Date: Fri, 24 Apr 1992 17:22:24 EDT
From: David Sobel <
[email protected]>
Subject: File 2--Text of Sun Devil ruling
Text of Sun Devil ruling
On March 12, 1992, the U.S. District Court for the District of
Columbia issued its ruling in the Freedom of Information Act case
brought by Computer Professionals for Social Responsibility (CPSR)
seeking disclosure of the Operation Sun Devil search warrant materials.
The Court ruled that the Secret Service may withhold the material from
public disclosure on the ground that release of the information would
impede the government's ongoing investigation. On April 22, CPSR filed
an appeal of that ruling.
The Court's oral ruling, which was delivered from the bench, has now
been transcribed and is set forth below.
David Sobel
Legal Counsel
CPSR Washington Office
* * * * *
THE COURT: The Court's going to issue its ruling, bench ruling
at this time, which will be its opinion in this case in the
summary judgment motions. The defendants moved for summary
judgment in this FOIA case, and the plaintiffs originally sought
discovery under 56(f) to obtain information concerning sealing
orders covering certain of the documents at issue in this action.
January 16 of this year, I denied the plaintiff's
motion that defendants were not relying upon the sealing orders
and that the Morgan case was inapposite, although it had been
discussed originally at some other status calls before this
Court.
In this FOIA case, the Computer Professionals for
Social Responsibility seek these agency records regarding what's
called Operation Sun Devil from the Secret Service, which is
concededly a criminal investigation that is still ongoing
involving information compiled for law enforcement purposes that
was, involved alleged computer fraud which began back in May of
1990.
The Secret Service has refused to release the search
warrants and the applications for the search warrants, the
executed warrants, as well as the applications for the inventory
lists except as to one Bruce Esquibel, known as Dr. Ripco, who
had agreed to have his information released. But as to the
remaining 25 -- there were 26 search warrants -- the government
has refused to release them, relying upon FOIA exemptions 7(A),
(C), and (D) under the statute.
The Court's going to grant the summary judgment for
the defendant for the following reasons: There's no, as I said,
dispute as to whether or not this information has been compiled
for law enforcement purposes, which covers -- is covered by
exemption 7. 7 says, however, "only to the extent that the
production of such law enforcement records or information (A)
could reasonably be expected to interfere with enforcement
proceedings" and then "(C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, [or] (D)
could reasonably be expected to disclose the identity of a
confidential source," et cetera.
From the Court's view, (A) is the crucial issue in the
case and whether or not this would be unwarranted interference
with an ongoing investigation by ordering the Secret Service to
produce all the records regarding the 25 search warrants. The
Secret Service represented as of today, apparently, one
individual has pled guilty by way of information, but there have
been no indictments, but that Operation Sun Devil continues,
obviously, then as an ongoing investigation.
The deputy director of the Secret Service by
affidavit has stated the evidence in these materials consists of
facts that have been gathered against various individuals,
information provided by confidential sources, and affidavits
establishing probable cause for search of the individual
residences or businesses.
He argues that any release of this overall
information in one package, as opposed to someone finding out an
individual search warrant from the individual court, would give
this access to the evidence and strategy as being used by the
government in this law enforcement proceeding, that this would
show the focus, overall focus and the approach and the limits of
the government's case, it could have a chilling effect on the
witnesses and constitute potential interference with those
witnesses by revealing them, and it would give the ability to
those who are under investigation, who may not know the scope and
the nature of the overall approach of the government, to
construct defenses and interfere, obviously, with the ongoing
proceedings that they may have, that is, their ongoing
investigation.
The issue really is whether the government has shown
that by the affidavit of Caputo and the other facts in the
record. Obviously, the Caputo affidavit is tailored to meet the
law, NLRB v. Robbins Tire & Rubber is one of them, 437 U.S. 214,
241, where Congress intended to prevent such interference with
law enforcement proceedings as giving a person greater access to
the government's case than it ordinarily would have, or Hatcher
v. U.S. Postal Service, which is an F. Supp. case here, 566 F.
Supp. 331, 333, where it's not necessary to show under exemption
7 the interference with law enforcement proceedings is likely to
occur if the documents are disclosed. It's enough that there's a
generic showing that disclosure of particular kinds of records
would generally interfere with enforcement proceedings.
The defendant -- excuse me, the plaintiff has
asserted first, that because they're routinely available around
the country and rarely filed under seal, and secondly, because
some are filed under seal, that they should be producible by the
federal government, using a dual argument. One is that if
they're already public, then they can't claim there can be any
harm done by producing them now, and secondly, if they're under
seal, they have to go through a Morgan process before they can
rely upon them as being under seal and not producing them under
the law of this circuit.
The plaintiffs have basically argued that it's a
circuitous argument advanced by the defendants that these
documents, but for the seals, would be produced, and that they
really, that's what they're relying upon. The Court does not see
the government's, or defendants' argument in that light or the
affidavits that have been filed in this case.
First, it seems to me that because some of the
information may be available after diligent research around the
country and some others may be under seal that could be made
public by petition or by the government going through the Morgan
exercise doesn't seem to the Court therefore the government has
no justification for saying that they can't produce these records
because they could interfere with ongoing criminal proceedings,
and that is because this would be the only place you could get
probably a total overall picture of the government's concerted
effort in this investigation.
The government obviously has a concerted effort.
Whether it's a conspiracy or not and they're related, the
government executed these warrants all basically at the same time
and place in an overall organized plan in May of 1990. They
executed 26 search warrants. It was a concentrated, obviously
carefully orchestrated effort to move on several fronts at one
time all across the country and not separate, distinct,
individual cases coming over a period of years against various
individuals. It was obviously an approach the government had
designed and planned as part of their criminal investigation,
which is still ongoing and has now resulted apparently in at
least one guilty plea.
So I don't think the availability merely on the case-
by-case basis, potentially available, meets the same as having
the compilation of all the information the Secret Service can
provide in toto in a package which could allow one to see the
limits and the scope and the nature of their investigation
overall and give them a much better picture. It's the old saw of
the seeing a tree or seeing the whole forest basically and having
perspective.
The second really part of the argument by the plaintiff
is that if the Esquibel search can be released without harm to
the ongoing investigation, it could release the other
investigation without great damage to its work. Again, however,
it seems to me the warrant in the Esquibel case was released upon
his agreement and request and waiver of his rights, that that is
an individual, one individual out of 26, and it seems to me very
different from exposing the entire investigative plan that may
well be exposed by providing all of the documents that relate to
the 25 other searches.
The Secret Service has in its affidavits set forth
fairly clearly that they have gone through the three-fold process
to provide appropriate exemption under 7(A). Under Bevis v.
Department of State, 801 F.2d 1386, the court ruled that it must,
the government, first define its categories functionally; second,
it must conduct a document-by-document review in order to assign
documents to the proper category; and finally, it must explain to
the court how the release of each category would interfere with
enforcement proceedings.
And under our Crooker v. Bureau of Alcohol, Tobacco and
Firearms, 789 F.2d 64, this circuit held that the agency must
provide this court with enough information to allow it to trace
any rational link between the nature of the documents and the
alleged likely interference.
The Secret Service herein has set forth the
following: Information is in three general categories: gathered
against particular individuals, provided by confidential sources,
and the information for the probable cause of the search of the
individual residences, referring to Caputo declaration. This
information could be used to avoid prosecution by those who are
targets by giving, one, advanced knowledge of the information
would enable a suspect to inhibit additional investigation, to
destroy undiscovered evidence, to mold defenses to meet the
contours of the government's case. Additionally, the release of
the information concerning confidential informants and evidence
in the possession of the government could lead to attempts at
intimidation, fabrication of evidence, and perhaps alibis
tailored to rebut the specifics of the government's cases.
It seems to the Court that there is a rational link
between the nature of the documents that have been discussed and
the alleged likely interference. I don't have to say that it's
beyond a reasonable doubt that this interference could occur, but
it is likely that it could occur.
The overall release of these records, in the Court's
view the government has established, meets the exemption of 7(A),
that it would show an interference with enforcement proceedings
is likely to occur if the documents are disclosed, again giving
them the entire total package of the government's approach in
this case, which is still an ongoing criminal investigation and
apparently is still active, it is not dormant, and nothing has
happened in two years. It is, rather, apparently, according to
the government's most recent evidence, has resulted in at least
one guilty plea.
Additional exemptions relied upon by the government,
7(C) and 7(D), it's not necessary for the Court to address, but I
would just note for the record in case of further review of this,
the exemption for disclosure under 7(C) as to unwarranted
invasion of personal privacy, it seems to the Court that there's
obviously a cognizable interest in the privacy of anyone's
involvement in a law enforcement investigation. No one wants to
be publicized that they may be the subject of some investigation.
They want their participation to remain secret.
And the plaintiffs have not, do not seek the
identification of these individuals. The interest really at
stake is their privacy interest, where they could be exposed by
the publication of these affidavits, with their names redacted,
and whether or not any other information contained in there would
also have to be redacted.
If we look at the Esquibel affidavit that came in
supporting the search of his home and business, you'll see there
are numerous other computer hackers and, presumably, legitimate
computer users referred to, and that would be presumably the same
in the other affidavits for the other search warrants.
Therefore, there would have to be much redacting, if anything
could be produced in the other affidavits and the other search
warrants for the publication of these individuals who are named,
none of who have been indicted apparently, and obviously their
interest in, privacy interest should be protected. What
information could be redacted and what could be released remains
to be seen, but I'll just note for the record it seems to the
Court that there would be little that can be produced based upon
the Esquibel affidavit at least, but that is a concern to the
Court, although I don't think it's a total bar to the production
under exemption 7(C).
I think 7(D) is under the same formula, that is, could
reasonably be expected to disclose the identity of confidential
sources by the publication of these records. Again, obviously
there could be redaction. Again, there would have to be some
type of review to see whether redaction can be meaningful or not
and anything could be produced. The government's view is it
could not, but again, I don't think there's been any attempt yet
made to produce anything under that exemption, because the 7(A)
exemption is being relied primarily upon. I would note again
there would have to be redactions, and whether anything of
substance could be produced would have to be seen at a later
hearing if this matter goes forward.
So I'm going to rule primarily basically on the 7(A)
exemption that the production of these documents overall, without
relying on the sealing or not and without accepting the
circuitous argument that the plaintiff asserts the defendant is
engaged in, I think the defendant has not and has elected to
stand and fall on exemption 7(A) as applying because of the
entire documentation being produced at one time and one place
could reasonably be expected to constitute an unwarranted,
constitute an interference with the enforcement proceedings that
are ongoing.
So for those reasons, I'll grant the motion for summary
judgment of the defendant, and I'll issue an order incorporating
by reference this bench opinion.
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