The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
Pro se plaintiff Keith Maguire filed this action under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552, to compel the disclosure of
two portions of a redacted document provided to him by the Federal Bureau
of Investigation ("FBI").*fn1
The parties have made cross-motions for
summary judgment. The matter was referred to the Hon. Michael H.
Dolinger, United States Magistrate Judge for the Southern District of New
York, and on March 8, 2004, Magistrate Judge Dolinger issued a Report and
Recommendation ("Report") recommending that the Court grant plaintiffs
motion and deny defendant's motion.*fn2
Defendant has timely filed
objections to the Report. For the reasons stated herein, the Court
declines to adopt that part of the Report to which defendant objects. The Court grants defendant's summary judgment
motion and denies plaintiff's summary judgment motion.
The facts of this case are fully recited in the Report, see
Report & Recommendation, Maguire v. Mawn, No. 02 Civ. 2164
(S.D.N.Y. Mar. 8, 2004), familiarity with which is presumed. The Court
summarizes them here to provide context for this opinion.
On February 9, 2001, plaintiff pled guilty to having robbed the
Rhinebeck Savings Bank in Poughkeepsie, New York (the "Bank") on August
16, 2002. By letter dated May 30, 2001, plaintiff requested disclosure
from the FBI of documents pertaining to that robbery. The FBI provided 28
pages of documents to plaintiff, but made redactions to some of those
pages. Two redactions on a document identified as the Form FD-430 (the
"Form") were originally the subject of this suit. Since plaintiff has
withdrawn his request for disclosure as to one of the redactions, see PL
Mem. of Law at 4-6, this Court addresses only the redaction that remains
The FBI fills out a Form FD-430 for each bank robbery that it
investigates. On the first page of the form, there is a preprinted column
of categories under the heading "Security Devices." The categories
include such items as "Alarm System", "Surveillance", "Bait money
maintained", "Guard(s)", "Electrical devices", and "Bullet resistant
enclosure." Next to this column of categories, there is a parallel column
with a set of queries that ask whether these devices were used at the
bank. Among the queries is an item labeled "Taken," which corresponds to
the bait money category. The Form produced to the plaintiff had the entire parallel column
redacted. Plaintiff seeks disclosure of only one item in the redacted
column: the amount of bait money, if any, that had been taken from the
Defendant's motion for summary judgment is based on FOIA exemption
7(E), which exempts from disclosure information that "would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E).
Plaintiff argues that the exemption is inapplicable here because
disclosure of the information he seeks would not pose the type of danger
the exemption is designed to prevent. (See Pl. Mem. of Law at
The Report noted that FOIA policy strongly favors disclosure and that
the FBI bears the burden of demonstrating that a FOIA exemption applies.
See Report at 6. The Report also noted that exceptions were to
be construed narrowly, with doubts resolved in favor of disclosure.
See id. at 14. The Report explained that, while there was no
dispute that the redacted portion contained information Compiled for law
enforcement purposes, the "question is whether revelation of the amount
of bait money taken by plaintiff during his robbery . . . could
reasonably be expected to risk circumvention of the law, `" Id.
Magistrate Judge Dolinger began his evaluation of that question by
observing that bait money is a technique well-known to the public.
See id. at 11-12. Recognizing that disclosure of the amount, if any, might also
reveal whether the Bank in fact used bait money, see id. at 10,
Magistrate Judge Dolinger reasoned:
"As a practical matter, it is doubtful that
disclosure now of whether this one bank was using
bait money three and one-half years ago is likely
to pose a meaningful risk that the law will be
circumvented in the future. If the bank was not
using bait money at the time, it quite likely is
doing so now, both because it was the victim of at
least the one robbery committed by plaintiff and
because the use of bait money has been strongly
encouraged in the banking community, not least by
the Bureau. Moreover, if the bank was using bait
money at the time of plaintiff's robbery,
presumably it is still doing so, and any public
knowledge of this fact would seemingly deter
circumvention of the law i.e., another
robbery with respect to that bank."
Id. at 13.
Thus, the Report concluded that defendant failed to meet its burden in
"explain[ing] why the requested disclosure would pose any discernible
risk of encouraging or permitting future criminal conduct" and that
"there is sufficient doubt to justify resolving the matter in favor of
plaintiff" Id. at 14-15.
Defendant does not dispute the legal standard articulated in the
Report. However, defendant argues that the fact that the "general
concept" of bait money is widely known "does not justify disclosing
whether a particular bank retained bait money." (Gov't Objections to
Report at 4 (hereinafter "Obj.").) Defendant argues that bait money can
be used in different ways and the precise techniques used by the Bank, in
fact, are not known to the general public. (See id. at 4-5 &
n.3.) Thus, revealing how and if the Bank uses bait money could make the
Bank more susceptible to robberies in the future.*fn3 (See id.
at 5.) This danger, argues defendant, is not mitigated "even if the
information [disclosed] is a few years old." (Id. at 6.) The district court adopts a Magistrate Judge's report and
recommendation when no clear error appears on the face of the record.
See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
However, the court is required to make a de novo determination
of those portions of a report to which objection is made,
28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record,
applicable legal authorities, along with Plaintiffs and Defendant's
objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp.2d 313,316
(S.D.N.Y. 2002). The court may then accept, reject, or modify in
whole or in part recommendations of the Magistrate Judge. See
Nelson, 618 F. Supp. at 1189.
Reviewing the issue under a de novo standard, the Court is
persuaded by defendant's arguments. Although the public may know that
banks often employ bait money, the public does not know whether and how a
specific bank employs bait money. Cf. Blanton v. U.S. Dep't of
Justice, 63 F. Supp.2d 35, 49-50 (D.D.C. 1995) (allowing withholding
of polygraph information under 7(E) because, although public knows about
polygraph, public does not know specifics of polygraph procedures and
techniques). Such information is particularly worthy of protection when
the method employed is meant to operate clandestinely, unlike guards or
bullet-proof glass barriers that serve their crime-prevention purpose by
operating in the open.
Security devices serve two purposes: to deter crime and to foil crime.
In the first instance, the Court doubts that public knowledge of a bank's
use of bait money would act as more of a deterrent than public knowledge
that a bank might use bait money without knowing if it does for certain.
Indeed, if a bank does not use bait money, it is the public's ignorance of that fact that may deter robbery. In the
second instance, considering that bait money is meant to be used
clandestinely, the more information a potential robber may have on its
use at a bank, the better they can plan and execute a robbery.
Cf. Dan Barry, About New York; Friendly Bank Makes It Easy
For Robbers, N.Y. Times, July 5, 2003, at B1 (noting that some
robbers "exude a `don't give me no dye pack' air of sophistication"). In
either case, the Court finds that disclosure as to whether the Bank uses
bait money could reasonably make the Bank more susceptible to robberies
in the future.*fn4
The Court is also not convinced that, whether or not the Bank employed
bait money three and one-half years ago, the Bank is surely employing
bait money now. Banks, like other corporations in any industry, have
divergent business practices and have their own reasons for how they
conduct business. This includes having their own reasons, perhaps based
on a business model or financial considerations, for employing or not
employing certain security devises at a given time. Banks do not always
implement a security device at the recommendation of law enforcement or
after a robbery. See, e.g., Dan Barry, About New York;
Friendly Bank Makes It Easy For Robbers, N.Y. Times, July 5, 2003,
at B1 (noting that Commerce Bank, whose business model calls for an
"inviting" atmosphere, refuses to put up Plexiglas dividers despite
recommendation by deputy police commissioner and 14 robberies in past
seven months). While the Bank may ...