CREW v. NIGC: Regarding Indian Gaming Scandals: 9/12/05 - Motion For Summary Judgement
CREW v. NIGC: Regarding Indian Gaming Scandals: 9/12/05 - Motion For Summary Judgement
CREW v. NIGC: Regarding Indian Gaming Scandals: 9/12/05 - Motion For Summary Judgement
Defendant hereby moves pursuant to Fed. R. Civ. P. 56 for summary judgment. The
grounds for this motion for summary judgment are set forth in the memorandum submitted
herewith.
PETER D. KEISLER
Assistant Attorney General
KENNETH L. WAINSTEIN
United States Attorney
/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Of Counsel: Trial Attorney, Federal Programs Branch
Andrea Lord U.S. Department of Justice, Civil Division
Staff Attorney 20 Massachusetts Ave., N.W., Room 6140
National Indian Gaming Commission Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470
In this case, Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)
seeks the release of certain information pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. As shown below, the information being withheld is exempt from disclosure under
FOIA due to, inter alia, an ongoing enforcement investigation, individual privacy interests, and
BACKGROUND
I. The National Indian Gaming Commission and the Indian Gaming Working Group
Created as part of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701, et seq.,
the National Indian Gaming Commission (“NIGC”) is a federal agency tasked with oversight
regulation of Indian gaming operations under the Act. Declaration of Alan Fedman, ¶ 2
(“Fedman Decl.”). NIGC is managed by a chairman appointed by the President, and is divided
into six regions. Id. NIGC’s national headquarters are in Washington, D.C. and it has regional
headquarters located in Portland, Oregon; Sacramento, California; Phoenix, Arizona; St. Paul,
Minnesota; Washington, D.C.; and Tulsa, Oklahoma. Id. NIGC has satellite offices in
Temecula, California; Las Vegas, Nevada; Jackson, Mississippi; Rapid City, South Dakota; and
Bellingham, Washington. Id. NIGC auditors and investigators are responsible for ensuring that
Indian gaming establishments are complying with IGRA, NIGC regulations, and tribal gaming
ordinances. Id. ¶ 3. NIGC auditors conduct site visits to tribal gaming establishments, perform
compliance audits and, when appropriate, investigate regulatory matters. Id. NIGC has a
significant regulatory and oversight responsibility in the growing Indian gaming industry and it
works with the FBI and other federal agencies to investigate allegations of regulatory violations
In 2003, in an effort to better identify and direct resources to Indian gaming law
enforcement matters, the Federal Bureau of Investigations and NIGC created the Indian Gaming
Working Group (“IGWG”). Id. ¶ 4. The IGWG coordinates federal resources regarding federal
regulatory enforcement and investigations of criminal activity. Id. This group consists of
representatives from a variety of FBI subprograms (i.e., the Economic Crimes Unit, the Money
Laundering Unit, the LCN/Organized Crime Unit, the Asian Organized Crime Unit, the Public
Corruption/ Government Fraud Unit, the Cryptographic Racketeering Analysis Unit, and the
Indian Country Special Jurisdiction Unit) and other federal agencies, including the Department of
Interior Office of Inspector General, NIGC, the Internal Revenue Service Tribal Government
Section, the Department of Treasury Financial Crimes Enforcement Network, the Department of
Justice, and the Bureau of Indian Affairs Office of Law Enforcement Services. Id.; Indian
2
indgaming.htm. The IGWG meets monthly to review Indian gaming cases deemed to have a
significant impact on the Indian gaming industry. Fedman Decl. ¶ 4. As a result of these
meetings, the IGWG, through its member agencies, has provided financial resources, travel
On March 21, 2005, the NIGC received a letter from Melanie Sloan, who represented
herself to be of Citizens for Responsibility and Ethics in Washington. See Letter from Melanie
Sloan to FOIA Officer, NIGC (March 18, 2005) (attached as Exhibit N to Plaintiff’s Complaint);
Declaration of Regina Ann McCoy, ¶ 13 (“McCoy Decl.”). In this letter, Ms. Sloan requested
that, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the NIGC conduct a
broad search to locate documents or records that relate to any contact between the agency and the
following: Jack Abramoff; Michael Scanlon; James Dobson; Ralph Reed; Scott Reed; Italia
Federici; Grover Norquist; David Safavian; Congressmen Ney and DeLay; House Speaker
Hastert; Senator Burns; staff members of the above referenced Congressmen and Senator;
Republicans for Environmental Advocacy; National Center of Public Policy Research; and
Americans for Tax Reform. Ms. Sloan also requested records concerning the Agua Caliente
Tribe; Tigua Tribe; Saginaw Chippewa Tribe of Michigan; Mississippi Band of Choctaw
Indians; Coushatta Tribe of Louisiana; and the Jena Band of Choctaw Indians. Id. Because the
request appeared to be focused on the non-tribal individuals and entities listed above, cf. Compl.
¶¶ 15-25, and a broad interpretation of the portion of the request relating to the tribes would have
3
likely dredged up much unwanted information, the NIGC FOIA officer interpreted this portion of
the request as seeking documents showing a relationship between those tribes and the non-tribal
NIGC sent Ms. Sloan an acknowledgment letter on March 22, 2005, advising her of the
backlog of FOIA requests, the limited personnel resources available, and an inability to process
the request within the statutory time frame. See Letter from Jerrie L. Moore to Melanie Sloan
(March 22, 2005) (attached as Exhibit O to Plaintiff’s Complaint). NIGC’s FOIA office then
sent search taskers to the NIGC’s Office of General Counsel, the NIGC Commissioners, the
NIGC Office of Congressional and Public Affairs, the NIGC Enforcement Division, the NIGC
Contracts Division, and NIGC’s regional and satellite offices. McCoy Decl. ¶ 17. These
extensive searches discovered fourteen responsive documents. Id. ¶ 18. These documents
consisted of thirteen investigative documents (one of which, document 14 on the Vaughn Index
(“VI”), consisted of 81 pages of newspaper articles) and a letter to the Speaker of the House of
NIGC sent Ms. Sloan a substantive response to her FOIA request on May 9, 2005, a
clarification on May 10, 2005,1 and a supplemental substantive response on May 19, 2005. See
Exhibits A-C. NIGC released the letter to Speaker Hastert along with its attachment (VI 4) in
1
The substance of the FOIA request is contained in three paragraphs, paragraphs two,
three, and four of the March 18, 2005 letter. The NIGC FOIA officer determined that paragraph
three of the FOIA request, which identified certain Indian tribes, was best read in conjunction
with paragraphs two and four to mean documents that showed a relationship with the individuals
and entities listed in paragraph one of the FOIA request. See McCoy Decl. ¶ 16. The FOIA
officer determined that a broader interpretation of paragraph three would likely have dredged up
substantial amounts of unwanted material. Id. The FOIA officer noted this interpretation in her
May 10th letter, and offered Plaintiff the opportunity to appeal this interpretation. Id. Plaintiff
did not respond to this letter. Id.
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full. McCoy Decl., ¶ 22.D. NIGC also released 81 pages of newspaper articles, redacting the
names and contact information of the individuals who provided (via facsimile) the articles to
NIGC (VI 14). Id. ¶ 22.N. NIGC released a three page newspaper article from another document
(VI 10), again redacting the name and contact information of the person who provided the
document to NIGC. Id. ¶ 22.J.2 The remaining documents were withheld pursuant to 5 U.S.C.
§ 552(b).
The source redactions on the released newspaper articles were made pursuant to the
personal privacy protections of FOIA Exemptions 6 and 7(C). McCoy Decl., ¶ 22. All of the
withheld documents are subject to FOIA Exemption 7(A), which protects law enforcement
proceedings.” Id. A number of the withheld documents also qualify for Exemptions 6 and 7(C)
employees and third party individuals. Id. Four of the documents are inter or intra-agency
communications that are exempt from disclosure pursuant to Exemption 5. Id. And one of the
ARGUMENT
Under FOIA, the Court conducts a de novo review to determine whether the government
properly withheld records under any of the FOIA’s nine statutory exemptions. See 5 U.S.C.
§ 552(a)(4)(B). The government may satisfy its burden of justifying non-disclosure of materials
2
In both cases, no information from the original articles was redacted; only information
in the facsimile line.
5
by submitting an agency declaration that describes the withheld material with reasonable
specificity and the reasons for non-disclosure, and, if necessary, a Vaughn index. See United
States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 753 (1989);
Summers v. Department of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Armstrong v. Exec.
The declarations submitted by the agency are accorded a presumption of good faith,
Safecard Servs., Inc. v. Securities and Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991),
and a presumption of expertise, Piper v. United States Dep’t of Justice, 294 F. Supp. 2d 16, 20
(D.D.C. 2003). Summary judgment is to be freely granted where, as here, the declarations reveal
that there are no material facts genuinely at issue and that the agency is entitled to judgment as a
matter of law. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988);
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Summary judgment is
accordingly the procedural vehicle by which most FOIA actions are resolved. See, e.g.,
Misciavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled
on motions for summary judgment, once the documents in use are properly identified.").
An agency’s obligation under FOIA is to make “a good faith effort to conduct a search for
the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An
adequate search does not mean that every conceivable responsive document will be discovered.
See id. (“There is no requirement that an agency search every record system.”); Allen v. United
States Secret Serv., 335 F. Supp. 2d 95, 99 (D.D.C. 2004) (“While the agency’s search must be
6
reasonably calculated to produce the requested information, FOIA does not impose a requirement
that every record be found.” (emphasis in original)). In this case, NIGC’s FOIA officer sent
taskers to seek documents at NIGC’s Office of General Counsel, the offices of the NIGC
Commissioners, the NIGC Office of Congressional and Public Affairs, the NIGC Enforcement
Division, the NIGC Contracts Division, and NIGC’s multiple regional and satellite offices.
McCoy Decl. ¶ 17. NIGC searched its offices nationwide in an effort to find the information
II. The Withheld Documents Are Exempt from Disclosure Pursuant to Exemption 7(A)
Records compiled for law enforcement purposes are exempt from disclosure if they fall
within one of the six categories set forth in 5 U.S.C. § 552(b)(7)(A)-(F). Before examining
whether the requested documents fall within one of the six categories, the court must first
determine whether they were “compiled for law enforcement purposes.” Quinon v. FBI, 86 F.3d
1222, 1228 (D.C. Cir. 1996). Documents qualify as law enforcement records if they meet two
criteria: 1) the documents were created or acquired in the course of an investigation related to the
enforcement of federal laws; and 2) the nexus between the activity and one of the agency’s law
enforcement duties was based on information sufficient to support at least a “colorable claim” of
its rationality. Id.; Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982); Blanton v.
Department of Justice, 63 F. Supp. 2d 35, 44 (D.D.C. 1999). The first prong is satisfied if the
agency is “able to identify a particular individual or a particular incident as the object of its
investigation and the connection between that individual or incident and a possible . . . violation
of federal law.” Pratt, 673 F.2d at 420. The second prong is “deferential,” and a court “should
7
be hesitant to second-guess” the agency’s decision to investigate, rejecting the agency’s rationale
In this case, there can be no question that the activity giving rise to the case management
records in question is “related to” the enforcement of federal laws. These materials were
compiled as part of ongoing multi-agency law enforcement investigations which concern alleged
misuse of tribal gaming revenue in violation of the IGRA and other laws. See Fedman Decl. ¶ 5;
McCoy Decl. ¶ 33; see also Rojem v. United States Dep’t of Justice, 775 F. Supp. 6, 10 (D.D.C.
1991) (documents compiled by agency assisting another agency in law enforcement as part of a
collaborative process are covered by Exemption 7). Moreover, given NIGC’s regulatory
authority over Indian gaming and its role in the Indian Gaming Working Group, these
investigations are clearly rationally related to the agency’s law enforcement duties.3
FOIA exemption 7(A) authorizes the withholding of “records or information compiled for
law enforcement purposes . . . to the extent that production of such law enforcement records or
5 U.S.C. § 552(b)(7)(A). Exemption 7(A) applies where there is a law enforcement proceeding
that is pending or reasonably anticipated. Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C.
Cir. 1993). This exemption applies to all records and information compiled for law enforcement
3
Plaintiff could hardly contest the rationality of NIGC’s law enforcement investigation
given its own allegations that individuals “received millions of dollars from Indian tribes that
operate gambling casinos” and “were able to scam the Indian tribes out of huge sums of money.”
Compl. ¶¶ 15-16. While NIGC takes no position on the accuracy of these allegations at this time,
they constitute Plaintiff’s implicit concession that a rational basis for a law enforcement
investigation exists.
8
purposes “whenever the government’s case in court . . . would be harmed by the premature
release of information.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)
(quotation omitted).
Exemption 7(A) may be applied to a set of documents based on the categorical types of
Court has held, Exemption 7(A) “appears to contemplate that certain generic determinations
might be made.” Id. at 224. “Congress did not intend to prevent the federal courts from
particular kinds of investigatory records while a case is pending would generally ‘interfere with
enforcement proceedings.’” Id. at 236. Indeed, courts have held that there is no need to “produce
basis. In re Dep’t of Justice, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc); Lardner v. United
States Dep’t of Justice, No. Civ.A.03-0180(JDB), 2005 WL 758267, at *20 (D.D.C. March 31,
In light of the important interests protected by Exemption 7(A), the government need only
demonstrate that (1) a law enforcement proceeding is pending or prospective; and (2) release of
the information could reasonably be expected to cause some articulable harm. See Butler v.
Dep’t of Air Force, 888 F. Supp. 174, 183 (D.D.C. 1995), aff’d, 116 F.3d 941 (D.C. Cir. 1997).
With respect to the showing of harm to a law enforcement proceeding required to invoke
Exemption 7(A), courts have long accepted that Congress intended this exemption to apply
whenever the government’s case in court could be harmed by the premature release of evidence
or information, or when disclosure could impede any necessary investigation prior to the
9
enforcement proceeding. See, e.g., Robbins Tire, 437 U.S. at 232 (“the release of information in
was precisely the kind of interference that Congress continued to want to protect against”). For
instance, courts have upheld the applicability of Exemption 7(A) when disclosure could reveal
the scope, direction, or nature of a law enforcement investigation or allow suspects to elude
detection. See, e.g., Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (finding documents exempt
pursuant to 7(A) where disclosure “could reveal much about the focus and scope of the
Commission’s investigation”); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th
Cir. 1998) (holding that records related to criminal price-fixing investigation were properly
exempt under 7(A) because disclosure could have resulted in “destruction of evidence, chilling
and intimidation of witnesses, and revelation of the scope and nature of the Government’s
investigation”); Kay v. Federal Communications Comm’n, 976 F. Supp. 23, 39 (D.D.C. 1997)
(records exempt under 7(A) because disclosure could reveal evidence and focus of investigation
and discourage witness cooperation), aff’d, 172 F.3d 919 (D.C. Cir. 1998); Moorefield v. Secret
Service, 611 F.2d 1021, 1026 (5th Cir.) (Exemption 7(A) proper when release of Secret Service
file to target of investigation could not only allow target to elude scrutiny of Secret Service but
also could “generally . . . inform targets of Service investigations of the means the Service
4
Moreover, the Government’s burden in demonstrating interference with law
enforcement proceedings under Exemption 7(A) has been significantly relaxed by Congress.
Section 552(b)(7)(A) originally provided for the withholding of information that “would interfere
with enforcement proceedings,” but the Freedom of Information Reform Act of 1986 amended
that language and replaced it with the phrase “could reasonably be expected to interfere with”
enforcement proceedings. See Pub. L. No. 99-570 § 1802, 100 Stat. 3207, 3207-48 (emphases
added). Courts have repeatedly recognized that this change in the statutory language
10
The records withheld here clearly satisfy the standards of Exemption 7(A). These
documents were obtained as part of an ongoing federal investigation and have been shared with
the IGWG and forwarded to the cooperating federal law enforcement authorities within the
IGWG.. See Fedman Decl. ¶¶ 5-6. Materials withheld include investigative documents, agency
memoranda, and communication with third parties who provided information helpful to the
investigation. McCoy Decl. ¶ 22. Release of the withheld information would seriously impair the
effectiveness of this and other investigations by revealing the extent of intelligence gathered, the
names or nature of confidential sources, and the status of the investigations. Fedman Decl. ¶¶ 7-
8; McCoy Decl. ¶ 33. Additionally, release of these documents could interfere with the ongoing
investigation by revealing the nature and scope of investigative activities, the cooperation of
specific individuals, the identity of potential witnesses, and investigative steps taken. Fedman
Decl. ¶ 10; McCoy Decl. ¶ 33. And, release of this information would reveal which federal
agencies are involved in the investigations, which has the potential to indicate the focus and
extent of the investigations and could thus interfere with and seriously undermine federal
cooperation, impede the success of the investigation, and lead to the harassment or intimidation
of individuals who have cooperated with NIGC investigations. This provides a proper basis for
substantially broadens the scope of the exemption. See, e.g., Manna v. Department of Justice, 51
F.3d 1158, 1164 n.5 (3d Cir. 1995) (purpose of 1986 amendment was “to relax significantly the
standard for demonstrating interference with enforcement proceedings”); Gould Inc. v. GSA, 688
F. Supp. 689, 703 n.33 (D.D.C. 1988) (“The 1986 amendments relaxed the standard . . . by
requiring the government to show merely that production of the requested records ‘could
reasonably be expected’ to interfere with enforcement proceedings.”) (emphasis added); see also
Spannaus v. United States Dep’t of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987) (explaining that
relaxed standard “is to be measured by a standard of reasonableness, which takes into account the
‘lack of certainty in attempting to predict harm.’”).
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withholding under Exemption 7(A). E.g., Swan, 96 F.3d at 500; Edmonds v. Federal Bureau of
FOIA Exemptions 6 and 7(C) protect the privacy of individuals from unwarranted
invasion. The Supreme Court has adopted a broad construction of the privacy interests protected
by these exemptions, rejecting a “cramped notion of personal privacy” and emphasizing that
“privacy encompass[es] the individual’s control of information concerning his or her person.”
Reporters Committee, 489 U.S. at763.5 Privacy is of particular importance in the FOIA context
because a disclosure required by the FOIA is a disclosure to the public at large. See Painting &
Drywall Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991) (finding
that if information “must be released to one requester, it must be released to all, regardless of the
Exemption 7(C) of the FOIA protects from disclosure “records or information compiled
5
While Reporters Committee was decided under Exemption 7(C), the definition of the
public interest to be considered is the same as for Exemption 6. See Reed v. NLRB, 927 F.2d
1249, 1251 (D.C. Cir. 1991).
6
Moreover, “[e]ven information that is available to the general public in one form may
pose a substantial threat to privacy if disclosed to the general public in alternative form
potentially subject to abuse.” Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1188
(8th Cir. 2000). Indeed, as the Supreme Court has noted, the fact that information “is not
wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or
dissemination of the information.” Reporters Committee, 489 U.S. at 770 (internal quotation
marks omitted); accord Family Farms, 200 F.3d at 1188. Thus, “[p]ersons can retain strong
privacy interests in government documents containing information about them even where the
information may have been public at one time.” Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993).
12
for law enforcement purposes” to the extent that the production of such law enforcement records
privacy.” 5 U.S.C. § 552(b)(7)(C). In applying exemption 7(C), the Court must “balance the
privacy interests that would be compromised by disclosure against the public interest in release
of the requested information.” Davis v. Department of Justice, 968 F.2d 1276, 1281 (D.C. Cir.
1992). However, recognizing the considerable stigma inherent in being associated with law
enforcement proceedings, courts “do[] not require a balance tilted emphatically in favor of
disclosure” when reviewing a claimed 7(C) exemption. Bast v. Department of Justice, 665 F.2d
1251, 1254 (D.C. Cir. 1981). Additionally, the public interest “must be assessed in light of
FOIA’s central purpose,” and that this purpose “is not fostered by disclosure about private
individuals that is accumulated in various government files but that reveals little or nothing about
an agency’s conduct.” Nation Magazine Washington Bureau v. United States Customs Serv., 71
F.3d 885, 894 (D.C. Cir. 1995) (quotation marks and citation omitted).
privacy interest in having their names and other personal information withheld from public
disclosure. See, e.g., Nation Magazine Washington Bureau, 71 F.3d at 894; Safecard, 926 F.2d
at 1206; Bast, 665 F.2d 1251. The Supreme Court has concluded that “as a categorical matter . . .
a third party’s request for law enforcement records or information about a private citizen can
reasonably be expected to invade that citizen’s privacy.” Reporters Commitee, 489 U.S. at 780;
Perrone v. FBI, 908 F. Supp. 24, 26 (D.D.C. 1995). On the other hand, the public interest in
knowing the names of individuals mentioned in law enforcement records, as a general matter, is
nil. See Blanton, 63 F. Supp.2d at 45(“The privacy interests of individual parties mentioned in
13
law enforcement files are ‘substantial’ while ‘[t]he public interest in disclosure [of third party
identities] is not just less substantial, it is unsubstantial.’” (quoting Safecard, 926 F.2d at1205)
(alterations in original)); Del Viscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995) (routine
unless there is compelling evidence that the agency denying the FOIA request is
engaged in illegal activity, and access to the names of private individuals appearing
in the agency’s law enforcement files is necessary in order to confirm or refute that
evidence, there is no reason to believe that the incremental public interest would ever
be significant.
In Massey, 3 F.3d 620, the FBI relied on Exemption 7(C) to withhold the identities of
certain FBI agents. Finding that disclosure of the identities would not “reveal any significant
information concerning the conduct and administration of FBI investigations,” the court held that
disclosure would not “significantly serve the public disclosure policies of FOIA” and upheld the
use of Exemption 7(C) to prevent disclosure. Id. at 625; see also Jones, 41 F.3d 238, 247 (6th
Cir. 1994) (same result on similar facts); Stone v. FBI, 727 F. Supp. 662, 668 n.3 (D.D.C.)
(collecting cases upholding the use of Exemption 7(C) to protect the names of law enforcement
In this case, the NIGC relied upon Exemption 7(C) to protect the identities of living third
party individuals, NIGC employees, and other government employees who are working on
enforcement investigations. See McCoy Decl. at ¶¶ 35-38. The protection of the identities and
personal information of third parties connected to NIGC investigations is proper because the
release of this information could subject such persons to an unwarranted invasion of their
14
personal privacy. Release of the identifying information could result in unwanted and even
unlawful efforts to gain further access to such persons or to personal information about them;
cause them harassment, harm; or expose them to unwanted and/or derogatory publicity and
inferences arising from their connection to the investigation, all to their detriment. See Reporters
Committee, 489 U.S. at 765 (“[D]isclosure of records regarding private citizens, identifiable by
investigation is also proper under Exemption 7(C). There would be minimal benefit to the public
from this information, and much damage to the individuals’ privacy interests. As in the cases
discussed above, “there is no reason to believe that the public [would] obtain a better
understanding of the workings of [the NIGC] by learning the identities of [its personnel].”
Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996), aff’d, 1997 WL 411685 (D.C. Cir. June
19, 1997). For this reason, the names of law enforcement personnel are generally exempt from
disclosure under Exemption 7(C) because disclosure “could subject them to embarrassment and
harassment in the conduct of their official duties and personal affairs.” Massey, 3 F.3d at 624;
This same personal information is also properly withheld pursuant to Exemption 6, which
exempts from disclosure information about individuals in “personnel and medical and similar
files” when the disclosure of such information “would constitute a clearly unwarranted invasion
of personal privacy.” See 5 U.S.C. § 552(b)(6). Exemption 6 was “intended to cover detailed
15
United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). It, therefore,
protects personal information contained in any government file so long as that information
“applies to a particular individual.” Id. at 602; see also New York Times Co. v. NASA, 920 F.2d
1002, 1006 (D.C. Cir. 1990) (en banc). This “minimal” threshold “ensures that FOIA’s
protection of personal privacy is not affected by the happenstance of the type of agency record in
which personal information is stored.” Washington Post Co. v. Dep’t of Health & Human
Exemption 6 requires an agency to balance the individual’s right to privacy against the
public’s interest in disclosure. See United States Dep’t of the Air Force v. Rose, 425 U.S. 352,
372 (1976). Where, as here, there is a protectable privacy interest, the agency must weigh that
privacy interest against the public interest in disclosure, if any. See Reed, 927 F.2d at 1251. For
example, in Voinche, 940 F. Supp. 323, the FBI relied on Exemption 6 to withhold certain
information that would have identified certain special agents of the FBI and certain other federal
employees. Finding “no reason to believe that the public [would] obtain a better understanding
of the workings of various agencies” by learning the identities of the individuals to whom the
information pertained, the court held that the release of the information “would serve no
articulable public interest.” Id. at 330. Accordingly, the court upheld “the defendant’s assertion
of Exemption 6 in order to protect the privacy interests of the individuals at issue.” Id.
In this instance, the NIGC is shielding the names of NIGC investigative and enforcement
personnel who are working on pending investigations and the names of citizens who have
stepped forward to provide the NIGC with investigative information. McCoy Decl. ¶¶ 30-31.
The safety of agency personnel and of informants could be endangered if their identities were
16
disclosed. Id. ¶ 30. Conversely, just as in Voinche, there is no basis for believing that public
would obtain a better understanding of the working of any government agency by knowing the
names of the individuals involved. The use of Exemption 6 to protect this personal information
is therefore appropriate.
IV. Four of the Withheld Documents Are Inter- or Intra-Agency Communications that
Are Exempt from Disclosure Pursuant to Exemption 5
memorandums or letters which would not be available by law to a party . . . in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Such a record is exempt from disclosure if it would be “normally
privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975). Accordingly, Exemption 5 thus incorporates the privileges that are available to an
agency in civil litigation, the three principal ones being the deliberative process privilege, the
attorney-client privilege, and the attorney work product privilege. See id. at 148-49. The first of
these – the deliberative process privilege – protects four of the documents being withheld in this
case.
The purpose of the deliberative process privilege is to encourage frank discussion of legal
and policy issues within the government, and to protect against public confusion resulting from
disclosure of reasons and rationales that were not ultimately the bases for the agency’s action.
See, e.g., Mapother, 3 F.3d at 1537; Russell v. Department of the Air Force, 682 F.2d 1045, 1048
(D.C. Cir. 1982); Montrose Chemical Corp. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974). The
17
proposals, suggestions, and other subjective documents which reflect the personal opinions of the
writer rather than the policy of the agency.’” Mead Data Cent., Inc. v. United States Dep’t of the
Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (quoting Coastal States Gas Corp. v. U.S. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege has been held to apply to
recommendations, see Sears, 421 U.S. at 150, and to drafts. See Dudman Communications Corp.
v. Department of the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987); City of Virginia Beach v.
United States Dep’t of Commerce, 995 F.2d 1438, 1247, 1253 (4th Cir. 1993); Town of Norfolk
v. United States Corps of Engineers, 968 F.2d 1438, 1458 (1st Cir. 1992).
The records in this case qualify under the relevant criteria. First, the documents qualify as
communications of agency officials that were between and among agency officials and were not
shared outside the agencies. See McCoy Decl. ¶ 26. Second, the documents all reflect
Informants are entitled to the protection of 5 U.S.C. § 552(b)(7)(D), which permits the
withholding or redacting of law enforcement records the release of which “could reasonably be
expected to disclose the identity of a confidential source . . . and, in the case of a record or
Exemption 7(D) is an absolute protection which requires no balancing of public and private
interests. See Dow Jones & Co. v. United States Dep’t of Justice, 917 F.2d 571, 575-76 (D.C.
Cir. 1990).
18
Exemption 7(D) applies if the agency establishes that a source has provided information
under either an express or implied promise of confidentiality. See Williams v. FBI, 69 F.3d
1155, 1159 (D.C. Cir. 1995). A confidential source is one who “provided information under an
reasonably inferred.” United States Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993)
(internal quotation and citation omitted). The document listed as Vaughn Index #1 contains the
name of such a confidential source, see McCoy Decl. ¶ 40, and this information is exempt from
CONCLUSION
For the foregoing reasons, the United States’ motion for summary judgment should be
granted.
KENNETH L. WAINSTEIN
United States Attorney
/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
20 Massachusetts Ave., N.W., Room 6140
Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470
19
Of Counsel:
Andrea Lord
Staff Attorney
National Indian Gaming Commission
20
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[proposed] Order
Upon reviewing Defendant National Indian Gaming Commission’s motion for summary
judgment, the materials submitted in support thereof and in opposition thereto, it is hereby
Pursuant to this Court's Local Civil Rule 7(h) and Local Civil Rule 56.1, Defendant
National Indian Gaming Commission (“NIGC”) hereby submits the following statement of
1. By letter dated March 18, 2005, McCoy Decl., ¶ 13; Compl. Ex. N.
2. By letter dated March 22, 2005, the McCoy Decl., ¶ 14; Compl. Ex. O.
plaintiff's request.
3. By letter dated May 9, 2005, NIGC McCoy Decl., ¶ 19, Exhibit A.
4. By letter dated May 10, 2005, NIGC McCoy Decl., ¶ 16, Exhibit B.
request.
5. In its May 10, 2005 letter, the NIGC McCoy Decl., ¶ 16, Exhibit B.
interpretation.
-2-
6. By letter dated May 19, 2005, NIGC McCoy Decl., ¶ 22, Exhibit C.
pages.
-3-
9. NIGC claims Exemption 7(A) with McCoy Decl., ¶ 22.
tribes.
-4-
12. NIGC is claiming Exemptions 6 and McCoy Decl. at ¶ 22.
documents.
concerns.
documents.
-5-
16. The four documents being withheld McCoy Decl. at ¶ 26.
federal agencies.
decisional cogitations.
investigation.
-6-
23. NIGC is claiming Exemption 7(D) McCoy Decl. ¶ 40.
25. NIGC and other federal agencies will McCoy Decl. ¶ 41.
if guarantees of protection of
-7-
Dated: September 12, 2005 Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General
KENNETH L. WAINSTEIN
United States Attorney
/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
20 Massachusetts Ave., N.W., Room 6140
Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470
Of Counsel:
Andrea Lord
Staff Attorney
National Indian Gaming Commission
-8-