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concluding that information about bait money exempt
Summary of this case from Villar v. Fed. Bureau of InvestigationOpinion
02 Civ. 2164 (RJH)(MHD)
May 17, 2004
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Keith Maguire filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the disclosure of two portions of a redacted document provided to him by the Federal Bureau of Investigation ("FBI"). The parties have made cross-motions for summary judgment. The matter was referred to the Hon. Michael H. Dolinger, United States Magistrate Judge for the Southern District of New York, and on March 8, 2004, Magistrate Judge Dolinger issued a Report and Recommendation ("Report") recommending that the Court grant plaintiffs motion and deny defendant's motion. Defendant has timely filed objections to the Report. For the reasons stated herein, the Court declines to adopt that part of the Report to which defendant objects. The Court grants defendant's summary judgment motion and denies plaintiff's summary judgment motion.
Plaintiff later withdrew his request to compel disclosure of one of the redacted portions, so only one portion is in dispute here.
Defendant's summary judgment motion also seeks to substitute the FBI as the proper defendant instead of Barry Mawn, a retired FBI official. ( See Def. Mem. of Law at 1.) Plaintiff does not oppose this request, see Pl Mem. of Law at 2, and the Report recommends that the request be granted. ( See Report at 1-2 n. 1.) This Court adopts that recommendation.
BACKGROUND
The facts of this case are fully recited in the Report, see Report Recommendation, Maguire v. Mawn, No. 02 Civ. 2164 (S.D.N.Y. Mar. 8, 2004), familiarity with which is presumed. The Court summarizes them here to provide context for this opinion.
On February 9, 2001, plaintiff pled guilty to having robbed the Rhinebeck Savings Bank in Poughkeepsie, New York (the "Bank") on August 16, 2002. By letter dated May 30, 2001, plaintiff requested disclosure from the FBI of documents pertaining to that robbery. The FBI provided 28 pages of documents to plaintiff, but made redactions to some of those pages. Two redactions on a document identified as the Form FD-430 (the "Form") were originally the subject of this suit. Since plaintiff has withdrawn his request for disclosure as to one of the redactions, see PL Mem. of Law at 4-6, this Court addresses only the redaction that remains in dispute.
The FBI fills out a Form FD-430 for each bank robbery that it investigates. On the first page of the form, there is a preprinted column of categories under the heading "Security Devices." The categories include such items as "Alarm System", "Surveillance", "Bait money maintained", "Guard(s)", "Electrical devices", and "Bullet resistant enclosure." Next to this column of categories, there is a parallel column with a set of queries that ask whether these devices were used at the bank. Among the queries is an item labeled "Taken," which corresponds to the bait money category.
The Form produced to the plaintiff had the entire parallel column redacted. Plaintiff seeks disclosure of only one item in the redacted column: the amount of bait money, if any, that had been taken from the Bank.
DISCUSSION
Defendant's motion for summary judgment is based on FOIA exemption 7(E), which exempts from disclosure information that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Plaintiff argues that the exemption is inapplicable here because disclosure of the information he seeks would not pose the type of danger the exemption is designed to prevent. ( See Pl. Mem. of Law at 6-8.)
The Report noted that FOIA policy strongly favors disclosure and that the FBI bears the burden of demonstrating that a FOIA exemption applies. See Report at 6. The Report also noted that exceptions were to be construed narrowly, with doubts resolved in favor of disclosure. See id. at 14. The Report explained that, while there was no dispute that the redacted portion contained information Compiled for law enforcement purposes, the "question is whether revelation of the amount of bait money taken by plaintiff during his robbery . . . could reasonably be expected to risk circumvention of the law, `" Id. at 8,12-13.
Magistrate Judge Dolinger began his evaluation of that question by observing that bait money is a technique well-known to the public. See id. at 11-12. Recognizing that disclosure of the amount, if any, might also reveal whether the Bank in fact used bait money, see id. at 10, Magistrate Judge Dolinger reasoned:
"As a practical matter, it is doubtful that disclosure now of whether this one bank was using bait money three and one-half years ago is likely to pose a meaningful risk that the law will be circumvented in the future. If the bank was not using bait money at the time, it quite likely is doing so now, both because it was the victim of at least the one robbery committed by plaintiff and because the use of bait money has been strongly encouraged in the banking community, not least by the Bureau. Moreover, if the bank was using bait money at the time of plaintiff's robbery, presumably it is still doing so, and any public knowledge of this fact would seemingly deter circumvention of the law — i.e., another robbery — with respect to that bank." Id. at 13.
Thus, the Report concluded that defendant failed to meet its burden in "explain[ing] why the requested disclosure would pose any discernible risk of encouraging or permitting future criminal conduct" and that "there is sufficient doubt to justify resolving the matter in favor of plaintiff" Id. at 14-15.
Defendant does not dispute the legal standard articulated in the Report. However, defendant argues that the fact that the "general concept" of bait money is widely known "does not justify disclosing whether a particular bank retained bait money." (Gov't Objections to Report at 4 (hereinafter "Obj.").) Defendant argues that bait money can be used in different ways and the precise techniques used by the Bank, in fact, are not known to the general public. ( See id. at 4-5 n. 3.) Thus, revealing how and if the Bank uses bait money could make the Bank more susceptible to robberies in the future. ( See id. at 5.) This danger, argues defendant, is not mitigated "even if the information [disclosed] is a few years old." ( Id. at 6.)
Defendant also argues that the Report erroneously distinguishes Malloy v. U.S. Dep't of Justice, 457 F. Supp. 543 (D.D.C. 1978). Since this Court does not rely on Malloy for its decision to grant defendant summary judgment, this Court does not express an opinion on whether Malloy is applicable here. However, this Court notes that, while Malloy concludes that information about bait money, inter alia, was properly withheld under exemption 7(E), drawing instruction from the Malloy court's terse reasoning is difficult.
The district court adopts a Magistrate Judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiffs and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp.2d 313,316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F. Supp. at 1189.
Reviewing the issue under a de novo standard, the Court is persuaded by defendant's arguments. Although the public may know that banks often employ bait money, the public does not know whether and how a specific bank employs bait money. Cf. Blanton v. U.S. Dep't of Justice, 63 F. Supp.2d 35, 49-50 (D.D.C. 1995) (allowing withholding of polygraph information under 7(E) because, although public knows about polygraph, public does not know specifics of polygraph procedures and techniques). Such information is particularly worthy of protection when the method employed is meant to operate clandestinely, unlike guards or bullet-proof glass barriers that serve their crime-prevention purpose by operating in the open.
Security devices serve two purposes: to deter crime and to foil crime. In the first instance, the Court doubts that public knowledge of a bank's use of bait money would act as more of a deterrent than public knowledge that a bank might use bait money without knowing if it does for certain. Indeed, if a bank does not use bait money, it is the public's ignorance of that fact that may deter robbery. In the second instance, considering that bait money is meant to be used clandestinely, the more information a potential robber may have on its use at a bank, the better they can plan and execute a robbery. Cf. Dan Barry, About New York; Friendly Bank Makes It Easy For Robbers, N.Y. Times, July 5, 2003, at B1 (noting that some robbers "exude a `don't give me no dye pack' air of sophistication"). In either case, the Court finds that disclosure as to whether the Bank uses bait money could reasonably make the Bank more susceptible to robberies in the future.
It is not clear to this Court if revelation of the amount of bait money taken, if any, would also reveal information as to how the bait money was used by the Bank. However, this Court concludes that information concerning whether a bank uses bait money should be protected regardless of whether exact methodology would also be revealed.
The Court is also not convinced that, whether or not the Bank employed bait money three and one-half years ago, the Bank is surely employing bait money now. Banks, like other corporations in any industry, have divergent business practices and have their own reasons for how they conduct business. This includes having their own reasons, perhaps based on a business model or financial considerations, for employing or not employing certain security devises at a given time. Banks do not always implement a security device at the recommendation of law enforcement or after a robbery. See, e.g., Dan Barry, About New York; Friendly Bank Makes It Easy For Robbers, N.Y. Times, July 5, 2003, at B1 (noting that Commerce Bank, whose business model calls for an "inviting" atmosphere, refuses to put up Plexiglas dividers despite recommendation by deputy police commissioner and 14 robberies in past seven months). While the Bank may well be using bait money, an air of uncertainty nonetheless exists and, as explained above, the uncertainty should be maintained. Therefore, whether or not the Bank used bait money three and one-half years ago should remain confidential.
CONCLUSION
The Court finds that defendant has met its burden of showing that disclosure of the amount of bait money, if any, taken by plaintiff during his robbery of the Bank could reasonably be expected to risk circumvention of the law. Accordingly, defendant's motion for summary judgment [7-1] is GRANTED and plaintiff's motion for summary judgment [11-1] is DENIED. The Clerk shall close this case.
SO ORDERED.