Cappabianca v. Commissioner, US Customs Service

847 F. Supp. 1558

Donato CAPPABIANCA, Plaintiff, v. COMMISSIONER, UNITED STATES CUSTOMS SERVICE, Defendant.

No. 93-671-CIV-T-17A.

United States District Court, M.D. Florida, Tampa Division.

March 7, 1994.

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William F. Jung, Black & Jung, P.A., Tampa, FL, for plaintiff.

Glenda Drinkahn, U.S. Customs Service, SE Regional Counsel's Office, Miami, FL, and Elizabeth A. Pugh and David O. Buchholz, U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendant.

ORDER ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR IN CAMERA REVIEW

KOVACHEVICH, District Judge.

This cause is before the Court on the following pleadings: Defendant's Motion for Summary Judgment, and its Memorandum of Law (Docket Nos. 15 and 16); and Plaintiff's Motion for Summary Judgment, and Memorandum and Affidavit for Summary Judgment, (Docket Nos. 22 and 23); and Plaintiff's Response to Defendant's Summary Judgment Motion, (Docket No. 26). Pursuant to Federal Rule of Civil Procedure 56, each party alleges there is no genuine issue as to any material fact, and he is entitled to judgment as a matter of law.

I. BACKGROUND

Plaintiff Donato Cappabianca is an employee of Defendant United States Customs Service ("Customs"). In 1992, Plaintiff was assigned to the Sarasota RAC office after an internal investigation at that office, which led to the indictment of an employee. Subsequently, but also in 1992, Customs conducted an internal investigation of allegations that Plaintiff and other employees had harassed and retaliated against certain employees who cooperated in the first investigation. These allegations were investigated, found to be without merit, and no adverse disciplinary action or charges were brought against Plaintiff, although Plaintiff does contend he was removed from his supervisory position.

In this action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), Plaintiff seeks the records of Defendant's investigation of Plaintiff. In response to Plaintiff's requests, Defendant has provided eleven of fourteen requested documents in redacted form and completely withheld three documents, pursuant to FOIA exemptions he believed applicable.

A. Defendant's Allegations

Defendant alleges that the materials it has withheld from Plaintiff, or provided in redacted form, are exempt from disclosure under FOIA Exemptions 2, 5, 6, 7(C) and 7(D). 5 U.S.C. § 552(b)(2), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(D). Defendant has provided an index of documents which, for each of the first ten documents withheld or redacted, lists the document type and description of its contents, its date, the exemptions applied, and a summary of the type of information redacted, or the reason for complete withholding of the document. Additionally, Defendant's actions are described in narrative form through the Declaration of Kathryn C. Peterson (Docket No. 17), who is Chief of the Disclosure Law Branch, International Trade Compliance Division, Office of Regulations and Rulings, United States Customs Service.

Defendant requests summary judgment on the basis that there are no material facts at issue, and as a matter of law, it has correctly applied the FOIA exemptions it claimed.

B. Plaintiff's Allegations

Plaintiff alleges that Defendant has administered the exemptions in an overbroad manner, contrary to the required narrow construction that favors disclosure. Plaintiff further alleges that all the requested documents are in his personnel file, and that there can be no privacy interest in these records, except Plaintiff's own. Plaintiff also alleges that this Court, in order to fulfill its responsibility of a de novo review of the exemptions, must examine the unredacted documents in camera.

Plaintiff requests summary judgment on the grounds that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law because the FOIA exemptions Defendant claims are inapplicable and/or applied in an overbroad manner. He seeks release of the documents in their entirety or, in the alternative, in a less redacted form.

III. ANALYSIS

A. Standards and Methods of Review

Summary judgment should be granted where "the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Fed.R.Civ.P. 56(c). Summary judgment is appropriate in FOIA cases unless there is a dispute as to key factual premises underlying a determination of consequences of releasing information. Alyeska Pipeline Service Co. v. United States EPA, 856 F.2d 309, 313 (D.C.Cir. 1988). The Eleventh Circuit has noted that once documents in issue are properly identified, FOIA cases should be handled on motions for summary judgment. Miscavige v. Internal Revenue Service, 2 F.3d 366, 369 (11th Cir.1993).

The general rule of availability of records under FOIA is that a properly made request for reasonably described records shall be complied with, unless those records are subject to enumerated exemptions. 5 U.S.C. § 552(a)(3), 552(b). On complaint of misuse of exemptions of FOIA, the District Court has jurisdiction to determine the matter de novo, and is permitted, but not required, to examine the documents in camera. 5 U.S.C. § 552(a)(4)(B); Miscavige, 2 F.3d at 368.

The burden of proof is on the agency as to whether the withholding of documents or portions thereof under an exemption is permitted. 5 U.S.C. § 552(a)(4)(B). United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989). The determination of whether the agency has met its burden is difficult, so several tools have been developed to aid the courts. Available methods for determination include a Vaughn index, ex parte in camera review of the requested documents in their unredacted form, or fact-specific affidavits of the parties. The trial court must find an adequate factual basis to support a finding of privilege, but the use of the described methods is discretionary. Ely v. Federal Bureau of Investigation, 781 F.2d 1487, 1491 (11th Cir.1986).

B. In Camera Review

In this case, Plaintiff has requested an in camera review, and Defendant has submitted an index and affidavit explaining its claims of exemptions. The Eleventh Circuit has adopted the approach used by the D.C.Circuit in Phillipi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976), which required the agency to submit a public affidavit explaining the basis of its claim, and held that before resorting to in camera review, the "district court should attempt to create as complete a record as is possible." Ely at 1493, quoting Phillipi at 1013. In Miscavige, the Eleventh Circuit held that in certain FOIA cases, affidavits can be sufficient for summary judgment purposes if they provide as accurate a basis for decision as other methods. Miscavige, 2 F.3d at 368. The Court found the IRS affidavits in that case sufficient because they were "highly detailed, focused on the individual documents, and provided a factual basis for withholding each document at issue." Id. at 368.

Because Defendant has submitted a detailed affidavit with an index describing the documents, the FOIA exemptions applied, and describing the redacted material, this Court finds the factual basis standard applied by the Eleventh Circuit has been met. This Court therefore declines to complete an in camera examination of the documents at issue before making its determination of the parties' Motions for Summary Judgment.

C. FOIA Exemptions

1. FOIA Exemption 2

Exemption 2 provides for withholding of matters which are "related solely to the internal personnel rules and practices of an agency". 5 U.S.C. § 552(b)(2). Defendant applied this exemption only to Document No. 6, which details the allegations of witnesses in the investigation of reprisal and harassment against them by Plaintiff and others. Exemption 2 was applied to redact the Customs file number in the document heading.

Case law construing Exemption 2 has held information such as codes and file numbers exempt from disclosure because that information can provide further information that is nondisclosable, and because the public cannot reasonably be expected to have an interest in such information. In Dep't of Air Force v. Rose, the Supreme Court noted that "the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to take an interest." Dep't of Air Force v. Rose, 425 U.S. 352, 369, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976). The result is that trivial administrative matters of no general public interest have an automatic exemption under the statute, as well as information of which public disclosure would risk circumvention of federal statutes. Founding Church of Scientology v. Smith, 721 F.2d 828 (D.C.Cir.1983).

In the instant case, Defendant explains that Customs' file numbers, in addition to providing a storage method, consist of codes containing information such as the type and location of the case. For this reason, disclosure of the file number, if the code were cracked, could reasonably lead to circumvention of the law. Plaintiff has not specifically contested the withholding of the file number.

Based on the foregoing, this Court finds no public interest in the file number, and that its release could lead to circumvention of the law. For this reason, the Customs' file number was properly redacted as a matter of law.

2. FOIA Exemption 5

5 U.S.C. § 552(b)(5) allows an agency to withhold inter- or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. This exemption incorporates into FOIA all the normal civil discovery privileges the government enjoys under relevant...