692 F. App'x 30
2d Cir.2017Background
- Plaintiff Michael Kuzma filed a FOIA request to the FBI seeking records related to civil‑rights activist Ray Robinson; the FBI located 782 pages and released 590 pages in whole or part, withholding others under FOIA exemptions.
- District court granted summary judgment to the DOJ; Kuzma appealed.
- Key contested issues: adequacy of the FBI’s search (including a missing "June Mail" document) and the applicability of Exemptions 3, 6, 7(A), 7(C), and 7(D).
- FBI declared the June Mail item was missing from the location likely to hold it despite multiple searches; FBI described its search methods and gave declarations to support withholdings.
- FBI invoked Rule 6(e) (grand jury secrecy) for some material, privacy exemptions (6 and 7(C)) for identities, 7(A) for material that would interfere with ongoing investigations, and 7(D) for confidential source information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search | FBI failed to find a June Mail document; search was therefore inadequate and FBI should have used special procedures | FBI conducted reasonable, repeated searches in likely locations; missing item plausibly lost and search was reasonably calculated to find it | Search adequate; Kuzma failed to raise a genuine dispute about adequacy |
| Exemption 3 (Rule 6(e) / grand jury) | Exceptional circumstances (per In re Craig) justify disclosure despite Rule 6(e) | Rule 6(e) is a withholding statute; FOIA challenge cannot override grand jury secrecy absent court release | Withholding under Exemption 3 proper; Craig does not allow agency disclosure under FOIA and Kuzma did not seek court release |
| Exemptions 6 and 7(C) (privacy) | Public interest in Robinson case and alleged FBI mishandling outweighs privacy interests | Disclosure of third‑party identities would cause harassment, stigma, and safety risks; public interest in names is speculative/derivative | Withholdings under 6 and 7(C) upheld because privacy interests outweigh the speculative public interest |
| Exemption 7(A) (interference) | It is unlikely the withheld information concerns an ongoing investigation | Revealing names/details would interfere with a pending investigation and could tip off subjects | 7(A) applies and withholding is proper; plaintiff’s skepticism insufficient to rebut agency declarations |
| Exemption 7(D) (confidential sources) | Two persons allegedly testified publicly as informants, so 7(D) waived | Evidence does not show those individuals are the same sources or that disclosure of some identities waives protection for other withheld material | 7(D) upheld; plaintiff’s suspicions and public press reports do not show waiver or identity equivalence |
Key Cases Cited
- Florez v. CIA, 829 F.3d 178 (2d Cir. 2016) (standard of review for FOIA summary judgment)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (adequacy of FOIA search; agency declarations presumed valid absent contrary evidence)
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) (agency’s burden to show adequate search and proper exemptions)
- CIA v. Sims, 471 U.S. 159 (U.S. 1985) (two‑step test for Exemption 3 withholding statutes)
- In re Craig, 131 F.3d 99 (2d Cir. 1997) (district courts’ limited supervisory power to order grand jury disclosure under exceptional circumstances)
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (U.S. 1989) (privacy balancing under FOIA)
- Long v. Office of Pers. Mgmt., 692 F.3d 185 (2d Cir. 2012) (public interest inquiry for identity disclosures)
- Landano v. U.S. Dep’t of Justice, 508 U.S. 165 (U.S. 1993) (confidential source protection under Exemption 7(D))