Opinion
CIV. 08-5022-RHB.
February 11, 2009
ORDER
Plaintiffs commenced this action seeking judicial review of defendants' refusal to release documents requested by plaintiffs under the Freedom of Information Act (FOIA). Defendants move for summary judgment.
NATURE AND PROCEDURE OF THE CASE
Plaintiffs are facing charges in South Dakota state court that they conspired to commit murder, aided and abetted attempted first degree murder, and commission of a felony with a firearm. The state indictment in the matter alleges that both plaintiffs were associated with the Hells Angels Motorcycle Club in August of 2006 and participated in the shooting of five members of the Outlaw Motorcycle Club. Plaintiffs have pleaded not guilty to the indictment and are preparing for trial. It is the intention of plaintiffs to show that they were acting in self-defense. In preparation for the trial, plaintiffs have requested the following information.
Though not indicated in the record, it is the Court's understanding that since the filing of this motion, the jury trial has been held and that plaintiffs were acquitted.
From the United States Marshal's Service:
1. Copies of any and all intelligence reports, investigative reports, memos, photographs, video recordings and audio recordings in the possession of the United States Marshal's Service which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and/or members of the Hells Angels Motorcycle Club in the States of Wyoming and South Dakota during the months of July and August 2006. This includes, but is not limited to, all such items that were obtained as a result of "Operation Rolling Thunder".
2. Copies of any and all intelligence reports, memos, photographs, video recordings and audio recordings made during the past twelve (12) years in the possession of the United States Marshal's Service that relate to attacks or the possibility of attacks, by members of the Outlaws Motorcycle Club against members of the Hells Angels Motorcycle Club.
From the United States Attorney's Office for the District of South Dakota:
1. Copies of any and all documents seized as a result of the stop of Outlaws Motorcycle Club members Clyde White, Clay Giselback, Stephen Gretka, Dayle Napier and Marie Ann Napier on August 12, 2006 in South Dakota. [U.S. v. Napier, et al. Case No.: 07-50016-RHB].
From the United States Attorney's Office for the Eastern District of Wisconsin:
1. Copies of any and all tape recordings made as a part of, or introduced into evidence in United States v. O'Neill, et al, Case No.: 97-CR-00098-JPS.
2. Copies of any and all photographs of the blown up and/or burned or otherwise destroyed Hells Henchmen clubhouse, which were used in the investigation and/or trial of the O'Neill case.
From the Federal Bureau of Investigation, Justice Information Services:
1. Copies of the criminal histories . . . as contained in the National Crime Information Center (NCIC) database [for 12 individuals].
2. Copies of any and all intelligence reports, investigative reports, memos, photographs, video recordings and audio recordings in the possession of the FBI which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and/or members of the Hells Angels Motorcycle Club in the States of Wyoming and South Dakota during the months of July and August 2006. This includes, but is not limited to, all such items that were obtained as a result of "Operation Rolling Thunder".
3. Copies of any and all intelligence reports, memos, photographs, video recordings and audio recordings made during the past twelve (12) years in the possession of the FBI that relate to attacks, or possibility of attacks, by members of the Outlaws Motorcycle Club against members of the Hells Angels Motorcycle Club.
From the United States Bureau of Alcohol, Tobacco, Firearms and Explosives:
1. Copies of any and all intelligence reports, investigative reports, memos, photographs, video recordings and audio recordings in thep ossession of the ATF which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and/or members of the Hells Angels Motorcycle Club in the States of Wyoming and South Dakota during the months of July and August 2006. This includes, but is not limited to, all such items that were obtained as a result of "Operation Rolling Thunder".
2. Copies of any and all intelligence reports, memos, photographs, video recordings and audio recordings made during the past twelve (12) years in the possession of the ATF that relate to attacks, or the possibility of attacks, by members of the Outlaws Motorcycle Club against members of the Hells Angels Motorcycle Club.
3. Ownership history on a .45 caliber Glock model 30 pistol whose serial number is EVP273.
4. Ownership history on a .40 caliber Smith and Wesson pistol whose serial number is PA24863.
5. List and any and all firearms registered to [12 individuals].
From the United States Department of Homeland Security:
1. Copies of any and all intelligence reports, investigative reports, memos, photographs, video recordings and audio recordings in the possession of the Department of Homeland Security which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and/or members of the Hells Angels Motorcycle Club in the States of Wyoming and South Dakota during the months of July and August 2006. This includes, but is not limited to, all such items that were obtained as a result of "Operation Rolling Thunder".
From the United States Drug Enforcement Agency:
1. Copies of any and all intelligence reports, investigative reports, memos, photographs, video recordings and audio recordings in the possession of the DEA which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and/or members of the Hells Angels Motorcycle Club in the States of Wyoming and South Dakota during the months of July and August 2006. This includes, but is not limited to, all such items that were obtained as a result of "Operation Rolling Thunder".
2. Copies of any and all intelligence reports, memos, photographs, video recordings and audio recordings made during the past twelve (12) years in the possession of the DEA that relate to attacks, or the possibility of attacks, by members of the Outlaws Motorcycle Club against members of the Hells Angels Motorcycle Club.
From All Agencies:
1. Copies of any and all Complaints, Indictments and all evidence in support thereof, search warrants, affidavits from search warrants and returns, FBI 302's, DEA6's, Jenks material, recordings in possession of the United States Marshal's Service, Drug Enforcement Administration, Federal Bureau of Investigations, US Immigration and Customs Enforcement, U.S. Department of Homeland Security, U.S. Bureau of Alcohol, Tobacco, Firearms Explosives, Federal Bureau of Investigation Identification and Investigation Services Section, The National Gang Targeting Enforcement and Coordination Center, and the National Gang Intelligence Center which are the result and residue of surveillance conducted on members of the Outlaws Motorcycle Club and or/members of the Hells Angels Motorcycle Club that were obtained as a result of "Operation Roadkill," "Operation End Game," "Operation Broken Spoke," and "Operation Detroit Mugger."
Complaint, Exhibit 20.
Plaintiffs contend that the information requested from defendant agencies is necessary to prove that they were aware of the potential danger presented by the Outlaws and that defendants' refusal of their request is arbitrary and capricious and in violation of their constitutional rights. Defendants now move for summary judgment.
JURISDICTION
The Court has jurisdiction over this action pursuant to the Administrative Procedures Act (APA) [found at 5 U.S.C. § 701 et seq.] and 28 U.S.C. § 1331. As a result, the APA controls the standard of review.
STANDARD OF REVIEW
Title 5 of the United States Code, section 706 sets forth the scope of review that governs the Court. It states in pertinent part that "[t]he reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." The Eighth Circuit has held that "[t]he proper standard of review is whether the agency actions are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Bradley v. Bureau of Alcohol, Tobacco, and Firearms, 736 F.2d 1239, 1240 (8th Cir. 1984) (quoting 5 U.S.C. § 706(2)(A)). An "'[a]dministrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis.'" Bradley, 736 F.2d at 1240 (quoting Carlisle Paper Box Co. v. N.L.R.B., 398 F. 2d 1, 6 (3rd Cir. 1968)).
DISCUSSION
The Freedom of Information Act (FOIA) "'seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.'" Miller v. United States Dep't of Agriculture, 13 F.3d 260, 262 (8th Cir. 1993) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976)). Certain exemptions from disclosure are also set forth within FOIA. Additionally, pursuant to 5 U.S.C. § 301, federal agencies may promulgate regulations which set forth the procedure for disclosing information. See generally, United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S. Ct. 416, 95 L. Ed. 417 (1951). In this matter, plaintiffs requested information from a plethora of agencies. The Court shall discuss each agency individually.
1. United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
Plaintiffs presented a written request for the release of information with the ATF on October 25, 2007. Complaint, Docket #1-23, p. 2. As of the date of this Order, there is nothing in the record which indicates that the ATF has responded to plaintiffs' request. As a result, plaintiffs have named both the agency and Tamsin Harrington, in her official capacity with the ATF, as defendants.
Title 5 of the United States Code, section 552(a)(4)(B) provides that "[o]n complaint, the district court of the United States in the district which the complainant resides, or has his principal place of business, or in which the agency records are situated . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Under FOIA, agencies are required to respond to a request for information within 20 days. "Each agency upon any request for records . . . shall . . . determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefore, and of the rights of such person to appeal to the head of the agency any adverse determination." 5 U.S.C. § 552(a)(6)(A)(i). The statute further provides that "[a]ny person making a request to any agency for records . . . shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph." 5 U.S.C. § (a)(6)(C)(i).
In the instant case, plaintiffs presented their written request on October 25, 2007. More than 20 days has lapsed since the presentation of the request. As a result, the Court finds that plaintiffs have exhausted their administrative remedies and that this claim is ripe for judicial review.
Plaintiffs seek the disclosure of investigative reports and recordings as well as information as to the ownership of certain firearms and firearms possessed by certain individuals. Title 5 of the United States Code, section 552(b) provides, in pertinent part, as follows:
This section does not apply to matters that are — . . .
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
(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 institution 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 national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for 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 law, or
(F) could reasonably be expected to endanger the life or physical safety, of any individual. . . .
The very nature of plaintiffs' request of intelligence reports, investigative reports and copies of surveillance, indicates to the Court that it is seeking information the release of which could interfere with law enforcement proceedings, disclose techniques and procedures of investigations, threaten the identity of confidential sources, and could present an unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(7). As a result, the Court will not compel the ATF or Tamsin Harrington to comply with plaintiffs' information requests.
2. Drug Enforcement Administration (DEA)
A written request for information dated October 25, 2007, was also presented to Greg Mitchell of the DEA. On December 17, 2007, the DEA responded through the United States Attorney's Office for the District of South Dakota (USAO-SD). Complaint, Docket #1-27, p. 11-13. In its response, the DEA refused to release the information citing 28 C.F.R. § 16.26, a regulation promulgated by the Department of Justice regarding the production of information.
Title 28 of the Code of Federal Regulations, section 16.26 provides:
(b) Among the demands in response to which disclosure will not be made by any Department official are those demands with respect to which any of the following factors exist:
(1) Disclosure would violate a statute, . . .
(2) Disclosure would violate a specific regulation;
(3) Disclosure would reveal classified information . . .,
(4) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection,
(5) Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets without the owner's consent.
Specifically, the DEA cited 28 C.F.R. § 16.26(b)(2), (b)(4), and (b)(5) in denying plaintiffs' requests for information. Additionally, the DEA stated that there were no responsive documents with regards to plaintiffs' first request for information regarding surveillance of the Outlaws and/or Hells Angels in July/August of 2006.
Plaintiffs did not appeal the denial of their request. As a result, plaintiffs have not exhausted their administrative remedies. Nonetheless, the Court finds that the DEA's determination that the requested documents are exempt from release is not arbitrary and capricious.
Plaintiffs' response to the DEA's denial rests mainly on the contention that the DEA's claims that there are no responsive documents regarding their first request are not credible. Plaintiffs cite numerous news articles discussing the activities of the Hells Angels and the Outlaws in which federal sources are cited in support of their contention. None of the articles, however, discuss any surveillance of either the Hells Angels or the Outlaws taking place in Wyoming or South Dakota. As a result, these articles do not contradict the DEA's assertion that no documents exist as to surveillance taken in Wyoming or South Dakota of these groups in July and August of 2006. As a result, plaintiffs' objections are overruled. Moreover, the Court finds that the DEA properly determined that the regulations prohibit the disclosure of the information sought by plaintiffs. The Court cannot and will not compel either the DEA or Greg Mitchell to produce documents that do not exist or documents that are not subject to disclosure.
3. Federal Bureau of Investigation (FBI)
Plaintiffs have also named the FBI, the FBI Identification and Investigation Services Section, the FBI Criminal Justice Information Services Division, David Sammonds, FBI general counsel, and Kimberly Del Greco, Section Chief of these divisions, both in their official capacities, as defendants for denying their requests for information. A written request for information was submitted on October 25, 2007. In addition to requesting copies of surveillance recordings and investigative memoranda, plaintiffs request the FBI disclose the criminal histories of 12 individuals. The FBI denied their request for the criminal histories citing the Privacy Act. Additionally, Kimberly Del Greco informed plaintiffs that "[t]o request a search of the FBI's investigative files, you must submit a Freedom of Information/Privacy Acts request to Record Information Dissemination Section, Service Request Unit, in Washington, D.C."
Again, there is no indication that plaintiffs appealed the denial of the request for the criminal histories. Furthermore, there is nothing in the record to suggest that they have requested the information through the proper channel, as advised by Kimberly Del Greco. The Court will not compel the disclosure of information that has not been properly requested. Additionally, the Court finds that the information sought is not subject to disclosure under the law enforcement and investigative privilege set forth in 5 U.S.C. § 552(b)(7). As a result, the summary judgment shall be granted in favor of the FBI and against plaintiffs.
4. United States Department of Homeland Security, Immigration and Customs Enforcement (ICE).
Plaintiffs also submitted a written request for information to ICE, addressed to Thuylieu Kazazian, both of whom are named as defendants in this action. The request was submitted on October 25, 2007. On November 7, 2007, Thuylieu Kazazian, on behalf of ICE, informed plaintiffs that the request was denied under the Department's Touhy regulations found at 6 C.F.R. § 5.48. Title 6 of the Code of Federal Regulations, section 5.48 sets for the factors to be considered when the Department of Homeland Security is considering a request for information. It states as follows:
(a) In deciding whether to comply with a demand or request, Department officials and attorneys shall consider, among any other pertinent considerations:
(1) Whether such compliance would be unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand arose:
(2) Whether compliance is appropriate under the relevant substantive law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of the Department employees for the conduct of official business. . . .6 C.F.R. § 5.48. The regulation goes on to state that information will not be released if:
(1) Compliance would violate a statute or a rule of procedure;
(2) Compliance would violate a specific regulation or Executive order;
(3) Compliance would reveal information properly classified in the interest of national security;
(4) Compliance would reveal confidential commercial or financial information or trade secrets without the owner's consent;
(5) Compliance would reveal the internal deliberative processes of the Executive Branch; or
(6) Compliance would potentially impede or prejudice an on-going law enforcement investigation.6 C.F.R. § 5.48.
There is no indication that plaintiffs appealed the denial of their requests. Nonetheless, the Court finds that the ICE's determination that any documents it may have were not available to be released is not one that is arbitrary and capricious. The documents sought are protected under the law enforcement and investigative privilege. See 5 U.S.C. § 552(b)(7). Therefore, plaintiffs' motion to compel these records fails and summary judgment shall be entered in favor of ICE and Kazazian.
5. United States Marshal's Service (USMS).
On October 25, 2007, plaintiffs also submitted a written request for information to the USMS. The request was addressed to Cedrick Bullock, who is Associate General Counsel for USMS and named as a defendant in this action. On December 6, 2007, plaintiffs received a letter from USMS referring to the request made to Cedrick Bullock. In that letter, plaintiffs were informed that a search for the documents requested had begun and that there would be a fee. There is nothing in the record that indicates further communication between the plaintiffs and USMS. In its brief and affidavit in support of summary judgment, however, the government alleges that there are no documents which were responsive to the plaintiffs' request with regard to the District of Wyoming and none that could be disclosed from the District of South Dakota. Defendants' Statement of Material Fact (DSMF), 67-69. Plaintiffs do not directly dispute these claims. Plaintiffs' Response, 10.
A review of the affidavit in support of summary judgment, shows that USMS has conducted an extensive search. DSMF, Exhibit W. The affidavit states that the documents located in the District of South Dakota consisted of internal communication, exempt by § 552(b)(7)(C) and (E). Finally, the affidavit avers that no responsive documents were found in the District of Wyoming. The Court finds that the USMS has properly discharged is statutory obligation. See Urban v. United States, 72 F.3d 94, 95 (8th Cir. 1995). As a result, summary judgment shall issue in favor of USMS.
6. Marty J. Jackley — USAO-SD
Plaintiffs also requested documents from Marty Jackley, United States Attorney for the District of South Dakota. Specifically, plaintiffs requested documents seized during the arrest and prosecution of Doyle Napier, Clay Giselbach, and Clyde White. In response, the USAO-SD informed plaintiffs that the only document seized was an address book. The government contends that the address book is not relevant to plaintiffs' underlying state case. Moreover, the government argues that the disclosure of the address book would be a violation of the Privacy Act, 5 U.S.C. § 552a.
The Court finds that disclosure of the address book is not relevant to plaintiffs' underlying litigation and that the determination of the USAO-SD was not arbitrary and/or capricious. As a result, summary judgment shall be granted in favor of USAO-SD.
7. Stephen L. Murphy — USAO-EMI
Plaintiffs have also named Stephen Murphy, United States Attorney for the Eastern District of Michigan, as a defendant in this action. Plaintiffs allege that they submitted a written request for information from USAO-EMI. The government contends that USAO-EMI never received a request for information from plaintiffs. DSMF, 20-22. Plaintiffs dispute this contention and present a copy of a letter dated December 14, 2007, from plaintiffs addressed to defendant, among others, requesting information. The December 14, 2007, letter refers to a request for information pursuant to 28 C.F.R. § 16.22 made on October 25, 2007. There is not, however, any confirmation of receipt of the December 14, 2007, letter; nor is there any evidence that the October 25, 2007, request was presented to USAO-EMI. As a result, the Court finds that a request was not properly presented to the USAO-EMI, and therefore, the Court does not have jurisdiction.
8. Michael J. Sullivan — USAO-MA
Michael Sullivan, United States Attorney for the District of Massachusetts, is also named as a defendant in this matter. The government contends that USAO-MA, like USAO-EMI, was not properly served with a request for information. DSMF, 22. Plaintiffs present their letter dated December 14, 2007, addressed to USAO-MA and the letter of denial from the USAO-MA in support of their allegaltion that a request for information was properly presented. As with the USAO-EMI, there is no indication that the USAO-MA received a copy of the October 25, 2007, request. Regardless, the USAO-MA, responded to the December 14, 2007, letter, denying the disclosure of the requested materials. In the denial, the USAO-MA invokes a number of privileges, including the law enforcement and investigative privilege. The Court concurs with the determination of the USAO-MA that the materials requested are not subject to disclosure. As a result, summary judgment shall be issued in favor of USAO-MA.
9. Robert Mandel
Plaintiffs have also named Robert Mandel (Mandel) in the capacity of United States Attorney for the Western District of South Dakota as a defendant in this action. Mandel is an Assistant United States Attorney for the District of South Dakota, and therefore, is not properly named as a defendant in this action. As a result, the claims against Mandel must be dismissed.
CONCLUSION
Based upon the foregoing discussion, the Court finds that plaintiffs have not submitted any claims upon which relief may be granted as a matter of law. Accordingly, it is herebyORDERED that defendants' motion for summary judgment (Docket #44) is granted.