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AJLUNI v. FBI

November 29, 1996

SALEM AJLUNI, Plaintiff
v.
FEDERAL BUREAU OF INVESTIGATION, AND UNITED STATES DEPARTMENT OF JUSTICE, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM, DECISION and ORDER

 Pending before the Court in this action, brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is defendant's Motion for Summary Judgment and plaintiff's Motions for Further Discovery and for Attorney's Fees and Costs.

 Having conducted an in camera inspection of the documents still in dispute, and having carefully considered the parties many filings and the applicable case law, the Court will grant the defendant's summary judgment motion and deny plaintiff's request for further discovery. The parties are hereby directed to submit additional briefing on the issue of attorney's fees.

 I. Background

 A brief overview of the protracted factual and procedural history of this litigation is merited as the case approaches its denouement.

 Plaintiff Salem Ajluni has been the subject of a long term investigation by defendant FBI due to his leadership role with the General Union of Palestinian Students on the University of Utah campus. The FBI alleges that plaintiff also is associated with the Popular Front for the Liberation of Palestine, a group that the FBI characterizes as a known terrorist organization.

 On July 13, 1988, plaintiff made various FOIA requests for information relating to him to the FBI at their general headquarters, as well as the Detroit, Salt Lake City and San Francisco field offices. On November 3, 1992, plaintiff received the requested information in the form of 51 pages of heavily redacted material out of 352 pages that the FBI found responsive to plaintiff's request. *fn1" Plaintiff administratively appealed those results and the FBI's decisions were, in large part, affirmed.

 On March 14, 1994, plaintiff commenced this action under the FOIA and the Privacy Act, 5 U.S.C. § 552(a), to challenge the FBI's withholding of documents or portions thereof, and seeking an order from this Court making the requested records immediately available. Plaintiff also sought immediate discovery of the procedures by which the FBI classifies information for national security purses, as well as the procedures employed in applying the FOIA exemptions. The FBI refused to respond to this request and sought a protective order.

 On October 25, 1994, Magistrate Judge Ralph W. Smith entered a protective order staying discovery, and ordered the FBI to produce a Vaughn index by March 24, 1995. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). The FBI produced the Vaughn index and moved for summary judgment on June 15, 1995. Plaintiff opposed the motion and cross-moved for further discovery pursuant to Fed.R.Civ.P 56(f), and for attorney's fees.

 In a decision from the bench rendered August 14, 1995, this Court found that "the defendant's Vaughn index [was] completely inadequate for each purpose such an index is expected to serve...substantively, the index [was] an equally resounding failure." (Tr. of 8/14/96 at 3-4). As a result, the Court directed the FBI to produce an amended Vaughn index, and reserved on plaintiff's cross-motions. The FBI filed its amended index on December 14, 1995, along with its renewed motion for summary judgment. Plaintiff opposed and renewed his cross-motions.

 In a Memorandum, Decision and Order dated July 13, 1996, the Court found that the FBI, in the amended index, had carried its burden of justifying its use of the § 552(b)(1) exemption for "classified information." *fn2" Ajluni v. FBI, No. 94-CV-325 at 10 (July 13, 1996). The Court held, however, that the amended index did not entitle the FBI to summary judgment on their asserted exemptions under § 552(b)(7)(C) and (b)(7)(D). *fn3" Therefore, the Court directed the FBI to produce yet another amended index, and continued to reserve on plaintiff's cross-motions.

 By letter dated August 5, 1996, the FBI wrote this Court asserting that "short of turning over the very information the FBI is seeking to protect, there is no additional information which the FBI believes that it can provide the court other than that which has already been detailed in the four prior declarations filed in this case." (Def. Letter Brief of 8/5/96 at 1). Thus, the FBI requested that this Court conduct an in camera review of those documents still in dispute. Plaintiff responded by letter dated August 8, 1996, requesting that the Court deny defendant's motion and be ordered to submit the second amended Vaughn index. On September 21, 1996, this Court granted defendant's request for in camera inspection.

 On October 16, 1996, defendant submitted for inspection the documents in question in wholly unredacted form, which the Court thoroughly reviewed in chambers during the course of an in camera hearing. Present at the hearing were the Assistant United States Attorney for the Northern District of New York, and three representatives from the FBI. Plaintiff's counsel was not present in chambers during the hearing.

 A. Standard for Summary Judgment

 Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).

 
Under FOIA, an agency seeking to withhold information it its files must show that it is entitled to withhold it under the specific exemptions listed in the statute, 5 U.S.C. § 552(b)(2)-(9), which are meant to prevent specific harms from the release of certain records. The burden is on the agency to justify nondisclosure and the exemptions must be interpreted to give effect to the strong Congressional intent of favoring disclosure under FOIA.

 Ferguson v. F.B.I., 762 F. Supp. 1082, 1087 (S.D.N.Y. 1991), rev'd in part on other grounds, 957 F.2d 1059 (2d Cir. 1992). The Court acknowledges that the FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.'" FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982) (quoting NLRB v. Robbins Tire & Rubber Co. 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978)). Yet while "[a] broad construction of the exemptions would be contrary to the express language of the Act," Wellford v. Hardin, 444 F.2d 21, 25 (4th Cir. 1971); see FOIA, 5 U.S.C. § 552(c), "it is equally clear 'that the statutory exemptions are intended to have meaningful reach and application." Simon v. U.S. Dept. of Justice, 752 F. Supp. 14, 16 (D.D.C. 1990) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989)), aff'd, 980 F.2d 782 (D.C. Cir. 1982).

 It is with these considerations in mind that the Court turns to defendant's motion for summary judgment.

 B. The Claimed Exemptions

 The first exemption at issue is 5 U.S.C. § 552(b)(7)(C), which provides, in pertinent part, that

 
this section does not apply to matters that are...records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information...could reasonably be expected to constitute an unwarranted invasion of personal privacy.

 The FBI has further subdivided this exemption into more specific subsections, two of which remain at issue here: § 552(b)(7)(C)-2, names of and/or identifying information concerning third parties who are of investigative interest to the FBI; and § 552(b)(7)(C)-3, names of and/or identifying information about third parties merely mentioned. The parties agree that the FBI has satisfied the required threshold showing that the material was "compiled for law enforcement purposes." In order to prevail on a claimed exemption under (b)(7)(C), however, the FBI also must demonstrate that the harm specified in the exemption would flow from disclosure. U.S. Dept. of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 2019, 124 L. Ed. 2d 84 (1993).


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