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LIGORNER v. RENO

March 26, 1998

K. LESLI LIGORNER, Plaintiff, against JANET RENO & UNITED STATES DEPARTMENT OF JUSTICE, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 On May 6, 1997, pro-se plaintiff, K. Lesli Ligorner, filed this action against the United States Department of Justice and Attorney General Janet Reno pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B), seeking to compel defendants to disclose a two-page document. Defendants have moved for summary judgement, and plaintiff has countered with a motion to compel in camera review of the document. For the reasons stated below, defendant's motion is granted, and the cross-motion is denied.

 FACTUAL BACKGROUND

 On December 7, 1995, plaintiff wrote to the Department of Justice ("DOJ") requesting disclosure of "any written communications, other than formal orders and decisions, received by the Department of Justice from judges or other personnel of the United States Court of Appeals for the Sixth Circuit regarding the case of John Demjanjuk." Complaint P 4 ("Compl."). Demjanjuk, an alleged former Nazi guard, was extradited to Israel to face murder charges, after a long, contentious litigation. Pl. Memo. at p.3. After Demjanjuk's extradition, a Sixth Circuit panel reopened the case to determine whether the prosecutors committed a fraud on the court. Id. The panel found that the prosecutors had withheld information recklessly. Id.; see Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993), cert. denied sub nom Rison v. Demjanjuk, 513 U.S. 914, 130 L. Ed. 2d 205, 115 S. Ct. 295 (1994). Plaintiff requested the documents because she was writing a law review article about United States v. Lindert, 907 F. Supp. 1114 (N.D. Ohio 1995), which concerned the attempted denaturalization of the plaintiff based upon his alleged former acts as a participant in Nazi-sponsored persecution.

 Pursuant to DOJ policy, plaintiff's request was processed by the DOJ Office of Information and Policy ("OIP"). See Declaration of Michael B. Shaheen, Jr., Counsel on Professional Responsibility, November 25, 1997, at P 3 ("Shaheen Decl."). Through its search, OIP recovered four documents that satisfied plaintiff's request. Id. OIP sent three of these to plaintiff. The fourth, a two-page document, was forwarded to the DOJ Office of Professional Responsibility ("OPR") to determine whether it could be released. Id. at P 4-5. OPR has jurisdiction to investigate allegations of misconduct by DOJ attorneys that "relate to their authority to investigate, litigate or provide legal advice, and allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys within the jurisdiction of OPR." Id. at P 2.

 Originally, OIP withheld the document pursuant to 5 U.S.C. § 552(b)(6). Id. However, after further review of the document by the OPR, it determined that the document could be withheld under either Exemption 6, 5 U.S.C. § 552(b)(6) or Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), because it was part of an OPR investigative file in a matter related to the Demjanjuk case. See Shaheen Decl. at P 5. The Shaheen Declaration did not give any information about the content of the withheld document other than to describe it as part of OPR's "law enforcement records." Id. Shaheen went on to describe the importance of confidentiality in OPR investigations, and to recite a list of potential OPR contacts (i.e. defendants, DOJ personnel, defendants' attorneys, judges or court personnel, etc.) in any given investigation. Id. at P 6.

 In fact, the two-page document was a complaint letter which contained the identity of an individual who accused another of misconduct, as well as the identity of the accused. See Declaration of Richard M. Rogers, Acting Counsel on Professional Responsibility, January 8, 1998, at P 3 ("Rogers Decl."). Moreover, it is the policy of OPR that any information provided to it, for the purposes of investigation, will be kept strictly confidential, and disseminated only on a need to know basis. Id. at P 3; Shaheen Decl. P 6. *fn1"

 Plaintiff appealed OIP's decision to withhold the two-page document. See DOJ-Ligorner correspondence from April 4, 1996 - January 17, 1997. After plaintiff's appeals were exhausted within the DOJ, she filed this action to compel disclosure of the two-page document.

 In January 1998, the Rogers Declaration was submitted by defendants to address concerns raised by plaintiff with respect to lack of detail in the Shaheen Declaration. See Rogers Decl. at P 3. The Rogers Declaration does more than merely make conclusory statements about the applicability of the claimed exemptions; rather, it describes the document that was withheld, and explains why the document falls within the articulated exemptions. The Rogers Declaration explains that the withheld document is a complaint letter, containing the names of individuals who appear in an OPR investigatory file, including "an individual who was accused of misconduct and an individual who submitted an allegation of misconduct to the [DOJ]." Rogers Decl. P 3. While the Shaheen Declaration explains that the withheld document is also a part of an OPR investigatory file, Shaheen Decl. P 5, the Rogers Declaration provides more detail. In addition, the Rogers Declaration explains why redaction would not adequately protect the privacy interests involved. See Rogers Decl. P 4. *fn2" The two declarations constitute the bulk of the government's evidence.

 DISCUSSION

 1. Legal Framework

 FOIA was enacted to "facilitate public access to Government documents." Dept. of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991). The philosophy behind FOIA is that with open access to Government documents, the public is better able to scrutinize agency action. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989). Within FOIA, Congress created nine exemptions to the general rule of agency disclosure, 5 U.S.C. § 552(b), all of which are construed narrowly, "with doubts resolved in favor of disclosure." Federal Labor Relations Auth. v. United States Dept. of Veterans Affairs, 958 F.2d 503, 508(2d Cir. 1992).

 A federal court reviews an agency's decision to withhold or redact records requested under FOIA de novo. See 5 U.S.C. § 552(a)(4)(B). In order to prevail on a summary judgement motion in a FOIA case, the defending agency has the burden of proving that it conducted an adequate search and that any withheld or redacted documents fall within an exemption to the FOIA. See 5 ...


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