From: David L. Sobel <dsobel@igc.apc.org
Newsgroups: comp.org.cpsr.talk
Date: 11 Jul 94 22:12 PDT
Subject: Judge Orders Release of 2600 Info


A federal judge in Washington, DC has ordered the release of 
Secret Service documents concerning the November 1992 raid on a 
meeting of 2600 Magazine readers at a shopping mall in Virginia.  
The documents were the subject of a Freedom of Information Act 
lawsuit filed by Computer Professionals for Social Responsibility 
(CPSR).  The case is being litigated by the Electronic Privacy 
Information Center (EPIC), a joint project of CPSR and the Fund 
for Constitutional Government.

The FOIA case has confirmed the involvement of the Secret Service 
in the incident, in which numerous individuals were detained, 
searched and ordered to identify themselves even though no search 
warrant was presented.  The detentions and searches were conducted 
by Arlington County Police and mall security officers.  Meeting 
participants believe that these actions were undertaken at the 
behest of the Secret Service, which has never publicly explained 
its role in the incident.

Judge Louis F. Oberdorfer's decision and order are re-printed 
below.


David L. Sobel
Legal Counsel
Electronic Privacy Information Center
<dsobel@epic.org


================================================================


                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA



COMPUTER PROFESSIONALS FOR       )
    SOCIAL RESPONSIBILITY,       )
                                 )
                Plaintiff,       )
                                 )
          v.                     )   Civil Action No. 93-0231-LFO
                                 )
 UNITED STATES SECRET SERVICE,   )
                                 )
                Defendant.       )
_________________________________)

                             MEMORANDUM

     Plaintiff brought this action under the Freedom of  
Information Act, 5 U.S.C. Sec. 552 et seq., to obtain any 
documents in defendant's possession relating to the breakup of a 
meeting of computer enthusiasts that took place on November 6, 
1992 at the Pentagon City mall in Arlington, Virginia.  The 
attendees, apparently affiliated with a computer magazine called 
2600 and referred to in media accounts of the incident as computer 
"hackers," were dispersed shortly after their arrival by Arlington 
County Police and mall security officers.[1]  According to 
plaintiff, the officers took names of attendees and confiscated 
some of their personal property before ordering them to leave the 
mall.  Plaintiff also avers that an agent or agents of defendant 
participated in the incident.

     Plaintiff submitted its FOIA request to defendant on November 
10, 1992.  Several months later, defendant released to plaintiff

------------------------

      [1] See "Hackers Allege Harassment at Mall," Wash. Post ,  
Nov. 12, 1992, at A9.



several newspaper articles about the incident.  Defendant informed 
plaintiff that it was withholding two additional responsive 
documents pursuant to FOIA exemptions 7 (A), (C), and (D).  The 
parties filed cross-motions for summary judgment.  During the 
pendency of these motions, defendant discovered six additional 
responsive documents in its Washington, D.C. field office. 
Defendant submitted a supplementary declaration and memorandum in 
which it stated that it would withhold the six new documents under 
the same three FOIA exemptions claimed for the two earlier 
documents.  Defendant subsequently filed an additional declaration 
_in camera_.  Plaintiff has moved to strike defendant's _in 
camera_ submission.

                                  I.

     Plaintiff objects to defendant's _in camera_ submission on 
the ground that permitting such submissions in FOIA actions 
undermines the adversarial structure of Vaughn v. Rosen, 484 F.2d 
820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), by 
preventing the plaintiff from expressing its views as to the 
government's reasons for withholding documents.  See Yeager v. 
DEA, 678 F.2d 315, 324-25 (D.C. Cir. 1982).  As plaintiff 
contends, _in camera_ submissions should only be permitted in 
those instances where they are "absolutely necessary" to resolve 
the case.  Id.  This is such an instance.  Defendant has made a 
thorough effort to explain as much of its case as possible in its 
public filings.  However, the confidential nature of the criminal 
investigation underlying

                                 (2)



defendant's withholding of documents makes _in camera_ review the 
exclusive means of weighing specific aspects of defendant's 
claims.  Accordingly, plaintiff's motion to strike defendant's _in 
camera_ submission will be denied, and that submission will be 
considered in ruling on the parties' cross-motions for summary 
judgment.

                                 II.

     FOIA exemption 7 permits the withholding of several 
categories of "records or information compiled for law enforcement 
purposes."  5 U.S.C. Sec. 552(b)(7).  Initially, plaintiff argues 
that defendant has categorically failed to satisfy the threshold 
requirement for invoking exemption 7 because defendant has failed 
to demonstrate that the information at issue relates to a criminal 
investigation.

     Defendant's public declarations specify the nature of the 
underlying criminal investigation, and its _in camera_ submission 
discusses that investigation with even greater specificity.  This 
is a case to which exemption 7 might properly be applied.  
Defendant has withheld documents based on three provisions of that 
exemption.

                                 A.

     FOIA exemption 7(C) permits the withholding of information 
that "could reasonably be expected to constitute an unwarranted 
invasion of personal privacy."  5 U.S.C. Sec. 552 (b)(7)(C).  
Defendant argues that exemption 7(C) applies in this case because 
of "the 'strong interest' of individuals, whether they be 
suspects, witnesses, or investigators, 'in not being associated 
unwarrantedly

                                (3)



with alleged criminal activity.'" Dunkelberger v. Department of 
Justice,  906 F.2d 779, 781 (D.C. Cir. 1990) (citation omitted).

     The cases defendant cites in support its exemption 7(C) claim 
generally involve persons whose connection with a criminal file 
could embarrass or endanger them  --  for example, persons 
investigated but not charged in criminal matters.  See, e.g., Fund 
for Constitutional Government v. National Archives and Records 
Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981).  Defendant has not 
suggested that the meeting at issue here is the object of any 
criminal investigation.  The incident occurred in plain view of 
the patrons of a busy shopping mall.  The mere fact that defendant 
has maintained materials relating to the incident in connection 
with a criminal investigation does not mark participants in the 
meeting with the "stigma" of being associated with a criminal 
investigation, which defendant identifies as the gravamen of its 
7(C) claim.  Indeed, several participants in the meeting have 
executed privacy waivers in connection with a later FOIA request 
from defendant, which suggests that they do not perceive release 
of the material defendant is withholding as a threat to their 
privacy interests.  Exemption 7(C) is not an appropriate basis for 
withholding responsive documents in this case.

                                B.

     Defendant next invokes FOIA exemption 7(D), which permits the 
withholding of documents that "could reasonably be expected to 
disclose the identity of a confidential source ... and ... 
information furnished by a confidential source."  5 U.S.C. Sec.

                               (4)



552(b)(7)(D).  To support its claim of this exemption, defendant 
initially cited the law of this Circuit that "in the absence of 
evidence to the contrary, promises of confidentiality are 
'inherently implicit' when the FBI solicits information." Keys v. 
Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987) 
(citations omitted).  However, during the pendency of this motion, 
the Supreme Court in Department of Justice v. Landano, 113 S.Ct. 
2014 (1993), eliminated the Keys presumption.  The Court held that 
exemption 7(D) only applies where there is an actual promise of 
confidentiality, or circumstances from which such a promise may be 
inferred -- for example, a type of crime that makes recriminations 
against sources likely.  Id. at 2023.  After Landano, which 
defendant concedes governs the exemption 7(D) claim in this case, 
defendant's sole basis for applying exemption 7(D) is a statement 
in its supplemental memorandum that defendant "recently contacted" 
the source, which told defendant that the source understood the 
information to have been provided on a confidential basis.  
Supplemental Declaration of Melvin E. Laska (June 18, 1993) at 
para. 49.  Such a post hoc rationalization is inadequate.  At no 
time has defendant offered any evidence of an express or implied 
promise of confidentiality at the time the source provided the 
information.  Thus, defendant's exemption 7(D) claim does not 
survive Landano.

                               C.

Defendant's strongest claim for withholding certain responsive 
documents is based on FOIA exemption 7(A)  That exemption permits

                              (5)



an agency to withhold responsive documents that "could reasonably 
be expected to interfere with law enforcement proceedings."  5 
U.S.C. Sec. 552(b)(7)(A).  Defendant has represented that it is 
maintaining the withheld documents as part of a particular, 
ongoing criminal investigation.  It has elaborated on this 
representation in its _in camera_ submission.  Withholding of 
documents is appropriate under exemption 7(A) if release of the 
documents would interfere with the ongoing investigation in any of 
the ways defendant enumerates: by alerting individuals that they 
are under investigation, thus allowing them to alter their 
behavior; by exposing or chilling the participation of informants 
or witnesses; or by providing premature access to the government's 
strategy or the nature, focus, and limits of its case.  See 
generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-241 
(1978).

     Defendant, however, has failed to demonstrate that the 
release of each of the documents it has withheld would interfere 
with the ongoing investigation in any of these ways.  Defendant's 
public filings state that the investigation involves allegations 
made by a private corporation of telephone fraud.  See Defendant's
 Supplemental Memorandum of Points and Authorities in Support of 
Defendant's Motion for Summary Judgment (June 25, 1993) at 3. 
Thus, defendant cannot fear the possibility that release of 
the withheld documents might reveal defendant's involvement in 
this type of investigation.  Similarly, the fact that the 
documents at issue are responsive to plaintiff's FOIA request 
indicates that those documents concern the breakup of the November 
6, 1992 meeting

                               (6)



at Pentagon City.  Thus, defendant cannot claim exemption 7(A) to 
withhold documents based on the possibility that the documents 
would reveal that investigators were interested in that meeting.  
The only documents at issue that defendant might properly withhold 
under exemption 7(A) would fall into one of the following three 
categories: information identifying the individual(s) under 
investigation and stating that they are under investigation; 
information identifying any witness(es) or informant(s) of the 
activity under criminal investigation and stating that they are 
witnesses or informants; and information revealing the particular 
strategy or parameters of the criminal investigation, such as the 
name of the corporation complaining of telephone fraud, the dates 
of the suspected criminal activity, or any conclusions defendant's 
agents have drawn in connection with the investigation.  Beyond 
information in these specific categories, defendant has failed to 
explain how release of any withheld documents would interfere with 
any ongoing criminal investigation.  Accordingly, the accompanying 
Order instructs defendant to redact from the withheld documents 
information that falls into the three specific categories 
described in this paragraph and to release the redacted documents 
to plaintiff.





 Date: July 1, 1994                   /sig/

                                   Louis F. Oberdorfer
                                   UNITED STATES DISTRICT JUDGE


                                (7)   



------------------------------------------------------------------



                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA



COMPUTER PROFESSIONALS FOR       )
    SOCIAL RESPONSIBILITY,       )
                                 )
                Plaintiff,       )
                                 )
          v.                     )   Civil Action No. 93-0231-LFO
                                 )
 UNITED STATES SECRET SERVICE,   )
                                 )
                Defendant.       )
_________________________________)

                                ORDER

     For the reasons stated in the accompanying Memorandum, it is 
this 1st day of July 1994, hereby

     ORDERED: that plaintiff's motion to strike defendant's _in 
camera_ submission should be, and is hereby, DENIED; and it is 
further

     ORDERED: that defendant's motion for summary judgment should 
be, and is hereby, GRANTED in part with respect to FOIA exemption 
7(A); and it is further

     ORDERED: that plaintiff's cross-motion for summary judgment 
should be, and is hereby, GRANTED with respect to FOIA exemptions 
7(C) and (D) and is GRANTED in part with respect to FOIA exemption 
7(A); and it is further

     ORDERED: that defendant shall redact from the withheld 
documents information that falls into the three specific 
categories described in the accompanying Memorandum and shall 
release the redacted documents to plaintiff.





                                     /sig/

                                   Louis F. Oberdorfer
                                   UNITED STATES DISTRICT JUDGE