The opinion of the court was delivered by: CONABOY
This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976). The Plaintiff, presently incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania, had submitted a request under the FOIA to the Drug Enforcement Administration (DEA) for production of certain documents compiled in the course of the DEA's investigation of Plaintiff's "illicit drug activities". When such documents were not forthcoming, Plaintiff filed the instant action seeking a court order for the production thereof. By Memorandum and Order filed July 8, 1981, this Court denied the Defendant's motion to dismiss and directed the parties to expand the record in certain respects. Pertinent to our present inquiry, we ordered the Defendant to prepare and submit for the Court's in camera review, a Vaughn -type index,
providing specific justifications for those documents, or those portions of documents, which were not released to the Plaintiff.
In response to our Order, on October 5, 1981, the Defendant filed the Vaughn Index along with copies of the documents referred to therein. Also included in this response was an affidavit of Thomas H. Wingate, Jr., a Freedom of Information Specialist assigned to the DEA. In this public affidavit, he noted that 614 pages of material had been identified as pertaining to the Plaintiff's request, all of which were located in the DEA's Investigative Reporting and Filing System,
which is exempt from the access provisions of the Privacy Act. 5 U.S.C. § 552a(j)(2). Of the 614 pages of pertinent documents, 342 pages were released to the Plaintiff with excisions pursuant to various statutory exemptions under the FOIA. The remaining 272 pages were withheld in their entirety pursuant to these same exemptions. The exemptions claimed by the Defendant in this action are: 5 U.S.C. § 552(b)(2),
(b)(7)(A), (b)(7)(C), (b)(7)(E), (b)(7)(D), (b)(7)(F).
For the reasons set forth below, we hold that all of the information withheld by the Defendant pertained to matters within the scope of one or more of these statutory exceptions and, therefore, Plaintiff is not entitled, under the FOIA, to release of any additional materials.
In considering the propriety of these claims of exemption for the documents in question, we are mindful of the Congressional purpose in enacting the FOIA, viz., to establish a general philosophy of full agency disclosure unless the information is exempted under clearly delineated statutory language. GTE Sylvania, Inc. v. Consumers Union of United States, 445 U.S. 375, 385, 100 S. Ct. 1194, 1201, 63 L. Ed. 2d 467 (1980); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975). Furthermore, in a FOIA case, the government agency opposing divulgence of the information sought bears the burden of establishing that the material in issue falls with one of the nine exclusive statutory exemptions of section 552(b). Lame v. United States Department of Justice, 654 F.2d 917, 921 (3d Cir. 1981); Ferri v. Bell, 645 F.2d 1213, 1221 (3d Cir. 1981). Thus, "(t)he overall design of the Act was to balance the interests of public access with the necessity of retaining confidential matters of agencies from public view." Smith v. Flaherty, 465 F. Supp. 815, 819 (M.D.Pa.1978). It is therefore in this context that the statutory exemptions asserted by the Defendant in support of its withholding or excision of the pertinent documents must be examined. In doing so, we will briefly discuss each claimed exemption seriatim and the material withheld thereunder.
This statutory provision exempts from disclosure matters "related solely to the internal personnel rules and practices of an agency". The Supreme Court has declared that this exemption relates to "routine matters" with "merely internal significance" in which "the public could not reasonably be expected to have an interest." Department of Air Force v. Rose, 425 U.S. 352, 369-70, 96 S. Ct. 1592, 1603, 48 L. Ed. 2d 11 (1976); Ferri v. Bell, supra, 645 F.2d at 1224. See also, Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1141 (D.C.Cir.1975) (exempts from disclosure routine "housekeeping" matters in which it can be presumed the public lacks any substantial interest); Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977).
In the instant case, the (b)(2) exemption was utilized to delete "violator identifiers and other administrative markings which are used for the purpose of storing, locating, retrieving or transmitting DEA documents internally." (Affidavit, P 15a). The most commonly used (b)(2) identifiers in the materials were: (1) G-DEP numbers, which are assigned to all DEA cases and which indicate the classification of the violator, the type and amount of suspected drug involved and the suspected location of criminal activity; and (2) NADDIS numbers, which are 4 to 6 digit numbers assigned to drug violators and suspected drug violators known to the DEA. Each number is unique and is assigned to only one violator or suspected violator within the DEA NADDIS system, an exempt system of records. (Affidavit, P 15a (1) and (2)). Also excised under this exemption and under (b)(7)(A), discussed infra, were certain items on the Personal History Reports relating to drug criteria symbols and violator classifications. These internal codes are used by the DEA to identify particular narcotics investigations. They refer to the priority of investigations, the type of criminal activities, geographical areas, types of controlled substances involved, violator rating, and the agencies involved in the investigation. (Affidavit, P 15a).
That information had no value to Plaintiff. Regardless, the numbers relate solely to Customs Service practices, and can be utilized to obtain information only by agency personnel functioning within the agency. As such, it falls squarely within Exemption 2. Id. at 406-07 (footnote omitted).
Similarly, in Lesar v. United States Dept. of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C.Cir.1980), the government agency utilized this exemption to delete symbols used to refer to FBI informants in FBI documents and records. In upholding the claim as to these informant codes, the Court recognized that such "markings" bear no relation to the substantive contents of the records released and, thus, they were a "matter of internal significance in which the public has no substantial interest." Id. at 485-86. Accord, Maroscia v. Levi, supra (deletion of administrative markings such as file numbers, initials, signatures and mail routing stamps proper under Exemption 2); Smith v. Flaherty, supra, 465 F. Supp. at 822; Ferguson v. Kelley, 448 F. Supp. 919, 921 (N.D.Ill.1977); Flower v. Federal Bureau of Investigation, 448 F. Supp. 567, 571 (W.D.Tex.1978); Shaver v. Bell, 433 F. Supp. 438, 439 (N.D.Ga.1977); see generally, 1 Davis, Administrative Law Treatise, § 5.30 (2d ed. 1978).
It is the view of this Court that the administrative markings and codes in issue clearly relate to internal matters to which neither the Plaintiff nor the public can claim a substantial interest. Therefore, we hold that the deletion of this material from the documents released to Plaintiff was proper under 5 U.S.C. § 552(b)(2).
Section 552(b)(3) exempts from disclosure information which is "specifically exempted from disclosure by statute..." This section was applied to withhold written accounts of phone calls monitored pursuant to several wire intercepts under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1976). This material was contained in DEA Reports of Investigations and in portions of the DEA Personal History forms.
In order to qualify as an exempted statute under (b)(3) the provision in question must "require that the matters be withheld from the public in such a manner as to leave no discretion on the issue," or be one that "establishes particular criteria for withholding or refers to particular types of matters to be withheld." In the case of Title III, we are satisfied that this standard is met. The Act itself sets forth specific prohibitions against disclosure: § 2511(1)(c), imposing criminal sanctions, and § 2520, imposing civil sanctions, for the disclosure of the contents of oral communications intercepted in violation of the specific procedures established in §§ 2516, 2518. Furthermore, §§ 2511(2), 2515, and 2517 set forth the particular conditions under which disclosure can be made. In view of this detailed legislative framework, establishing precise procedures for the interception and disclosure of oral communications, we find that the information obtained pursuant to the Title III wire intercepts is exempt under 5 U.S.C. § 552(b)(3).
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