UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________
                                             
PAUL WOLF,                                  
                                            Plaintiff,
                                                      
          v.                                              
                                                      
CENTRAL INTELLIGENCE AGENCY,  et. al.   
                                             
                                            
                                            Defendants.
____________________________________________


Civ. No. 01-0729 (PLF)

FEDERAL BUREAU OF INVESTIGATION'S
MOTION FOR SUMMARY JUDGMENT

The Federal Bureau of Investigation ("FBI"), Department of Justice ("DOJ"), by and through the United States Attorney for the District of Columbia respectfully moves this Court for summary judgment on the grounds that there are no material facts in dispute and that the defendant is entitled to judgment in its favor as a matter of law. Fed. R. Civ. P. 56. In support of its motion for summary judgment the defendant submits a Memorandum of Points and Authorities, a Statement of Material Facts Not hi Dispute, and the Declaration of Scott A. Hodes, Acting Chief of the Litigation Unit, Freedom of Information-Privacy Act ("FOIPA") Section, Office of Public and Congressional Affairs with the FBI, DOJ, (Exhibit A attached hereto), with attached exhibits.


Respectfully Submitted,


KENNETH L. WAINSTEIN, D.C. Bar #
United States Attorney


MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney


DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
(202) 514-7205


STEPHANIE M. BOUCHER
Lead Paralegal

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________
                                                                                        )
PAUL WOLF,                                                                 )
                                            Plaintiff,                                )
                                                                                        )
          v.                                                                           )         Civ. No. 01-0729 (PLF)
                                                                                        )
CENTRAL INTELLIGENCE AGENCY,  et. al.             )
                                                                                        )
                                                                                        )
                                            Defendants.                          )
____________________________________________)

FEDERAL BUREAU OF INVESTIGATION'S
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE

The Federal Bureau of Investigation ("FBI") submits this statement of material facts as to which there is no genuine dispute in accordance with Local Rule 7.1(h). The attached declaration of Scott A. Hodes, Acting Unit Chief, Freedom of Information-Privacy Acts ("FOIPA") Section, Office of Public and Congressional Affairs, FBI Headquarters ("FBIHQ"), Department of Justice ("DOJ") (Exhibit A attached hereto), support this statement.

1 . By letter dated October 27, 2000, plaintiff requested from FBIHQ information pertaining to Jorge Eliecer Gaitan. (Declaration of Scott A. Hodes ("Hodes Decl.") ¶ 4a.)

2. On November 6, 2000, FBIHQ i nformed plaintiff that in order for the FBI to provide the requested information, he must submit either a proof of death or privacy waiver. (Hodes Decl. ¶ 4b.)

3. By letter dated November 12, 2000, plaintiff provided the requested proof of death to FBIHQ. (Hodes Decl. ¶ 4c.)

4. By letter dated December 5, 2000, FBIHQ acknowledged receipt of the proof of death. (Hodes Decl. ¶ 4d.)

5. By letter dated May 8, 2001, FBIHQ forwarded to plaintiff 14 pages of documents responsive to his request. (Hodes Decl. ¶ 4e.) In this letter, FBIHQ also informed plaintiff that information had been withheld pursuant to 5 U.S.C. §552(b)(2), (b)(7)(C) and (b)(7)(D). (Id.) Additionally, plaintiff was advised of his administrative appeal rights and of the fact that information originating with another agency had been referred to that agency for a direct response. (Id.)

6. By letter dated June 12, 2001, FBIHQ furnished plaintiff with copies of HQ main file documents that had been re reviewed. (Hodes Decl. ¶ 4f.) The re-review resulted in plaintiff receiving an additional three pages released in their entirety and four pages with additional released information. (Id.)


Respectfully Submitted,


KENNETH L. WAINSTEIN, D.C. Bar #
United States Attorney


MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney


DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
(202) 514-7205


STEPHANIE M. BOUCHER
Lead Paralegal

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________
                                                                                        )
PAUL WOLF,                                                                 )
                                            Plaintiff,                                )
                                                                                        )
          v.                                                                           )         Civ. No. 01-0729 (PLF)
                                                                                        )
CENTRAL INTELLIGENCE AGENCY,  et. al.             )
                                                                                        )
                                                                                        )
                                            Defendants.                          )
____________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF FEDERAL BUREAU OF INVESTIGATION'S
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION

This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the, and pertains to the processing of plaintiff s FOIA request by the Federal Bureau of Investigations ("FBI"), Department of Justice ("DOJ"). The attached declaration of Scott A. Hodes, Acting Unit Chief, Freedom of Information-Privacy Acts ("FOIPA") Section, Office of Public and Congressional Affairs, FBI Headquarters ("FBIHQ"), (Exhibit A attached hereto) sets forth FBI's response to plaintiff s FOIA request.

Factual and Procedural Background

By letter dated October 27, 2000, plaintiff requested from FBIHQ information pertaining to Jorge Eliecer Gaitan. (Declaration of Scott A. Hodes ("Hodes Decl.") ¶ 4a.) On November 6, 2000, FBIHQ informed plaintiff that in order for the FBI to provide the requested information, he must submit either a proof of death or privacy waiver. (Id. ¶ 4b.). By letter dated November 12, 2000, plaintiff provided the requested proof of death to FBIHQ. (Id. ¶ 4c.) By letter dated December 5, 2000, FBIHQ acknowledged receipt of the proof of death. (Id. ¶ 4d.)

By letter dated May 8, 2001, FBIHQ forwarded to plaintiff 14 pages of documents responsive to his request. (Hodes Decl. ¶ 4e.) In the May 8, 2001 letter, FBIHQ also informed plaintiff that information had been withheld pursuant to 5 U.S.C. §552(b)(2), (b)(7)(C) and (b)(7)(D). (Id.) Additionally, plaintiff was advised of his administrative appeal rights and of the fact that information originating with the Department of State ("DOS") had been referred to DOS for a direct response. (Id. ¶ 4f. ) By letter dated June 12, 2001, FBIHQ furnished plaintiff with copies of HQ main file documents that had been re-reviewed. (Id. ¶ 4f.) The re-review resulted in plaintiff receiving an additional three pages released in their entirety and four pages with additional released information. (Id.)

In sum, the FBI has properly responded to plaintiff s FOIA request and has provided plaintiff with all of the reasonably segregable nonexempt information originating with the FBI and has referred all documents originating with DOS to DOS for a direct response to plaintiff.

ARGUMENT

1. FBI Is Entitled to Summary Judgment

A. Standard for Summary Judgment

FOIA cases are typically decided on motions for summary judgment. See Cappabianca v. Commissioner, U.S. Customs Serv., 847 F. Supp. 1558, 1562 (M.D. Fla. 1994) ("once documents in issue are properly identified, FOIA cases should be handled on motions for summary judgment") (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993)). ¹ To be entitled to summary judgment, the agency must prove that each document was produced, not withheld, is unidentifiable, or is exempt from disclosure. Weisberg v. U.S. Dept. of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, the defendant may rely on affidavits or declarations and other evidence by the agency which show that the documents are exempt from disclosure. Hayden v. National Security Agency Cent. Sec. Serv., 608 F.2d 1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v. U.S. Dept. of Army 611 F.2d 738, 742 (9th Cir. 1980). Summary Judgment maybe granted solely on the basis of agency affidavits [or declarations] if they "contain reasonably detailed descriptions of the documents and allege facts sufficient to establish that the documents are within the FOIA exemption category; the district court need look no further." Citizens Commission on Human Rights v. FDA, 45 F.3d at 1329; Bowen v. FDA, 925 F.2d 1224, 1227 (9th Cir. 1991); Military Audit Project v. Casey 656 F.2d 724, 738 (D.C. Cir. 1981).

These declarations or affidavits (singly or collectively) are often referred to as a Vaughn index, after the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564 (1974). There is no set formula for a Vaughn index. "[I]t is well established that the critical, elements of the Vaughn index lie in its function, and not in its form." Kay v. FCC, 976 F.Supp. 23, 35 (D.D.C. 1997). "The materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege." Delaney, Midgail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987). "A Vaughn index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption." Citizens Commission on Human Rights, 45 F.3d at 1326. "All that is required, and that is the least that is required, is that the requester and the trial judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." Id. "The degree of specificity of itemization, justification, and correlation required in a particular case will, however, depend on the nature of the document at issue and the particular exemption asserted." Information Acquisition Corp. v. Dept. of Justice, 444 F.Supp. 458, 462 (D.D.C. 1978).

The declaration prepared in this matter was prepared by Scott A. Hodes, Acting Unit Chief, FOIPA Section, Office of Public and Congressional Affairs, FBIHQ. Due to the nature of his duties in his capacity as Acting Unit Chief, Mr. Hodes is familiar with the steps taken by the FBI in responding to plaintiff s FOIA request. (Hodes Decl. ¶ 2.) Mr. Hodes' declaration provides the Court with the requisite background information pertaining to the steps taken by the FBI in responding to plaintiff s FOIA request, as well as the application and justification of Exemptions under the FOIA.

"Summary judgment is available to the defendant in a FOIA case, when the agency proves that it has fully discharged its obligations under FOIA." Miller v. U.S. Dept. of State, 779 F.2d 1378, 1382 (8th Cir. 1985.) Agencies establish that all of their obligations under the FOIA have been met through declarations and Vaughn indexes. Thus, when the pleadings, supplemented by affidavits or declarations, show no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law, summary judgment should be granted to the defendant. Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982).

B. FBI Conducted An Adequate Search

In responding to a FOIA request an agency is under a duty to conduct a reasonable search for responsive records. Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Cleary, Gottlieb, Steen & Hamilton v. Dept. of Health, et al., 844 F. Supp. 770, 776 (D.D.C. 1993); Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1352 (D.C. Cir. 1983). This " reasonableness" standard focuses on the method of the search, not its results, so that a search is not unreasonable simply because it falls to produce relevant material. Weisberg, 844 F.Supp. at 777 n.4.

The search standards under the FOIA, do not place upon the agency a requirement that it prove that all responsive documents have been located. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). It has been held that ... the search need only be reasonable; it does not have to be exhaustive."' Miller, 779 F.2d at 13 83 (citing National Cable Television Association v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973.)) An agency is not required to search every record system, but need only search those systems in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68. Even when a requested document indisputably exists or once existed, summary judgment will not be defeated by an unsuccessful search for the document so long as the search was diligent. Nation Magazine, 71 F.3d at 892 n.7. Additionally, the mere fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it. Maynard v. CIA, 982 F.2d 546, 564 (1 st Cir. 1993). Simply stated, the adequacy of the search is "dependent upon the circumstances of the case." Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The fundamental question is not "whether there might exist any other documents responsive to the request, but rather whether the search for those documents was adequate." Steinberg v. Dept. of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).

The burden rests with the agency to establish that it has "made 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, 920 F.2d at 68; see SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 199 1). "An agency may prove the reasonableness of its search through affidavits of responsible agency officials so long as the affidavits are relatively detailed, non-conclusory and submitted in good faith." Miller, 779 F.2d at 1383; Goland, 607 F.2d at 352. Though the "affidavits submitted by an agency are 'accorded a presumption of good faith,"' Carney v. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994), cert. denied, 513 U.S. 823 (1994) (quoting SafeCard, 926 F.2d at 1200), the burden rests with the agency to demonstrate the adequacy of its search. Once the agency has met this burden through a show of convincing evidence, then the burden shifts to the requester to rebut the evidence by a showing of bad faith on the part of the agency. Miller, 779 F.2d at 1383. It is insufficient for a requester to attempt to rebut agency affidavits with purely speculative claims. See Carney, 19 F.3d at 813; SafeCard, 926 at 1200; Maynard v. CIA, 98?6 F.2d at 559-560.

The FBIHQ's method of searching for materials responsive to a FOIA request involves the use of its Central Records System ("CRS") which contains administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes. ² (Hodes Decl. ¶ 5.) The CRS system consists of a numerical sequence of files broken down according to subject matter. (Id.) The subject matter of a file may relate to an individual, organization, company, publication, activity, or foreign intelligence matter. (Id.)

The FBIHQ and each field division accesses the CRS through the General Indices, which are arranged in alphabetical order and consist of an index on various subjects, including the names of individuals and organizations. (Hodes Decl. ¶ 6.) These indices to the CRS are the means by which the FBI can determine what retrievable information, if any, the FBI may have in its CRS files on a particular subject matter. (Id.) An index reference falls into two general categories: (1) a main index reference; and (2) a cross reference index reference. (Id.) A main index reference carries the name of the individual, organization, activity or the like, which is the main subject of a file maintained in the system. (Id.) A cross reference index reference contains only a mention of or reference to an individual or organization which is located in the body of a communication in a file concerning the investigation of another individual, organization or event. (Id.)

On October 16, 1995, the Automated Case Support ("ACS") was implemented for all Field Offices, Legal Attaches and FBIHQ. (Hodes Decl. ¶ 7.) Over 105 million records were converted from previously utilized automated systems. (Id.) ACS consists of three automated applications that are utilized to support case management functions for all FBI investigative and administrative cases. (Id. ¶¶ 7a-c.) The first function is the Investigative Case Management ("ICM") which provides the ability to open, assign, and close investigative and administrative cases, as well as to set, assign and track leads. (Id. ¶ 7a.) The second function is the Electronic Case File ("ECF") which serves as the central electronic repository for the FBI's official text based documents. (Id. ¶ 7b.) The third function of ACS is the Universal Index ("Ul") which permits the continuation of the "universal" concept of ACS by providing a complete subject/case index to all investigative and administrative cases. (Id. ¶ 7c.)

As a result of a search of the indices of the CRS at FBIHQ, FBIHQ located one main file, HQ 109-317. (Hodes Decl. ¶ 8.) File HQ 109-317 is a control file utilized by FBIHQ as a repository for foreign intelligence information of value concerning the Fascist political activities of Jorge Eliecer Gaitan in Columbia and the FBI's investigation of Mr. Gaitan. (See, foot note 1 and ¶ 8 of the Hodes Decl.) This file consisted of 17 pages. (Id.) The FBIHQ released 14 of the 17 pages to plaintiff. (Id.) The remaining three pages were referred to the U.S. Department of State for a direct response to the plaintiff. (Id.) The material in HQ 109-317 was reexamined and again released to plaintiff on June 12, 2001 with additional information being provided to plaintiff. (Id. ¶ 9.)

The FBI has adequately explained the systems in which it maintains records and the search undertaken to locate records responsive to plaintiffs request. The search was undertaken in the location most likely to provide all responsive records. The affidavit is detailed in nature and provides an adequate description of the procedures followed by the FBI in searching for documents responsive to plaintiff's FOIA request. Thus, the FBI has demonstrated that it's search was thorough and in compliance with the dictates of FOIA.

C. FBI Properly Applied Exemption 2

Title 5, United States Code, Section 552 (b)(2) (hereinafter Exemption 2) exempts from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Exemption 2 applies primarily to two types of materials: (1) internal agency matters so routine or trivial that they could not be "subject to ... a genuine and significant public interest;" and (2) internal agency matters of some public interest "where disclosure may risk circumvention" of statutes or agency regulations. Dept. of Air Force v. Rose, 425 U.S. 352, 369-70 (1976); National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 528-30 (D.C. Cir. 1986); Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1073-74 (D.C. CIR. 1981). Depending upon the nature of the information, documents will fall within either the "high (b)(2) category" or the "low (b)(2) category."

Exemption "high (b)(2)" exempts from mandatory disclosure documents relating to more substantive internal matters. See Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). Withholding is permitted in this category to the extent that disclosure would reveal techniques and procedures for law enforcement investigations or prosecutions, Id., would disclose guidelines for law enforcement investigations, or would risk circumvention of an agency statute or impede the effectiveness of an agency's law enforcement activities. See Crooker, 670 F.2d 1051 (D.C. Cir. 1981) (en banc); Hardy v. ATF, 631 F.2d 653, 656 (9th Cir. 1980).

"Low (b)(2)" information refers to internal procedures and practices of an agency, where disclosure would constitute an administrative burden unjustified by any genuine and significant public benefit. Martin v. Lauer, 686 F.2d 24, 34 (D.C. Cir. 1982). "Low b(2)" information can be protected only if the information qualifies as a personnel rule or internal practice of an agency or is sufficiently related to such a rule or practice. See Schwaner v. Dept. of the Air Force, 898 F.2d 793, 795 (D.C. Cir. 1990). Thus, trivial administrative data, such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings are exempt from disclosure. The notion behind this reasoning is that administrative agencies should not be burdened by responding to requests for trivial information unlikely to be the subject of public interest. Martin v. Lauer, 686 F.2d at 34.

Deference has been accorded law enforcement matters under Exemption 2. Courts have interpreted this to apply to a wide range of information, including the withholding of permanent confidential source symbol numbers and confidential informant file numbers by the FBI. These internal symbols serve as the mechanism by which the FBI conceals the true identities of its informants and are only a matter of internal significance. Lesar v. U.S. Dept. of Justice, 636 F.2d 472, 486 (D.C. Cir. 1980). Since, there is no genuine public interest in the release of these codes and because release would damage the FBI's ability to carry out its law enforcement duties, the permanent confidential informant codes fall squarely within the protection of Exemption 2. See Lesar, 636 F.2d 472 (D.C. Cir. 1980); Crooker, 670 F.2d 1051 (D.C. Cir. 198 1) (en banc); Delviscovo v. FBI, et al., 903 F.Supp. 1 (D.D.C. 1995); Pray v. Dept. of Justice, et al., 902 F.Supp. I (D.D.C. 1995).

In this matter the FBI applied Exemption 2 to withhold informant symbol numbers 3 assigned to four human confidential sources on page 13. (Hodes Decl. ¶ 14.) Permanent symbol source numbers are assigned as an administrative aid to facilitate the flow and filing of correspondence concerning information either received from a particular human confidential source who reports information to the FBI on a regular basis pursuant to an express grant of confidentiality or non-human technical source reporting information on a specific activity, person or establishment. (Id.) These internal numbers are unique to the source and are sequentially assigned to either a human or non-human source. (Id.) The symbol number is used as an administrative reporting tool to protect the actual identity of an informant. (Id.)

Since each symbol number is assigned to only one informant, protection of this information is necessary not only to facilitate the administration of the FBI's use of confidential informants, but also to ensure the safety of the individual confidential source. Release of a symbol number would indicate both the scope and the location of the FBI informant coverage utilized by the Bogota, Columbia office during the time frame of the documents. (Hodes Decl. ¶ 15.) Release of information in which the symbol number is disclosed would reveal connections of the confidential informant to dates, times, places, events and names from which the identity of the confidential informant could be determined. (Id. ¶ 16.)

Thus, the FBI properly applied Exemption 2 to withhold the source symbol numbers on page 13.

D. FBI Properly Applied Exemption 7(C)

The FOIA does not apply to matters that are:

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy....

This exemption protects the identities of suspects and other persons of investigatory interest who are identified in agency records in connection with law enforcement investigations. Reporters Comm. for Freedom of the Press, 489 U.S. 136, 780 (1980); Computer Prof'ls for Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996). Indeed, an agency in a FOIA case may categorically assert Exemption 7(C) to protect the identities of witnesses or other persons mentioned in law enforcement files in such a way as to associate them with criminal activity. Reporters Comm. for Freedom of the Press, 489 U.S. at 780; Nation Magazine, 71 F.3d at 893, 895-896; SafeCard, 926 F.2d at 1206.

The names of law enforcement officers who work on criminal investigations have also traditionally been protected against release by Exemption 7(C). Davis v. U.S. Dept. of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992); Lesar v. U.S. Dept. of Justice, 636 F.2d 472, 487-488 (D.C. Cir. 1980). Similarly, individuals who provide information to law enforcement authorities, like the law enforcement personnel themselves, have protectable privacy interests in their anonymity. Computer Prof Is for Social Responsibility, 72 F.3d at 904; Farese v. U.S. Dept. of Justice, 683 F. Supp. 273, 275 (D.D.C. 1987). The fact that the requester might be able to figure out the individuals' identities through other means or that their identities have been disclosed elsewhere does not diminish their privacy interests. Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990); Weisberg, 745 F.2d at 1491.

Once a privacy interest has been established, as here, it must be balanced against the public interest, if there is any, that would be served by disclosure. Albuquerque Publ'g Co. v. Dot. of Justice, 726 F. Supp.851, 855 (D.D.C. 1989). As with Exemption (b)(6), the public interest in disclosure is limited to the FOIA's "core purpose" of shedding light on an agency's performance of its statutory duties. Reporters Comm. for Freedom of the Press, 489 U.S. at 773. This standard is not easily satisfied when law enforcement information pertaining to individuals is sought, for there "is no reasonably conceivable way in which the release of one individual's name ... would allow citizens to know 'what their government is up to."' Fitzgibbon, 911 F.2d at 768. See also Albuquerque Publ'g Co., 726 F. Supp. at 855-56 (no public interest in disclosure of sensitive information DEA obtained about individuals and their activities, where such material would not shed light on DEA's conduct with respect to the investigation). Furthermore, the requester must not only demonstrate the existence of the public interest but also that the public interest is both significant and compelling in order to overcome legitimate privacy interests. Perrone v. FBI, 908 F.Supp. 24, 26 (D.D.C. 1995) (citing, Senate of Puerto Rico, 823 F.2d at 588); Stone v. FBI, 727 F. Supp. 662, 667-69 (D.D.C. 1990).

The FBI asserted Exemption 7(C) to protect two subcategories of information: (1) names and/or identifying data pertaining to FBI Special Agents; and (2) names and identifying information relating to third parties merely mentioned in FBI files. (See Hodes Decl. ¶¶ 19-23.)

In subcategory (b)(7)(C)-1, the FBI asserted Exemption 7(C) to withhold the names of five FBI Special Agents ⁵ who were responsible for conducting, supervising and/or maintaining the investigative activities reported involving Jorge Eliecer Gaitan. (Hodes Decl. ¶ 19.) The names were withheld from pages 1, 2 and 15. (Id.) Special Agent assignment to any particular investigation is not by choice and any type of publicity concerning a particular investigation may seriously prejudice the effectiveness in conducting future investigations. (Id.) The privacy consideration is also to protect FBI Agents, as individuals, from unnecessary, unofficial questioning as to the conduct of an investigation whether or not they are currently employed by the FBI. (Id.) FBI agents conduct official inquiries into violations of various criminal statutes and in national security cases. (Id.) The publicity associated with the release of an FBI Agent's identity in connection with a particular law enforcement investigation could jeopardize the safety of the Agent. (Id.) Balanced against the privacy interests of the FBI Special Agents is the lack of any bonafide public interest in disclosure. (Id. ¶ 20.)

In subcategory (b)(7)(C)-2 the FBI applied Exemption 7(C) to withhold the names and purely personal information pertaining to individuals mentioned on page 7. (Hodes Decl. ¶ 21.) This information relates to the criminal activities of one individual and the medical information of another individual. (Id.) None of the withheld information relates to the political activities of Jorge Eliecer Gaitan. (Id.) The individuals to whom this information pertains have a fundamental interest in keeping this information private. (Id. ¶ 22.) Release of this information would constitute an unwarranted invasion of personal privacy and can only be accomplished through the submission of a notarized authorization or a demonstration that the public interest in disclosure is both significant and compelling. (See Hodes Decl. ¶¶ 22, 23.)

The FBI has adequately demonstrated that it properly withheld the names of five FBI Special Agents and two individuals merely mentioned in FBI files. The FBI balanced the privacy interests of the individuals involved against the public's interest in disclosure and determined that there was no public interest to be served by the release of the information at issue. (See Hodes Decl. ¶¶ 18, 19, 20, 21, 22, 23.)

E. FBI Properly Applied Exemption 7D

Title 5, United States Code, § 552 (b)(7)(D) (hereinafter Exemption 7(D)), exempts from disclosure material that:

could reasonably be expected to disclose the identity of a confidential source including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.

Exemption 7(D) recognizes that information furnished by third parties cooperating with Federal, state or local law enforcement investigations is, by its very nature, confidential. Significantly, the statute affords protection from disclosure to all the information furnished by third-party sources, as well as the actual identity of the cooperating individual, if there has been an explicit assurance of confidentiality, or circumstances exist from which such an assurance could reasonably be inferred. U.S. Dept. of Justice v. Landano, 508 U.S. 165 (1993).

This exemption recognizes the distinct likelihood that the identity of a source may often be determined from an analysis of the information furnished by the source himself Indeed, this becomes more inevitable when the analysis is made by a person familiar with the facts and circumstances on which the investigation was predicated. Thus, to disclose the identity of a cooperating individual under such circumstances could be more than an unwarranted invasion of his privacy; it would breach the confidentiality under which he cooperated.

The Landano Court acknowledged that "[t]here may ... be ... generic circumstances in which an implied assurance of confidentiality fairly can be inferred." Landano, 508 U.S. at 181. The Court should take into consideration the informant's relation to the crime and the character of the crime for which information has been provided in determining implied grants of confidentiality. Since Landano, the courts have identified various crimes which warrant an implied assurance of confidentiality.

In this matter the FBI applied Exemption 7D to withhold four symbol numbers and the symbol source numbers of four confidential informants. (Hodes Decl. ¶ 26.) These individuals are informants in the common meaning of the term and are not merely cooperative citizens. (Id.) These individuals provided information relating to national security and/or subversive matters to the FBI on a regular basis., (Id.) Such confidential sources provide information to the FBI with the express understanding that the FBI will protect their identities. (Id.) Due to their cooperation with the FBI these individuals were placed directly in positions that could subject them to acts of reprisal, harassment or unnecessary public attention if their links to the FBI were disclosed. (Id. ¶ 28.)

The FBI uses symbol source numbers to assist in the administrative protection of the identities of confidential informants. (Hodes Decl. ¶ 27.) The symbol source numbers are assigned sequentially and are usually prefixed with the geographic location of the field office of the FBI where the informant was developed and/or operated. (Id.) The symbol number designation can also include other prefixes that indicate the type of investigation or information furnished by a specific source. (Id.) Thus, the release of this information could not only result in the revelation of the identity of the confidential source, but would also reveal the scope of the FBI's informant coverage in Bogota, Columbia. (Id.) Thus, the FBI properly withheld the confidential source symbol numbers

F. FBI Properly Evaluated Documents for Segregability.

The Court of Appeals for the District of Columbia Circuit has held that a District Court considering a FOIA action has "an affirmative duty to consider the segregability issue sua sponte." Trans-Pacific Policing Agreement v. U.S. Customs Service, 177 F.3d 1022, 1028 (D.C. Cir. 1999). The FOIA requires that if a record contains information that is exempt from disclosure, any "reasonably segregable" information must be disclosed after deletion of the exempt information unless the non-exempt portions are "inextricably intertwined with exempt portions." 5 U.S.C. § 552(b); Mead Data Cent., Inc. v. U.S. Dept. of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

In order to demonstrate that all reasonably segregable material has been released, the agency must provide a "detailed justification" rather than "conclusory statements." Mead Data, 566 F.2d at 261. The agency is not, however, required "to provide such a detailed justification" that the exempt material would effectively be disclosed. Id. All that is required is that the government show "with 'reasonable specificity... why a document cannot be further segregated. Armstrong.v. Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover, the agency is not required to "commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content." Mead Data, 566 F.2d at 261, n.55.

In this case, FBI has demonstrated with reasonable specificity that all reasonably segregable information has been released. All substantive information concerning Jorge Eliecer Gaitan has been released unless such release would disclose internal agency procedure, infringe upon the privacy of a third party, or reveal a confidential informant.

CONCLUSION

The defendant has demonstrated that the FBI properly responded to plaintiff s FOIA request and that no information was improperly withheld. Accordingly, the Court should grant defendant's renewed motion for summary judgment.

¹ For purposes of summary judgment, an agency's decision to withhold information from a FOIA requester is subject to de novo review by the courts. Hayden, 608 F.2d at 1384.

² Certain records in this system are maintained at FBIHQ. Records which are pertinent to specific field offices are maintained in those field offices. (Id. ¶ 5.)

³ The FBI also applied Exemption b(7)(D) to withhold the identity of the four human informants on page 13.

⁴ If an FBI Agent was known to be deceased his name was released. (Hodes Decl. ¶ 19.)




Respectfully Submitted,


KENNETH L. WAINSTEIN, D.C. Bar #
United States Attorney


MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney


DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
(202) 514-7205


STEPHANIE M. BOUCHER
Lead Paralegal

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________
                                                                                        )
PAUL WOLF,                                                                 )
                                            Plaintiff,                                )
                                                                                        )
          v.                                                                           )         Civ. No. 01-0729 (PLF)
                                                                                        )
CENTRAL INTELLIGENCE AGENCY,  et. al.             )
                                                                                        )
                                                                                        )
                                            Defendants.                          )
____________________________________________)

DECLARATION OF SCOTT A. HODES

I, Scott A. Hodes, declare as follows:

(1) I am an Attorney of the Federal Bureau of Investigation (FBI) and am currently assigned as the Acting Chief in the Litigation Unit, Freedom of Information-Privacy Acts (FOIPA) Section, Office of Public and Congressional Affairs at FBI Headquarters (FBIHQ) in Washington, D.C.

(2) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its files pursuant to the provisions of 5 U.S.C. § 552, commonly known as the Freedom of Information Act (FOIA), and 5 U.S.C. § 532a, commonly known as the Privacy Act of 1974. Specifically, I am aware of the treatment which has been afforded the request of Paul Wolf for access to FBI records concerning Jorge Eliecer Gaitan.

(3) The purpose of this declaration is to provide an explanation of the procedures used in handling and processing the documents responsive to plaintiff's request, as well as a justification for the withholding of certain information from plaintiff.

CORRESPONDENCE RELATING TO PLAINTIFF'S REQUEST

(4) Set forth below are the communications pertaining to plaintiff's request. (True copies are attached as Exhibits A - F.)

(a) By letter dated October 27, 2000 to FBIHQ, plaintiff requested information pertaining to Jorge Eliecer Gaitan. (See Exhibit A)

(b) On November 6, 2000, FBIHQ informed plaintiff that he must submit either proof of death or a privacy waiver before his request will be honored. (See Exhibit B)

(c) By letter dated November 12, 2000, plaintiff submitted proof of death to FBIHQ. (See Exhibit C)

(d) FBIHQ acknowledged receipt of the proof of death information furnished by plaintiff by letter dated December 5, 2000. (See Exhibit D)

(e) By letter dated May 8, 2001, FBIHQ released 14 pages of documents responsive to plaintiff's request citing 5 U.S.C. § 552(b)(2), (b)(7)(C) and (b)(7)(D) for withheld information, and advising that information had been referred to another Government agency for direct response. Plaintiff was additionally advised of his administrative appeal rights. (See Exhibit E)

(f) By letter dated June 12, 2001, FBIHQ furnished plaintiff HQ main file documents that had been re-reviewed. As part of this release, plaintiff was provided three additional pages released in full and four pages with more information. The individual pages are sequentially numbered from 1-17. Pages 15-17 had been previously referred to the U.S. Department of State for direct response to plaintiff. The documents released contained coded categories, on their faces. A chart was enclosed describing the statutory exemptions asserted and the coded categories describing the subject matter for each particular deletion. (See Exhibit F)

EXPLANATION OF THE CENTRAL RECORDS SYSTEM

(5) The Central Records System (CRS) utilized by the FBI enables it to maintain all pertinent information which it has acquired in the course of fulfilling mandated law enforcement responsibilities. The records maintained in this CRS consist of administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes. This system consists of a numerical sequence of files broken down according to subject matter. The subject matter of a file may relate to an individual, organization, company, publication, activity, or foreign intelligence matter. Certain records in this system are maintained at FBIHQ. Records which are pertinent to specific field offices are maintained in those field offices.

(6) Through the General Indices, the FBIHQ and each field division can access the CRS. The General Indices are arranged in alphabetical order and consist of an index on various subjects, including the names of individuals and organizations. only information considered pertinent, relevant or essential for future retrieval is indexed. Without a "key" (index) to this mass of information, information essential to ongoing investigations could not be readily retrieved. The FBI files would thus be merely archival in nature and could not effectively be used to serve the mandated mission of the FBI, which is to investigate violations of federal criminal statutes. Therefore, the General Indices to the CRS files are the means by which the FBI can determine what retrievable information, if any, the FBI may have in its CRS files on a particular subject matter. Communications directed to FBIHQ from the various field offices and Legal Attaches (Legats) are filed in the pertinent case files and indexed to the names of individuals, groups or organizations which are listed in the case caption(s) or title(s) as subject(s), suspect(s) or victim(s). Thereafter, searches made in this index to locate records concerning particular subjects are made by searching the name of the subject requested in the index. An index reference falls into two general categories: a "main" index reference and a "cross-reference" index reference. A "main" index reference carries the name of an individual, organization, activity or the like, which is the main subject of a file maintained in the system. A "cross reference" index reference contains only a mention or reference to an individual or organization which is located in the body of a communication in a file concerning the investigation of another individual, organization, or event.

(7) on October 16, 1995, the Automated Case Support (ACS) was implemented for all Field Offices, Legal Attaches and FBIHQ. More than 105 million records were converted from automated systems previously utilized by the FBI. ACS consists of the following three automated applications that support case management functions for all FBI investigative and administrative cases:

(a) Investigative Case Management (ICM) - ICM provides the ability to open, assign, and close investigative and administrative cases as well as to set, assign and track leads. A case is opened by the Office of Origin (00), which sets leads for itself and other field offices, as needed. The offices that receive the leads are referred to as Lead Offices, formerly known as Auxiliary Offices. When a case is opened, it is assigned a Universal Case File Number (UCFN), which is utilized by FBIHQ and all offices that are conducting or assisting in the investigation. Using file number "9-BA-1234" as an example, an explanation of the UCFN is set forth: "9" indicates the classification for that specific type of investigation. "BA" is the abbreviated form used for the Office of Origin of the investigation, which in this case is the FBI's Baltimore Field Office. "1234" indicates the individual case number for that particular classification of investigation.

(b) Electronic Case File (ECF) - ECF serves as the central electronic repository for the FBI's official text-based documents. ECF supports the universal serial concept, where only the creator of a document serializes it into a file, providing single source entry of serials into the computerized system. All original serials are maintained in the 00 case file.

(c) Universal Index (UNI) - UNI continues the universal concepts of ACS by providing a complete subject/case index to all investigative and administrative cases. Only the 00 is required to index. The Lead Office may index additional information as needed. UNI is a nearly 74 million-record index that functions to index names to cases, and to search names and cases for use in FBI investigative and administrative cases. Names of individuals or non individuals are recorded with identifying information such as the date or place of birth, race, sex, locality, Social Security number, address, or date of an event.

IDENTIFICATION OF RECORDS RESPONSIVE TO PLAINTIFF'S REQUEST

(8) The records responsive to plaintiff's FBIHQ request were identified by a search of the indices to the CRS at FBIHQ. As a result of this search, one main file (HQ 109-317) ¹ was located. The file, consisting of 17 pages, was reviewed pursuant to the FOIA. As a result, 14 pages were released to plaintiff. The remaining three pages of documents originated with the U. S. Department of State (DOS) and have been referred to DOS for a direct response to plaintiff. The information contained in this file pertains to an investigation of Jorge Eliecer Gaitan, which is political in nature. Gaitan was highly involved in the Colombian political arena and at one time became a possible candidate for presidency. This investigation was conducted under the authority of the Presidential directive of September 6, 1939, as reaffirmed by Presidential directive of January 8, 1943, designating the FBI to take charge of investigatory work in matters relating to ... subversive activities and related matters. (See 28 C.F.R. § 0.85(d) (2000).

(9) Initial processing of HQ 109-317 resulted in the release of a total of 14 pages to plaintiff. (See Exhibit E.) This material was reexamined and again released to plaintiff by FBIHQ letter dated June 12, 2001. (See Exhibit F.) In certain instances, corrections and changes were made to the exemptions cited in the initial processing of the documents. However, in each case, the results were that more, not less, information was released to plaintiff.

EXPLANATION OF FORMAT UTILIZED FOR THE
JUSTIFICATION OF DELETED MATERIAL

(10) Attached, as Exhibit G, is a copy of all 14 pages that were released to plaintiff, which are consecutively numbered. The three-page document referred to DOS is numbered 15-17 and is accounted for on a Deleted Page Information Sheet. The copies of the documents contain, on their faces, coded categories of exemptions which detail the nature of the information withheld pursuant to the provisions of the FOIA. To further describe in more detail the information withheld could identify the protected material. No reasonably segregable nonexempt portions were withheld from plaintiff. The coded categories are used to aid in the Court's review of the FBI's explanations of FOIA exemptions used to withhold the protected material. Accordingly, all information withheld was exempt from disclosure pursuant to a FOIA exemption or was not reasonably segregable because it was so intertwined with protected material that segregation was not possible or its release would have revealed the underlying protected material. (See Exhibit G)

MECHANICS OF UTILIZING THE CODED FORMAT
WITH THE EXEMPTION CATEGORIES

(11) A coded format is utilized in this case to better assist the Court and plaintiff in reviewing the information withheld within the context of the documents themselves. Each instance of information withheld on the attached documents is accompanied by a coded designation that corresponds to the categories listed below. For example, if (b)(7)(C)-1 appears on a document, the (b)(7)(C) designation refers to Exemption (b)(7)(C) of the FOIA concerning "Unwarranted Invasion of Privacy." The numerical designation, (-1) following the "(b)(7)(C)" narrows the main category to the more specific subcategory, "Names of FBI Special Agents."

SUMMARY OF JUSTIFICATION CATEGORIES