UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT

Defendant hereby moves pursuant to Fed. R. Civ. P. 56 for summary judgment. The

grounds for this motion for summary judgment are set forth in the memorandum submitted

herewith.

Dated: September 12, 2005 Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Of Counsel: Trial Attorney, Federal Programs Branch
Andrea Lord U.S. Department of Justice, Civil Division
Staff Attorney 20 Massachusetts Ave., N.W., Room 6140
National Indian Gaming Commission Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470

Counsel for Defendant

 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

MEMORANDUM IN SUPPORT OF THE

UNITED STATES’ MOTION FOR SUMMARY JUDGMENT

In this case, Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)

seeks the release of certain information pursuant to the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552. As shown below, the information being withheld is exempt from disclosure under

FOIA due to, inter alia, an ongoing enforcement investigation, individual privacy interests, and

the confidentiality of inter and intra-agency memoranda. Accordingly, judgment should be

granted in favor of the National Indian Gaming Commission.

BACKGROUND

I. The National Indian Gaming Commission and the Indian Gaming Working Group

Created as part of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701, et seq.,

the National Indian Gaming Commission (“NIGC”) is a federal agency tasked with oversight

regulation of Indian gaming operations under the Act. Declaration of Alan Fedman, ¶ 2

(“Fedman Decl.”). NIGC is managed by a chairman appointed by the President, and is divided

into six regions. Id. NIGC’s national headquarters are in Washington, D.C. and it has regional
headquarters located in Portland, Oregon; Sacramento, California; Phoenix, Arizona; St. Paul,

Minnesota; Washington, D.C.; and Tulsa, Oklahoma. Id. NIGC has satellite offices in

Temecula, California; Las Vegas, Nevada; Jackson, Mississippi; Rapid City, South Dakota; and

Bellingham, Washington. Id. NIGC auditors and investigators are responsible for ensuring that

Indian gaming establishments are complying with IGRA, NIGC regulations, and tribal gaming

ordinances. Id. ¶ 3. NIGC auditors conduct site visits to tribal gaming establishments, perform

compliance audits and, when appropriate, investigate regulatory matters. Id. NIGC has a

significant regulatory and oversight responsibility in the growing Indian gaming industry and it

works with the FBI and other federal agencies to investigate allegations of regulatory violations

and of criminal activity in Indian gaming establishments. Id.

In 2003, in an effort to better identify and direct resources to Indian gaming law

enforcement matters, the Federal Bureau of Investigations and NIGC created the Indian Gaming

Working Group (“IGWG”). Id. ¶ 4. The IGWG coordinates federal resources regarding federal

regulatory enforcement and investigations of criminal activity. Id. This group consists of

representatives from a variety of FBI subprograms (i.e., the Economic Crimes Unit, the Money

Laundering Unit, the LCN/Organized Crime Unit, the Asian Organized Crime Unit, the Public

Corruption/ Government Fraud Unit, the Cryptographic Racketeering Analysis Unit, and the

Indian Country Special Jurisdiction Unit) and other federal agencies, including the Department of

Interior Office of Inspector General, NIGC, the Internal Revenue Service Tribal Government

Section, the Department of Treasury Financial Crimes Enforcement Network, the Department of

Justice, and the Bureau of Indian Affairs Office of Law Enforcement Services. Id.; Indian

Gaming Investigations/The Indian Gaming Working Group, at http://www.fbi.gov/hq/cid/indian/

2
indgaming.htm. The IGWG meets monthly to review Indian gaming cases deemed to have a

significant impact on the Indian gaming industry. Fedman Decl. ¶ 4. As a result of these

meetings, the IGWG, through its member agencies, has provided financial resources, travel

funds, liaison assistance, personnel resources, coordination assistance and consultation in

connection with a number of significant investigations. Id.

II. Plaintiff’s Freedom of Information Act Request

On March 21, 2005, the NIGC received a letter from Melanie Sloan, who represented

herself to be of Citizens for Responsibility and Ethics in Washington. See Letter from Melanie

Sloan to FOIA Officer, NIGC (March 18, 2005) (attached as Exhibit N to Plaintiff’s Complaint);

Declaration of Regina Ann McCoy, ¶ 13 (“McCoy Decl.”). In this letter, Ms. Sloan requested

that, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the NIGC conduct a

broad search to locate documents or records that relate to any contact between the agency and the

following: Jack Abramoff; Michael Scanlon; James Dobson; Ralph Reed; Scott Reed; Italia

Federici; Grover Norquist; David Safavian; Congressmen Ney and DeLay; House Speaker

Hastert; Senator Burns; staff members of the above referenced Congressmen and Senator;

employees of Greenberg Traurig; Preston Gates; Capitol Campaign Strategies; Council of

Republicans for Environmental Advocacy; National Center of Public Policy Research; and

Americans for Tax Reform. Ms. Sloan also requested records concerning the Agua Caliente

Tribe; Tigua Tribe; Saginaw Chippewa Tribe of Michigan; Mississippi Band of Choctaw

Indians; Coushatta Tribe of Louisiana; and the Jena Band of Choctaw Indians. Id. Because the

request appeared to be focused on the non-tribal individuals and entities listed above, cf. Compl.

¶¶ 15-25, and a broad interpretation of the portion of the request relating to the tribes would have

3
likely dredged up much unwanted information, the NIGC FOIA officer interpreted this portion of

the request as seeking documents showing a relationship between those tribes and the non-tribal

individuals and entities listed. McCoy Decl. ¶ 16.

NIGC sent Ms. Sloan an acknowledgment letter on March 22, 2005, advising her of the

backlog of FOIA requests, the limited personnel resources available, and an inability to process

the request within the statutory time frame. See Letter from Jerrie L. Moore to Melanie Sloan

(March 22, 2005) (attached as Exhibit O to Plaintiff’s Complaint). NIGC’s FOIA office then

sent search taskers to the NIGC’s Office of General Counsel, the NIGC Commissioners, the

NIGC Office of Congressional and Public Affairs, the NIGC Enforcement Division, the NIGC

Contracts Division, and NIGC’s regional and satellite offices. McCoy Decl. ¶ 17. These

extensive searches discovered fourteen responsive documents. Id. ¶ 18. These documents

consisted of thirteen investigative documents (one of which, document 14 on the Vaughn Index

(“VI”), consisted of 81 pages of newspaper articles) and a letter to the Speaker of the House of

Representatives (VI 4). See id. ¶ 22.

NIGC sent Ms. Sloan a substantive response to her FOIA request on May 9, 2005, a

clarification on May 10, 2005,1 and a supplemental substantive response on May 19, 2005. See

Exhibits A-C. NIGC released the letter to Speaker Hastert along with its attachment (VI 4) in

1
The substance of the FOIA request is contained in three paragraphs, paragraphs two,
three, and four of the March 18, 2005 letter. The NIGC FOIA officer determined that paragraph
three of the FOIA request, which identified certain Indian tribes, was best read in conjunction
with paragraphs two and four to mean documents that showed a relationship with the individuals
and entities listed in paragraph one of the FOIA request. See McCoy Decl. ¶ 16. The FOIA
officer determined that a broader interpretation of paragraph three would likely have dredged up
substantial amounts of unwanted material. Id. The FOIA officer noted this interpretation in her
May 10th letter, and offered Plaintiff the opportunity to appeal this interpretation. Id. Plaintiff
did not respond to this letter. Id.

4
full. McCoy Decl., ¶ 22.D. NIGC also released 81 pages of newspaper articles, redacting the

names and contact information of the individuals who provided (via facsimile) the articles to

NIGC (VI 14). Id. ¶ 22.N. NIGC released a three page newspaper article from another document

(VI 10), again redacting the name and contact information of the person who provided the

document to NIGC. Id. ¶ 22.J.2 The remaining documents were withheld pursuant to 5 U.S.C.

§ 552(b).

The source redactions on the released newspaper articles were made pursuant to the

personal privacy protections of FOIA Exemptions 6 and 7(C). McCoy Decl., ¶ 22. All of the

withheld documents are subject to FOIA Exemption 7(A), which protects law enforcement

records whose disclosure “could reasonably be expected to interfere with enforcement

proceedings.” Id. A number of the withheld documents also qualify for Exemptions 6 and 7(C)

as they are law enforcement documents containing personal information on government

employees and third party individuals. Id. Four of the documents are inter or intra-agency

communications that are exempt from disclosure pursuant to Exemption 5. Id. And one of the

documents is protected by Exemption 7(D) as it contains identifying information regarding a

confidential informant. Id.

ARGUMENT

Under FOIA, the Court conducts a de novo review to determine whether the government

properly withheld records under any of the FOIA’s nine statutory exemptions. See 5 U.S.C.

§ 552(a)(4)(B). The government may satisfy its burden of justifying non-disclosure of materials

2
In both cases, no information from the original articles was redacted; only information
in the facsimile line.

5
by submitting an agency declaration that describes the withheld material with reasonable

specificity and the reasons for non-disclosure, and, if necessary, a Vaughn index. See United

States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 753 (1989);

Summers v. Department of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Armstrong v. Exec.

Office of the President, 97 F.3d 575, 577-78 (D.C. Cir. 1996).

The declarations submitted by the agency are accorded a presumption of good faith,

Safecard Servs., Inc. v. Securities and Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991),

and a presumption of expertise, Piper v. United States Dep’t of Justice, 294 F. Supp. 2d 16, 20

(D.D.C. 2003). Summary judgment is to be freely granted where, as here, the declarations reveal

that there are no material facts genuinely at issue and that the agency is entitled to judgment as a

matter of law. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988);

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Summary judgment is

accordingly the procedural vehicle by which most FOIA actions are resolved. See, e.g.,

Misciavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled

on motions for summary judgment, once the documents in use are properly identified.").

I. NIGC Conducted an Adequate Search

An agency’s obligation under FOIA is to make “a good faith effort to conduct a search for

the requested records, using methods which can be reasonably expected to produce the

information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An

adequate search does not mean that every conceivable responsive document will be discovered.

See id. (“There is no requirement that an agency search every record system.”); Allen v. United

States Secret Serv., 335 F. Supp. 2d 95, 99 (D.D.C. 2004) (“While the agency’s search must be

6
reasonably calculated to produce the requested information, FOIA does not impose a requirement

that every record be found.” (emphasis in original)). In this case, NIGC’s FOIA officer sent

taskers to seek documents at NIGC’s Office of General Counsel, the offices of the NIGC

Commissioners, the NIGC Office of Congressional and Public Affairs, the NIGC Enforcement

Division, the NIGC Contracts Division, and NIGC’s multiple regional and satellite offices.

McCoy Decl. ¶ 17. NIGC searched its offices nationwide in an effort to find the information

sought by Plaintiff. Such a search is clearly adequate under the law.

II. The Withheld Documents Are Exempt from Disclosure Pursuant to Exemption 7(A)

A. The Withheld Documents Were Compiled for Law Enforcement Purposes

Records compiled for law enforcement purposes are exempt from disclosure if they fall

within one of the six categories set forth in 5 U.S.C. § 552(b)(7)(A)-(F). Before examining

whether the requested documents fall within one of the six categories, the court must first

determine whether they were “compiled for law enforcement purposes.” Quinon v. FBI, 86 F.3d

1222, 1228 (D.C. Cir. 1996). Documents qualify as law enforcement records if they meet two

criteria: 1) the documents were created or acquired in the course of an investigation related to the

enforcement of federal laws; and 2) the nexus between the activity and one of the agency’s law

enforcement duties was based on information sufficient to support at least a “colorable claim” of

its rationality. Id.; Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982); Blanton v.

Department of Justice, 63 F. Supp. 2d 35, 44 (D.D.C. 1999). The first prong is satisfied if the

agency is “able to identify a particular individual or a particular incident as the object of its

investigation and the connection between that individual or incident and a possible . . . violation

of federal law.” Pratt, 673 F.2d at 420. The second prong is “deferential,” and a court “should

7
be hesitant to second-guess” the agency’s decision to investigate, rejecting the agency’s rationale

only if it is “pretextual or wholly unbelievable.” Id. at 421.

In this case, there can be no question that the activity giving rise to the case management

records in question is “related to” the enforcement of federal laws. These materials were

compiled as part of ongoing multi-agency law enforcement investigations which concern alleged

misuse of tribal gaming revenue in violation of the IGRA and other laws. See Fedman Decl. ¶ 5;

McCoy Decl. ¶ 33; see also Rojem v. United States Dep’t of Justice, 775 F. Supp. 6, 10 (D.D.C.

1991) (documents compiled by agency assisting another agency in law enforcement as part of a

collaborative process are covered by Exemption 7). Moreover, given NIGC’s regulatory

authority over Indian gaming and its role in the Indian Gaming Working Group, these

investigations are clearly rationally related to the agency’s law enforcement duties.3

B. Disclosure of the Withheld Documents Could Reasonably Be Expected To

Interfere with Law Enforcement Proceedings

FOIA exemption 7(A) authorizes the withholding of “records or information compiled for

law enforcement purposes . . . to the extent that production of such law enforcement records or

information . . . could reasonably be expected to interfere with enforcement proceedings.”

5 U.S.C. § 552(b)(7)(A). Exemption 7(A) applies where there is a law enforcement proceeding

that is pending or reasonably anticipated. Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C.

Cir. 1993). This exemption applies to all records and information compiled for law enforcement

3
Plaintiff could hardly contest the rationality of NIGC’s law enforcement investigation
given its own allegations that individuals “received millions of dollars from Indian tribes that
operate gambling casinos” and “were able to scam the Indian tribes out of huge sums of money.”
Compl. ¶¶ 15-16. While NIGC takes no position on the accuracy of these allegations at this time,
they constitute Plaintiff’s implicit concession that a rational basis for a law enforcement
investigation exists.

8
purposes “whenever the government’s case in court . . . would be harmed by the premature

release of information.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)

(quotation omitted).

Exemption 7(A) may be applied to a set of documents based on the categorical types of

records involved rather than through a document-by-document determination. As the Supreme

Court has held, Exemption 7(A) “appears to contemplate that certain generic determinations

might be made.” Id. at 224. “Congress did not intend to prevent the federal courts from

determining that, with respect to particular kinds of enforcement proceedings, disclosure of

particular kinds of investigatory records while a case is pending would generally ‘interfere with

enforcement proceedings.’” Id. at 236. Indeed, courts have held that there is no need to “produce

a fact-specific, document-specific Vaughn index” when documents are withheld on a categorical

basis. In re Dep’t of Justice, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc); Lardner v. United

States Dep’t of Justice, No. Civ.A.03-0180(JDB), 2005 WL 758267, at *20 (D.D.C. March 31,

2005) (citing In re Dep’t of Justice).

In light of the important interests protected by Exemption 7(A), the government need only

demonstrate that (1) a law enforcement proceeding is pending or prospective; and (2) release of

the information could reasonably be expected to cause some articulable harm. See Butler v.

Dep’t of Air Force, 888 F. Supp. 174, 183 (D.D.C. 1995), aff’d, 116 F.3d 941 (D.C. Cir. 1997).

With respect to the showing of harm to a law enforcement proceeding required to invoke

Exemption 7(A), courts have long accepted that Congress intended this exemption to apply

whenever the government’s case in court could be harmed by the premature release of evidence

or information, or when disclosure could impede any necessary investigation prior to the

9
enforcement proceeding. See, e.g., Robbins Tire, 437 U.S. at 232 (“the release of information in

investigatory files prior to the completion of an actual, contemplated enforcement proceeding

was precisely the kind of interference that Congress continued to want to protect against”). For

instance, courts have upheld the applicability of Exemption 7(A) when disclosure could reveal

the scope, direction, or nature of a law enforcement investigation or allow suspects to elude

detection. See, e.g., Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (finding documents exempt

pursuant to 7(A) where disclosure “could reveal much about the focus and scope of the

Commission’s investigation”); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th

Cir. 1998) (holding that records related to criminal price-fixing investigation were properly

exempt under 7(A) because disclosure could have resulted in “destruction of evidence, chilling

and intimidation of witnesses, and revelation of the scope and nature of the Government’s

investigation”); Kay v. Federal Communications Comm’n, 976 F. Supp. 23, 39 (D.D.C. 1997)

(records exempt under 7(A) because disclosure could reveal evidence and focus of investigation

and discourage witness cooperation), aff’d, 172 F.3d 919 (D.C. Cir. 1998); Moorefield v. Secret

Service, 611 F.2d 1021, 1026 (5th Cir.) (Exemption 7(A) proper when release of Secret Service

file to target of investigation could not only allow target to elude scrutiny of Secret Service but

also could “generally . . . inform targets of Service investigations of the means the Service

employs to keep abreast of them”).4

4
Moreover, the Government’s burden in demonstrating interference with law
enforcement proceedings under Exemption 7(A) has been significantly relaxed by Congress.
Section 552(b)(7)(A) originally provided for the withholding of information that “would interfere
with enforcement proceedings,” but the Freedom of Information Reform Act of 1986 amended
that language and replaced it with the phrase “could reasonably be expected to interfere with”
enforcement proceedings. See Pub. L. No. 99-570 § 1802, 100 Stat. 3207, 3207-48 (emphases
added). Courts have repeatedly recognized that this change in the statutory language

10
 The records withheld here clearly satisfy the standards of Exemption 7(A). These

documents were obtained as part of an ongoing federal investigation and have been shared with

the IGWG and forwarded to the cooperating federal law enforcement authorities within the

IGWG.. See Fedman Decl. ¶¶ 5-6. Materials withheld include investigative documents, agency

memoranda, and communication with third parties who provided information helpful to the

investigation. McCoy Decl. ¶ 22. Release of the withheld information would seriously impair the

effectiveness of this and other investigations by revealing the extent of intelligence gathered, the

names or nature of confidential sources, and the status of the investigations. Fedman Decl. ¶¶ 7-

8; McCoy Decl. ¶ 33. Additionally, release of these documents could interfere with the ongoing

investigation by revealing the nature and scope of investigative activities, the cooperation of

specific individuals, the identity of potential witnesses, and investigative steps taken. Fedman

Decl. ¶ 10; McCoy Decl. ¶ 33. And, release of this information would reveal which federal

agencies are involved in the investigations, which has the potential to indicate the focus and

extent of the investigations and could thus interfere with and seriously undermine federal

investigations. Fedman Decl. ¶ 9. Thus, release of investigatory information could stifle

cooperation, impede the success of the investigation, and lead to the harassment or intimidation

of individuals who have cooperated with NIGC investigations. This provides a proper basis for

substantially broadens the scope of the exemption. See, e.g., Manna v. Department of Justice, 51
F.3d 1158, 1164 n.5 (3d Cir. 1995) (purpose of 1986 amendment was “to relax significantly the
standard for demonstrating interference with enforcement proceedings”); Gould Inc. v. GSA, 688
F. Supp. 689, 703 n.33 (D.D.C. 1988) (“The 1986 amendments relaxed the standard . . . by
requiring the government to show merely that production of the requested records ‘could
reasonably be expected’ to interfere with enforcement proceedings.”) (emphasis added); see also
Spannaus v. United States Dep’t of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987) (explaining that
relaxed standard “is to be measured by a standard of reasonableness, which takes into account the
‘lack of certainty in attempting to predict harm.’”).

11
withholding under Exemption 7(A). E.g., Swan, 96 F.3d at 500; Edmonds v. Federal Bureau of

Investigation, 272 F. Supp. 2d 35, 43-44 (D.D.C. 2003).

III. Information Regarding Identifiable Individuals in these Law Enforcement

Documents Is Protected from Disclosure Under Exemptions 6 and 7(C)

FOIA Exemptions 6 and 7(C) protect the privacy of individuals from unwarranted

invasion. The Supreme Court has adopted a broad construction of the privacy interests protected

by these exemptions, rejecting a “cramped notion of personal privacy” and emphasizing that

“privacy encompass[es] the individual’s control of information concerning his or her person.”

Reporters Committee, 489 U.S. at763.5 Privacy is of particular importance in the FOIA context

because a disclosure required by the FOIA is a disclosure to the public at large. See Painting &

Drywall Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991) (finding

that if information “must be released to one requester, it must be released to all, regardless of the

uses to which it might be put”).6

A. Exemption 7(C) Protects the Withheld Personal Information

Exemption 7(C) of the FOIA protects from disclosure “records or information compiled

5
While Reporters Committee was decided under Exemption 7(C), the definition of the
public interest to be considered is the same as for Exemption 6. See Reed v. NLRB, 927 F.2d
1249, 1251 (D.C. Cir. 1991).
6
Moreover, “[e]ven information that is available to the general public in one form may
pose a substantial threat to privacy if disclosed to the general public in alternative form
potentially subject to abuse.” Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1188
(8th Cir. 2000). Indeed, as the Supreme Court has noted, the fact that information “is not
wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or
dissemination of the information.” Reporters Committee, 489 U.S. at 770 (internal quotation
marks omitted); accord Family Farms, 200 F.3d at 1188. Thus, “[p]ersons can retain strong
privacy interests in government documents containing information about them even where the
information may have been public at one time.” Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993).

12
for law enforcement purposes” to the extent that the production of such law enforcement records

or information “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). In applying exemption 7(C), the Court must “balance the

privacy interests that would be compromised by disclosure against the public interest in release

of the requested information.” Davis v. Department of Justice, 968 F.2d 1276, 1281 (D.C. Cir.

1992). However, recognizing the considerable stigma inherent in being associated with law

enforcement proceedings, courts “do[] not require a balance tilted emphatically in favor of

disclosure” when reviewing a claimed 7(C) exemption. Bast v. Department of Justice, 665 F.2d

1251, 1254 (D.C. Cir. 1981). Additionally, the public interest “must be assessed in light of

FOIA’s central purpose,” and that this purpose “is not fostered by disclosure about private

individuals that is accumulated in various government files but that reveals little or nothing about

an agency’s conduct.” Nation Magazine Washington Bureau v. United States Customs Serv., 71

F.3d 885, 894 (D.C. Cir. 1995) (quotation marks and citation omitted).

It is settled that parties mentioned in law enforcement materials have a presumptive

privacy interest in having their names and other personal information withheld from public

disclosure. See, e.g., Nation Magazine Washington Bureau, 71 F.3d at 894; Safecard, 926 F.2d

at 1206; Bast, 665 F.2d 1251. The Supreme Court has concluded that “as a categorical matter . . .

a third party’s request for law enforcement records or information about a private citizen can

reasonably be expected to invade that citizen’s privacy.” Reporters Commitee, 489 U.S. at 780;

Perrone v. FBI, 908 F. Supp. 24, 26 (D.D.C. 1995). On the other hand, the public interest in

knowing the names of individuals mentioned in law enforcement records, as a general matter, is

nil. See Blanton, 63 F. Supp.2d at 45(“The privacy interests of individual parties mentioned in

13
law enforcement files are ‘substantial’ while ‘[t]he public interest in disclosure [of third party

identities] is not just less substantial, it is unsubstantial.’” (quoting Safecard, 926 F.2d at1205)

(alterations in original)); Del Viscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995) (routine

withholding of names of government personnel involved in law enforcement is a proper exercise

of Exemption 7(C)). Indeed, in Safecard Services, the court stated that

unless there is compelling evidence that the agency denying the FOIA request is
engaged in illegal activity, and access to the names of private individuals appearing
in the agency’s law enforcement files is necessary in order to confirm or refute that
evidence, there is no reason to believe that the incremental public interest would ever
be significant.

Safecard, 926 F.2d at 1205-06.

In Massey, 3 F.3d 620, the FBI relied on Exemption 7(C) to withhold the identities of

certain FBI agents. Finding that disclosure of the identities would not “reveal any significant

information concerning the conduct and administration of FBI investigations,” the court held that

disclosure would not “significantly serve the public disclosure policies of FOIA” and upheld the

use of Exemption 7(C) to prevent disclosure. Id. at 625; see also Jones, 41 F.3d 238, 247 (6th

Cir. 1994) (same result on similar facts); Stone v. FBI, 727 F. Supp. 662, 668 n.3 (D.D.C.)

(collecting cases upholding the use of Exemption 7(C) to protect the names of law enforcement

officials), aff’d 1990 WL 134431 (D.C. Cir. Sept. 14, 1990).

In this case, the NIGC relied upon Exemption 7(C) to protect the identities of living third

party individuals, NIGC employees, and other government employees who are working on

enforcement investigations. See McCoy Decl. at ¶¶ 35-38. The protection of the identities and

personal information of third parties connected to NIGC investigations is proper because the

release of this information could subject such persons to an unwarranted invasion of their

14
personal privacy. Release of the identifying information could result in unwanted and even

unlawful efforts to gain further access to such persons or to personal information about them;

cause them harassment, harm; or expose them to unwanted and/or derogatory publicity and

inferences arising from their connection to the investigation, all to their detriment. See Reporters

Committee, 489 U.S. at 765 (“[D]isclosure of records regarding private citizens, identifiable by

name, is not what the framers of the FOIA had in mind.”).

The protection of the identities of government employees associated with the

investigation is also proper under Exemption 7(C). There would be minimal benefit to the public

from this information, and much damage to the individuals’ privacy interests. As in the cases

discussed above, “there is no reason to believe that the public [would] obtain a better

understanding of the workings of [the NIGC] by learning the identities of [its personnel].”

Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996), aff’d, 1997 WL 411685 (D.C. Cir. June

19, 1997). For this reason, the names of law enforcement personnel are generally exempt from

disclosure under Exemption 7(C) because disclosure “could subject them to embarrassment and

harassment in the conduct of their official duties and personal affairs.” Massey, 3 F.3d at 624;

see also Stone, 727 F. Supp. at 665-66.

B. Exemption 6 Protects the Withheld Personal Information

This same personal information is also properly withheld pursuant to Exemption 6, which

exempts from disclosure information about individuals in “personnel and medical and similar

files” when the disclosure of such information “would constitute a clearly unwarranted invasion

of personal privacy.” See 5 U.S.C. § 552(b)(6). Exemption 6 was “intended to cover detailed

government records on an individual which can be identified as applying to that individual.”

15
United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). It, therefore,

protects personal information contained in any government file so long as that information

“applies to a particular individual.” Id. at 602; see also New York Times Co. v. NASA, 920 F.2d

1002, 1006 (D.C. Cir. 1990) (en banc). This “minimal” threshold “ensures that FOIA’s

protection of personal privacy is not affected by the happenstance of the type of agency record in

which personal information is stored.” Washington Post Co. v. Dep’t of Health & Human

Servs., 690 F. 2d 252, 259 (D.C. Cir. 1982).

Exemption 6 requires an agency to balance the individual’s right to privacy against the

public’s interest in disclosure. See United States Dep’t of the Air Force v. Rose, 425 U.S. 352,

372 (1976). Where, as here, there is a protectable privacy interest, the agency must weigh that

privacy interest against the public interest in disclosure, if any. See Reed, 927 F.2d at 1251. For

example, in Voinche, 940 F. Supp. 323, the FBI relied on Exemption 6 to withhold certain

information that would have identified certain special agents of the FBI and certain other federal

employees. Finding “no reason to believe that the public [would] obtain a better understanding

of the workings of various agencies” by learning the identities of the individuals to whom the

information pertained, the court held that the release of the information “would serve no

articulable public interest.” Id. at 330. Accordingly, the court upheld “the defendant’s assertion

of Exemption 6 in order to protect the privacy interests of the individuals at issue.” Id.

In this instance, the NIGC is shielding the names of NIGC investigative and enforcement

personnel who are working on pending investigations and the names of citizens who have

stepped forward to provide the NIGC with investigative information. McCoy Decl. ¶¶ 30-31.

The safety of agency personnel and of informants could be endangered if their identities were

16
disclosed. Id. ¶ 30. Conversely, just as in Voinche, there is no basis for believing that public

would obtain a better understanding of the working of any government agency by knowing the

names of the individuals involved. The use of Exemption 6 to protect this personal information

is therefore appropriate.

IV. Four of the Withheld Documents Are Inter- or Intra-Agency Communications that
Are Exempt from Disclosure Pursuant to Exemption 5

Exemption 5 of the FOIA protects from disclosure “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party . . . in litigation with the

agency.” 5 U.S.C. § 552(b)(5). Such a record is exempt from disclosure if it would be “normally

privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149

(1975). Accordingly, Exemption 5 thus incorporates the privileges that are available to an

agency in civil litigation, the three principal ones being the deliberative process privilege, the

attorney-client privilege, and the attorney work product privilege. See id. at 148-49. The first of

these – the deliberative process privilege – protects four of the documents being withheld in this

case.

The purpose of the deliberative process privilege is to encourage frank discussion of legal

and policy issues within the government, and to protect against public confusion resulting from

disclosure of reasons and rationales that were not ultimately the bases for the agency’s action.

See, e.g., Mapother, 3 F.3d at 1537; Russell v. Department of the Air Force, 682 F.2d 1045, 1048

(D.C. Cir. 1982); Montrose Chemical Corp. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974). The

deliberative process privilege protects “predecisional communications.” Sears, Roebuck, 421

U.S. at 151. Accordingly, the privilege applies to “‘recommendations, draft documents,

17
proposals, suggestions, and other subjective documents which reflect the personal opinions of the

writer rather than the policy of the agency.’” Mead Data Cent., Inc. v. United States Dep’t of the

Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (quoting Coastal States Gas Corp. v. U.S. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege has been held to apply to

recommendations, see Sears, 421 U.S. at 150, and to drafts. See Dudman Communications Corp.

v. Department of the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987); City of Virginia Beach v.

United States Dep’t of Commerce, 995 F.2d 1438, 1247, 1253 (4th Cir. 1993); Town of Norfolk

v. United States Corps of Engineers, 968 F.2d 1438, 1458 (1st Cir. 1992).

The records in this case qualify under the relevant criteria. First, the documents qualify as

“inter-agency or intra-agency memorandums or letters” because they are memoranda or

communications of agency officials that were between and among agency officials and were not

shared outside the agencies. See McCoy Decl. ¶ 26. Second, the documents all reflect

recommendations or express opinions on legal or policy matters. Id. ¶ 27.

V. One Document Contains Information Protected by FOIA Exemption 7(D)

Informants are entitled to the protection of 5 U.S.C. § 552(b)(7)(D), which permits the

withholding or redacting of law enforcement records the release of which “could reasonably be

expected to disclose the identity of a confidential source . . . and, in the case of a record or

information compiled by a criminal law enforcement authority in the course of a criminal

investigation . . . information furnished by a confidential source.” Unlike Exemption 7(C),

Exemption 7(D) is an absolute protection which requires no balancing of public and private

interests. See Dow Jones & Co. v. United States Dep’t of Justice, 917 F.2d 571, 575-76 (D.C.

Cir. 1990).

18
 Exemption 7(D) applies if the agency establishes that a source has provided information

under either an express or implied promise of confidentiality. See Williams v. FBI, 69 F.3d

1155, 1159 (D.C. Cir. 1995). A confidential source is one who “provided information under an

express assurance of confidentiality or in circumstances from which such an assurance could be

reasonably inferred.” United States Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993)

(internal quotation and citation omitted). The document listed as Vaughn Index #1 contains the

name of such a confidential source, see McCoy Decl. ¶ 40, and this information is exempt from

disclosure pursuant to Exemption 7(D).

CONCLUSION

For the foregoing reasons, the United States’ motion for summary judgment should be

granted.

Dated: September 12, 2005 Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
20 Massachusetts Ave., N.W., Room 6140
Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470

Counsel for Defendant

19
Of Counsel:
Andrea Lord
Staff Attorney
National Indian Gaming Commission

20
 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

[proposed] Order

Upon reviewing Defendant National Indian Gaming Commission’s motion for summary

judgment, the materials submitted in support thereof and in opposition thereto, it is hereby

ordered as follows this day of 2005:

1. Defendant’s aforesaid motion is hereby granted.

2. Judgment is granted in favor of Defendant National Indian Gaming Commission.

UNITED STATES DISTRICT JUDGE

 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

DEFENDANT'S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Pursuant to this Court's Local Civil Rule 7(h) and Local Civil Rule 56.1, Defendant

National Indian Gaming Commission (“NIGC”) hereby submits the following statement of

material facts as to which defendant contends there is no genuine issue or dispute.

MATERIAL FACT EVIDENCE

1. By letter dated March 18, 2005, McCoy Decl., ¶ 13; Compl. Ex. N.

plaintiff submitted a FOIA request to

the NIGC for communications with

certain individuals and records

relating to certain Indian tribes.

2. By letter dated March 22, 2005, the McCoy Decl., ¶ 14; Compl. Ex. O.

NIGC acknowledged receipt of

plaintiff's request.
3. By letter dated May 9, 2005, NIGC McCoy Decl., ¶ 19, Exhibit A.

responded to plaintiff’s request,

informing plaintiff that it had found

14 responsive documents, was

releasing one document, was

withholding the attachment to that

document pursuant to Exemption 5,

and was withholding the remaining

documents under Exemption 7(A).

4. By letter dated May 10, 2005, NIGC McCoy Decl., ¶ 16, Exhibit B.

notified plaintiff of how NIGC had

interpreted plaintiff’s request and

why NIGC had so interpreted the

request.

5. In its May 10, 2005 letter, the NIGC McCoy Decl., ¶ 16, Exhibit B.

further advised plaintiff that it could

appeal NIGC’s interpretation.

Plaintiff has not appealed this

interpretation.

-2-
6. By letter dated May 19, 2005, NIGC McCoy Decl., ¶ 22, Exhibit C.

notified plaintiff that after a review

of the May 9, 2005 response, NIGC

could release certain of the

previously withheld documents and

was asserting additional exemptions

with regard to others.

7. NIGC has released in full eighty- McCoy Decl., ¶ 23.

three pages, released in redacted

form fifteen pages, and has withheld

in full one hundred and seventy-eight

pages.

8. With regard to the withheld McCoy Decl., ¶ 22-23, Exhibit D.

documents and redactions, NIGC has

asserted Exemptions 5, 6, 7(A), 7(C),

and 7(D), as shown on the Vaughn

Index attached to the Declaration of

Regina Ann McCoy.

-3-
9. NIGC claims Exemption 7(A) with McCoy Decl., ¶ 22.

regard to all of the withheld

documents (but not the 12 pages of

redacted source information on the

newspaper articles identified as

Vaughn Index 14).

10. All of the withheld documents were McCoy Decl. at ¶ 33.

compiled as part of ongoing multi-

agency law enforcement

investigations regarding the alleged

misuse of tribal revenues by certain

tribes.

11. Disclosure of the withheld Fedman Decl. at ¶¶ 7-10.

documents would jeopardize access

to law enforcement sources,

potentially discourage cooperation in

future investigations, and undermine

the ongoing investigation.

-4-
12. NIGC is claiming Exemptions 6 and McCoy Decl. at ¶ 22.

7(C) with regard to the redactions

and certain of the withheld

documents.

13. The information withheld pursuant to McCoy Decl. at ¶¶ 29, 36-38.

Exemptions 6 and 7(C) consists of

identifying information regarding of

agency employees and informants.

14. Exposure of the identities of McCoy Decl. at ¶¶ 29-30

individuals involved in or associated

with the investigations would cause

great private harm to the individuals

and could lead to personal safety

concerns.

15. NIGC is claiming Exemption 5 with McCoy Decl. at ¶ 22.

regard to four of the withheld

documents.

-5-
16. The four documents being withheld McCoy Decl. at ¶ 26.

pursuant to Exemption 5 consist of

internal communications between

NIGC personnel and external

communications between NIGC

personnel and members of other

federal agencies.

17. The withheld communications McCoy Decl. ¶ 27.

indicate the extent of the

investigation, government officials’

deliberative processes, and pre-

decisional cogitations.

18. Exposure of this information would McCoy Decl. ¶ 27.

hinder not only the present

investigation and the governments

deliberative process, but would

expose the identity of federal

employees working on the

investigation.

-6-
23. NIGC is claiming Exemption 7(D) McCoy Decl. ¶ 40.

with regard to one document.

24. This document contains the name of McCoy Decl. ¶ 40.

a confidential source who has been

given an express guarantee that

personal and contact information will

not be disclosed to the public.

25. NIGC and other federal agencies will McCoy Decl. ¶ 41.

lose valuable sources of information

if guarantees of protection of

identifying information are not kept.

-7-
Dated: September 12, 2005 Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

/s/
ELIZABETH J. SHAPIRO
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
Trial Attorney, Federal Programs Branch
U.S. Department of Justice, Civil Division
20 Massachusetts Ave., N.W., Room 6140
Washington, D.C. 20001
Tel: (202) 514-5751
Fax: (202) 616-8470

Counsel for Defendant

Of Counsel:
Andrea Lord
Staff Attorney
National Indian Gaming Commission

-8-