sundevil.html

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.