Natarajan Venkataram v. Office of Information Policy , 590 F. App'x 138 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4404
___________
NATARAJAN VENKATARAM,
Appellant
v.
OFFICE OF INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE;
JANICE GALLI MCLEOD, ASSISTANT DIRECTOR-OFFICE OF
INFORMATION POLICY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-09-cv-06520)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 7, 2014
Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges
(Opinion filed: November 10, 2014 )
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Natarajan Venkataram, a federal inmate, has appealed the District
Court’s orders granting summary judgment to the Government and denying his motion
for reconsideration in this case arising under the Freedom of Information Act (FOIA), 5
U.S.C. § 552. For the reasons detailed below, we will affirm the District Court’s
judgment.
In 2005, Venkataram and D.V.S. Raju were both charged with numerous counts
concerning a conspiracy to defraud New York City. According to the indictment,
Venkataram laundered $6.2 million by sending it to one of Raju’s companies in India. In
December 2006, however, the Government dismissed the charges against Raju by entry
of an order of nolle prosequi. In October 2007, meanwhile, Venkataram pleaded guilty to
all 16 counts of the indictment, and he was sentenced to 15 years’ imprisonment.
In December 2008, Venkataram requested, through FOIA, that the Government
provide him with all documents concerning its decision to dismiss the criminal charges
against Raju. The Government refused to turn over any documents, claiming that the
records were categorically exempt from release under 5 U.S.C. § 552(b)(6) and (b)(7)(C).
Venkataram filed a complaint in the District of New Jersey challenging the Government’s
refusal to disclose those documents and, over the Government’s objection, the District
Court remanded the case to the Department of Justice for a particularized analysis of the
documents Venkataram requested.
Eventually, the Government produced 352 pages in full and one page in part, and
withheld 165 pages in full and one in part. The Government also provided an index in
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which, for each withheld document, it described the document, listed the number of pages
that were withheld, identified the statutory basis for the withholding, and provided a short
argument in support of the decision to withhold. Venkataram returned to the District
Court, arguing that the Government had not made a sufficiently thorough search and had
wrongly withheld documents that it should have produced. The Government filed a
motion for summary judgment, claiming that its search and decisions as to withholding
were proper. In a comprehensive 38-page opinion, the District Court granted the
Government’s motion. Venkataram filed a motion for reconsideration, which the District
Court denied. Venkataram then filed a timely notice of appeal to this Court.
We have jurisdiction under 28 U.S.C. § 1291. We employ a two-tiered test in
reviewing the District Court’s order granting summary judgment. First, we determine
“whether the district court had an adequate factual basis for its determination”; if it did,
we then assess “whether that determination was clearly erroneous.” Abdelfattah v. U.S.
Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quotation marks omitted).
Meanwhile, we review the order denying the motion for reconsideration for abuse of
discretion. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
Before this Court, Venkataram focuses entirely on the Government’s refusal to
produce the four-page agreement it entered into with Raju in which it agreed to dismiss
the criminal charges against him (“the Agreement”). Venkataram argues, first, that the
District Court should have required the Government to disclose the Agreement because
the Government has “officially acknowledged” the existence of that document. As the
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D.C. Circuit has explained, “when an agency has officially acknowledged otherwise
exempt information through prior disclosure, the agency has waived its right to claim an
exemption with respect to that information.” ACLU v. CIA, 710 F.3d 422, 426 (D.C.
Cir. 2013). However, this rule is narrow; for information to be officially disclosed, “(1)
the information requested must be as specific as the information previously released; (2)
the information requested must match the information previously disclosed; and (3) the
information requested must already have been made public through an official and
documented disclosure.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011).
We agree with the District Court that Venkataram failed to establish that the
information in the Agreement has been officially acknowledged. See ACLU v. CIA, 710
F.3d at 427 (noting that initial burden is on the plaintiff). He argued in the District Court
only that this document had been officially acknowledged, not that “the specific
information” in the document had been acknowledged. ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 621 (D.C. Cir. 2011) (emphasis added). While this argument could potentially
overcome a Glomar response — where the Government “refuse[s] to confirm or deny the
existence of records,” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) — it is not
sufficient in a case like this one, where the Government acknowledges the record but
argues that it is protected from disclosure. See id. at 380. Moreover, Venkataram has
failed altogether to show that the specific information in the Agreement has been
previously released. See Pub. Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir.
1993) (agency does not waive exemptions “by publicly discussing the general subject
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matter of documents which are otherwise properly exempt”); Davis v. U.S. Dep’t of
Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992) (plaintiff has “burden of showing that there
is a permanent public record of the exact portions [of the information] he wishes”).1
Venkataram next argues that the District Court erred in concluding that the
Government was permitted to withhold the Agreement pursuant to the exemption set
forth in 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”). Under Exemption 7(C), an agency
is not required to disclose records or information compiled for law enforcement purposes
that “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” § 552(b)(7)(C). When the Government invokes Exemption 7(C), the court
must “weigh[] the privacy interest and the extent to which it is invaded, on the one hand,
against the public benefit that would result from disclosure, on the other.” Ferri v. Bell,
645 F.2d 1213, 1217 (3d Cir. 1981).
The District Court did not err in weighing the factors here. On the one hand, the
criminal charges against Raju were dismissed, and he thus has a “fundamental interest” in
1
Venkataram also contends that there was a dispute of fact concerning whether the
Agreement was officially acknowledged, which should have precluded the entry of
summary judgment. We are not persuaded. First, in FOIA cases, “the familiar standard
of appellate review promulgated by Federal Rule of Civil Procedure 56(c) does not
apply,” McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir. 1993), and the District
Court is actually required to “make distinct decisions as to factual questions,” Summers
v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). In any case, Venkataram has
not actually raised a disputed issue of material fact; rather, he argues about the legal
consequences of undisputed facts. Even under the traditional summary-judgment
standard, it is appropriate for the District Court to resolve this type of question. See, e.g.,
Fed. R. Civ. P. 56 advisory committee note (2010) (stating that court “must determine the
legal consequences of these facts”).
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limiting the disclosure of this information. ACLU v. U.S. Dep’t of Justice, 750 F.3d 927,
935 (D.C. Cir. 2014). Meanwhile, the public benefit of the disclosure would be slight.
Although Venkataram seems to believe that information about Raju’s agreement with the
Government would reveal that the Government somehow acted improperly, he supports
this claim with just his “bare suspicion,” which will not suffice to obtain disclosure.
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Further, contrary
to Venkataram’s contention, information about Raju’s nolle prosequi, representing just a
single data point, will reveal little about the Government’s use of prosecutorial discretion.
See Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007).
Accordingly, the District Court did not err in concluding that exemption 7(C) applies
here. See ACLU v. U.S. Dep’t of Justice, 750 F.3d at 935 (so holding in similar
circumstances).
Finally, Venkataram argues that the District Court erroneously relied on the
exemption found in § 552(b)(5) — which covers, among other things, documents
protected by work-product privilege — to deny his request for the disclosure of the
Agreement. He is mistaken; the Government sought to withhold the document solely
based on Exemptions 6 and 7(C), and the District Court considered only those
exemptions.
Accordingly, we will affirm the District Court’s judgment.
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