of information
relating to these activities or methods could damage national
security, including the revelation of: a particular
investigation, FBI objectives or priorities and/or the existence
or availability of intelligence sources. (Sullivan, pp. 6-8, 16).
Sullivan asserts that this information with respect to plaintiff
is specific and, therefore, its disclosure would "automatically
reveal to a hostile intelligence analyst United States
intelligence gathering capabilities in a particular area during a
specific period." (Sullivan, pp. 16-17).
(ii). Intelligence File Numbers
According to Sullivan, the FBI assigns individual file numbers
to intelligence activity files. These file numbers can identify
"specific categories of intelligence activities." (Sullivan, p.
18). The government posits that disclosure of such file numbers
could damage national security because, in part, a hostile
analyst can identify intelligence activity from piecing together
file numbers. (Sullivan, p. 18). In this case, Sullivan concluded
that disclosure of intelligence file numbers withheld from
plaintiff "can lead to the exposure of actual intelligence
activities." (Sullivan, p. 19).
(iii). Intelligence Source Information
According to Sullivan, an intelligence source identifier is
"any word, term or phrase which could identify an intelligence
source or method either released by itself or in the
aggregate," including names of sources, code names, numerical
designator, etc., which is used instead of the true identity of
the source or method. (Sullivan, p. 20) (emphasis supplied).
Although use of the source identifier greatly reduces the chance
that revelation of secret intelligence information will occur,
according to Sullivan, a hostile analyst, by matching source
identifiers "with bits and pieces of information" could deduce
the identity of an intelligence source. According to Sullivan,
the disclosure of a source identifier would "neutralize the
source." (Sullivan, pp. 21-22).
(iv). Other Detailed Information Which Could Identify A Source
According to Sullivan, information in this category is highly
specific in nature or "of a unique character, and thereby could
lead to the identification of the source," such as information
obtained from conversations
between a source and third parties. (Sullivan, p. 23). According
to Sullivan, this information is so specific that disclosure of
it "endangers the source's continued anonymity" and would enable
a hostile analyst to "unravel the cloak of secrecy that protects
the source's identity," thereby rendering the source
non-effective. (Sullivan, p. 24).
Having studied the Sullivan affidavit, this Court must note
that its general reluctance to undertake in camera examination
is magnified with respect to information withheld pursuant to
Exemption One since "[f]ew judges have the skill or experience to
weigh the repercussions of disclosure of intelligence
information." Weissman v. CIA, 565 F.2d at 697. As the Second
Circuit has admonished, this Court must accord "substantial
weight" to agency affidavits which implicate national security.
Doherty v. Department of Justice, 775 F.2d 49, 52 (2d Cir.
1985); See, Reader's Digest Ass'n, Inc. v. F.B.I., 524 F. Supp. 591,
594 (S.D.N.Y. 1981) (legislative history of Exemption One
indicates Congress' intention that district courts afford
substantial weight to government's classification decision).
However, the government may not in "rubber stamp" fashion claim
national security to shield disclosable material. Lawyer's
Committee for Human Rights, 721 F. Supp. at 560.
This Court delicately balances the competing interests of
withholding from disclosure classified information to protect
national security as against ordering government disclosure, to a
reasonable degree, of the information withheld to demonstrate the
propriety of an Exemption One withholding.
In this case, with respect to material withheld pursuant to
Exemption One, this Court concludes that the Vaughn index of
Special Agent Sullivan is sufficient to meet the government's
burden of proof. Sullivan's affidavit identifies the type of
material withheld, the applicability of Exemption One to this
type of material and that this material concerns "intelligence
activities, sources and methods" — information classified
pursuant to § 1.3(a)(4) — the disclosure of which creates a
threat to national security. See, Lawyers Committee for Human
Rights, 721 F. Supp. at 564; Doherty v. U.S. Department of
Justice, 775 F.2d at 52.
b. Exemption Three & 8 U.S.C. § 1202(f)
5 U.S.C. § 552(b)(3) ("Exemption Three") exempts from
disclosure material specifically exempted by another statute
provided that such other statute:
(A) requires that the matters be withheld from the
public in such a manner as to leave no discretion on
the issue or (B) establishes particular criteria for
withholding or refers to particular types of matters
to be withheld. . . .
8 U.S.C. § 1202(f) (§ 222(f) of the Immigration and Nationality
Act, hereinafter "§ 222(f)") provides:
The records of the Department of State and of
diplomatic and consular offices of the United States
pertaining to the issuance or refusal of visas . . .
to enter the United States shall be considered
confidential . . . except that in the discretion of
the Secretary of State certified copies of such
records may be made available to a court which
certifies that the information contained in such
records is needed by the court in the interest of the
ends of justice in a case pending before the court.
According to Frederick Smith, Jr., a Department of State
official, documents 4 and 5 in their entirety and the withheld
portion of document 6 pertain directly to the issuance of
plaintiff's visa within the scope of § 222(f) and therefore are
exempt from disclosure pursuant to Exemption Three. (Smith, ¶¶
This Court agrees with the government that this information is
within the scope of § 222(f) and therefore is properly withheld
from disclosure pursuant to Exemption Three. Smith's Vaughn
index on its face satisfies Exemption Three; it demonstrates with
sufficient detail that the claimed Exemption Three material
relates to the issuance of plaintiff's visa.
Although the Second Circuit has not squarely addressed this
issue, in Medina-Hincapie v. Department of State, 700 F.2d 737
(D.C. 1983), the District of Columbia Circuit held that
information relating to the issuance of a visa under § 222(f) was
properly withheld from disclosure pursuant to Exemption Three. At
least one other Court of Appeals has similarly so held. See,
DeLaurentiis v. Haig, 686 F.2d 192, 193 (3d Cir. 1982).
In addition in Medina-Hincapie, the D.C. Circuit held that §
222(f) did not merely restrict disclosure of information supplied
by the visa applicant but "information revealing the thought
processes of those who rule on the application." Id. at 744.
Thus, in this case, that portion of document 6 containing the
notes of a consular officer relating to plaintiff's visa
eligibility was also properly withheld from disclosure under
c. Exemption Two
5 U.S.C. § 552(b)(2) ("Exemption Two") exempts from disclosure
matters ". . . related solely to the internal personnel rules
and practices of an agency. . . ." Pursuant to Exemption Two the
government redacted certain administrative markings in documents
5 and 6 and a "source symbol number" and a "source file number"
in document 1. (government memo, p. 16).*fn4
According to FBI Special Agent Paul Moskal, source symbol and
file numbers are "internal identifiers for administrative
control. . . ." The FBI numerically catalogues sources and
assigns the sources "sequential numerical source files" allowing
"the FBI to more efficiently direct investigative documents to
proper files and attribute information to sources without
specifically identifying that source." (Moskal, p. 8).
Furthermore, according to Moskal, source numbers "have absolutely
no effect on the substance of the information, and would serve no
benefit to the public by their release." (Moskal, p. 8). On the
other hand, release of sources and other administrative markings
or numbers could potentially cause great damage to the
great harm to the source and Bureau operations could
result from the release of these markings, since the
accumulation of information known to be from the same
source, coupled with an intimate knowledge of the
circumstances surrounding an investigation may allow
an individual to analyze this data and thus result in
detection and exposure of individuals furnishing
information to the FBI in confidence.
(Moskal, p. 8)
This Court agrees with the government that source symbols and
administrative markings are exempt from disclosure under
Exemption Two. In Malizia v. U.S. Dept. of Justice, 519 F. Supp. 338,
344 (S.D.N.Y. 1981), the Southern District confronted the
same issue here: whether source symbols (such as in this case)
are exempt from disclosure under Exemption Two. Citing other
decisions, the Court concluded there was no legitimate public
interest in the FBI's practice of labelling and identifying its
sources while, on the other hand, significant harm to the source
and to the FBI could result from release of source symbols since
"accumulation of information known to be from the same source
could permit detection. . . ." Id. at 344-45. This reasoning
applies with equal force to administrative markings.
The government also claims that source symbols are exempt from
disclosure under § 552(b)(7)(D) ("Exemption Seven (D)"), a
provision exempting from disclosure the identity of confidential
sources. Since this Court holds the government redacted all
source symbols properly under Exemption
Two, this Court does not address whether source symbol numbers
were properly redacted under Exemption Seven (D).
d. Exemption Seven (C)
5 U.S.C. § 552(b)(7)(C) ("Exemption Seven (C)") exempts from
disclosure records or information compiled for "law enforcement
purposes" but only to the extent that their production:
could reasonably be expected to constitute an
unwarranted invasion of personal privacy. . . .
Pursuant to this exemption, the government withheld names and
initials of FBI agents and employees and the name of at least one
third party in all six documents. (government memo, pp. 12-13).
According to FBI Special Agent Moskal, release of names and/or
initials of FBI agents who participated in any investigation of
plaintiff "could jeopardize the current investigative activity of
these agents" with no important countervailing public interest.
(Moskal, p. 11). Similarly, the government contends that release
of names and/or initials of FBI employees assisting in any
investigation of plaintiff is an intrusion of privacy with no
important countervailing public interest and/or no showing of
need for such names and/or initials by the plaintiff. (Moskal,
pp. 11-12). Lastly, the government asserts that release of
identities of and file numbers pertaining to third parties
arising in connection with any investigation of plaintiff would
breach the FBI's obligation to protect the privacy rights of
individuals mentioned in its files and could reveal information
about pending investigations. (Moskal, pp. 12-13).
This Court agrees that Exemption Seven (C) exempts from
disclosure names and initials of FBI agents and employees and the
names of or file numbers pertaining to third parties. It is well
settled in this Circuit that the government may withhold names of
government agents, employees and third parties. See, Doherty v.
U.S. Department of Justice, 775 F.2d at 52 ("Identities of FBI
agents, of FBI nonagent personnel, or employees of the
Immigration and Naturalization Service, and of third-parties in
whom the FBI has an investigatory interest are embraced by
exemption (b)(7)(C).") In this case, plaintiff has conceded that
he "does not wish names or initials of agents or informants," (pl
memo p. 1), and certainly demonstrates no countervailing public
interest or need for such information.
For the reasons set forth above, this Court grants the
defendant's motion in its entirety.
IT HEREBY IS ORDERED, that the defendant's motion for summary
dismissal is GRANTED.
FURTHER, that the Clerk of the United States District Court for
the Western District of New York is directed to enter final
judgment for defendant and to dismiss plaintiff's action in
accordance with this decision.