UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VINCENT DEMARTINO, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-0879 (RJL)
)
F .B.I. et al., )
)
Defendants. )
r----
MEMORANDUM OPINION
January 1.2-,
2009
Pending before the Court is the Federal Bureau ofInvestigation's ("FBI") renewed
motion for summary judgment [Dkt. No. 55] filed in response to the Order of September 15,
2008, directing supplementation of the record in this Freedom of Information Act ("FOIA") case.
The FBI proffers the Sixth Declaration of David M. Hardy ("6 th Hardy Decl.") to justify FBI
Headquarters's withholding of seven pages of records in their entirety. See Memorandum
Opinion of September 15, 2008 ("Mem. Op.") [Dkt. No. 49] at 5 (finding insufficient evidence to
resolve record segregability question). Upon consideration of the FBI's renewed motion and
plaintiffs supplemental responses [Dkt. Nos. 59, 60-2], the Court grants the FBI's renewed
motion for summary judgment on the remaining issue of the case. I
Mr. Hardy has adequately described the seven withheld pages, Hardy Decl. ~~ 7-9, and
explained the applicability of FOIA exemptions 2, 7(C) 7(D) and 7(E) to those pages. Id. ~~ 15,
20, 21, 24-26. Moreover, he states that the disclosure of any "nonexempt words and phrases"
contained therein "would provide only a patchwork of unintelligible text." Id. ~ 30. In his
I See Orders of September 15,2008 and September 27, 2007 (resolving all other claims).
opposing declaration [Dkt. No. 60-2], plaintiff does not directly address the current motion but
rather claims that "newly discovered evidence" supports his innocence of the crimes for which he
is serving time. At best, plaintiffs opposition relates only to defendant's invocation of
exemption 7(C). See Crooker v. Bureau ofAlcohol, Tobacco and Firearms, 670 F.2d 1051,1074
n. 61 (D.C. Cir. 1981) (noting "that in two [] exemptions, 7(C) and 6, 'the court is called upon to
balance the conflicting interests and values involved; in other exemptions Congress has struck
the balance and the duty of the court is limited to finding whether the material is within the
defined category. "') (quoting Lesar v. United States Dep't of Justice, 636 F.2d 472, 486 n.80
(D.C. Cir.1980)) (other citation omitted).
Defendant invoked exemption 7(C), in conjunction with exemption 6, to withhold
identifying information of FBI Special Agents and third-party individuals of investigative interest
to the FBI and other law enforcement agencies. 6th Hardy Decl. ~~ 20-21. Third-party
information contained in law enforcement files is "categorically exempt" from disclosure under
exemption 7(C) in the absence of an overriding public interest in its disclosure. 2 Nation
Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir.
1995). In order to demonstrate a public interest warranting disclosure of the otherwise protected
information, plaintiff must show that the withheld information is necessary to "shed any light on
the [unlawful] conduct of any Government agency or official." United States Dep 't of Justice v.
Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard
Services, Inc., v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). "Where the privacy concerns
addressed by Exemption 7(C) are present, ... [the requester] must show that the public interest
2 See Mem. Op. at 6 (finding exemption 7's threshold requirement of law enforcement
records satisfied).
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sought to be advanced is a significant one, an interest more specific than having the information
for its own sake [and that] ... the information is likely to advance that interest." National
Archives and Records Administration v. Favish, 541 U.S. 157, 172 (2004). In making such a
showing, plaintiff must assert "more than a bare suspicion" of official misconduct. Id. at 174. He
"must produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred." !d. Otherwise, the balancing requirement does
not come into play. See id. at 175. Plaintiffs suggestion that the withheld information would
somehow prove his innocence provides no basis for balancing the interests at stake because the
public interest in disclosure "does not include helping an individual obtain information for his
personal use" to overturn a conviction. Oguaju v. Us., 288 F.3d 448, 450 (D.C. Cir. 2002),
vacated and remanded on other grounds, 124 S.Ct. 1903 (2004), reinstated, 378 F.3d 1115 (D.C.
Cir. 2004) (citation omitted).
Based on the sixth Hardy declaration, which plaintiff has not adequately refuted, the
Court finds FBI Headquarters's withholding of seven pages to be properly justified and
concludes that the FBI is now entitled to judgment as a matter of law. See Mays v. DEA, 234
F.3d 1324, 1327 (D.C. Cir. 2000) (permitting an agency to withhold entire documents when the
'''exempt and nonexempt information are 'inextricably intertwined,' such that the excision of
exempt information would ... produce an edited document with little informational value. "')
(quoting Neufeldv. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)). A separate final Order
accompanies this Memorandum Opinion.
United States District Judge
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