# Institute for Justice and Human Rights vs. Executive Office of the United States Attorney and Immigration and Naturalization Service

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Institute for Justice and Human Rights vs. Executive Office of the United States Attorney and Immigration and Naturalization Service. No. C 96-1469 FMS. United States District Court for the Northern District of California March 18, 1998, Decided. March 18, 1998, Filed; March 19, 1998, Entered in Civil Docket.
INSTITUTE FOR JUSTICE AND HUMAN RIGHTS, Plaintiff, vs.
EXECUTIVE OFFICE OF THE UNITED STATES ATTORNEY and IMMIGRATION AND NATURALIZATION SERVICE,
Defendants. No. C 96-1469 FMS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
March 18, 1998, Decided March 18, 1998, Filed; March 19, 1998, Entered in Civil Docket

## COUNSEL

For THE INSTITUTE FOR JUSTICE & HUMAN RIGHTS, Plaintiff:
Philip J. Toelkes,
Law Offices of Philip J. Toelkes, Faifax, CA.
For U.S. IMMIGRATION AND NATURALIZATION SERVICE, FEDERAL BUREAU OF INVESTIGATION, DRUG ENFORCEMENT AGENCY, INTERPOL, UNITED STATES MARSHALL, US CUSTOMS SERVICE, EXECUTIVE OFFICE FOR THE UNITED STATE ATTORNEY, defendants:
Paul Solon,
U.S. Attorney's Office, San Francisco, CA.
For U.S. IMMIGRATION AND NATURALIZATION SERVICE, defendant:
Robert Yeargin,
U.S. Attorney's Office, San Francisco, CA.

## JUDGES

FERN M. SMITH, United States District Judge.

## OPINION BY

FERN M. SMITH
OPINION
ORDER DENYING MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT OF DEFENDANTS EOUSA AND INS; REMANDING CASE TO AGENCIES FOR FURTHER PROCEEDINGS

## Introduction
### Introduction

Plaintiff, the Institute for Justice and Human Rights, has brought a lawsuit under the Freedom of Information Act ("FOIA"), seeking the release of files pertaining to the late Bhagwan Rajneesh. Defendants, the Executive Office of the United States Attorney ("EOUSA") and the Immigration and Naturalization Service ("INS"), denied plaintiff's document requests, asserting that the release of the information could interfere with pending law enforcement proceedings and unduly violate privacy. Defendants' motions to dismiss or for summary judgment require the Court to determine whether defendants have complied with FOIA procedures and whether they have established that the withheld information falls under the claimed exemptions.

## Background
### Background

Since the mid-1980s, plaintiff has been seeking from various governmental agencies information related to the late Bhagwan Shree Rajneesh (the "Bhagwan"). In August 1994, plaintiff sent identical FOIA letters to several agencies requesting the release of all records relating to the Bhagwan; the Rajneesh foundation, the Rajneesh Neo-Sannyas International Commune ("the commune"), the Rajneesh Investment Corporation, and other related organizations; the town of Antelope, Oregon; Rajneeshism generally; and Sheela Silverman, a former follower of the Bhagwan. Those letters have spawned a total of eight consolidated FOIA cases. Two of the cases, involving the EOUSA and the INS, are now before the Court.
In December 1994, the EOUSA denied plaintiff's request in full, asserting that release of the information would interfere with ongoing law enforcement proceedings. The INS provided some documents, but refused to provide others, claiming that they were exempt from disclosure both because the disclosure would interfere with ongoing law enforcement proceedings and because it would "constitute an unwarranted invasion of personal privacy."
At the time the requests were denied, several criminal actions against former followers of the Bhagwan were pending in federal court. These criminal actions arose out of investigations against members of the commune dating back to the early 1980s. An investigation into immigration fraud began in 1981 and culminated with multiple indictments in 1985. By 1994, the government had obtained seven convictions, but was still seeking to extradite one defendant, Phyllis McCarthy, who had fled to South Africa. The government also obtained twelve convictions for wiretap conspiracy, but nine defendants remained at large. Finally, in 1990, seven members of the commune were indicted on charges of conspiracy to murder the United States Attorney in Oregon. By 1994, two indicted defendants and one unindicted defendant had pled guilty and the trial of two others was about to begin.
After his FOIA request was denied, plaintiff first brought an administrative appeal, and then abandoned that appeal to file this lawsuit on May 3, 1996. In the time between the agency denial and this hearing, Susan Hagan and Sally-Anne Croft have been tried and convicted of conspiracy to commit murder; their convictions were affirmed by the Ninth Circuit in September 1997. See United States v. Croft, 124 F.3d 1109 (9th Cir. 1997). Three murder conspiracy defendants--Sheela Silverman, Ann Phyllis, and Jane Stubbs--remain at large, as do nine wiretap defendants and the one remaining immigration fraud defendant.

## Discussion
### I. Legal Standard
#### I. Legal Standard
#### A. Motion to Dismiss
##### A. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. See North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must assume all factual allegations to be true and must construe them in the light most favorable to the nonmoving party. See North Star, 720 F.2d at 580. Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations, however. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

#### B. Motion for Summary Judgment
##### B. Motion for Summary Judgment

To withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. See Fed. R. Civ. P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

#### C. Freedom of Information Act
##### C. Freedom of Information Act

The Freedom of Information Act requires that agencies make their records available to the public upon request. 5 U.S.C. § 552(a). Under Exemption 7(A), however, agencies may withhold "records or information compiled for law enforcement purposes" the release of which "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The government must prove the possibility of interference by something "more than a conclusory statement." Campbell v. Department of Health & Human Serv., 221 U.S. App. D.C. 1, 682 F.2d 256, 259 (D.C. Cir. 1982). Under Exemption 7(C), agencies may withhold law enforcement records the release of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
The government bears the burden of establishing that these exemptions apply. 5 U.S.C. § 552(a)(4)(B). In determining what documents to withhold, the government must review each document individually. See Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389 (D.C. Cir. 1986). It need not justify a 7(A) withholding on a document-by-document basis, however; instead, it may do so by category. See Crooker v. Bureau of Alcohol, Tobacco and Firearms, 252 U.S. App. D.C. 232, 789 F.2d 64, 67 (D.C. Cir. 1986). The categories must be functional, allowing "the court to trace a rational link between the nature of the document and the alleged likely interference." Id. When the government justifies its 7(A) withholdings by category, it need not prepare a Vaughn index, a procedure normally required in order to allow the Court to determine how the release of each individual document would qualify under the exception. See Lewis v. Internal Revenue Service, 823 F.2d 375, 380 (9th Cir. 1987) (Vaughn index would be futile under such circumstances).
The Court reviews de novo an agency decision to withhold a document. See Bonner v. Dept. of State, 289 U.S. App. D.C. 56, 928 F.2d 1148, 1152 (D.C. Cir. 1991). The correctness of the decision "ordinarily must be evaluated as of the time it was made." Id. Finally, in evaluating the applicability of Exemption 7(A), the Court must "weigh the strong presumption in favor of disclosure" against the likelihood of interference. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978).

### II. Analysis
#### A. EOUSA Documents
##### A. EOUSA Documents

Apparently conceding the government's need to withhold information about the murder case, plaintiff states that it only seeks information relating to the immigration fraud proceeding against the Bhagwan. Plaintiff objects to the government's withholding of that information for several reasons. First, plaintiff attacks the government's general theory for exclusion, contending that the release of the immigration information could not have interfered with the murder proceedings at the time the request was denied in 1994, and could not interfere with it now. Plaintiff also contends that the government failed to follow appropriate FOIA procedures in reviewing the documents and justifying its withholdings.

##### 1. General Validity of the 7(A) Exemption at the Time the Agency Denied the FOIA Request in 1994
###### 1. General Validity of the 7(A) Exemption at the Time the Agency Denied the FOIA Request in 1994

The government offers two theories for why the release of those documents would have interfered with ongoing law enforcement proceedings in 1994. It first argues that the release would have interfered with the ongoing extradition proceeding against Phyllis McCarthy on immigration fraud charges. This rationale for exclusion, however, does not appear in the affidavits of the government officials who handled the EOUSA FOIA request. The parties have not addressed the question of whether the government can argue that the withholding of documents was proper for a reason not advanced by the agency at the time it denied the request. Because the case can be resolved without deciding this issue, the Court turns to the government's second theory.
The government also justifies the withholding on the ground that the release of the immigration documents would have harmed the murder prosecution that was ongoing in 1994. The support for this argument is found in the declaration of the Assistant United States Attorney who has handled the murder cases. (Reply Declaration of AUSA Scott J. Glick in Support of INS's Motion to Dismiss ("Glick Decl.").) He asserts that the immigration fraud and murder conspiracy cases are inextricably intertwined" because the conspirators decided to murder the United States Attorney in order to end the immigration fraud prosecutions, (Glick Decl. at 6), a theory of motive that the Ninth Circuit accepted in upholding the convictions of two conspirators. See United States v. Croft, 124 F.3d 1109, 1114 (9th Cir. 1997). The district court with jurisdiction over the murder conspiracy indictment, moreover, explicitly ruled in the Croft trial that evidence of immigration fraud was admissible as intrinsic or motive evidence. (Glick Decl. at 6.) The Court therefore agrees with the government that it is at least possible that the release of immigration documents in 1994 could have interfered with the government's ability to prosecute the defendants in the murder conspiracy case.

##### 2. General Validity of the 7(A) Exemption Now
###### 2. General Validity of the 7(A) Exemption Now

Plaintiff argues that even if the government properly withheld the documents in 1994, its reason for the exemption is no longer valid. This position raises two questions: whether it is proper for the Court to analyze the present validity of the claimed exemption, and whether the result would be different if such an analysis is performed. The Court answers the first question in the affirmative and the second in the negative.
Under District of Columbia Circuit precedent, courts ordinarily evaluate the correctness of an agency's FOIA decision as of the time it was made. See Bonner v. Dept. of State, 289 U.S. App. D.C. 56, 928 F.2d 1148, 1152 (D.C. Cir. 1991). Because no Ninth Circuit case has explicitly adopted the Bonner rule, the Court is not bound to follow it. Comparing the facts of Bonner to the facts of this case indicates that it would not be sensible to apply Bonner here. In Bonner, the parties had agreed to use 63 documents as a representative sample to determine whether the overall group of 1,776 documents had been properly withheld. The government then released 19 of the documents, claiming that the security reasons for exemption no longer applied. 928 F.2d at 149. The District of Columbia Circuit held that in order to maintain the representative character of the sample, the district court should have evaluated whether the government's original withholding of the documents had been proper. Id. at 1152. The plaintiff then argued that because the government had admitted that security needs had changed with regard to the 19 documents, the government should be required to reprocess the entire group of 1,776 documents. The circuit court refused, noting that doing so would defeat the very purpose of using a representative sample. Id. at 1153.
The facts of this case are quite different. Although the Court has not been informed of the total number of documents involved, it appears to be far fewer than in Bonner, making a new review based on changed circumstances far less burdensome. Unlike in Bonner, the government admits that the circumstances underlying the withholding have in fact changed. Bonner appears to contemplate that where the grounding for the exemption has plainly changed, it is appropriate to review the agency decision in light of the new circumstances. The Bonner court gave the example of the publication of a document after the decision to withhold it. Id. at 1153 n.10. The termination of law enforcement proceedings that formed the basis of an exemption would be an equally apparent and substantial change in circumstances. Accordingly, the government should be required to justify its withholdings based on present circumstances in this case.
The government's general theory for its Exemption 7(A) withholdings, however, is equally valid today as it was in 1994. Although convictions have been obtained against several of the immigration fraud defendants and against several of the murder defendants in the past four years, there are defendants in both cases who remain fugitives. Because both cases appear to be still open, the changed circumstances do not mandate a different result. See Manna v. United States Dep't of Justice, 51 F.3d 1158, 1164-65 (3d Cir. 1995) (Exemption 7(A) covers both pending and "prospective" criminal proceedings).
As a fallback position, plaintiff claims he should be allowed to amend his complaint to include a new FOIA request, filed with the EOUSA in November 1996, seeking the same information. That document request, and an administrative appeal from it, have been denied. The government responds that the Court cannot exercise jurisdiction over those claims because the statutory time limit on plaintiff's administrative appeal has passed. Because the Court holds that [HN6] the government must apply its exemptions based on current facts, it need not decide whether to allow plaintiff to file an amended complaint.

##### 3. Improper Categories
###### 3. Improper Categories

Even though the government has shown that the release of immigration documents could possibly compromise ongoing law enforcement proceedings, the government must still justify its withholdings of particular documents. In this case, the government exercised its right to do so on a category-by-category basis. See Crooker v. Bureau of Alcohol, Tobacco and Firearms, 252 U.S. App. D.C. 232, 789 F.2d 64, 67 (D.C. Cir. 1986). The government asserted that "Categories of documents contained in this [criminal case] file include those relative to the following: a confidential informant; other agency reports; wiretap transcripts and log book; co-defendant extradition documents; Grand Jury transcripts; and, attorney work product." (Declaration of Tammy Haimov in Support of EOUSA's Notice of Motion to Dismiss ("Haimov Decl.") at 5.)
Plaintiff argues these categories are too general. To be appropriate, a category must be "functional," Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389 (D.C. Cir. 1986), enabling the Court to determine whether all the documents in the category would interfere with the claimed interest. In Bevis, the FBI withheld several categories of documents from a FOIA request on the ground that they would interfere with an ongoing investigation in El Salvador. The District of Columbia Circuit approved the use of some of the categories--"the identities of possible witnesses and informants," "reports on the location and viability of potential evidence," and "polygraph reports"--because they "defined the nature of the information contained in the included documents" and allowed the court to decide how such documents would interfere with the law enforcement proceedings. 801 F.2d at 1390. The court rejected several other categories--"teletypes" and "letters"--because there was no way to determine from them whether the included documents would interfere. Id.
Four of the six categories asserted by the EOUSA are similarly problematic. The Court has no way of determining whether the release of "agency reports" would interfere with the ongoing prosecutions; it depends on the subject matter of the reports. Information about the identity of a confidential informant would plainly interfere with ongoing law-enforcement proceedings, but that is not necessarily true of all documents related to "a confidential informant." Likewise, it is not apparent to the Court why the release of all "attorney work product" or "co-defendant extradition documents" would necessarily interfere with the pending prosecutions. The other two categories, "wiretap transcripts and log book" and "Grand Jury transcripts," are acceptable. To comply with FOIA, the government must recast the categories "a confidential informant," "other agency reports," "co-defendant extradition documents," and "attorney work product" so that they comply with the Bevis requirement and must submit affidavits explaining why all documents in the new categories would interfere with the pending proceedings or otherwise be exempt from disclosure. See Bevis at 1390 (ordering additional affidavits to support categories).

##### 4. Failure to Undertake Document-by-Document Review
###### 4. Failure to Undertake Document-by-Document Review

Plaintiff argues that the government's declarations do not establish that a document-by-document review occurred. FOIA law requires that the agency review each document in order to place it in its proper category. See Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389 (9th Cir. 1986). "Absent such individual scrutiny, the categories would be no more than smaller versions of the 'blanket exemptions' disapproved by Congress in its 1974 amendment of FOIA." Id. (citing Crooker, 789 F.2d at 67). The declarations in this case do not establish that each document was reviewed in order to place it in the correct category. Instead the declarations contain only general statements such as "The entire case file pertained to a criminal prosecution." (Declaration of Bonnie L. Gay in Support of EOUSA's Motion to Dismiss ("Gay Decl.") at 7.) Based on the government's declarations, neither the Court nor plaintiff can be confident that all the documents contained in the files fall into the categories asserted by the government. To comply with FOIA, the EOUSA must conduct a document-by-document review and provide affidavits attesting that the review took place.

#### B. INS Documents
##### B. INS Documents

Plaintiff seeks the same information from the INS as from the EOUSA. The INS granted plaintiff's request in part and denied the rest based on three exemptions: 7(A), law enforcement information the release of which would interfere with a pending law enforcement proceeding; 7(C), law enforcement information the release of which could reasonably be expected to constitute an unwarranted invasion of privacy; and (6), personnel and medical files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. §§ 552(b) (6),(7)(A) & (C). The parties raise the same arguments about whether the immigration information could tend to interfere with the ongoing murder conspiracy proceedings; for the reasons expressed above, the Court agrees with the government that that possibility exists.
The INS case is different from the EOUSA case, however, because on February 27, 1997, the INS served five Vaughn indexes on plaintiff. Three of those indices listed documents referred to the INS in early 1997 from the State Department and the FBI. (INS's List of Five Vaughn Indexes in Support of its Motion to Dismiss ("List of Vaughn Indexes"), Ex. T-V.) The fourth index dates back to 1985. (List of Vaughn Indexes, Ex. X.) The fifth index, although undated, appears to have been created before 1990, as a handwritten note on it reads "Public Reading Room, 1/90." (List of Vaughn Indexes, Ex. Y.) The fourth and fifth indices both cover documents dated between 1981 and 1984.
Much of plaintiff's brief is devoted to arguments challenging the usefulness of the two old Vaughn indices. The government responds by arguing that under Exemption 7(A) it is not required to provide Vaughn indices at all, and may instead demonstrate the need for withholding on a category-by-category basis. This is correct as a statement of law. See Crooker v. Bureau of Alcohol, Tobacco and Firearms, 252 U.S. App. D.C. 232, 789 F.2d 64, 67 (D.C. Cir. 1986). In this case, however, the government has not provided any categories. Having instead chosen to provide Vaughn indices, the government now has no choice but to use them to support its 7(A) exemptions. The government, moreover, does not have the option of categorically justifying its 6 and 7(C) exemptions, see Wiener v. FBI, 943 F.2d 972, 977-79 (9th Cir. 1991), and so was required to provide the Vaughn indices to support its 6 and 7(C) privacy claims.
The fourth and fifth indices are far out of date and must be revised. The decade-old statements in those indices that the release of the documents would interfere with "pending" or "ongoing" proceedings do not convey useful information. Moreover, the people whose privacy was being protected by the 6 and 7(C) exemptions may have since died or consented to the release of the information. For example, plaintiff argues, and it appears to the Court, that some of the documents were withheld to protect the privacy of the late Bhagwan, who authorized the attorney for plaintiff to receive his files.
Reviewing these documents should not place an undue burden on the government. The two indices list a total of 242 documents, many of which have already been released. In addition, some of the blame for the lengthy delays in this case rests with the government. Under these circumstances, it is not unfair to require the government to ensure that its withholdings are still justifiable.
The Court therefore holds that the INS must review and revise the Vaughn indices in exhibits X and Y so that they reflect current information.

## Conclusion
### Conclusion

For the reasons expressed above, the Court DENIES the EOUSA's and the INS's motions for summary judgment and to dismiss, and ORDERS that
(1) the EOUSA recast its categories "a confidential informant," "other agency reports," "co-defendant extradition documents," and "attorney work product" and submit affidavits explaining why all documents in the new categories would interfere with the pending proceedings or otherwise be exempt from disclosure;
(2) the EOUSA conduct a document-by-document review and provide affidavits attesting that the review took place; and
(3) the INS review and revise the Vaughn indices in exhibits X and Y so that they reflect current information.
Because the Court did not rely on the portions of plaintiff's declarations challenged by the government, the EOUSA's motion to strike is DENIED as moot.
SO ORDERED.
Dated: March 18, 1998
FERN M. SMITH
United States District Judge
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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