Kuzma v. DOJ, No. 19-597, 2023 WL 8455121 (W.D.N.Y. Dec. 6, 2023) (Arcara, J.)

Kuzma v. DOJ, No. 19-597, 2023 WL 8455121 (W.D.N.Y. Dec. 6, 2023) (Arcara, J.)

Re:  Request for records concerning civil rights activist

Disposition:  Adopting magistrate judge’s grant in part and denial in part of defendant’s motion for summary judgment

• Exemption 3; Exemption 6; Exemption 7(C); Exemption 7(D); Exemption 7(E):  The court holds that “Defendant’s motion for summary judgment is granted, except the motion is denied without prejudice to renewal as to the segregability [of specific documents], and Defendant’s reliance on Exemption 3, and denied as moot with respect to Defendant’s reliance on Exemption 7(E).”
  
  Regarding segregability, the magistrate judge previously found that “[specific] documents contain relatively little alleged exempt material and the reasons provided by the DOJ for withholding the non-exempt information are unavailing in the absence of additional factual and legal support.”
  
  Regarding Exemption 3, the magistrate judge previously related that defendant attempted to rely on Federal Rules of Criminal Procedure 6(e) which prohibits government attorneys and others from disclos[ing] a matter occurring before the grand jury and found that defendant had not “‘demonstrat[ed] some nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation.” 
  
  Regarding Exemptions 6 and 7(C), the magistrate judge previously related that defendant withheld “the names and other identifying information of (1) third-party individuals who were interviewed, or provided information by other means, to the FBI during its investigation into [the civil rights activist’s] murder; (2) third parties who were of investigative interest to the FBI; (3) FBI Special Agents and professional staff members [who] were responsible for conducting, supervising, and maintaining the investigation related to [the civil rights activist’s]s death; (4) third parties who are merely mentioned in the investigative records at issue; (5) local law enforcement employees; and (6) personnel from non-FBI, federal government agencies who provided information to, or otherwise assisted, the FBI in its investigation into [the civil rights activist’s] death.”  The magistrate judge found that defendant “employ[ed] [certain mechanisms] to discern the life-or-death status of each individual whose name is withheld.”  “‘For instance, it employs a 100-year rule - i.e., it will assume an individual is dead if the individual was born more than 100 years from the date of the search.”  “Based on these representations, [the magistrate judge] conclude[d] that the DOJ has undertaken sufficient efforts to ascertain the life status of the individuals whose identities have been withheld.”  The magistrate judge also found that “‘[plaintiff] does not explain how knowing the names of the individuals involved in the investigation will further illuminate the FBI’s activities.’”  Also, the magistrate judge “conclude[d] that the foreseeable harm standard has been satisfied.”
  
  Regarding Exemption 7(D), the magistrate judge related that defendant “‘withheld the names and other identifying information of third parties who provided information to the FBI under an express assurance of confidentiality.’”  The magistrate judge found that the Second Circuit previously explained that “‘[plaintiff’s] suspicion does not overcome the FBI’s claim that the responsive material withheld here would reveal the identities of, or information gathered from, confidential sources.’”  “Moreover, ‘the fact that express assurances of confidentiality underlie the approved withholdings of identifying information under Exemption 7(D) is sufficient to satisfy the foreseeable harm standard.’”
  
  Regarding Exemption 7(E), the magistrate judge related that “only [one] document [was] withheld under this exemption . . . .”  “However, the government has represented on a subsequent review that [the document] i[s] not exempt on that basis, but remains withheld in full under Exemptions 6, 7(C) and 7(D).”  “Therefore, [the magistrate judge] recommend[ed] that this portion of the DOJ’s motion be denied as moot.”