### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA VINCENT DEMARTINO, ) ) ) )


### F.B.I. 

### etal., Plaintiff,


### v.

Defendants. ) Civil Action No. 06-0879 (RJL) ) ) ) ) 

# r---- MEMORANDUM OPINION January

# 1.2-, 2009 Pendingbefore the Court is the Federal Bureau ofInvestigation's ("FBI") renewed motion for summaryjudgment [Dkt. No. 55] filed in response to the Order ofSeptember 15, 2008, directing supplementation ofthe record in this Freedom ofInformation Act ("FOIA") case. The FBI proffers the Sixth Declaration ofDavid M. Hardy ("6th Hardy Decl.") tojustify FBI Headquarters's withholding ofseven pages ofrecords in their entirety. 

### See Memorandum Opinion ofSeptember 15, 2008 ("Mem. Op.") [Dkt. No. 49] at 5 (finding insufficient evidence to resolve record segregability question). Upon consideration ofthe FBI's renewed motion and plaintiffs supplemental responses [Dkt. Nos. 59, 60-2], the Court grants the FBI's renewed motion for summaryjudgment on the remaining issue ofthe case. I Mr. Hardy has adequately described the seven withheld pages, Hardy Decl.**~~** 7-9, and explained the applicability ofFOIA exemptions 2, 7(C) 7(D) and 7(E) to those pages. Id.**~~** 15, 20, 21, 24-26. Moreover, he states that the disclosure ofany "nonexempt words and phrases" contained therein "would provide only apatchwork ofunintelligible text." Id.**~** 30. In his

I 

### See Orders ofSeptember 15,2008 and September 27, 2007 (resolving all other claims).opposing declaration [Dkt. No. 60-2], plaintiffdoes not directly address the current motion but rather claims that "newlydiscovered evidence" supports his innocence ofthe crimes for which he is serving time. At best, plaintiffs opposition relates onlyto defendant's invocation of exemption 7(C). See Crooker v. Bureau of Alcohol, Tobacco andFirearms, 670 F.2d 1051,1074
n. 61 (D.C. Cir. 1981) (noting "that intwo [] exemptions, 7(C) and 6, 'the court is called upon to balance the conflicting interests and values involved; in other exemptions Congress has struck the balance and the duty ofthe court is limited to finding whetherthe material is within the defined category."') (quoting Lesar v. UnitedStates Dep't of Justice, 636 F.2d 472, 486 n.80 (D.C. Cir.1980)) (other citation omitted). Defendant invoked exemption 7(C), in conjunction with exemption 6, to withhold identifying information ofFBI Special Agents and third-party individuals ofinvestigative interest to the FBI and other law enforcement agencies. 6th Hardy Decl.**~~** 20-21. Third-party information contained in law enforcement files is "categorically exempt" from disclosure under exemption 7(C) inthe absence ofan overriding public interest in its disclosure. 2 Nation Magazine, Washington Bureau v. UnitedStates Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995). In orderto demonstrate apublic interest warranting disclosure ofthe otherwise protected information, plaintiffmust showthat the withheld information is necessary to "shed any light on the [unlawful] conduct ofany Government agency or official." UnitedStates Dep 't of Justice v. Reporters Committeefor Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard Services, Inc., v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). "Where the privacy concerns addressed by Exemption 7(C) are present, ... [the requester] must showthat the public interest

2 See Mem. Op. at 6 (finding exemption 7's threshold requirement oflaw enforcement records satisfied). 2soughtto be advanced is a significant one, an interest more specific than having the information for its own sake [and that]
... the information is likely to advance that interest." National ArchivesandRecordsAdministration v. Favish, 541 U.S. 157, 172 (2004). In making such a showing, plaintiffmust assert "more than a bare suspicion" ofofficial misconduct. Id. at 174. He "must produce evidence that would warrant a beliefby a reasonable person that the alleged Government impropriety might have occurred." !d. Otherwise, the balancing requirement does not come into play. See id. at 175. Plaintiffs suggestion that the withheld information would somehowprove his innocence provides no basis for balancing the interests at stake because the public interest in disclosure "does not include helping an individual obtain information for his personal use" to overturn a conviction. Oguaju v. Us., 288 F.3d 448, 450 (D.C. Cir. 2002), vacatedandremandedon othergrounds, 124 S.Ct. 1903 (2004), reinstated, 378 F.3d 1115 (D.C. Cir. 2004) (citation omitted). Based on the sixth Hardy declaration, which plaintiffhas not adequately refuted, the Court finds FBI Headquarters's withholding ofseven pages to be properlyjustified and concludes that the FBI is now entitled tojudgment as a matter oflaw. See Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (permitting an agency to withhold entire documents when the '''exempt and nonexempt information are 'inextricably intertwined,' suchthat the excision of exempt information would
...produce an edited document with little informational value."') (quotingNeufeldv. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)). A separate final Order accompanies this Memorandum Opinion.

United States District Judge 3