# Petition for Writ of Certiorari — Rugiero v. Department of Justice

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1134

## Text

01 907 DEC - 6 2001
No.

Cin oyhe
Supreme Court of the Cnited States

PATRICK RUGGIERO,
Petitioner,

V.

UNITED STATES
DEPARTMENT OF JUSTICE
and

DEPARTMENT OF TREASURY,
Respondents.

_ ON PETITION FOR WRIT OF CERTIORARI
_ TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Petition for Writ of Certiorari

David I. Schoen
Counsel of Record
LAW OFFICE OF

DAVID I. SCHOEN
2800 Zelda Road, Suite 100-6
Montgomery, Alabama 36101
(334) 395-6611

Counsel for Petitioner

THE LEX GROUP ¢ 1108 East Main Street ¢ Suite 1400¢ ¢ Richmond, Virginia 23219
(804) 644-4419 © (800) 856-4619 ¢ Fax: (804) 644-3660 ¢ www.thelexgroup.com

QUESTION PRESENTED

A Sixth Circuit panel declined to remand Petitioner’s
FOIA case to the district court for in camera inspection of
selected, contested documents and/or expand the record
relative to Petitioner's claim of bad faith on the part of the
Government in the FOIA litigation, the underlying criminal
prosecution, and the parallel discovery proceedings in the
context of a motion under 28 U.S.C. §2255. The Sixth Circuit
panel determined that Petitioner had not made a strong
enough showing of agency bad faith to warrant remand to
the district court.

Question: Did the Sixth Circuit err in determining that
Petitioner had not demonstrated strong
evidence of Government agency “bad faith” -
a term with no precise definition or criteria -
to warrant remand for an in camera
inspection and/or expansion of the record in
the context of a claim under the Freedom of
Information Act, 5 U.S.C. §552, et seq.?

TABLE OF CONTENTS

Page
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OPINIONS BELOW ......cceccscccecsceseceveees Iissiddespeenmmnietstnaionienapennoen’ 1
FE IEE srvcsinciinnnicamnsivnnwenineinicenmetememepirenemeecreteronmen 1
CONSTITUTIONAL PROVISIONS INVOLVED..........:+:sesese0 2
| ge Le | SE 2
REASONS FOR GRANTING THE WRIT........cs:sccsseseseseseeeeees 10
PITT, csctdeveinenisesssnnnivccrigreinersstnniiensuinininintinintonneninimntecents 11

The Sixth Circuit’s determination that

Petitioner had not made a showing of agency

bad faith sufficient to warrant remand for in

camera inspection and/or to expand the

record regarding agency bad faith was made

in the absence of specified criteria regarding

what constitutes agency bad faith.

Se eisecceicininiantaiitcivdininnnecivieennenivinmisceneneeieerereenesceranietets 20
FPF a iorrin ects nenninrsnnnmnanimmmonenmnmnnnenenmnnernrenenerween App. i

TABLE O* “JTHORITIES
Page(s)
Cases:

Abbotts v. Nuclear Regulatory Commission,
FOG F.28 GOK (OL, Cae, TID cccesercsvecsuvscorvcnrsiccevenincersess 16

Accuracy in Media v. National Park Service,
194 F.3d 120 (D.C. Cir. 1999)....... pili 18, 19

American Friends Service Committee v.

Department of Defense,
UR Sc Re Ct GE, TONE Prienintsisinercccceccensecnivenicnenen 16

Allen v. C.LA.,
Ce Tae Oe Ce a i ererenticcsnineneninreencsipnvnizns 16

; Carter v. U.S. Department of Commerce,
OD Fe Fe AA. Ge, FOF hicsicesinisciicncserseiisaninciienciaciens 16

Castandeda v. United States
757 F.2d 1010 (9th Cir. 1985) ...sssssssssesssssseesssssseen 17,19

Davis v. U.S. Department of Justice,
968 F.2d 1276 (D.C. Cir. 1992).. ilailtidecentaiin 18

Department of Air Force v. Rose,
GE Us Se TO vitcinceninnciinnssistomnantinenneensnevtivnititves 14, 20

artment of Justice v.

Reporter’s Committee for Freedom of the Press,
489 U.S. 749, 109 S.Ct 1468,

108 L.E.2d 774 (1969) .....cesecocscsescseseseseses .20

Favish v. Office of Independent Counsel,
217 F.3d 1168 (9th Cir. 2000)............... sdiidlitiicedagiiti 19

iii

Gr P. i Vv.
166 F.3d 473 (2nd Cir. 1999)

Hunt v. F.BL
972 F.2d 286 (9th Cir. 1992)

Ingle v t of Justice

698 F.2d 259 (6th Cir. 1983)...........ceseseseeees jovemnniiee 11,15

Jones v. F.B.L,
41 F.3d 238 (6th Cir. 1992)

Lam Lek Chong v. US. D.E.A.,
292 F.2d 729 (D.C. Cir. 1991)

11, 13,15

16

Miner v. C.L.A.
88 F.3d 796 (9th Cir. 1996)..........00000

N.L.R.B. v. Robbins Tire and Rubber, Co.,
437 US. 214, 98 S.Ct. 2311,

17

57 L.Ed.2d 159 (1978) q.eosecsssssosesee

Quinon v. F.B.L, |
86 F.3d 1222 (D.C. Cir. 1996)

Rugiero v. U.S. t of i
257 F.3d 534 (6th Cir. 2001)

Rugiero v. U.S. t of i

35 F.Supp.2d 977 (E.D. Mich. 1998)..

Rugiero v. U.S. Department of Justice et al.,

1999 U.S. Dist LEXIS 4528

1,9

(E.D. Mich., March 9, 1999)

Rugiero v. United States,
513 U.S. 878, 115 S.Ct. 208,

130 L.Ed.2d 137 (1994)...

iv

Sinito v. U.S. Department of Justice,

176 F.3d 512 (D.C. Cir. 1999) oat 20
U.S. Department of State v. Ray,

502 U.S. 164, 112 S.Ct 541,

116 L.Ed.2d 526 (1991) 14,15
United States v. Rugiero,

1994 U.S. App. LEXIS 11554

CO Ce, IG, FI ceintentsicccivicinrsnnscrnenensmmemeenmoeonees 2
United States v. Rugiero,

BOSE TERT BOCs. FOGG cncceritnsnsccntnenesceiignentipincoreen 2,3
Statutes:
a Oe sii ciecieesisttitecinrichiacticaniscteitceinctatio so
28 U.S.C. § 1254(1) on 1
y 2h aly. one siinaietaiariintinaceatiniiod passim
Rules:
Fed. R. App. P. 40(a)(2).. .13
Serpette Cote Daae WO cntcccnscssctsneereevemrvensissnsininnctanmanencnres 10
Supreme Court Rule 10 (2)...........cvscsccereevecenssoncesenveeevecveowesenee 10
a GT GB iaessictnicctcrnctionivioninrnaritoreicsinnees 10
Constitutional Provisions:
US. Const. amend V. ; 2
I RI FIG Osis tercereritociininseretntittiniinninieninminmannate 2

PETITION FOR A WRIT OF CERTIORARI

Patrick Rugiero, respectfully petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Sixth Circuit affirming
a district court’s denial of relief on Rugiero’s Complaint
filed under the Freedom of Information Act (“FOIA”),
5 U.S.C. §552, et seq.

OPINIONS BELOW

The opinion supporting the judgment presented for
review is from the United States Court of Appeals for the
Sixth Circuit and is reported as Rugiero v. U.S. Department
of Justice, 257 F.3d 534 (6th Cir. 2001), and reprinted at App.
1-26 . Panel Rehearing was denied on September 7, 2001.
(App. 49) The opinions of the district court denying relief
are reported as Rugiero v. U.S. Department of Justice, 35 F.
Supp 977 (E.D. Mich. 1998), reprinted at App. 30-48 and

Rugiero v. U.S. Department of Justice, 1999 U.S. Dist. LEXIS
4528, reprinted at App. 27-29.

JURISDICTION

The Sixth Circuit Court of Appeals issued its
opinion on July 12, 2001 and denied Rugiero’s
timely application for rehearing on September 7, 2001.
Rugiero invokes this Court's jurisdiction under
28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth
Amendments to the Constitution of the United States, which

provide in relevant part:
“No person shall

...be deprived of life, liberty, or
property, without due process of
law.” U.S. Const. amend V.

“No state shall

..deny to any person within its

jurisdiction the equal protection of the
laws.” U.S. Const. amend XIV.

STATEMENT OF THE CASE

In June of 1992, Patrick Rugiero was convicted in a
narcotics conspiracy in the Eastern District of Michigan
following a jury trial before Judge Paul V. Gadola. Mr.
Rugiero was represented pre-trial, at trial, post-trial, at
sentencing, and on appeal by Detroit attorney N.C. Deday
Larene.

On March 22, 1994, the Sixth Circuit Court of
Appeals affirmed Mr. Rugiero’s conviction in a 2 to 1
decision, with a scathing dissent by Chief Judge Merritt.
See, United States v. Rugiero, 20 F.3d 1387, 1395 (6th Cir.
1994). On May 5, 1994, rehearing and rehearing en banc
were denied, with Chief Judge Merritt again noting his
disagreement. See, United States v. Rugiero, 1994 U.S. App.
LEXIS 11554 (6th Cir. May 5, 1994). On October 3, 1994, this
Court denied Mr. Rugiero’s petition for a Writ of Certiorari.
See, Rugiero v. United States, 513 U.S. 878, 115 S.Ct 208, 130
L.Ed.2d 137 (1994).

A number of significant irregularities attended Mr.
Rugiero’s trial. One of the irregularities was the subject of
Chief Judge Merritt's dissenting opinion. Chief Judge
Merritt wrote that he would have reversed Mr. Rugiero’s
conviction because of the prosecutor's gross violation of the
sequestration rule in the case. Government counsel
intentionally had one of the governr ent’s witnesses sit in
the courtroom during the trial, in violation of the
sequestration rule, and then staged a confrontation and
conversation between this witness and the witness who was
testifying while this witness was in the courtroom. The
clear purpose of this action was to get this witness to testify
in a manner that was consistent with the witness then
testifying on the stand. United States v. Rugiero, 20 F.3d
1387, 1395 (6th Cir. 1994) (Merritt, C.J., dissenting).

Another major irregularity arose at trial when,
during the jury’s deliberations, a television news station
reported that Mr. Rugiero’s trial attorney, N.C. Deday
Larene, had ties to organized crime and was going to be
indicted. During individual voir dire, most of the jurors
indicated that they had seen the television news leak and
that the foreman of the jury had discussed the broadcast
with other jurors. Rugiero, 20 F.3d at 1390. At around the
same time, the trial court received a note from a juror
indicating bias or partiality within the jury. That note
eventually was “withdrawn” and the jury proceeded to
render its verdict. Id.

The incident in connection with the television news
leak was the first that Mr. Rugiero learned about suspicions
concerning his attorney's direct involvement with criminal
conduct. At no time did the trial court make further inquiry
about the substance of the matter. The attorney, Larene,
was indicted in the Eastern District of Michigan soon after
the close of Mr. Rugiero’s trial. Nevertheless, he continued
to represent Mr. Rugiero for all purposes during all of the
ensuing proceedings before ‘the trial court and before the
Court of Appeals. At not time was a hearing ever
conducted in any forum to advise Mr. Rugiero about the

3

conflict of interest that arose from his lawyer's indictment
by the same prosecuting authority that was prosecuting Mr.
Rugiero. Similarly, at no time was Mr. Rugiero ever advised
by any court of the possible ramifications of such a conflict
of interest.

It has been ascertained through pending litigation
under 28 U.S.C. §2255, that even the prosecutor who tried
Mr. Rugiero’s case, AUSA Richard Delonis, was aware of
the conflict; but the U.S. Attorney's office for the Eastern
District of Michigan made an affirmative decision to
withhold this information until after Mr. Rugiero’s trial. In
contrast, the same prosecutorial office conspicuously
advised every other client M1. Larene represented during
this time period about the conflict and requested that every
other judge conduct an “on the record” conflict hearing
before letting Larene represent any other defendant.

Pursuing the matter on his own over the next couple
of years, Mr. Rugiero learned that his attorney, Mr. Larene,
had been the object of a massive criminal investigation by
several government agencies all during the pre-trial
investigation and preparation phase of Mr. Rugiero’s case
and during the trial itself. Indeed, he learned that Larene
had retained counsel of his own and had been engaged in a
vigorous effort for many months preceding and during the
Rugiero trial to try by all means possible to stave off his own
indictment. This was at the very time that Larene’s
attention and efforts were to have been devoted to Mr.
Rugiero’s defense.

Eventually, Larene was indicted along with Vito
Giacalone, the reputed mafia boss of the organized crime
family which allegedly has dominated the Detroit area for
many years. Larene and his attorneys negotiated a plea
agreement and he eventually pled guilty, was sentenced to a
term of imprisonment, and lost his license to practice law.
Mr. Rugiero had been unaware of the investigation into his

1 Larene was represented by two Washington attorneys from the
law firm of Williams and Connolly; Gerald Feffer and Steven A.
Steinbach, in addition to local counsel Robert Morgan, Esquire.

4

attorney’s affairs until the “news leak” surfaced during his
trial and, even then, he had no idea of the extent of the
government’s investigation and suspicions concerning
Larene; nor did he have any idea of Larene’s efforts on his
own behalf, undertaken at the very time his attention was
supposed to be dévoted to zealously defending Mr. Rugiero.

Mr. Rugiero’s discoveries led him, on October 28,
1996, to file a motion in the Eastern District of Michigan,
pursuant to 28 U.S.C. §2255, seeking to vacate or set aside
his judgment of conviction and sentence based on, inter alia,
the denial of his Sixth Amendment right to the effective
assistance of counsel. The case was assigned to Judge Paul
V. Gadola, who referred it to Magistrate Judge Steven D.
Pepe.

That motion has now been pending before the
District Court for over five years and has been the subject of
over twenty (20) hearings and repeated orders compelling
discovery compliance, all required because of the
government's unrelenting efforts to obstruct the discovery
process and deny Mr. Rugiero any and all documents which
relate to his case and to the investigation of Deday Larene,
which we now know the government intentionally
concealed from Mr. Rugiero until the end of his trial. The
pattern of government misconduct and bad faith that
characterized the criminal trial has been overwhelmingly
continued and expanded upon in the related §2255
proceedings, all designed to thwart Mr. Rugiero’s efforts at
uncovering the truth about his lawyer.

The FOIA proceedings, the subject of this action, are
now the third forum related to Mr. Rugiero in which the
government overwhelmingly has demonstrated its bad faith
and unwillingness to come clean regarding Mr. Rugiero. It
is exactly this kind of bad faith that requires judicial scrutiny
of the government agencies’ disclosure and withholding
decisions under FOIA.

Just a glimpse at the record at each of the three
stages in Mr. Rugiero’s case demonstrates without question
that the government consistently and overwhelmingly has

5

proceeded in bad faith in connection with each and every
phase of its litigation with Mr. Rugiero - the criminal case,
the §2255 litigation, and the FOIA proceedings.

In the criminal case, as noted, government counsel
intentionally violated the sequestration order, prompting a
scathing rebuke from Chief Judge Merritt and intentionally
concealed defense counsel’s investigation and prosecution
(by the same prosecuting office) until after Mr. Rugiero’s
trial was completed.

In the §2255 litigation, it is hard to know where to
start in describing the omnipresent bad faith by the US.
Attorney's office - one of the agencies whose FOIA
disclosure decisions are at issue in the FOIA litigation. The
government constantly and intentionally has actively
concealed discoverable documents, and then withheld for
months documents and information it already had been
ordered to turn over to Mr. Rugiero. It has answered
discovery requests disingenuously (if not outright
dishonestly), maintained frivolous and untenable legal
positions, and has repeatedly misled the court and Mr.
Rugiero. One recent and egregious example of the
government's bad faith is the following: after claiming for
over three (3) years that they (the U.S. Attorney’s Office)
had lost the Larene files, in November 2000, the Case Agent,
in the course of a court ordered deposition, revealed that he
had had, all along (in an office adjoining the prosecutor's),
two file cabinets full of documents on the Larene
investigation and prosecution. Another year has passed, but
the government has yet to turn over a single document. The
district court’s scathing orders have been to no avail.
Naturally, such conduct can.and will be dealt with in the
context of those proceedings, but the conduct is relevant to
the presumption of good faith and to the level of blind trust
to be accorded to these agencies in the FOIA litigation.

The FOIA Litigation

On June 5, 1995, acting on his own, Petitioner sent
Freedom of Information Act requests to various government
agencies seeking the disclosure of any and all documents
those agencies had, related to him, his investigation, and
his prosecution. His primary purposes were to obtain any
and all Brady material applicable to him in the files of
those agencies and to obtain from those files any and all
documents relevant to the conflict of interest under
which his defense attorney for his criminal case was
operating during his trial preparation period, post-trial,
and during the trial period itself, due to the investigation
and prosecution of this attorney by the government,
through some of these very same agencies. These
agencies also had participated in concealing the conflict
from Rugiero throughout his trial and never revealed the
magnitude and true nature of its investigation against the
attorney until unequivocal documents were obtained by
court order. They left no question about just how serious
this matter was.

Mr. Rugiero was not satisfied with the responses to
the FOIA requests that he received from the agencies;
accordingly, on July 30, 1997, he timely filed a Complaint
for injunctive and declaratory relief in the United States
District Court for the Eastern District of Michigan,
pursuant to the Freedom of Information Act (FOIA), 5
U.S.C. §552, et seq. He sought the production from the
various agencies of documents that were in any way
related to him. The case initially was assigned to District
Judge John C. O’Meara; however it was later transferred to
District Judge Paul V. Gadola as a case related to Mr.
Rugiero’s criminal case and his pending case under 28
U.S.C. §2255.

Judge Gadola sat on Mr. Rugiero’s criminal case? and
currently is presiding over Mr. Rugiero’s motion to vacate
or set aside his sentence under 28 U.S.C. §2255.3

On September 9, 1997, the defendants filed their
Answers, amending them on October 15, 1997. On February
18, 1998, the defendants filed motions for summary
judgment with exhibits. Soon thereafter, Judge O’Meara set
the motions down for a hearing. However, on March 11,
1998, the case was reassigned to Judge Gadola, as noted
above.

On June 24, 1998, Mr. Rugiero filed his response to
the motions for summary judgment. The defendants filed a
reply, and on September 15, 1998, the court heard oral
argument on the motions for summary judgment. - There
was no discovery and no evidentiary hearing.

On September 16, 1998, the district court entered an
Order dismissing count III of the Complaint on stipulation
of the parties. On October 19, 1998, the court entered an
Order granting in part and denying in part the motions for
summary judgment and dismissing with prejudice counts I,
Il, V, VI, VIL, VIL, IX, and XI of the Complaint. (App. 30-48)

On October 30, 1998, the Department of Justice filed
a motion for reconsideration of that part of Judge Gadola’s
Order that required production of a document the court had
inspected in camera after the agency had insisted on
withholding it.

On November 4, 1998, the court stayed its Order on
summary judgment, in light of the motion to reconsider and
on November 18, 1999, it granted in part the motion to
reconsider.

2 United States v. Rugiero, et al., District Court Case No. 90-80941.
3 Rugiero v. United States, District Court Case No: 96-CV-40376.

‘ Rugiero v. U.S. Department of Justice, 35 F. Supp.2d 977 (E.D.
Mich. 1998).

The court then granted summary judgment in favor
of the government on Count X of the Complaint. On March
9, 1999, the court entered an Order and Judgment
dismissing Count IV of the Complaint with prejudice and
dismissing the Complaint in its entirety with prejudice. See
Rugiero_v. Department of Justice, et al, 1999 US. Dist.
LEXIS 4528 (E.D. Mich. March 9, 1999)(App. 27-29).

On March 22, 1999, Mr. Rugiero filed a motion for
reconsideration. On May 7, 1999, Mr. Rugiero timely filed
his notice of appeal. On June 7, 1999, the court entered an
Order finally denying the motion for reconsideration.

Petitioner then lodged an appeal in the Sixth Circuit.
In an Opinion and Order filed July 12, 2001, the Sixth Circuit
“affirm[ed] the judgment of the district court in substantial
part, reverse[d] in part, and remand[ed] for further
proceedings.” Rugiero v. U.S. Department of Justice, 257
F.3d 534, 554 (6th Cir. 2001)(App. 1-26). Mr. Rugiero was
grateful at least for the limited remand; however, the Sixth
Circuit decided not to remand for purposes of further
consideration of Petitioner's claim of agency bad faith in the
underlying and related proceedings. About that issue, the
Sixth Circuit stated, “Rugiero has simply not pointed to
strong evidence of bad faith that calls into question the
district court’s decision not to conduct in camera review of
responsive documents.” Id. at 547 (emphasis added).5

Believing that the Sixth Circuit had overlooked ‘his
argument for remand to the district court, so that the record
could be expanded relative to bad faith, Petitioner timely
submitted a motion for panel rehearing, which was denied
by the Sixth Circuit on September 7, 2001.

Rugiero’s trial counsel in the FOIA proceedings mistakenly
t district judge presided over the related
cases would be a part of his
FOIA record and so the evidence of bad faith from each proceeding
would be before the Court. Clearly that was an error; accordingly, Mr.
Rugiero sought a remand for the expansion of the record to put all
relevant evidence from the related cases before the Court.

9

It
|
4

REASONS FOR GRANTING THE WRIT

Rule 10 of the Supreme Court Rules sets forth the
character of the reasons that this Court considers with
respect to a petition for review on a writ of certigrari. Rule
10(a) provides that one relevant consideration is whether a
“United States court of appeals has entered a decision in
conflict with the decision of another United States court of
appeals on the same important matter...” Rule 10(c)
suggests that another relevant consideration is whether “...a
United States court of appeals has decided an important
question of federal law that has not been, but should be
settled by this Court ....” This case presents elements which
directly fit under both of these sections of Rule 10.

This petition is prompted by the complete lack of
both uniformity and definition among the circuits as to what
constitutes agency “bad faith” in the context of providing
citizens with the information or documents that they seek
through the Freedom of Information Act and as to what
universe is relevant for the evaluation of the same (i.e.
whether the “bad faith” examination should be limited to
the agency’s conduct in the FOIA proceedings or whether
conduct in parallel or related proceedings is relevant as
well).

No circuit provides a meaningful definition with
clarity of the standards by which “bad faith” is to be
measured or defined and, to the extent defining the concept
has been attempted, there is great variance among the
circuits. Similarly, there is no uniformity as to the relevant
universe for examination.

As petitioner discusses hereinbelow, various circuit
courts have made reference to agency bad faith (or related
terms and expressions) in considering the merits of
claims made by litigants in FOIA proceedings. The result
from a consideration of all relevant decisions from around
the country is that one is left unable to find any guidance
with any sense of certainty or uniformity as to what
constitutes agency “bad faith” such that greater judicial

10

scrutiny of the agency’s failures to disclose information is
required to assist the citizen in his/her quest for
information from his/her government. This Court must
establish clear and meaningful standards in this area and
provide direction on this important matter to resolve the
lack of wuniformity/consistency and to remove the
arbitrariness that presently exists from the lack of
meaningful standards.

The lack of clarity and definition leaves litigants,
government agencies, and the courts themselves
without proper guidance in addressing the issue of
agency bad faith in the context of the Freedom of
Information Act. .

ARGUMENT

The Sixth Circuit determined in this case that Mr.
Rugiero had not made a showing of agency bad faith
sufficient to warrant remand for in camera inspection of
selected documents or remand to expand the record
regarding agency bad faith. It arrived at its decision ©
without any specified criteria vis-a-vis what constitutes
agency bad faith, let alone “sufficient” or “strong” bad faith.
It has modified its earlier decisions by now introducing the
amorphous concept of “strong” “bad faith,” without more,
and this in untenable.

The primary underlying question that this case
presents is what a FOIA litigant needs to show to obtain a
remand for in camera inspection and/or a remand for
expansion of the record based on an allegation of agency
bad faith.

In the district court decision underlying this matter
the court wrote, regarding Petitioner's claim of agency bad
faith, that, “in this case, plaintiff has come forth with no
substantial showing of evidence. Without some substantial
evidence of the type required by Ingle, and recognized in
Jones, this court will decline plaintiff's request to conduct an

11

in camera review of the documents related to Count 1.”
Rugiero v. U.S. Department of Justice, 35 F. Supp.2d 977, 983
(E.D. Mich. 1998).

Petitioner's claim that the agencies’ bad faith
warranted a remand for in camera inspection was
premised on two distinct arguments. First, Petitioner
argued that there was record evidence in the proceedings
below sufficient to warrant a remand to conduct an in
camera review. Second, Petitioner argued that if the
appellate court determined that the record evidence was
insufficient to warrant remand for an in camera review,
Petitioner at least had made a sufficiently colorable claim
of agency bad faith to warrant a remand to expand the
record.

Additionally, in both his initial brief and his reply
brief on appeal, Mr. Rugiero requested a remand for
the expansion of the record and to give the district judge
a chance to have before him all of the evidence of
agency bad faith that was available from the parallel and
previous related proceedings, but that trial counsel
erroneously had assumed were automatically a part of the
record because the same district judge presided over all
such proceedings.®

The Opinion of the Sixth Circuit was silent on the
issue of Petitioner's request that the matter be remanded for
expansion of the record. Mr. Rugiero argued on rehearing
that the Court had overlooked his requests in this regard

. Trial counsel erred both as to the state of the record and as to
the district judge’s actual familiarity with the record in the related
proceedings. He mistakenly thought that the related proceedings
automatically would be a part of the record. He also assumed that the
district judge was fully familiar with the related §2255 proceedings,
where some of the most egregious bad faith had occurred, not knowing
that the §2255 case actually had been referred to a magistrate judge and
it was that judge who had been forced to conduct over 20 hearings and
issue orders of reprimand and compulsion concerning the government's
conduct in discovery.

12

and that rehearing was, therefore, appropriate under Rule
40(a)(2) of the Federal Rules of Appellate Procedure.’

? The following are references to Mr. Rugiero’s attempts to obtain
a remand to the district court for the expansion of the record:

In his Initial Appellate Brief (IAB) Petitioner specifically
requested that the matter be remanded to the district court so that the
record could be expanded relative to evidence of government bad faith in
the underlying and parallel proceedings. Petitioner's requests included:

1. “The record needs further development to highlight the
evidence of bad faith from the related parallel and
underlying litigation so it can properly be evaluated as this
Court instructed in Jones.” (IAB at 29, n.12).

2. “...[(Clounsel below assumed that the lower court was
familiar with the occurrences in the § 2255 litigation and did
not further supplement this record. That is one of the
reasons it might be most appropriate to remand this case for
further record development.” (IAB at 36).

3. “.,.[T]he record needs further development on remand if it is
fully and accurately to reflect the abundant evidence of bad
faith in the related proceedings.” (IAB at 38).

4. “The Court must remand to the lower court
for...development of the record.” (IAB at 39).

In the Reply Brief (RB) Petitioner made additional requests for remand for
expansion of the record relative to government bad faith in the underlying
and related proceedings. These requests included the following:

1. “These affirmative and direct misrepresentations of the
record require a remand of this case for supplementation of
the record to reflect the record already developed below in
the § 2255 litigation.” (RB at 7).

2. “It may be, in the end, that the appropriate course for this
Court is to remand this case for further development of the
record so that all the true facts relevant to the issues herein,
and especially the ‘bad faith’ issue under Jones can be fully
presented to the Court in all material regards.” (RB at 7-8, =

3. “Mr. Rugiero respectfully suggests a remand
supplementation so that this Court can have all the he
facts before it.” (RB at 9).

4. “The first step must be to remand the case so that the formal
record of this case can be supplemented.” (RB at 14).

5. “[I}n the trial court the record should be supplemented to
first give the district judge a chance to evaluate the claim
under Jones with all the relevant evidence in the record, and
secondly, to give this Court a chance, if necessary, to

~ evaluate the relevant considerations on a competent record.”
(RB at 21).

13

On Petitioner’s claim that the appellate record, in its
present state, warranted remand for in camera review
because of agency bad faith, the Sixth Circuit stated,
“Rugiero has simply not pointed to strong evidence of bad
faith that calls into question the district court's decision not
to conduct an in camera review of responsive documents.”
Rugiero v. USS. Dept. of Justice, 257 F.3d 534, 547 (6th Cir.
2001). ;
It is the phrase “not pointed to strong evidence of
bad faith that calls into question” (emphasis added) that is
central to this petition for writ of certiorari. What
constitutes “strong evidence of bad faith?”

At the heart of this matter rests the question of what
constitutes a sufficient showing of agency bad faith; a
showing sufficient to overcome the presumption of good
faith accorded government agency affidavits in FOIA
proceedings.

In the district court proceedings, the court wrote,
“plaintiff has come forth with no substantial showing of
such evidence” [referring to “evidence” of agency bad faith].
In the appellate court proceedings the court wrote that
“Rugiero has simply not pointed to strong evidence of bad
faith.” (Emphasis added) There do not appear to be any
criteria or standards that are enunciated by the various
courts to provide guidance to plaintiffs, government
agencies, and courts themselves as to what constitutes a
sufficient showing of agency bad faith.

This Court and each circuit court of appeals has
recognized the inherent imbalance of FOIA and the methods
for proceeding that have developed for lack of more efficient

alternatives. See e.g., Department of Air Force v. Rose, 425
U.S. 352, 360-61 (1973); United States Dep’t of State v. Ray,
502 US. 164, 173 (1991).

This imbalance, which gives such great deference to
the agency without oversight carries with it the critical need
to be able to trust that the agency will fulfill its duties
appropriately and with the requisite faithfulness to the
presumption of openness that the Act intended and to

14

which the citizenry is entitled. Id. The imbalance also,
therefore, requires clear standards as to when the agency
has evinced bad faith with respect to such duties, thereby
making appropriate and necessary outside scrutiny, even if
limited to in camera sampling inspections which would
avoid sacrificing the efficiency of the courts in the mix.

In Ingle v. United States Dept. of Justice, 698 F.2d
259, 265 (6th Cir. 1983), the coutt held that “The court is
entitled to accept the credibility of the affidavits [referring to
government agency affidavits in support of the agency’s
position in FOIA matters] so long as it has no reason to
question the good faith of the agency.” (Emphasis added).
Ingle, however, contains no description of what might
constitute an adequate basis for calling into question the
presumption of good faith accorded agency affidavits.
Under any circumstances, however, Mr. Rugiero certainly
adduced ample evidence to cross the first hurdle, raising
suspicion (and therefore greater scrutiny); but the Court
here then added the element of the strength of the evidence
and the sufficiency of the bad faith, without anything more
concrete.

In Jones v. F.B.I., 41 F.3d 238 (6th Cir. 1994), the court
seemed to have settled the question as to the relevant
universe for examining agency bad faith and dealt with the
first inquiry as well, setting up the issue in presumption
format. The court held that “...agency actions and affidavits
are normally entitled to a presumption of good faith. US.
Department of State v. Ray, 502 U.S. 164, 112 S.Ct 541, 550,
116 L.Ed.2d 526 (1991). This presumption may be overcome
where there is evidence of bad faith in the agency's handling
of the FOIA request. Even where there is no evidence that
the agency acted in bad faith with regard to the FOIA action
itself there may be evidence of bad faith or illegality with
regard to the underlying activities which generated the
documents at issue.” Id. at 243. However, in Jones, as with
Ingle, the court did not offer any definitions or criteria
relative to what would constitute a sufficient showing by a
litigant of agency bad faith.

15

In Allen v. CLA., 636 F.2d 1287, 1298 (D.C. Cir.
1980), the court held that “Where there is evidence of bad

faith on the part of the agency, the representations of the
agency lose all trustworthiness. In camera inspection in
such situations is ‘plainly necessary’.” (Emphasis added).
As with the other opinions, though, the Allen court failed to
give any substance to its pronouncements. Allen includes
no language which defines “bad faith on the part of the
agency,” nor does Allen define what is meant by “lose all
trustworthiness.” In the absence of such definition or
criteria, litigants, government agencies, and the courts
themselves are left without specific guidance regarding
when and where to determine that bad faith has been
demonstrated.

In American Friends Service Committee __v.
Department of Defense, 831 F.2d 441, 444 (3rd Cir. 1987), the
court held that “An agency is entitled to summary judgment
when the agency’s affidavits are not contraverted by either
contrary evidence in the record nor by evidence of agency
bad faith. (quoting Abbotts _v. Nuclear Regulatory
Comunission, 766 F.2d 604, 660 (D.C. Cir. 1985))” (Emphasis
added).

In Carter v. U.S. Department of Commerce, 830 F.2d
388 (D.C. Cir. 1987) the Court held that “If there is evidence
of agency bad faith ...then in camera inspection may be
necessary to insure [sic] that agencies do not misuse the
FOIA exemptions to conceal non-exempt information.” Id.
at 393. (Emphasis added). The Carter court went on to note
that “Where there is evidence of bad faith on the part of the
agency...in camera inspection is plainly necessary.” Id. at
393. Finally, the Carter court commented that “there must
be tangible evidence of bad faith.” Id. at 393 (emphasis
added). =

In Lam Lek Chong v. US. D.E.A., 929 F.2d 729, 735
(D.C. Cir. 1991) the court held that “In camera inspection
may be appropriate...when evidence of agency bad faith is
before the court.” (Emphasis added). In Quinon v. F.B.1., 86
F.3d 1222, 1228 (D.C. Cir. 1996) the court held that “In

16

camera review may be particularly appropriate
when...there is evidence of bad faith on the part of the
agency.” (Emphasis added).

In Miner v. CLA, 88 F.3d 796 (9th Cir. 1996)
the court held that “Upon a showing of agency bad
faith, a court must not accord agency affidavits
‘substantial weight.’ Instead, a court must review the FOIA
request with heightened scrutiny.” Id at 803 (Emphasis
added).

In Grand Central Partnership, Inc. v. Cuomo, 166
F.3d 473, 489 (2d Cir. 1999), the court held that FOIA
petitioner had not made a sufficient showing of agency “bad
faith,” without giving an adequate clue as to what showing
would have been sufficient.

So a variety of circuits (Second, Third, Sixth, Ninth,
and the District of Columbia) have used the term “bad
faith” relative to FOIA proceedings, but not one of the
circuits has given substantive definition to what the term
means; nor has any of the circuits offered criteria that
should be applied in assessing the presence, or lack of “bad
faith.” The cases make clear that agency bad faith is
relevant; but they do not provide any clarity as to what it is,
what is “sufficient” to trigger scrutiny (overcome the
presumption of good faith), nor do they uniformly address
the question of what is the relevant universe for
examination.

Some additional FOIA cases, without using the term
“bad faith,” have addressed the issue of what a litigant must
prove to overcome the presumption of good faith accorded
representations made by government agencies and
government officials in FOIA cases; but still the issue
remains unclear and the cases risk, if not invite,
arbitrariness.

In Castaneda v. United States, 757 F.2d 1010, 1012.
(9th Cir. 1985) the court held that “Where it appears that the
motives or truthfulness of the [government official] are in
doubt, the public need for supervision and disclosure is

17

necessarily heightened.” (Emphasis added). What is the
standard for assessing whether or not the “motives or
truthfulness” of a government official are “in doubt?”

In Davis v. U.S. Department of Justice, 968 F.2d 1276,
1282 (D.C. Cir. 1992) the court held that, “When
governmental misconduct is alleged as the justification for
disclosure, the public interest is insubstantial unless the
requester puts forward compelling evidence that the
agency denying the FOIA request is engaged in illegal
activity and shows that the information sought is necessary
in order to confirm or refute that evidence.” (Emphasis
added). There is no definition of “compelling evidence” nor
is there any criteria that specifies what constitutes “illegal
activity” that requires a judicial conviction in a court of law
of the subject agency. That would be far beyond the pale of
what a FOIA petitioner could prove. It is, however, the lack
of precision and definition that this Petitioner is attempting
to highlight. The amorphous language of the case decisions
leaves a litigant unable to define and plan a knowledgeable
strategy for prevailing.

In Hunt v. F.B.L, 972 F.2d 286, 289-90 (9th Cir. 1992)
the court held that “Where there is no evidence...that there
was wrongdoing on the part of a government employee
the public interest in disclosure is diminished.” (Emphasis
added). The Hunt court went on to note that “The public
interest in ensuring the integrity and the reliability of
government investigation procedures is greater where there
is some evidence of wrongdoing on the part of the
government official.” (Emphasis added). As with all cases
cited above, here too there is no specificity. There is no
definition of terms, criteria, or standards. What does

“wrongdoing on the part of a government employee” mean?
What constitutes “ some evictence , bss

F.3d 120, 124 (D.C. Cir. 1999), iccoatt bald at “[Litigant]
must show ‘compelling evidence that the agency denying

the FOIA request is engaged in illegal activity, and access
to the [sought after information] is necessary in order to

18

confirm or refute that evidence.’ Safecard. 926 F.2d at 1205-
06.” (Emphasis added). The Accuracy in Media court went
on to note, “While we agree that falsification by the agencies
would show government illegality - under the present facts,
indeed, illegality on a massive scale - there is no persuasive
evidence of such falsification, much less compelling
evidence.” (Emphasis added).

As with all the other cases cited, here too there is no
uefinition of terms; the decisions do not include any criteria
or standards to be applied in determining when a litigant’s
burden of proof is satisfied.

In Favish v. Office of Independent Counsel, 217 F.3d
1168, 1172-73 (9th Cir. 2000), the court held that “nothing in
the statutory command conditions agency compliance on
the requesting party showing that he has knowledge of
misfeasance by the agency, although at times such
knowledge has been referred to as enhancing the urgency
of the request.” (Emphasis added). What constitutes
“knowledge of misfeasance by the agency?”

In Castaneda, supra (“motives or truthfulness...are
in doubt’); David, supra (“requester puts forward
compelling evidence that agency...is engaged in illegal
activity”); Hunt, supra (“wrongdoing on the part of a
government employee” and “some _ evidence of
wrongdoing”); and Accuracy in Media, supra (“compelling
evidence that the agency...is engaged in illegal activity”);
the courts have used language that suggests certain
standards that must be satisfied by a litigant seeking a
determination that the presumption of good faith usually
accorded government agencies must be set aside, and
government affidavits must be examined with a far higher
degree of scrutiny. However, the suggestion of standards is
not followed by a definition or description of such
standards.

CONCLUSION

tes Desatenn oh tne tee 489 US. 749, 109 S.Ct 1468, 103
L.Ed.2d 744 (1989) (quoting Department of the Air Force v.
Rose, 425 U.S. 352, 272, 96 S.Ct 1592, 48 L.Ed.2d 11 (1976)),
the Supreme court gave concise definition to the
purpose of the Freedom of Information Act (FOIA) when it
wrote, “The basic purpose of the Freedom of Information
Act is to ‘open agency action to the light of- public
scrutiny’.” 489 U.S. at 772. In N.L.R.B. v. Robbins Tire and
Rubber Co., 437 U.S. 214, 98 S.Ct 2311, 57 L.Ed.2d 159
(1978), the Supreme Court held that “The basic purpose of
the FOIA is to insure an informed citizenry, vital to the
functioning of a democratic society, needed to check
against corruption and to hold the governors
accountable to the governed.” 437 U.S. at 242. In Sinito v.
U.S. Department of Justice, 176 F.3d 512, 514 (D.C. Cir.
1999), the court recited two primary sources of the FOIA
and added an observation of its own. The Sinito
court quoted the 120 Cong. Rec. 17,038 (1974) (Statement
of Senator Weicker) to the effect that “none of the abuses
[by government officials] that we have seen come out
of this system would have happened if more people,
more eyes, more ears, had been on the scene.” The Sinito
court went on to cite H.R. Rep. No. 89-1497, reprinted
in 1966 US.C.C.A.N. 2418, 2419 thusly: “The FOIA
was enacted because ‘the weed of improper secrecy
had been permitted to blossom and was choking out
the basic right to know.” The Sinito court concluded
its recitation of some of the history of the FOIA by
noting, “one of [FOIA’s] paramount goals...is to
deter secrecy in government and the corruption it
can breed.”

How then are the purposes of FOIA, as recited by the
Supreme Court and reflected upon by the Sinito court, to be
achieved where there exist allegations of agency bad faith?

How is a litigant to approach meeting his/her burden of
proof in the context of allegations of agency bad faith when
the comments of various and numerous federal appellate
courts are devoid of criteria or standards for determining
agency bad faith?

It is those questions that Petitioner seeks answers in
this petition for writ of certiorari.

Respectfully Submitted,
Patrick Rugiero |
By Counsel

David I. Schoen

Counsel of Record

2800 Zelda Road, Suite 100-6
Montgomery, Alabama 36101
(334) 395-6611

21

TABLE OF CONTENTS
Appendix to Petition

Page

Opinion
United States Court of Appeals
for the Sixth Circuit
Bille I reecccrnnnecepneresscveqnevorntnnveseeencenn App. 1

Memorandum Opinion,
Order and Judgment of
The Honorable Paul V. Gadola
United States District Court
for the Eastern District of Michigan
Southern Division
Re: Dismissing Complaint with Prejudice
GIREIOG BARI D, BOD D ovaecccerccsecesescevesesrvsnencccwsceene App. 27

Memorandum Opinion of
The Honorable Paul V. Gadola
Re: Granting in Part and Denying in Part
Defendants’ Motions for Summary Judgment
entered October 19, 1998 ........cserererereererereseeenes App. 30

Order
United States Court of Appeals
for the Sixth Circuit
Re: Denying Petition for Rehearing
entered September 7, 2001 ..........s:ssssessessseserereees App. 49

App. i

Case No. 99-1608

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Patrick Rugiero,
Plaintiff-Appellant,

v.

United States Department of Justice;

Department of Treasury,
Defendants-Appellees.

Argued: November 2, 2000
Decided and Filed: July 12, 2001
[Entered: July 12, 2001]

Before: KRUPANSKY, BATCHELDER, and
GILMAN, Circuit Judges.

COUNSEL

ARGUED: David I. Schoen, Montgomery, Alabama, for
Appellant. William L. Woodard, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellees.

ON BRIEF: David I. Schoen, Montgomery, Alabama, for
Appellant. William L. Woodard, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellees.

App. 1

OPINION

ALICE M. BATCHELDER, Circuit Judge. Patrick
Rugiero filed requests with eleven components of the
United States Departments of Justice and Treasury under
the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA" or
"Act"), for information regarding himself. Unsatisfied with
the responses he received, Rugiero filed a complaint seeking
declaratory and injunctive relief against all eleven divisions.
Prior to commencement of discovery, the defendants filed
motions for summary judgment, which the district court
granted as to most of the defendant components. Rugiero v.
United States Dep't of Justice, 35 F. Supp. 2d 977 (E.D. Mich.
1998). When those remaining processed Rugiero's FOIA
request or released particular documents, the district court
dismissed these defendants. Rugiero moved for
reconsideration, but the district court denied the motion as
untimely. For the reasons set forth below, we affirm in part,
reverse in part, and remand for further proceedings
consistent with this opinion.

I. Statement of Facts
A. Rugiero's Trial and Conviction

On June 19, 1992, a jury convicted Rugiero of
distributing cocaine and conspiracy to distribute, or possess
with intent to distribute, cocaine and heroin, but returned a
verdict of not guilty to charges of distributing heroin,
‘intimidating a witness, and using a firearm during a violent
crime. United States v. Rugiero, 804 F. Supp. 925, 928 (E.D.
Mich. 1992). On the evening following submission of the
case to the jury, local news broadcasts identified Rugiero's
defense counsel, N.C. Deday LaRene, as the target of a
federal criminal investigation for his alleged ties to

App. 2

organized crime figures. Two days later, a juror passed a
note to the court expressing concern about the deliberations.
Shortly thereafter, the jury indicated that it had reached a
verdict, and the juror who authored the first note sent a
second note to the court asking that the first note be
disregarded. After receiving the verdicts, the court polled
each juror individually and assured itself that, although
several jurors had seen or heard about the news report,
outside prejudicial information did not influence the
verdicts.

The district court denied Rugiero's motion for a new
trial based on the prejudice resulting from outside
influences on the jury. Id. at 931. We affirmed the conviction
on appeal. United States v. Rugiero, 20 F.3d 1387 (6th Cir.) (2-
1 decision), cert. denied, 513 US. 878 (1994). LaRene
represented Rugiero in all phases of his criminal trial and
appeal, and Rugiero claims that during the course of his
criminal trial he never knew—and that the government
withheld from him _ information—that the federal
government was preparing to indict LaRene. Viewing his
attorney's impending indictment as a conflict of interest that
prejudiced his defense at trial and on appeal, Rugiero has
filed an action under 28 U.S.C. § 2255 seeking to set aside his
conviction. Frustrated by the government's purported
obfuscation of his requests for discovery and alleged
misconduct in the section 2255 proceeding, Rugiero turned
to the FOIA as an alternative means of learning information
to use in his efforts to set aside his conviction. The same
district court judge has presided over all of these actions, the
criminal trial, the section 2255 action, and this FOIA case.

App. 3

B. Rugiero's FOIA Requests

The complaint in this case identifies the eleven
components from which Rugiero requested records in
separate counts. The following defendants figure
prominently in the discussion in this appeal: the Executive
Office of the United States Attorneys ("EOUSA") named in
Count IV; the United States Secret Service ("USSS"); the
Internal Revenue Service ("IRS"); the Tax Division of the
Department of Justice ("DOJ Tax"); and the Drug
Enforcement Agency ("DEA") named in Count XI.

Rugiero requested, pursuant to the FOIA, "a copy of
any and all records, documents and any type of information
that your agency has or had in its possession that is in any
way connected to, related to or even remote [sic] in
reference to my name." Each defendant responded to the
request by searching its records, which resulted in
production of over one thousand pages of responsive
documents in total, with the vast majority withheld in full or
in part pursuant to claims of statutory exemption under the
Act. Three defendants, the USSS, IRS, and DOJ Tax, Iccated
no responsive documents.

The EOUSA, United States Marshals Service, and the
DEA each conducted additional searches either at the
administrative appeals level or in response to this suit and
identified new documents subject to disciosure in response
to Rugiero's FOIA request. The IRS asked Rugiero to narrow
the scope of his request, and he identified all "Criminal
Investigation Division records that may have been compiled
between the years 1984 and 1993 inclusive" as the object of
his FOIA query.

During the district court proceedings, DOJ Tax
maintained that it never received Rugiero's FOIA request.
Rugiero, 35 F. Supp. 2d at 986. When Rugiero produced a
copy of it, however, the district court ordered DOJ Tax to

process the request immediately. Id. Once DOJ Tax
complied, the district court granted the division's motion for
summary judgment.

Also, Rugiero contested the EOUSA's withholding of
several specific documents. Document 2 is a letter from the
federal prosecutor in Rugiero's criminal case to LaRene
regarding intimidating conduct and threats directed at
jurors and other third parties associated with Rugiero's
criminal trial. Because the document had already been
disclosed to Rugiero’s defense counsel, the district court
ordered the EOUSA to release the document in its entirety
to Rugiero, id. at 984, though the court later modified this
order to redact the names of jurors and third parties. The
district judge conducted an in camera review of Document 3,
a letter from a federal prosecutor to an FBI agent regarding
jury tampering in Rugiero's criminal case, Document 5, a
document on which the United States Probation Department
relied in preparing Rugiero's presentence report, and
Documents 9 and 10, allegedly containing correspondence
between a federal prosecutor and third parties regarding the
investigation of LaRene. Id. at 984-85. Upon review, the
court declined to order the EOUSA to produce any of these
documents. Id.

II. Standard of Review

An agency's denial of a FOIA request is reviewed by
a district court de novo. 5 U.S.C. § 552(a)(4)(B). Similarly,
this court reviews the propriety of a district court's grant of
summary judgment in a FOIA proceeding de novo. Abraham
& Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir.
1998) (citing Detroit Free Press, Inc. v. Department of Justice, 73
F.3d 93, 95 (6th Cir. 1996)). Summary judgment is proper if
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). When reviewing a motion for

App. 5

summary judgment, the evidence, all facts, and any
inferences that may be drawn from the facts must be viewed
in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). To prevail, the non-movant must show sufficient
evidence to create a genuine issue of material fact. Klepper v.
First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere
scintilla of evidence is insufficient; "there must be evidence
on which the jury could reasonably find for the [non-
movant]." Anderson v. Liberty Lobby, Inc., 477 US. 242, 252
(1986). Entry of summary judgment is appropriate "against a
party who 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."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Ill. Applicable Provisions of the FOIA

The FOIA generally provides that every federal
agency shall promptly make available upon request records
reasonably described. 5 U.S.C. § 552(a)(3)(A). Under the Act,
an agency may not withhold or limit the availability of any
record, unless one of the FOIA's specific exceptions applies.
Id. § 522(d). These exceptions are to be narrowly construed,
Department of the Interior v. Klamath Water Users Protective
Ass'n, 121 S. Ct. 1060, 1065 (2001) (quoting United States
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)), and
the burden is on the agency to justify its action. 5 U.S.C. §
552(a)(4)(B). Therefore, the structure of the Act reflects "a
general philosophy of full agency disclosure unless
information is exempted under clearly delineated statutory
language." Department of the Air Force v. Rose, 425 U.S. 352,
360-61 (1976) (quotation omitted).

To ensure the breadth of disclosure, the Act
authorizes courts to examine documents in camera when
reviewing the propriety of an agency's withholdings. 5
USC. § 552/a)(4)(B). In camera review is a discretionary
measure taken after consideration of: (1) judicial economy;

App. 6

(2) actual agency bad faith, either in the FOIA action or in
the underlying activities that generated the records
requested; (3) strong public interest; and (4) whether the
parties request in camera review. Ingle v. Department of
Justice, 698 F.2d 259, 267 (6th Cir. 1983), overruled on other
grounds by United States Dep't of Justice v. Landano, 508 U.S.
165 (1993). This circuit, however, encourages use of in camera
review sparingly, when no other procedure allows review of
the agency's response to a FOIA request. Id.

Procedurally, district courts typically dispose of
FOIA cases on summary judgment before a plaintiff can
conduct discovery. Jones v. FBI, 41 F.3d 238, 242 (6th Cir.
1994). This posture creates a situation in which a plaintiff
must argue that the agency's withholdings exceed the scope
of the statute, although only the agency is in a position to
know whether it has complied with the FOIA unless the
court reviews a potentially massive number of documents in
camera. Id. One means developed to address this situation is
the use of a "Vaughn index," a routine device through which
the agency describes the documents responsive to a FOIA
request and indicates the reasons for redactions or
withholdings in sufficient detail to allow a court to make an
independent assessment of the claims for exemptions from
disclosure under the Act. Id. at 241-42; Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973). Ordinarily, the agency may justify
its claims of exemption through detailed affidavits, which
are entitled to a presumption of good faith. Jones, 41 F.3d at
242 (citing United States Dep't of State v. Ray, 502 U.S. 164,
179 (1991)). Evidence of bad faith on the part of the agency
can overcome this presumption, even when the bad faith
concerns the underlying activities that generated the FOIA
request rather than the agency's conduct in the FOIA action
itself. Id. at 242-43. Unless evidence contradicts the
government's affidavits or establishes bad faith, the court's
primary role is to review the adequacy of the affidavits and
other evidence. Ingle, 698 F.2d at 265 (quoting Cox v. United
States Dep't of Justice, 576 F.2d 1302, 1312 (8th Cir. 1978));

App. 7

Silets v. United States Dep't of Justice, 945 F.2d 227, 231 (7th
Cir. 1991) (citing Kimberlin v. Department of Treasury, 774 F.2d
204 (7th Cir. 1985)). “If the Government fairly describes the
content of the material withheld and adequately states its
grounds for nondisclosure, and if those grounds are
reasonable and consistent with the applicable law, the
district court should uphold the government's position."
Ingle, 698 F.2d at 265 (quoting Cox, 576 F.2d at 1312).

IV. Bad Faith

Rugiero's most insistent argument is that evidence of
the government's bad faith in this FOIA action, the parallel
section 2255 proceeding, and the underlying criminal
conviction militate in favor of in camera review of at least a
random sample of the documents responsive to his FOIA
requests. A showing of bad faith would rebut the
presumption of regularity the government enjoys in
responding to FOIA requests, Jones, 41 F.3d at 242, and
would weigh heavily in the decision to conduct an in camera
review of responsive documents withheld or redacted. Ingle,
698 F.2d at 267.

Rugiero offers the saga of Document 2 as the best
example of bad faith in these FOIA proceedings. The
EOUSA's Vaughn index describes the document as
"[c]orrespondence from AUSA to attorneys re: jury
tampering" and indicates that its contents involve
"discussions with jurors, third party individuals, and
threats, intimidating conduct directed at and reported by
several jurors in course of Rugiero prosecution." Pursuant to
5 U.S.C. § 552(b)(6) and (7)(C), the EOUSA initially withheld
the entire document. Rugiero, 35 F. Supp. 2d at 984. Noting |
that a copy of the letter had been sent to LaRene, the district
court ordered the document released in its entirety to
Rugiero. Id. Later, the court reconsidered and allowed the
EOUSA to redact the names of individuals in the letter.
Disputing the characterization of the contents of the letter,
Rugiero invites us to review its contents. In relevant part,

App. 8

the correspondence redacted pursuant to 5 US.C.
§ 552(b)(7)(C) describes a discussion a prosecutor had with

jurors following the criminal trial:

Having talked to juror [7C], I made a general
inquiry of the several jurors who were still
present, asking them if they had encountered
any unusual events during the course of the
trial. Juror [7C] said that, on one occasion,
[7C] noted a [7C] colored vehicle driving
slowly down [7C] block as if the driver were
searching for an address, but that event had
no impact upon [7C's] role as a juror.
Additionally, juror [7C] advised that in
travelling home after court one day, a car
which [7C] believed to be occupied by [7C]
[7C] on the freeway. While that event
bothered [7C], it did not preclude [7C] from
deciding the case solely upon the evidence
and, in fact, finding [one of Rugiero's co-
defendants] not guilty. No other jurors
reported any unusual events occurring to
them during the course of the trial. I did hear
later, however, that some of the jurors were
disturbed by the fact that an investigator,
apparently retained by the defense, had
contacted or tried to make contact with them.

In response to Rugiero's motion for reconsideration of the
order allowing the EOUSA to redact portions of this letter,
the district court concluded that "the document can fairly be
read to contain exactly the information DOJ and EOUSA
indicated that the document contained." We agree. Though
the document nowhere uses the words "threat" or
"intimidation," from the perspective of the jurors involved,
this characterization is fair. More importantly, the
description of the document in the Vaughn index appears
accurate. Although Rugiero expresses outrage that the

App. 9

EOUSA has redacted portions of a document already
released to his attorney, we have clearly held that no
diminution of privacy interests occurs despite the fact that
the identifying information is already publicly available.
Abraham & Rose, 138 F.3d at 1083. Therefore, these
redactions were proper, and upon inspection Rugiero's
prime example of bad faith on the part of the government in
this proceeding amounts to nothing more than proper
application of the law.

With regard to bad faith elsewhere in this action, the
district court specifically found that Rugiero had failed to
offer any such evidence with respect to the defendants that
identified responsive documents, except the EOUSA.
Rugiero, 35 F. Supp. 2d at 983, 985. These findings provided
the basis for the district judge's refusal to review the
documents in camera. Id. Although he failed to make a
similar finding explicitly with regard to the other
defendants, their lack of bad faith is readily discernible.
Because the USSS, IRS, and DOJ Tax found no responsive
documents and DOJ Tax required prodding from the district
court to conduct its search, Rugiero constructs an argument
of bad faith dependent on the adequacy of these defendants'
searches. Yet even an inadequate search does not necessarily
imply bad faith, and the record lacks any evidence
supporting Rugiero's argument that the USSS, IRS, or DOJ
Tax acted in bad faith in responding to the FOIA requests.
With respect to the EOUSA, the district judge reviewed
several documents, in addition to Document 2, in camera.
That review resulted in no action other than the modified
order producing Document 2 with redactions. Rugiero
contends that, since the EOUSA initially sought to withhold
Document 2 in its entirety, the district court's release of the
document should trigger heightened scrutiny of others. This
argument overlooks the in camera review of the other
documents from which the district court concluded that the
EOUSA properly withheld materials Rugiero sought to have
released. Moreover, one instance of failing to release a

App. 10

record—without more—does not constitute bad faith,
especially when as here the agency has processed a
voluminous body of responsive documents.

Rugiero also contends that bad faith in the section
2255 proceeding and his criminal trial obligated the district
court to conduct an in camera review of the responsive
documents. With respect to the section 2255 action, the
parties argue whether the government has played a "shell
game" by telling Rugiero there that he can obtain documents
for the collateral challenge to his conviction in this FOIA
action while saying here that he can receive material
through discovery in the section 2255 proceeding.
Regarding the criminal trial, the parties debate whether the
failure to disclose LaRene’'s then-impending indictment
constituted bad faith. Relying on the line of cases originating
in Holloway v. Arkansas, 435 U.S. 475 (1978) (holding that an
attorney's conflict of interest gives rise to a claim of
ineffective assistance of counsel under the Sixth
Amendment and establishes prejudice per se), see also Riggs
v. United States, 209 F.3d 828, 831-32 & n.1 (6th Cir. 2000),
Rugiero maintains that the collateral nature of bad faith in
FOIA proceedings under Jones obligated the district judge to
conduct an in camera review of redacted and withheld
responsive documents.

We express no opinion on the merits of Rugiero's
argument that he suffered a deprivation of his Sixth
Amendment rights. That question is the subject of the
section 2255 action and is not properly before us. We do
believe, however, that Rugiero misunderstands our
discussion of bad faith in Jones. There, the FBI had targeted
the leader of a black nationalist group as a part of its now
infamous COINTELPRO program and played a role in the
prosecution of Jones for the murder of two police officers.
Jones used documents obtained from the FBI through FOIA
requests to secure his release through the issuance of a writ
of habeas corpus and subsequently filed suit under the
FOIA to compel release of withheld material. Although an

App. 11

agency's processing of a FOIA request ordinarily enjoys a
presumption of good faith, we noted that "[e]ven where
there is no evidence that the agency acted in bad faith with
regard to the FOIA action itself there may be evidence of
bad faith or illegality with regard to the underlying
activities which generated the documents at issue." Jones, 41
F.3d at 242. Later, we quoted Ingle v. Department of Justice for
examples of the type of bad faith that might lead a district
court to conduct an in camera review: "where it becomes
apparent that the subject matter of a request involves
activities which, if disclosed, would publicly embarrass the
agency or that a so-called ‘cover up' is presented, government
affidavits lose credibility." Jones, 41 F.3d at = (quoting
Ingle, 698 F.2d at 267) (emphasis added).

Employing this standard, we concluded that Jones
presented a clear case of bad faith warranting in camera
review because the nature of the FBI's COINTELPRO
investigation went beyond the ordinary detection and
prevention of criminal activity to well-documented
infringements of civil liberties whose disclosure threatened
public embarrassment of the FBI. Id. In reaching this
conclusion, we recognized that Jones presented an unusual
case and defined the collateral nature of bad faith in FOIA
actions according to a very high standard that would
infrequently be met. Id. ("[T]he courts of this circuit should
not process this case in the same manner as they would a
request for documents regarding a routine FBI
investigation.").

We think that the public controversy surrounding
COINTELPRO and the FBI's direct role in securing a tainted
conviction in Jones suffices to distinguish Rugiero's case,
which falls much closer to a "routine investigation" and
prosecution entitled to a presumption of good faith. While
we do not condone the withholding of a possible conflict of
interest from the district court, Rugiero has simply not
pointed to strong evidence of bad faith that calls into
question the district court's decision not to conduct an in

App. 12

camera review of responsive documents. To the extent that
Rugiero has sought to use the FOIA to aid his section 2255
action, we repeat that "a FOIA request is not a substitute for
the normal process of discovery in civil and criminal cases."
Jones, 41 F.3d at 250 (citing John Doe Agency v. John Doe Corp.,
493 U.S. 146, 153 (1989), and Irons v. Bell, 596 F.2d 468,475 &
n.15 (1st Cir. 1979)).

V. Adequacy of Searches for Responsive Documents

Rugiero next claims that the district court erred in
not evaluating the adequacy of the searches conducted in
response to his FOIA requests. His brief focuses on the
searches conducted by the IRS, USSS, and DOJ Tax, all of
which found no documents responsive to his request.

In response to a FOIA request, an agency must make
a good faith effort to conduct a search for the requested
records using methods reasonably expected to produce the
requested information. Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The FOIA requires a
reasonable search tailored to the nature of the request. Id. at
28. At all times the burden is on the agency to establish the
adequacy of its search. Patterson v. IRS, 56 F.3d 832, 840 (7th
Cir. 1995); Steinberg v. United States Dep't of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep't of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984)). In discharging this
burden, the agency may rely on affidavits or declarations
that provide reasonable detail of the scope of the search.
Bennett v. DEA, 55 F. Supp. 2d 36, 39 (D.D.C. 1999) (citing
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). "In the
absence of countervailing evidence or apparent
inconsistency of proof, [such affidavits] will suffice to
demonstrate compliance with the obligations imposed by
the FOIA." Id. The question focuses on the agency's search,
not on whether additional documents exist that might

satisfy the request. Steinberg, 23 F.3d at 551 (quoting
Weisberg, 745 F.2d at 1485).

x App. 13

- After outlining the basic structure of the agency's
Master Central Index computer system, the declaration
from the USSS indicates. that three individuals searched
the agency's computer system on three separate
occasions from three different offices. Each of these
searches looked for documents by name, date of birth, and
social security number. This search appears to be the
model of responsiveness under the FOIA. Rugiero
contends, however, that the USSS cannot possibly have
no documents pertaining to him since an agent testified
at his trial. The declaration of the agency responds that
the agent who testified maintained no paper files
relative to him and had minimal contacts with Rugiero
since another agency conducted the investigation.
Because our legal standard focuses on the adequacy of the
search, not the chance that additional responsive
documents exist, id., summary judgment for the USSS was
appropriate.

With regard to the IRS, the declaration outlined
operation of its Integrated Data Retrieval System and
stated that Rugiero's request for documents pertaining to
himself within the Criminal Investigation Division
compiled between 1984 and 1993 inclusive was processed
twice, each time seeking to identify files with Rugiero's
social security number. Rugiero again protests that the IRS
must have records on him since the agency introduced his
tax returns at his criminal trial. The Criminal Investigation
Division, however, investigates violations of the criminal
provisions of Title 26. Rugiero did not face such charges at
his criminal trial. Moreover, the district court harmonized
the introduction of tax records and the lack of responsive
documents at the oral arguments on defendants’ motions

for summary judgment: ©

App. 14

[I]In a drug case when the tax returns are
introduced, it's not necessarily because
there's any charge, of course, of tax evasion,

but usually it's introduced to produce some
evidence from which the jury could infer that = -
the individual has some . . . illicit source of
income that he's not disclosed on the tax
returns because his lifestyle far exceeds
what's shown on the tax return. That arises
fairly often in drug cases.

Additionally, Rugiero questions the good faith of the IRS in
responding to his request since the agency required him to
narrow his search-before processing it. The FOIA requires
that a request "reasonably describe" the documents sought. 5
U.S.C. § 552(a)(3)(A). Accordingly, a request to narrow the
scope of a search is entirely permissible under the Act.
When the IRS asked Rugiero to narrow his request, the
agency provided an overview of the types of records its
divisions could be expected to have. Again, the focus is on
the adequacy of the search, and there is no indication that
the IRS failed to conduct an adequate search for the records
requested. Therefore, summary judgment for the IRS was
proper. Rugiero remains free, of course, to submit FOIA
requests to other divisions within the IRS.

Finally, Rugiero challenges the adequacy of the
search conducted by DOJ Tax, which initially maintained it
had never received a FOIA request from Rugiero and only
conducted its search when ordered to do so by the district
court. The only file identified in the search related to this
FOIA request, and no records relating to a criminal
investigation of Rugiero were found. Because the
declaration submitted by DOJ Tax fails to describe the
methods of its search and states simply that the agency
searched its "indices," this response to Rugiero's FOIA
requests verges on the impermissibly conclusory. Bennett, 55
F, Supp. 2d at 40 ("An affidavit must give reasonable detail

App. 15

of the scope of the search in order to satisfy the agency's
burden of proof; simply stating that 'any and all records’
were searched is insufficient."). The declaration does state
that DOJ Tax maintains its files by the name of the subject of
an investigation, so whatever files the agency searched in
response to Rugiero's request would have turned up any
documents if he were the target of an investigation. Of
course, Rugiero requested all documents relating to him, not
just those pertaining to an investigation of himself, and DOJ
Tax has not given any indication that it conducted this
broader search. Our inquiry focuses on the reasonableness
of the search, not the potential existence of additional
responsive documents. Steinberg, 23 F.3d at 551 (quoting
Weisberg, 745 F.2d at 1485). We think that DOJ Tax
conducted a reasonable search in response to Rugiero's
FOIA request and that the declaration demonstrates
compliance with the obligations the Act imposes on the
agency. Therefore, since the record lacks any countervailing
evidence, the district court properly granted summary
judgment.

VI. Exemptions from Disclosure
A. Relevant Exemptions under the FOIA

Defendants have invoked five of the FOIA's
exceptions in withholding in full or in part materials
released in response to Rugiero's requests. First, section
552(b)(2) exempts records “related solely to the internal
personnel rules and practices of an agency." This court
employs a two-prong test developed in other circuits to
determine the applicability of this exception. Abraham &
Rose, 138 F.3d at 1080. The agency must show that the
requested information it seeks to withhold relates
predominantly to an agency's rules and practices for
personnel. Id. The agency must further show that the public
has no legitimate interest in the information requested. Id.

App. 16

This exemption applies to routine matters of merely internal
significance. Jones, 41 F.3d at 244 (quoting Lesar v. United
States Dep't of Justice, 636 F.2d 472, 485 (D.C. Cir. 1980)). This
court has upheld the use of this exemption to withhold file
numbers and symbols used to identify informants. Id. at
244-45 (citing Kiraly v. FBI, 728 F.2d 273, 276 n6 (6th Cir.
1984)). Information that merely has the potential for
bringing to light the practices by which an agency collects
and processes information does not come within the ambit
of the exception. Abraham & Rose, 138 F.3d at 1081.

Second, section 552(b)(3) covers matters "specifically
exempted from disclosure by statute" when the statute
leaves no discretion about the decision to withhold
information from the public or establishes specific criteria
for withholding particular types of matters. Accordingly,
the scope of the inquiry under this exemption is limited: if a
statute exempts materials from disclosure and the requested
materials fall within that statute's scope, that is the end of
the matter. Though not previously addressed in this circuit,
courts have unanimously held that Rule 6(e) of the Federal
Rules of Criminal Procedure constitutes a statute under
section 552(b)(3) of the FOIA so that an agency may
withhold grand jury materials. E.g., Solar Sources, Inc. v.
United States, 142 F.3d 1033, 1037 n.4 (7th Cir. 1998); Church
of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224,
235 (1st Cir. 1994); McDonnell v. United States, 4 F.3d 1227,
1246-47 (3d Cir. 1993); Fund for Constitutional Gov't v.
National Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir.
1981). Rule 6(e)(3) outlines the exceptions to the Rule's
general prohibition against disclosure of grand jury
materials. Nonetheless, documents identified as grand jury
exhibits or containing testimony or other material directly
associated with grand jury proceedings fall within the
exemption under section 552(b)(3) without regard to
whether one of the Rule 6(e)(3) exceptions allows disclosure.
Church of Scientology, 30 F.3d at 235. Documents created for

App. 17

reasons independent of a grand jury investigation do not. Id.
(citing United States v. Dynavac, Inc., 6 F.3d 1407, 1412 (9th
Cir. 1993)).

Third, section 552(b)(5) exempts “inter-agency or
intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation
with the agency." This provision protects documents that a
private party could not discover in litigation with the
agency. Schell v. United States Dep't of Health and Human
Servs., 843 F.2d 933, 939 (6th Cir. 1988) (citations omitted).
Courts have construed this exception to preserve the

recognized evidentiary privileges, such as the attorney-
client privilege, the attorney work-product privilege, and
the deliberative process privilege. Klamath Waier Users
Protective Ass'n, 121 S. Ct. at 1065-66; Schell, 843 F.2d at 939
(citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir.
1980)). To come within this exception on the basis of the
deliberative process privilege, a document must be both
“predecisional," meaning it is “received by the
decisionmaker on the subject of the decision prior to the
time the decision is made," and "deliberative," the result of a
consultative process. Schell, 843 F.2d at 940 (citing Parke,
Davis & Co., 623 F.2d at 6). Although this privilege covers
recommendations, draft documents, proposals, suggestions,
and other subjective documents that reflect the opinions of
the writer rather than the policy of an agency, the key issue
in applying this exception is whether disclosure of the
materials would “expose an agency's decisionmaking
process in such a way as to discourage discussion within the
agency and thereby undermine the agency's ability to
perform its functions." Id. (quoting Dudman Communications
Corp. v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C.
Cir. 1987)).

Fourth, section -552(b)(6) exempts "personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy." We have read this section as establishing a two-

App. 18

prong inquiry: (1) whether the file includes personnel,
medical, or "similar" data; and (2) if so, whether disclosure
constitutes a "clearly unwarranted" invasion of privacy.
Heights Cmty. Cong. v. Veterans Admin., 732 F.2d 526, 528 (6th
Cir. 1984) (citing United States Dep't of State v. Washington
Post Co., 456 U.S. 595, 601-02 (1982)). Under the threshold
requirement, the exception applies to any government
"records on an individual which can be identified as
applying to that individual." Id. (quoting Washington Post,
456 U.S. at 601-02). Determining whether disclosure works a
clearly unwarranted invaSion of privacy requires a
balancing test under which courts identify the privacy
interest at stake and weigh it against the public interest in
disclosure. Id. at 529. "The central inquiry is whether public
access to the information is tantamount to an invasion of
privacy; if so we ask whether such an invasion is justified by
any countervailing public benefit from disclosure." Id.
(quoting Madeira Nursing Ctr., Inc. v. NLRB, 615 F.2d 728,
730 (6th Cir. 1980)) (alterations omitted). A clear privacy
interest exists with respect to such information as names,
addresses, and other identifying information even where
such information is already publicly available. Abraham &
Rose, 138 F.3d at 1083 (citing United States Dep't of Defense v.
Federal Labor Relations Auth., 510 U.S. 487, 500 (1994)).

Fifth, section 552(b)(7) exempts records or
information compiled for law enforcement purposes, but
only if certain conditions are met. This court has adopted a
per se rule under which any documents compiled by a law
enforcement agency fall within the first part of the section
552(b)(7) exception. Jones, 41 F.3d at 245. This rule applies
not only to criminal enforcement actions, but to records
compiled for civil enforcement purposes as well. Abraham &
Rose, 138 F.3d at 1083 (citing White v. IRS, 707 F.2d 897, 901
(6th Cir. 1983)). Accordingly, for a law enforcement agency
to withhold information under this section, one of the
specific provisions of section 552(b)(7) alone need apply.
Four of these are relevant:

App. 19

(1) Section 552(b)(7)(C). Information compiled
for law enforcement purposes the disclosure
of which "could reasonably be expected to
constitute an unwarranted invasion of
personal privacy" does not come within the
FOIA's disclosure mandate. 5 USC. §
552(b)(7)(C). This court construes this section
as requiring a balancing test similar to that
conducted under section 552(b)(6). Jones, 41.
F.3d at 246 (citing Rose, 425 U.S. at 372-73).

(2) Section 552(b)(7)(D). Section 552(b)(7)(D)
excepts records that "could reasonably be
expected to disclose the identity of a
confidential source." Here, the question is not
whether the document is of a type the agency
normally treats as confidential, but whether
the particular source spoke with an
understanding of confidentiality. United
States Dep't of Justice v. Landano, 508 U.S. 165,
172 (1993). Unless a _ promise of
confidentiality is expressly given, the
government is not entitled to a presumption
of confidentiality outside of a narrowly
defined set of circumstances supporting such
an inference, such as the use of a paid
informant. Id. at 173-79. Although not defined
in the Act, the Supreme Court has defined
“confidential” in this section as referring to a
degree of confidentiality less than total
secrecy. Id. at 174. If a confidential source is
later revealed, we nonetheless restrict public
access to documents under this section so
long as the informant and the agency
intended the identity of the source to remain
undisclosed at the time the agency compiled
the information. Jones, 41 F.3d at 249.

App. 20

(3) Section 552(b)(7)(E). This provision allows
the withholding of materials that would
"disclose techniques and procedures for law
enforcement investigations or prosecutions,
or would disclose guidelines for law
enforcement investigations if such disclosure
could reasonably be expected to risk
circumvention of the law." This provision,
however, only protects techniques and
procedures not already well-known to the
public. E.g., Davin v. United States Dep't of
Justice, 60 F.3d 1043, 1064 (3d Cir. 1995)
(quoting Ferri v. Bell, 645 F.2d 1213, 1224 (3d
Cir. 1981)); Rosenfeld v. United States Dep't of
Justice, 57 F.3d 803, 815 (9th Cir. 1995)
(citations omitted).

(4) Section 552(b)(7)(F). This section exempts
from disclosure material that "could
reasonably be expected to endanger the life
or physical safety of any individual."

B. Defendants' Reliance on Exemptions

Rugiero claims that the district court erred by failing
to analyze the claims of exemption with sufficient specificity
and detail as required by the Act. Defendants dismiss this
argument as simply rehashing claims of bad faith. The
government's position overlooks this court's obligation to
review the affidavits, declarations, and Vaughn indices of
agencies to ensure compliance with the Act. Ingle, 698 F.2d
at 265. In none of the orders granting defendants' motions
for summary judgment did the district court scrutinize the
claims for exemption in the affidavits produced by the
agencies. Although the government remains entitled to a
presumption of regularity absent a showing of bad faith, the
role of the district court is to review the adequacy of the
affidavits. Id. "If the Government fairly describes the content

App. 21

of the material withheld and adequately states its grounds
for nondisclosure, and if those grounds are reasonable and
consistent with the applicable law, the district court should
uphold the government's position." Id. (quoting Cox, 576
F.2d at 1312). This standard demands that the district court
review the affidavits justifying the withholding of
documents responsive to a FOIA request against the law
governing application of the Act's exemptions. The record
gives no indication that the district court did this.
Accordingly, we are forced to conclude the district court
erred in failing to review the adequacy of the grounds for
nondisclosure stated in the affidavits as required by Ingle.
Upon review of the agencies’ affidavits, we conclude
that only one defendant applied incorrect legal standards in
withholding some documents responsive to Rugiero's FOIA
request. The DEA identified 399 pages of responsive
material, redacted 102, and withheld 288 in their entirety.
The agency relied on section 552(b)(2) to withhold violator
identifiers; on the exception in section 552(b)(7)(C) to
withhold identifying information on agents, personnel, and
third parties after balancing the privacy interests against
public disclosure; and on section 552(b)(7)(F) to withhold
information about DEA agents. With respect to these
matters, the affidavit adequately describes the content of the
material withheld and applies the governing legal standards
for nondisclosure under these exceptions properly. The
agency's Vaughn index adequately describes responsive
documents and the content of material withheld. In
applying the exception in section 552(b)(7)(D), relating to
confidential sources, however, the DEA's affidavit indicates
that the agency withheld information on two types of
informants: (1) those assigned an internal "Cooperating
Individual Code" after receiving express assurances of
confidentiality; and (2) those who received implied
assurances of confidentiality pursuant to agency policy,

which treats the "circumstances of the interview itself [as]
creat[ing] an atmosphere in which -a promise of
confidentiality is understood." _-

Pursuant to Landano, the agency properly withheld
information on those who received express assurances of
confidentiality. In contrast, the affidavit indicates that the
DEA has adopted a blanket rule that any informant who has
not received an express assurance of confidentiality will be
treated as having received an implied promise of
confidentiality. Landano does not countenance such a
uniform policy, requiring instead that the agency assess
confidentiality based on the particular circumstances
applicable to each source. Accordingly, the DEA has applied
an incorrect standard to confidential informants falling in
the second category identified in its affidavit. The DEA's
Vaughn index fails to distinguish between these types of
confidential sources, necessitating review of all documents
the DEA has withheld in full or in part based on this
exception. On remand, the district court should take
whatever measures it deems appropriate to ensure that the
DEA has complied with Landano in responding to Rugiero's
FOIA request, taking into account that a “bald assertion that
express assurances were given amounts to little more than
recitation of the statutory standard, which we have held is
insufficient." Billington v. United States Dep't of Justice, 233
F.3d 581, 584 (D.C. Cir. 2000) (citing Campbell, 164 F.3d at
30). The DEA cannot rely on conclusory assertions of
compliance with Landano. Rather, the agency must provide
assurances that sources in fact received promises of
confidentiality before withholding information under
section 552(b)(7)(D).

The remaining defendants properly applied the
governing legal standards and described the responsive
documents and materials withheld in sufficient detail to
warrant summary judgment. We have reviewed the
affidavits and Vaughn indices submitted by each
component and are satisfied that each has correctly

App. 23

identified and applied the legal standards governing
exemptions from disclosure under the FOIA and described
responsive documents with sufficient particularity to allow
Rugiero to challenge the withholding of individual
documents, as evidenced by the district court's in camera
review of Document 2 among others. :

VIL. Segregability

Consistent with its aim of maximum disclosure, the
FOIA requires disclosure of "any reasonably segregable"
portion of a record that falls within one of the statute's
exceptions. 5 U.S.C. § 552(b). In such cases, the redactions
are to be indicated on the record produced to the requesting
party. Id. The agency has the burden to show that portions
withheld are not segregable from the disclosed material.
Davin, 60 F.3d at 1052. Under this principle of segregability,
an agency cannot justify withholding an entire document
simply because it contains some material exempt from
disclosure. Krikorian v. Department of State, 984 F.2d 461, 467
(D.C. Cir. 1993) (quotations omitted). Rather, an agency
must supply a relatively detailed justification and explain
why materials withheld are not segregable. Id. (quotations
omitted). A district court errs by approving the withholding
of an entire document without entering a finding on
segregability. Church of Scientology of Cal. v. United States
Dep't of the Army, 611 F.2d 738, 744 (9th Cir. 1980).

Rugiero urges that the district court erred in failing
to require the EOUSA and the DEA to produce all
reasonably segregable material in documents withheld in
their entirety. Specifically, he objects to the agencies’
conclusory assertions of nonsegregability and, because of
the government's alleged bad faith, seeks in camera review of
these materials to assure compliance with the Act.

With respect to the EOUSA's withholding in full of
821 pages of grand jury materials, the district court found
that the Vaughn index identifies these documents as
containing transcripts of witness testimony, exhibits, and

App. 24

other materials identifying witnesses. Rugiero, 35 F. Supp. 2d
at 984. As defendants point out, this finding discharges the -
district court's obligations under the FOIA so far-as these
documents are concerned. The EOUSA, however, withheld
888 pages in their entirety, and the district court did not
consider the segregability of the remaining documents. The
Vaughn index indicates that the EOUSA's decision to
withhold many documents in their entirety consists solely of
a conclusory statement that they do not contain segregable
material. By comparison, the index also lists some
documents as containing responsive material that is "so
intertwined with other third party and protected material as
to be inextricable and nonsegregable." Nowhere does the
EOUSA describe the process by which it determined that all
reasonably segregable material had been released or state
why some materials are not reasonably segregable. See
Davin, 60 F.3d at 1052. Therefore, we remand Count IV to
the district court for further proceedings to determine
whether documents withheld in their entirety by the
EOUSA contain material that can be reasonably segregated
and disclosed. The district court retains discretion to decide
whether to undertake this determination based on
affidavits, in camera review, or some other procedure that
strikes the appropriate balance between disclosure and
protecting exempted materials.

Similarly, in response to Rugiero's request, the DEA
withheld 288 pages in their entirety and released 102 with
redactions. The affidavit in support of the DEA's motion for
summary judgment simply asserts that none of the withheld
material is reasonably segregable. None of the attached
supporting exhibits offers any additional explanation
regarding segregability. Nor does the extensive Vaughn
index suggest that the agency even considered the issue.
Therefore, we also remand Count XI for the district court to
determine whether any documents withheld in their
entirety by the DEA contain segregable material that should
be disclosed under the FOIA.

App. 25

VIII. Conclusion

For the foregoing reasons, we affirm the judgment of
the district court in substantial part, reverse in part, and
remand for further proceedings (1) to apply the
"confidentiality" standard under section 552(b)(7)(D) to
documents the DEA withheld in Count XI; and (2) to
determine the segregability of documents withheld in their
entirety by the DEA and the EOUSA, excluding the 821
pages of grand jury materials withheld pursuant to Rule 6(e)
by the latter. On remand, the district court has available all
of the tools normally available in FOIA actions to ensure
agency compliance with disclosure obligations under the
Act. We recognize that our ruling today will not necessarily
result in production of these documents in whole or in part
to Rugiero. Rather, we seek to ensure agency compliance
with the governing legal standards for disclosing
information under the FOIA and think that the Act compels
this disposition.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

1999 U.S. Dist. LEXIS 4528

PATRICK RUGIERO,
Plaintiff,

v. CIV. ACTION NO. 97-40520

UNITED STATES DEPARTMENT OF JUSTICE and
UNITED STATES DEPARTMENT OF TREASURY,

Defendants.

March 9, 1999, Decided
[March 9, 1999, Entered]

DISPOSITION:

[*1] Plaintiff, Patrick Rugiero, take nothing in this action
against defendants, and that his July 30, 1997 complaint
DISMISSED with prejudice.

COUNSEL:

For PATRICK RUGIERO, plaintiff: Alan C. Applebaum,
Southfield, MI. For DEPARTMENT OF JUSTICE,
DEPARTMENT OF THE TREASURY, defendants: Charles
H. Keen, U.S. Department of Justice, Washington, DC. For
DEPARTMENT OF JUSTICE, defendant: William L.
Woodard, United States Attorney's Office, Detroit, MI.

JUDGES:
HONORABLE PAUL V. GADOLA, U.S. DISTRICT JUDGE.

OPINION BY:
PAUL V. GADOLA

App. 27

OPINION:
ORDER

On July 30, 1997, plaintiff, Patrick Rugiero, filed an
eleven-count complaint pursuant to the Freedom of
Information Act, 5 U.S.C. @ 552 et seq. ("FOIA"). On
September 16, 1998, this court entered an order dismissing
with prejudice Count III of plaintiff's complaint pursuant to
stipulation of the parties. On October 19, 1998, this court
entered an order dismissing with prejudice Counts I, I, V,
VI, VU, VIL, IX and XI of plaintiff's complaint. In that order,
this court also ordered certain relief pursuant to the claims
contained in Count IV of the complaint, but dismissed the
remaining portion of Count IV with prejudice. On January
22, 1999, [*2] this court entered an order dismissing with
prejudice Count X of plaintiff's complaint.

Accordingly, this court having reviewed the
submissions of the parties and being fully advised in the
premises, Count IV being the only count remaining in
plaintiff's complaint, and the substantive claims contained
in Count IV having been disposed of by this court's prior
orders in this matter, IT IS HEREBY ORDERED that the
remaining claims contained in Count IV of plaintiff's July 30,
1997 complaint are DISMISSED with prejudice.

SO ORDERED.
Dated: 3/9/99 PAUL V. GADOLA
UNITED STATES DISTRICT JUDGE
JUDGMENT

This action came before this court, the Honorable
Paul V. Gadola, District Judge presiding, and the issues
having been fully presented and the court being fully
advised in the premises, and a decision having been duly
rendered,

App. 28

IT IS HEREBY ORDERED AND ADJUDGED that
the plaintiff, Patrick Rugiero, take nothing in this action
against defendants, and that his July 30, 1997 complaint be
DISMISSED with prejudice.

SO ORDERED.

Dated: 3/9/99 PAUL V. GADOLA
UNITED STATES DISTRICT JUDGE

App. 29

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

35 F. Supp. 2d 977; 1998 U.S. Dist. LEXIS 19573;
82 A.F.T.R.2d (RIA) 7393

PATRICK RUGIERO,
Plaintiff

v. CIV. ACTION NO. 97-40520

UNITED STATES DEPARTMENT OF JUSTICE and
UNITED STATES DEPARTMENT OF TREASURY,

Defendants.

October 19, 1998, Decided
October 19, 1998, Filed
[October 19, 1998, Entered]

DISPOSITION:

[**1] Defendants' motions for summary judgment pursuant
to Fed. R. Civ. P. 56 GRANTED in part and DENIED in part.

COUNSEL:

For PATRICK RUGIERO, plaintiff: Alan C. Applebaum,
Southfield, MI. For DEPARTMENT OF JUSTICE,
DEPARTMENT OF THE TREASURY, defendants: Charles
H. Keen, U.S. Department of Justice, Washington, DC. For
DEPARTMENT OF JUSTICE, defendant: William L.
Woodard, United States Attorney's Office, Detroit, MI.

JUDGES:
HONORABLE PAUL V. GADOLA, U.S. DISTRICT JUDGE.

OPINION BY:
PAUL V. GADOLA

OPINION: '

[*979] MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Before the court are two separate motions for
summary judgment filed by defendants, United States
Department of Justice and United States Department of
Treasury. This court held oral argument on the instant
motions on September 15, 1998. At that time, this court took
the majority of issues related to the motions for summary
judgment under advisement. However, on September 16,
1998, this court did enter an order disposing of a number of
matters. This court is now prepared to rule on the remaining
issues raised in the motions for summary judgment. For the
reasons set forth below, this court will grant defendants’
motions in part, and deny them in part. ;

Factual Background

This is an action brought under the Freedom of
Information Act, 5 U.S.C. @ 552 (FOIA). FOIA provides for
disclosure of information to the public unless the requested
records are exempt under one or more of [**2] the nine
statutory exemptions. Department of the Air Force v. Rose, 425
US. 352, 360-61, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The
plaintiff is Patrick Rugiero, and the defendants are the
United States Department of Justice and Department of
Treasury.

Plaintiff submitted FOLA requests seeking disclosure
of any and all documents about himself from several
components of the Department of Justice and Department of
Treasury. Those components include the Criminal Division
of the Department of Justice (DOJ-Crim. Div.), the Detroit
Field Division of the Federal Bureau of Investigation (FBI-
Detroit), Headquarters of the Federal Bureau of
Investigation (FBI-HQ), Executive Office of United States
Attorneys (EOUSA), United States Secret Service (USSS),

App. 31

United States Marshal Service (USMS), United States
Customs Service (USCS), Bureau of Alcohol, Tobacco and
Firearms (ATF), and the United States Drug Enforcement
Administration (DEA). Plaintiff also claims that he
submitted FOIA requests to the Internal Revenue Service
(IRS) and Tax Division of the U.S. Department of Justice
(DOJ-Tax).

The components responded to plaintiff's requests by
searching their records to determine whether any [**3]
responsive documents existed. DOJ-Crim. Div. (Count ])
located two responsive documents. It released one of the
documents to plaintiff with certain information redacted
pursuant to 5 U.S.C. @ 552(b) (6) and (b)(7)(C). It determined
that the other document originated in EOUSA, so it referred
the document to that component for processing and direct
response to plaintiff. EOUSA reviewed the document and
released it in full to plaintiff.

FBI-Detroit (Count II) located one document with
five pages responsive to plaintiff's request, and released to
plaintiff one page in its entirety and the remaining four
pages with certain information redacted under 5 U.S.C. @
552 (b)(7)(C). FBI-HQ (Count III) searched its records and
found no pertinent records responsive to plaintiff's FOIA
request.

EOUSA (Count IV) located 1, 211 pages of
responsive documents. Of this total, it released 292 pages to
plaintiff in their entirety and 31 pages with portions
withheld. It withheld 888 pages in their entirety (821 of
which were grand jury materials). EOUSA withheld the
information pursuant to the FOIA exemptions under 5
US.C. @ 552(b)(3), (6)(5), (6)(6), (6)(7)(C), (6)(7)(D), (6)(7)(E),
and (b)(7)(F). EOUSA [**4] also determined that an
additional 175 pages in its possession had originated with
DEA and an additional 73 pages had originated with ATF,
so it referred those pages to DEA and ATF for FOIA
processing and direct response to plaintiff.

_

App. 32

USSS (Count V) searched its records and found no
pertinent records responsive to plaintiff's FOIA request.

USCS (Count VI) located one responsive document
consisting of two pages, which it [*980] released to plaintiff
with certain information redacted pursuant to 5 U.S.C. @
552(b)(2) and (b)(7)(C).

USMS (Count VII) located 46 documents responsive
to plaintiff's request. It withheld none of these documents in
their entirety, released one document to plaintiff in its
entirety, and released 43 documents to plaintiff with certain
information redacted pursuant to 5. U.S.C. @ 552(b)(2),
(b)(7)(C), and (b)(7)(E).

USMS determined that the remaining two
documents had originated in EOUSA, so it referred those
document to EOUSA for disclosure determination and
direct response to plaintiff.

ATF (Count VIII) located 105 pages responsive to
plaintiff's FOIA requests, and released all responsive
document to plaintiff with information redacted pursuant to
5 U.S.C. @ 552(b)(7)(c), [5] (6)(7)(D), and (b)(7)(F).

The Internal Revenue Service (Count IX) claimed
that it found no responsive documents.

DOJ-Tax (Count X) claims that plaintiff never
properly complied with the administrative procedures
required under FOIA, and thus it has not produced any
documents related to a request by plaintiff.

DEA (Count XI) located 399 pages of responsive
document. It released 100 pages to plaintiff with portions
redacted, and withheld the remaining 299 pages in their
entirety. DEA asserts that it redacted or withheld
information pursuant to the FOIA exemptions set forth in 5
US.C. @ 552(b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(F).

In the present suit, plaintiff seeks to compel
disclosure of documents or information withheld by the
components on grounds that they are exempt under FOIA.
Count I pertains to the FOIA request made to DOJ-
Crim.Div.; Count I pertains to FBlI-Detroit; Count III

App. 33

pertains to FBI-HQ; Count IV pertains to EOUSA; Count V
pertains to the USSS; Count VI pertains to the USCS; Count
VII pertains to the USMS; Count VHI pertains to ATF; Count
IX pertains to the IRS; Count X pertains to DOJ-Tax; and
Count XI pertains to DEA.

Discussion

1, Standard for [**6] summary judgment pursuant to
Rule 56

Rule 56(c) of the Federal Rules of Civil Procedure
provides that summary judgment "shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Summary judgment is
appropriate where the moving party demonstrates that
there is no genuine issue of material fact as to the existence
of an essential element of the non-moving party's case on
which the non-moving party would bear the burden of
proof at trial. Martin v. Ohio Turnpike Commission, 968 F.2d
606, 608 (6th Cir. 1992); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering a
motion for summary judgment, the court must view the
facts and draw all reasonable inferences therefrom in a light
most favorable to the non-moving party. 60 Ivy Street
Corporation v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
The court is not required or permitted, however, to judge
the evidence or make findings of fact. Id. at 1435-36. [**7]
The moving party has the burden of showing conclusively
that no genuine issue of material fact exists. Id. at 1435.

A fact is "material" for purposes of summary
judgment where proof of that fact would have the effect of
establishing or refuting an essential element of the cause of
action or a defense advanced by the parties. Kendall v.
Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). In other words,

App. 34

the disputed fact must be one which might affect outcome of
the suit under the substantive law controlling the issue.
Henson v. National Aeronautics and Space Administration, 14
F.3d 1143, 1148 (6th Cir. 1994). A dispute over a material fact
is genuine "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party." Id.
Accordingly, where a reasonable jury could not find that the
non-moving party is entitled to a verdict, there is no
genuine issue for trial and summary judgment is
appropriate. Feliciano v. [*981] City of Cleveland, 988 F.2d 649
(6th Cir. 1993).

Once the moving party carries its initial burden of
demonstrating that no genuine issues of material fact are in
dispute, the burden shifts to the non-moving party to
present specific [**8] facts to prove that there is a genuine
issue for trial. To create a genuine issue of material fact, the
non-moving party must present more than just some
evidence of a disputed issue.

As the United States Supreme Court stated in
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed.
2d 202, 106 S. Ct. 2505 (1986):

There is no issue for trial unless there is
sufficient evidence favoring the non-moving
party for a jury to return a verdict for that
party. If the [non-moving party's] evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.

(Citations omitted); see also Celotex, 477 U.S. at 322-23;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Consequently, the non-moving party must do more than
raise some doubt as to the existence of a fact; the non-
moving party must produce evidence that would be
sufficient to require submission of the issue to the jury.

App. 35

Lucas v. Leaseway. Multi Transp. Serv., Inc., 738 F. Supp. 214,
217 (E.D. Mich. 1990), aff'd, 929 F.2d 701 (6th Cir. 1991).

2. FOIA
The FOIA statute provides in relevant part: [**9]

Each agency, upon request for records which
(A) reasonably describes such records and (B)
is made in accordance with published rules
stating the time, place, fees (if any), and
procedures to be followed, shall make the
records promptly available to any person.

5 US.C. @ 552(a)(3).

However, not all public records are subject to
production under the Act. Subsection (b) of the statute sets
forth a number of exemptions to disclosure of records:

(b) This section does not apply to matters
that are-

(2) related solely to the internal personnel
rules and practices of anagency;

(3) specifically exempted from disclosure
by statute .... provided that such
statute (A) requires that the matters
be withheld from the public in such a
manner as to leave no discretion on
the issue, or (B) establishes particular
criteria for withholding or refers to

particular types of matters to be
withheld;

: App. 36

(5) inter-agency or intra-agency
memoranda or letters which would
not be available by law to a party
other than an agency in litigation with
the agency;

(6) personnel and medical files and
| similar files the disclosure of which
would constitute a clearly [**10]
unwarranted invasion of personal

privacy;

(7) records or information compiled for
law enforcement purposes, but only to
the extent that the production of such
law enforcement records or
information (A) could reasonably be
expected to interfere with enforcement
proceedings, (B) would deprive a
person of a right to a fair trial or an
impartial adjudication, (C) could
reasonably be expected to constitute an
unwarranted invasion of personal
privacy, (D) could reasonably be
expected to disclose the identity of a
confidential source, including a State,
local, or foreign agency or authority or
any private imstitution which
furnished information on a
confidential basis, and, in the case of a
record or information compiled by
criminal law enforcement authority in
the course of a criminal investigation
or by an agency conducting a lawful

law enforcement investigations or
prosecutions, or would disclose
guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be
expected to risk circumvention of the
[*982] law, or [**11] (F) could
reasonably be expected to endanger
the life or physical safety of an

Any reasonably segregable portion of
a record shall be provided to any
person requesting such record after
deletion of the portions which are
exempt under this subsection.

5 US.C. @ 552(b).

Defendants claim that the withheld or redacted
records in this case are exempt from disclosure under
subsections (2), (3), (5),(6),(7(C)(7)(D), (7)(E), and (7)(F) of
subsection 552(b). Under the statute, the burden is on the
governmental agency to show that the materials sought may
be withheld due to an exemption. See Vaughn v. United
Stetes, 936 F.2d 862, 866 (6th Cir. 1991); 5 USC. @

3821a)(4)(B).

3. Defendants’ motion as it pertains to Counts I-VIII
and XI

a. Count I

In response to the request that gives rise to Count I
of plaintiff's complaint, the DOJ-Crim. Div. disclosed one
document in full, and one cover sheet with material
redacted. Plaintiff's argument that the DOJ-Crim. Div.

App. 38

performed an inadequate search for documents rests
primarily on the fact that the redacted cover sheet contains
the language, "YOU ARE ADVISED THAT THE FILE
DESCRIBED BELOW HAS BEEN /[**12] CLOSED."
Essentially, plaintiff contends that the fact that a file has
been closed necessarily indicates that the file has been
opened. Plaintiff argues simply that there must have been
more than one document in addition to the cover sheet in
the file. Accordingly, plaintiff contends that the search must
have been inadequate.

In response, the government has submitted the
declaration of Linda J. Joachim, which indicates that, indeed,
the only document contained in the file at issue was the one
document submitted to plaintiff in response to his FOIA
request. Against such a declaration, plaintiff's
unsubstantiated conjecture that the file must have contained
additional documents will not, without more, enable
plaintiff's claim to survive a motion for summary judgment.

Plaintiff also argues that this court should review in
camera the redacted portions of the cover sheet to determine
whether the information redacted is, in fact, exempt under
the statute.! However, courts faced with similar claims have
clearly held that a court should not engage in an in camera
review of documents if the court can resolve the question of
the adequacy of the governmental agency's search for
responsive [**13] documents by examining the Vaughn
Index? and other affidavits and declarations of the

1 This court notes that plaintiff raises this argument repeatedly
throughout his responses to defendants’ motions for summary judgment.
(See, e.g., discussion of Counts II, VI, VII, VIII and XI, infra.)

2 "Vaughn Index" is a term derived from Vaughn v. Rosen, 157 U.S.
App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L.
Ed. 2d 873, 94 S. Ct. 1564 (1974). The index usually consists of a detailed
affidavit, 35 F. Supp. 2d 977, *983; 1998 U.S. Dist. LEXIS 19573, **14; the
purpose of which is to permit the court system effectively and efficiently
to evaluate the factual nature of disputed information. See John Doe
Agency v. John Doe Corp., 493 US. 146, 110 S. Ct. 471, 474 n. 2, 107 L. Ed. 2d
462 (1989).

App. 39

government agency that conducted the search. See, ¢.g.,
Ingle v. United States Dep't of Justice, 698 F.2d 259, 264-66 (6th
Cir. 1983). In Ingle, the Sixth Circuit quoted with approval
the following passage from Cox v. United States Dep't of
Justice, 576 F.2d 1302, 1312 (8th Cir. 1978):

'A court's primary role . . . is to review the
adequacy of the affidavits and other evidence
presented by the Government in support of
its position .. . . If the Government fairly
describes the content of the material withheld
and adequately states its grounds for
nondisclosure, and if those grounds are
reasonable and consistent with the applicable
law, the district court should uphold the
government's position. The court is entitled
to accept the credibility of the affidavits, so
long as it has no reason to question the good
faith of the agency.

[*983] Ingle, 698 F.2d at 265. Unless there is evidence
that contradicts the Government's affidavits, or some other
evidence of bad faith on the part of the agency, this court
will not accept plaintiff's invitation to conduct an in camera
review [**14] of documents in this case. See Silets v. United
States Dep't of Justice, 945 F.2d 227, 231 (7th Cir.
1991)(holding specifically that courts should. require
evidence of bad faith, as opposed to mere assertions of bad
faith before engaging in an in camera review of documents);
Vaughn v. United States, 936 F.2d 862, 868-69 (6th Cir.
1991)(holding that sufficiently clear affidavits are adequate
to substantiate claims of FOLA exemptions in the absence of
evidence to the contrary or evidence of bad faith on the part
of the agency). :

[**15] With respect to Count I, plaintiff has not
offered any evidence of agency bad faith, or any other
evidence that would suggest an in camera review of the
redacted document would be appropriate. Rather, plaintiff

App. 40

merely contends that an in camera review is "necessary and
is requested by plaintiff to test [defendant's] claims of
exemption." (PL's Resp. at 4.) At oral argument, plaintiff's
counsel repeatedly indicated that plaintiff believes he is
unable to trust that the government has adequately
addressed his requests. Counsel relied heavily on Jones v.
Federal Bureau of Investigation, 41 F.3d 238 (6th Cir. 1994), in
which the court noted that "even where there is no evidence
that the agency acted in bad faith with regard to the FOIA
action itself there may be evidence of bad faith or illegality
with regard to the underlying activities which generated the
documents at issue." Id. at 242. The court went on to note
that "where such evidence is strong, it would be an
abdication of the court's responsibility to treat the case in the
standard way and grant summary judgment on the basis of
Vaughn affidavits alone." Id. at 242-43 (emphasis added).

However, [**16] Jones is distinguishable from this
case because in Jones, the Sixth Circuit made a ifi
finding that there was strong evidence of bad faith. The
court even went so far as to note that "infringements of civil
liberties seemed well documented ... ." Id. at 243. In this
case, plaintiff has come forth with no substantial showing of
such evidence. Without some substantial evidence of the
type required by Ingle, and recognized in Jones, this court
will decline plaintiff's request to conduct an in camera
review of the documents related to Count I.

Accordingly, this court will grant defendants' motion
for summary judgment with respect to Count I.

b. Count II

In response to the FOIA request that gives rise to
Count II of plaintiff's complaint, FBI-Detroit located one 48-
page memorandum, five pages of which it asserts are
responsive to plaintiff's request. Accordingly, FBI-Detroit
released one page in its entirety and four pages with
information redacted pursuant to exemption @ 502(b)(7)(C).
Plaintiff contends that "it is beyond the scope of believability

App. 41

that 43 pages contain so much personally identifying
information as to be exempt from disclosure under [**17] @
502(b)(7)(C)." (PL's Resp. at 5.) In response to that
contention, defendants have submitted an affidavit which
indicates that, in fact, the other 43 pages of this document do
not pertain to plaintiff at all, and as such, those pages are
non-responsive to plaintiff's request.

Plaintiff has not come forth with any evidence to
suggest FBI-Detroit conducted its search in bad faith. Nor
has plaintiff produced any substantial evidence or argument
that would suggest that FBI-Detroit's characterization of
those 43 pages as non-responsive to plaintiff's FOLA request
is incorrect. Accordingly, this court will decline to examine
the memorandum in camera, and this court will grant
defendants’ motion for summary judgment with respect to
Count II.

c. “Count [IV

In response to the FOIA request giving rise to Count
IV, EOUSA released approximately 300 pages in their
entirety, and 31 pages with portions redacted. EOUSA
claims it withheld 888 documents in their entirety, 821 of
which were grand jury materials. Plaintiff first claims, and
defendant concedes, that the 31 redacted pages were issued
without page numbers, making it very difficult for plaintiff
to compare the documents to the [**18] Vaughn Index.
Plaintiff has [*984] requested that defendant be required to
re-release those 31 pages with page numbers so that plaintiff
may more easily evaluate the claims of exemption. This
court has indicated that such a request appears reasonable,
and accordingly, this court entered an order on September
16, 1998 requiring EOUSA to re-release those pages.

Next, plaintiff claims that defendants have failed to
demonstrate that the withheld documents related to the
grand jury proceedings are actually exempt from disclosure
because defendants have failed to show that the documents

App. 42

would reveal the scope and inner workings of the grand
jury. See Church of Scientology Int'l v. United States Dep't of
Justice, 30 F.3d 224, 235 (1st Cir. 1994). Moreover, plaintiff
contends that defendants did not specifically address the
question of whether any of the purported grand jury
documents were segregable.

Contrary to plaintiff's contention, the various
affidavits, declarations and portions of the Vaughn Index
indicate that the defendants did, in fact, consider whether
any documents related to this request are segregable.
Moreover, in Item 1 of its Vaughn Index, EOUSA clearly set
forth exactly [**19] what kinds of documents were contained
in the 821 pages of grand jury materials. It is true that
Church of Scientology makes clear that, despite the fact that
grand jury materials are often completely exempt, there is a
distinction between grand jury exhibits and testimony on
the one hand, and business records or similar documents
created for purposes independent of grand jury
investigations which have legitimate uses unrelated to the
substance of the grand jury proceedings on the other.
However, as the Vaughn Index in this case clearly indicates,
the 821 pages of grand jury materials in this case are
comprised of transcripts of witness testimony and actual
exhibits, as well as other documents that specifically name
grand jury witnesses. Pursuant to Church of Scientology, all
such documents are exempt under FOIA.

Plaintiff next takes issue with EOUSA's withholding
of a number of specific documents:

i. Document (2)

First, plaintiff claims that he is entitled to possession
of a copy of what has been labeled "Document (2)." which is
a letter from the federal prosecutor regarding discussions
with jurors and third parties about threats of intimidating
conduct directed [**20] at and reported by several jurors
during plaintiff's criminal trial. It is undisputed that

App. 43

plaintiff's criminal trial counsel, N.C. Deday LaRene,
received a copy of this correspondence. Despite the fact that
this document was once disclosed to plaintiff's attorney,
there are clear privacy interests that weigh in favor of
withholding this letter pursuant to (b)(7)(C). In order to
resolve the issue, this court ordered defendant to produce
the document for an in camera inspection.

Upon a thorough review of Document (2), this court
finds that plaintiff is entitled to possession of the do

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0927%3A1. Public record. Not legal advice.