A border patrol agent in the Buffalo sector has a mission to enforce the immigration laws, primarily between the ports of entry, and roughly out from the border about a hundred miles. They do this through various means. they conduct line watch operations, responding to sensors on railroad bridges. They observe traffic. They egress roads from the border. They work transportation facilities, such as the airport, bus station, train terminal. And they conduct liaison with other agencies.
(Moore affidavit, exh. C).
Second, the News argues that no evidence exists that the aliens described on the Forms were under the USBP's investigatory surveillance or prosecutorial activity. (News memo., p. 28). Where an agency's principal function is criminal law enforcement, as is the case with the USBP, this Court defers to the agency's claim that its external investigations are for law enforcement purposes. Stern v. F.B.I., 237 App. D.C. 302, 737 F.2d 84, 88 (D.C. Cir. 1984). As already noted, the USBP's surveillance activity is a field operation mostly conducted through observation. Moreover, the USBP need not show that its investigation ". . . led to, or will lead to adjudicative or enforcement proceedings." Id., at 89 (and citations therein).
Third, the News argues that the Forms are generated by the USBP in the ordinary course of its business because ". . . a form must be completed for each 'apprehension,' regardless of its outcome." (News memo., p. 28). Therefore, the News argues, the forms are not investigatory. It is true that the USBP generates the Forms in the regular course of its business. It is also true that the regular course of its business is to investigate the entry of illegal aliens in this country pursuant to federal law. As noted above the Forms are only generated upon apprehension of aliens determined to be illegally in the United States. They are closely linked to the USBP's investigatory activity.
Therefore, finding that the USBP has established the facial applicability of Exemption 7, this Court now addresses the specific categories of Exemption 7 withholdings claimed by the USBP.
ii. Exemption 7(C)
5 U.S.C. § 552(b)(7)(C) ("Exemption 7(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. . . ."
According to the Chart, the government redacted the following information from the Forms pursuant to Exemption 7(C): a) Block 1, the apprehended alien's name (Dickman, P8); b) Block 7, the apprehended alien's passport number (Dickman, P10); c) Block 8, the apprehended alien's current file number (Dickman, P11); d) Block 12, the apprehended alien's address in the United States (Dickman, P12); e) Block 13, the apprehended alien's permanent foreign address (Dickman, P13); f) Block 28, the name of the USBP agent apprehending the alien (Dickman, P15); g) Block 29, the apprehended alien's visa identification (Dickman, P16); h) Blocks 30 & 34, the apprehended alien's social security identification (Dickman, P18); i) Blocks 39, 41 & 42, the names and addresses of the apprehended alien's spouse and or parents (Dickman, P18); j) Block 47, the name and address of the apprehended alien's United States employer (Dickman, P21); k) Block 49, portions of a narrative describing the apprehension, specifically words or codes identifying the alien or persons associated with the investigation (Dickman, P22); l) Block 50, the name of the USBP agent completing the Form (Dickman, PP15 & 23); m) Block 52, the name of the apprehending USBP agent (Dickman, PP15 & 25); and n) Block 54, name of USBP agent who reviewed the reports (forms) (Dickman, P25,27).
To determine the propriety of the USBP's redactions pursuant to Exemption 7(C), this Court must weigh the claimed personal privacy interests supporting nondisclosure against the public's interest in the disclosure of the information. United States Department of Justice v. Reporters Committee 489 U.S. 749, 109 S. Ct. 1468, 1476, 103 L. Ed. 2d 774 (1989).
In redacting information from the Forms pursuant to Exemption 7(C), the USBP has identified several privacy interests which it claims justify nondisclosure of the information. They are the privacy interests of law enforcement officers, the subject "excludable" aliens and their families, and of third parties arising in connection with the USBP's investigation.
This Court will address these privacy interests in turn. However, preliminarily, it is instructive to consult the Supreme Court's thorough discussion of Exemption 7(C) in Reporters Committee. In that case, the Supreme Court held that the FBI properly withheld from disclosure pursuant to Exemption 7(C) "rap sheets," essentially criminal records compiled by the FBI and containing descriptive public information regarding an individual believed to be involved in public corruption. In so holding, the Court concluded that no countervailing public interest in favor of disclosure of the rap sheets outweighed a significant privacy interest implicated by the rap sheets. The Court explored the nature of a public interest which might justify an invasion of an identified personal privacy interest. Emphasizing that ". . . whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." The Court instead commented that
. . . whether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to 'the basic purpose of the Freedom of Information Act' to open agency action to the light of public scrutiny. . . . Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose.
Id. 109 S. Ct. at 1481 (quoting Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11 (1976) (further citations omitted). On the other hand, protection of the citizenry's right to be informed of official government conduct "is not fostered by disclosure of information about private citizens that reveals little or nothing about an agency's own conduct." Reporters Committee, 109 S. Ct. at 1481.
The Court observed that in the case before it "-- and presumably in the typical case in which one private citizen is seeking information about another -- the requester, does not intend to discover anything about the conduct of the agency that has possession of the requested records." In those cases, it is inappropriate to order a government agency to release the information sought. See Landano v. United States Department of Justice, 956 F.2d 422, (3d Cir. 1992) ("Only when the information requested reflects directly upon the way that the agency conducts business has the requester placed something on the public interest side of the balancing equation.")
Based on the principles discussed in Reporters Committee, the issue here is whether the redacted portions of the Forms sought by the News reveal information about the USBP's conduct or procedures which might prompt this Court to compel disclosure, or whether the redacted portions simply reveal information about private citizens and not about the agency's conduct.
This Court has carefully scrutinized the random sample of the Forms which the USBP disclosed to the News with redacted portions, attached as Exhibit A to the McCarthy affidavit. This Court was not presented with all the Forms but believes, based on its own review and the USBP's representation, that the redactions on these forms, which indeed are identical from Form to Form in this sample, are representative. (See Dickman, P7).
On their face, all of the items redacted pursuant to Exemption 7(C) contain information about private citizens: the alien's family and given name (Block 1); the alien's passport number, visa identification, USBP file number, social security number and United States and foreign addresses (Blocks 7, 8, 12, 13, 29, 30, 34); the names of the apprehending agent, the agent completing the form and the reviewing agent. (Blocks 28, 50, 52 & 54); the names and addresses of the alien's spouse or parents (Blocks 39, 41 & 42); the name and address of the alien's United States employer (Block 47); and portions of a narrative by the USBP agent explaining circumstances of apprehension, limited to the names either of the apprehended alien or third parties arising in connection with the investigation, their addresses or similar personal identifying information about either, such as, for example, a vehicle tag number. (Block 49) .
This Court does not find that disclosure of the withheld information alone would reasonably shed light on the USBP's conduct. The only information redacted pursuant to Exemption 7(C) is the information which is purely personal in nature, as described above. Conversely, left unredacted on the Forms is information concerning the circumstances of apprehension, information which can reasonably inform the public of the USBP's operations. The essence of the News' claim with respect to each item of withheld information pursuant to Exemption 7(C) is that disclosure of this purely personal information is necessary to test the veracity of the USBP's conduct. Presumably, the News intends to contact the aliens, their families or those third parties mentioned in furtherance of its investigation of the USBP's activities. (See News memo., p. 32). This Court believes that the only purposes which the disclosure of the redacted information could serve is to lead to a possible confrontation with the aliens, their families or third parties, or simply to make their identities known to the public.
Aliens, their families and other third parties mentioned in connection with USBP investigations have a strong privacy interest in nondisclosure of their names, addresses and other information which could lead to revelation of their identities. Several Courts have agreed with this general proposition because disclosure of this personal identifying information could lead to rumor, personal embarrassment or other damage to these individuals. See Lesar v. Department of Justice, 204 App. D.C. 200, 636 F.2d 472, 488 (D.C Cir. 1980); Lawyers Committee 721 F. Supp. at 565 ("'It is generally recognized that the mention of an individual's name in a law enforcement file will engender comment and speculation and carry a stigmatizing connotation.'") (quoting Branch v. FBI, 658 F. Supp. 204, 229 (D.D.C. 1987)). This Court concludes that the privacy interests of the aliens, their families and third parties arising in connection with the investigations -- in this case -- outweigh any public interest served by release of this information. This Court rejects the News' proposition that aliens have no privacy interests in the FOIA context. See, e.g., Lawyers Committee, 721 F. Supp. at 571. This Court also rejects the News' contention that because a small percentage of apprehensions reflected on the Forms resulted in a ". . . recommendation of prosecution," there is ". . . little or no room for 'derogatory inferences' or embarrassment . . ." to the apprehended aliens not prosecuted. (News memo., p. 30). The stigma emanating from being subject to or associated with a criminal investigation can be just as great, and the threat of retribution in the country of origin can be just as real.
This Court similarly concludes that the USBP properly withheld the identities of USBP personnel associated with these investigations. As have several other courts in other cases, this Court finds that the withholding of the identities of law enforcement personnel to protect their privacy interests at stake outweighs any public interest in disclosure here. See Nix v. United States 572 F.2d 998, 1006 (4th Cir. 1978); Lawyers Committee 721 F. Supp at 565 ("Public identification of FBI agents could subject them to embarrassment and harassment in both their official duties and in their private lives.") (and citations therein).
For the most part, the News does not dispute that ordinarily the privacy interests of the type claimed by the USBP here are strong. The thrust of the News' position, attempting to distinguish these cases, is that where there are questions about the veracity of a law enforcement officer's conduct, as the News argues exist in this case, the public interest in uncovering misconduct and the truthfulness of agency action overrides any personal privacy interest, mandating in favor of disclosure. According to the News, this is not the typical Exemption 7(C) case discussed in Reporters Committee because the very purpose for which it seeks this information is to exercise a citizen's right ". . . to be informed about 'what their government is up to.'" Reporters Committee, 109 S. Ct. at 1481.
This Court recognizes that the News contends that disclosure is necessary so the public can investigate claims of USBP wrongdoing. However, a mere allegation of government misconduct is not enough to circumvent an otherwise facially proper exemption. Otherwise, a requesting party disappointed with a response to its FOIA inquiry could avoid the statutory exemptions to disclosure by raising the specter of government misconduct.
Finding the Vaughn index of Dickman a proper government affidavit submitted in support of the claimed exemptions, including Exemption 7(C), this Court presumes the veracity of the USBP's representations regarding its own conduct absent reliable contradictory evidence of a sufficient degree to offset this presumption. This Court has already discussed the sufficiency of evidence of USBP misconduct and concluded that there is an insufficient degree of reliable evidence indicating any existing impropriety at the USBP. Thus, there is insufficient evidence of misconduct to elevate a public interest above the strong privacy interests involved.
In support of its position that at least the names of the aliens should be released, the News relies on Lawyer's Committee For Human Rights v. I.N.S. 721 F. Supp. 552 (S.D.N.Y. 1989). In Lawyer's Committee the plaintiffs sought judicial review of, inter alia, the decision of the United States INS to withhold from disclosure information pertaining to the exclusion from the United States of a Colombian journalist and also to the general process by which the federal government decides to exclude nonresident aliens.
The government excluded the journalist pursuant to 8 U.S.C. §§ 1182(a)(26)-(28), which provide generally that the United States may exclude from admission into its borders individuals affiliated with various subversive groups, including the Communist Party. The exclusion of the journalist initially stemmed from the fact that her name was listed in the INS's National Automated Lookout System ("NAILS") Service Lookout Book, which identifies specific aliens whom the U.S. government believes are excludable, including individuals suspected of belonging to subversive groups. Id. at 555. Pursuant to the FOIA, in addition to information concerning the journalist, the plaintiffs sought information pertaining to the operation and procedures and maintenance of the NAILS, including the names of those individuals listed in the NAILS Lookout Book. The INS responded to the plaintiffs' request with respect to the operations and maintenance of NAILS, withholding documents in their entirety based on several FOIA provisions, including exemption 7(C).
On review, the Court, reversing the INS in part, ordered a limited disclosure of some of the information.
Specifically finding the public interest in disclosure strong and observing that ". . . the very purpose of the plaintiffs' request is to gain information about the manner in which Government agencies decide to exclude aliens, particularly when ideological grounds are involved[,]" the Court required the INS to release the occupations and countries of origin of those aliens listed as excludable in the NAILS Lookout Book and the statutory bases for excluding those aliens. Concomitantly finding the alien's privacy interests strong, the Court declined to order release of the individual's identities for fear of reprisals against them in their home countries ". . . if it were learned that the American government suspects them of being affiliated with terrorist organizations." Id. at 571.
The present case differs from Lawyer's Committee in a critical respect and, therefore, it is unnecessary to engineer a similar compromise for a Iimited disclosure. In that case, the Court specifically found disclosure ". . . likely to shed light on the conduct of Government agencies." Id. at 571. This Court agrees that disclosure of the statutory basis for excluding a certain alien based on ideological grounds, combined with disclosure of the alien's occupation and country of origin, enables the public to assess much about the government's practice and policy toward ideological exclusion. This Court also agrees with Lawyer's Committee that disclosure of the identities of the excludable aliens, while arguably in some instances enriching to the public's knowledge of agency practice, for example, where a notorious individual is deemed excludable, does not add much to the public's ability to know what the government is "up to," at least not enough to outweigh the countervailing privacy interests at stake. In this case, however, as this Court has already found, disclosure of the purely personal information redacted pursuant to Exemption 7(C) would not shed much light on agency practice to any degree sufficient to outweigh the strong privacy interests involved.
Although in this case this Court cannot now identify the same palpable threat of retribution against the aliens in their country of origin as in Lawyer's Committee, the prospect of invasion of personal privacy is still quite strong. See Reporters Committee 109 S. Ct. at 1477-78 (various provisions in FOIA exempting from disclosure of personal information reflects ". . . a congressional understanding that disclosure of records containing personal details about private citizens can infringe significant privacy interests.")
iii. Exemption 7(D)
5 U.S.C. § 552(b)(7)(D) ("Exemption 7(D)") exempts from disclosure ". . . records or information compiled for law enforcement purposes," but only to the extent that their production ". . . could reasonably be expected to disclose the identity of a confidential source. . . ."
According to the chart, pursuant to Exemption 7(D) the government redacted portions of Block 49, the narrative describing the apprehension, which reveal the identity of a confidential source. According to Dickman, the confidential source material withheld ". . .includes the names of non-federal agencies, their employees, and, in some instances, the information provided by the confidential informant." The non-federal agencies are state or local law enforcement bodies which have exchanged information with the USBP. Dickman states that the disclosure of information from or identities of cooperating law enforcement agencies would discourage the beneficial exchange of such information in the future. (Dickman, P22). The thrust of Dickman's affidavit is that an implied assurance of confidentiality passed between the USBP and these other law enforcement agencies.
The News contends that where the confidential source contacted the USBP stemming from a legal obligation, the confidential source should be disclosed because ". . . there can be no legitimate argument . . . that the disclosure of the identity of the source will result in a chilling of any future offers of information." (News memo., p. 40).
This Court concludes that an implied assurance of confidentiality protects the identity of other law enforcement sources in this case and, therefore, that the USBP properly withheld the sources pursuant to Exemption 7(D). An agency asserting Exemption 7(D) need not show that the information was provided under an express agreement of confidentiality. According to FOIA's legislative history, an assurance of confidentiality may be reasonably inferred under the circumstances. See Nix v. United States 572 F.2d 998, 1003 (4th Cir. 1978). This Court does not believe that the fact that the source of the information was another law enforcement agency means that Exemption 7(D) does not apply. The fact remains that the USBP acquired the information in connection with its law enforcement activities. The News has come forth with no evidence to indicate that confidentiality was not implicit or that the information was not obtained in connection with the USBP's law enforcement activities. See Schmerler v. F.B.I., 283 App. D.C. 349, 900 F.2d 333, 337 (D.C. Cir. 1990) (presumption that law enforcement agency assures confidentiality to informants providing information in the course of a law enforcement investigation and burden remained on requester to rebut presumption).
For the reasons set forth above, this Court denies the News' motion for summary judgment and grants the USBP's motion for summary judgment.
IT HEREBY IS ORDERED that this Court denies the motion of plaintiff for summary judgment, pursuant to Fed.R.Civ.P. 56.
FURTHER, that this Court grants the motion of defendant for summary judgment, pursuant to Fed.R.Civ.P. 56.
FURTHER, that this Court directs the Clerk of the United District Court for the Western District of New York to enter a final judgment for defendant, in accordance with this Decision.
Dated: April 10, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge