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Barrett v. United States Dep't of Justice

October 20, 2010


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Pending are cross-motions for summary judgment in this Freedom of Information Act ("FOIA") action, concerning whether Defendant properly withheld documents responsive to Plaintiff's FOIA request under two statutory exemptions: 5 U.S.C. § 552(b)(7)(A) and (7)(D). For the reasons stated herein, Defendant's motion under exemption 5 U.S.C. § 552(b)(7)(A) is granted and Plaintiff's cross-motion on this exemption is denied. Since the documents are found to have been properly withheld under 5 U.S.C. § 552(b)(7)(A), the issue whether 5 U.S.C. § 552(b)(7)(D) exempted the responsive documents from disclosure is not reached.


When deciding cross-motions for summary judgment, each motion is evaluated on its own merits, "taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001); Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 2010) (stating all reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party"). A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis omitted).

FOIA "mandates a policy of broad disclosure of government documents when production is properly requested." Kamman v. U.S. I.R.S., 56 F.3d 46, 48 (9th Cir. 1995) (citing 5 U.S.C. § 552(a)). "An agency may withhold a requested document only if it falls within one of the nine statutory exemptions to the disclosure requirement." Id. (citations omitted). "The delineated exemptions are to be interpreted narrowly." Milner v. U.S. Dept. of the Navy, 575 F.3d 959, 963 (9th Cir. 2009) (quotation omitted). FOIA's "broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the 'balance' Congress has struck" between "the right of the public to know and the need of the Government to keep information in confidence." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989).

The government has the burden of proving "that a particular document falls within one of the exemptions." Kamman v. U.S. I.R.S., 56 F.3d at 48.

[The government] may meet this burden by submitting affidavits showing that the information falls within the claimed exemption. In evaluating a claim for exemption, a district court must accord substantial weight to agency affidavits, provided the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of agency bad faith.

Milner v. U.S. Dept. of the Navy, 575 F.3d at 963 (quotation and citation omitted).


Plaintiff claims an interest in solving what is referenced as the Zodiac case. (Pl.'s Resp. to Def.'s Statement of Undisputed Facts ("Def's SUF") #4.) The self-described "Zodiac Killer" committed at least five brutal murders and severely injured two other victims in northern California in 1968 and 1969. (Def.'s SUF #1.)

Plaintiff submitted a FOIA request to the Federal Bureau of Investigations ("FBI") on July 17, 2009, in which he sought high resolution copies of all latent fingerprints contained in the Zodiac case. (Def.'s Resp. to Pl.'s Statement of Undisputed Facts ("Pl.'s SUF") #2.) The FBI did not directly investigate the Zodiac crimes; it assisted local law enforcement agencies through forensic examinations which included analysis of latent fingerprints. (Def.'s SUF #3.) The Zodiac crimes remain unsolved. Id. #2.

Defendant identified 24 pages of photographs of latent fingerprints, which are responsive to Plaintiff's FOIA request. (Def.'s SUF #11.) Local law enforcement agencies involved in the investigation of the Zodiac case submitted the fingerprints to the FBI for analysis. Id. #12.

Since the responsive documents were obtained from local law enforcement agencies, the FBI contacted the local agencies regarding Plaintiff's FOIA request. Id. #13. "All three local law enforcement agencies refused to consent to disclosure, requesting that the FBI withhold the latent prints entirely." Id. #14. The Napa County Sheriff's Department refused to consent by letter, stating:

This case is still an open homicide investigation . . . . Our office has jurisdiction in this case as one victim was killed in our county and our agency . . ...

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