Albert Van Bilderbeek, et al vs U.S. Department of Justice

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 14, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-12416
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-01931-JA-GJK
ALBERT VAN BILDERBEEK,
HENDRIK VAN BILDERBEEK,
Plaintiffs - Appellants,
versus
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 14, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.

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PER CURIAM:
The Van Bilderbeeks appeal the summary judgment in favor of the
Department of Justice and against their complaint for declaratory and injunctive
relief under the Freedom of Information Act. The Van Bilderbeeks requested from
the Department copies of “all documents related to” an investigation by the Drug
Enforcement Administration of the Van Bilderbeeks and their company, Llanos
Oil Exploration Limited. The Van Bilderbeeks filed a complaint for a declaratory
judgment that the Department had violated the Act and an injunction to release the
documents. After the Department released two documents and withheld other
documents as exempt “investigatory records compiled for law enforcement
purposes,” 5 U.S.C. § 522(b)(7), the Department moved for summary judgment
and submitted the declaration of an agent that described the documents withheld
and the factual bases for the exemption. The Van Bilderbeeks argued that the
declaration was insufficient to substantiate the exemption and that the Department
had to file a Vaughn index or submit the documents for an in camera review by the
district court. The district court granted summary judgment in favor of the
Department. We affirm.
I. BACKGROUND
The Department filed the declaration of Michael Seidel, a senior attorney of
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the Department who provides “general legal support for the [Drug Enforcement
Administration] Headquarters staff. . . involving the Freedom of Information Act”
and “necessary litigation support to Assistant United States Attorneys” who
prosecute cases under the Act. Seidel stated that he was familiar with the Van
Bilderbeek’s complaint and the “processing file maintained by the [Freedom of
Information Operations Unit of the Administration],” and that his declaration
contained information “of [his] own personal knowledge” about his review of
Administration “records, coordination and oversight of [the] search [by the
Administration] and processing efforts, and information [he had] acquired . . . in
the performance of [his] official duties to include coordination with the [Freedom
of Information Operations Unit], foreign and domestic [Administration] officers,
and other federal agencies.”
Seidel stated that his declaration was prepared “[i]n accordance with
Vaughn v. Rosen, 484 F.2d 82[0] (D.C. Cir. 1973),” and he explained how the
Administration had processed the Van Bilderbeek’s request for documents,
discovered seven investigative files in the Narcotics and Dangerous Drugs
Information System of the Administration, and classified those files. Seidel stated
that the Administration had compiled the files during “domestic and foreign
criminal law enforcement investigations . . . associated with drug trafficking and
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money laundering of illegal drug trafficking proceeds.” Seidel stated that he
learned from the lead agent of the investigation that the files “relate[d] to [an]
ongoing investigation and/or prospective enforcement proceedings” of the Van
Bilderbeeks, their company, and “other third parties.”
Seidel described the documents in the files and explained that they
contained sensitive material. Seidel identified eight types of documents in the
files: DEA-6 Reports of Investigation; DEA Form 202; DEA Form 7a; DEA cable
or teletype communications; DEA letters or memoranda; electronic
communications; source documents/information; and miscellaneous administrative
documents. Seidel described in detail the documents and discussed that they
contained information about intelligence activities, evidence collected,
communications between suspects and/or third parties, criminal activities, property
acquired with drug proceeds, persons involved in transactions, confidential
information about those persons, informants, and federal agents and other law
enforcement personnel involved in the investigations.
Seidel stated that he used a three-step process to determine whether the
individual documents in the seven files were exempt under the Act. Under the
process, Seidel reviewed each document, identified the document by type, and
placed each document in one of three functional categories—investigative,
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administrative, and publicly known. Seidel placed two documents in the publicly
known category and explained that they could be released to the Van Bilderbeeks.
Seidel classified the documents within the investigative and administrative
categories into seven subcategories. He divided the investigative category into
four subcategories: documentary and physical evidence, documentation of
investigative activity, information exchanges between domestic and foreign
agencies, and confidential source information. He divided the administrative
category into three subcategories: information contained in reports of investigative
activity, information related to investigative activity, and miscellaneous
administrative documents. Seidel mentioned specific documents in the
investigative files and types of documents that were included in each subcategory.
Seidel stated that disclosure of the documents would “interfere with
enforcement proceedings,” 5 U.S.C. § 522(b)(7)(A). Seidel explained that
releasing the documents would enable the Van Bilderbeeks and third parties to
identify “specific evidence related to [the] investigation, reveal sources, . . .
expose the scope of investigative activity”; could “lead to the intimidation of
potential witnesses and confidential sources, or physical harm, given the violence
inherent in the international drug trafficking trade”; and would “reveal[] the scope,
direction, nature, and pace of the investigation” and “thwart prospective
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enforcement proceedings.” Seidel also explained that the documents could not be
segregated “without jeopardizing the ongoing investigation or hindering future
enforcement proceedings.”
The district court ruled that the withheld material was exempt under section
552(b)(7)(A) of the Act and granted summary judgment in favor of the
Department. The district court ruled that the documents were compiled for law
enforcement purposes based on the ongoing investigation of the Van Bilderbeeks,
their company, and third parties for their involvement in drug trafficking and
money laundering. The district court found that there was a “plausible basis” for
the investigation in the light of the Van Bilderbeeks’s “own statement that
Colombian government officials [had] implicated them” in an “‘international drug
and money laundering organization.’” The district court ruled that the Seidel
declaration provided “adequate information” about the documents that had been
withheld and “how the release of each category of documents would interfere with
enforcement proceedings.” The district court also ruled that “the Department has
explained with reasonable specificity why the records at issue cannot be further
segregated.”
II. STANDARD OF REVIEW
We review de novo a motion for summary judgment and view the evidence
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in the light most favorable to the nonmoving party. Miccosukee Tribe of Indians
of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008). Summary
judgment should be entered when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
factual dispute will not defeat summary judgment unless “it would affect the
outcome of the suit under the governing law” and would require judgment in favor
of the non-moving party. Miccosukee Tribe, 516 F.3d at 1243.
III. DISCUSSION
The Freedom of Information Act requires a federal agency to disclose
records requested by an individual. 5 U.S.C. § 552(a). That requirement is not
unlimited, and an agency may withhold documents that fall within one of nine
statutory exemptions. Id. § 552(b); Moye, O’Brien, O’Rourke, Hogan, & Pickert
v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1276–77 (11th Cir. 2004). The
burden rests with the government to prove that a requested document is exempt
from disclosure, Moye, 376 F.3d at 1277, and the government can satisfy its
burden by affidavit testimony that “provide[s] as accurate a basis for decision as
would sanitized indexing, random or representative sampling, in camera review, or
oral testimony.” Miscavige v. I.R.S., 2 F.3d 366, 368 (11th Cir. 1993).
We apply a two-part test to determine if documents are exempt from
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disclosure under the Act. First, we must ensure that “the district court had an
adequate factual basis” to determine that the documents were exempt.
Miccosukee Tribe, 516 F.3d at 1244; Miscavige, 2 F.3d at 367. Second, we must
decide if “the decision reached by the district court was clearly erroneous.”
Miccosukee Tribe, 516 F.3d at 1244; see Miscavige, 2 F.3d at 367.
The Van Bilderbeeks argue that Seidel’s declaration is insufficient to
support an exemption from disclosure for three reasons. First, the Van
Bilderbeeks argue that Seidel’s statements that the Administration was
investigating the Van Bilderbeeks and that disclosure of the records would
interfere with the investigation were unreliable because those statements were
based on information Seidel received from federal agents. Second, the Van
Bilderbeeks argue that the Administration lacked a plausible basis to conduct the
ongoing investigation because the agency either had been tricked or had conspired
with officials in the Colombian government “to manufacture a criminal
‘investigation’ . . . to deprive [the Van Bilderbeeks] of valuable oil rights.” Third,
the Van Bilderbeeks argue that the declaration “gives absolutely no information
about any document or records that might be responsive to” their request for
documents and that Seidel failed to “provide a ‘detailed justification’ of the non-
segregability of any material not released.” These arguments fail.
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The district court did not err by relying on statements in Seidel’s declaration
about the investigation and the need to withhold the documents. A “declaration
used to support . . . a motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the .
. . declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
Although Seidel stated that he learned from “the lead DEA agent” that the seven
“investigative files did indeed relate to an ongoing investigation and/or
prospective enforcement action,” Seidel said that he reviewed the files and
observed that the “documents contain[ed] information which exempt[ed] them—in
whole or in part—from disclosure under” the Act. Seidel provided first-hand
information about the documents and the sensitive nature of their contents. The
nature of those documents reveals that they were accumulated during an
investigation of suspected criminal activity by the Van Bilderbeeks.
The district court also did not clearly err in finding that the Administration
had a plausible basis to investigate the Van Bilderbeeks. The Van Bilderbeeks
admitted that they had been implicated in trafficking in drugs and laundering
money by officials in the Colombian government. In addition, Hendrik Van
Bilderbeek has been convicted in a Colombian court of laundering money and
sentenced to serve 20 years in prison. Although the Van Bilderbeeks submitted
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three affidavits to challenge the basis of the investigation, those affidavits do not
establish that the investigation was unfounded. In two of the affidavits, Hendrik
Van Bilderbeek and Albert Jacques Van Bilderbeek provided self-serving
statements that there were “no ongoing investigations” about them or their
company “related to the continuance of the investigation under which [they] filed”
a request for information under the Act. In the third affidavit, Rafael Enrique
Garcia Torres, a former official in the Colombian government, states twice that a
government official ordered a government agency to investigate the Van
Bilderbeeks “based on an investigation [already] being carried out by the DEA in
the United States,” which suggests that the investigation of the Administration is
unrelated to any action by the Colombian government. Notably, Torres was
arrested for “allegedly manipulat[ing] the data of” the Administrative Safety
Department in Colombia “to favor[, in part,] . . . alleged drug traffickers . . . .”
The district court was not required to examine further the decision of the
Administration to investigate the Van Bilderbeeks. See Arenberg v. Drug
Enforcement Admin., 849 F.2d 579, 581 (11th Cir. 1988).
Seidel’s declaration provided a sufficient factual basis for the district court
to determine that the documents were exempt from disclosure. Seidel identified in
detail the contents of the records and documents, which provided insight into the
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types of information in particular documents and the close proximity of
information that made the documents non-segregable. As explained by Seidel, the
documents contained information about the evidence collected, investigators, and
informants, the disclosure of which would not only hamper the investigations but
also endanger the individuals identified in the documents. The Van Bilderbeeks
seek more detailed information about the documents to justify their exemption, but
“an adequate factual basis can be established in this Circuit by affidavits alone,”
Miccosukee Tribe, 516 F.3d at 1260, particularly when the supporting document
contains the level of specificity provided by Seidel, see Miscavige, 2 F.3d at 368.
The district court did not clearly err when it found that disclosure of the
documents would “interfere with enforcement proceedings,” 5 U.S.C. §
552(b)(7)(A). The Department did not seek to withhold all the documents found
in the Van Bilderbeek’s investigatory files. See N.L.R.B. v. Robbins Tire &
Rubber Co., 437 U.S. 240, 236, 98 S. Ct. 2311, 2324 (1978) (acknowledging that
Congress amended “Exemption 7 . . . to eliminate ‘blanket exemptions’”);
Miscavige, 2 F.3d at 367 (“It is well established in this Circuit that in most
situations blanket objections . . . will not suffice for disposition of FOIA claims.”).
In fact, the Department reviewed each document and determined that two
documents did not qualify for the exemption “because the information [was]
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publicly known or [was] not reasonably expected to interfere with law
enforcement proceedings.” The Department sought to exempt the other
documents because they contained sensitive material that would thwart an active
investigation. See Robbins Tire, 437 U.S. at 236, 98 S. Ct. at 2323–24 (approving
“generic determinations of likely interference” when “disclosure of particular
kinds of investigatory records while a case is pending would generally ‘interfere
with enforcement proceedings’”); see also Moorefield v. U.S. Secret Serv., 611
F.2d 1021 (5th Cir. 1980) (approving the exemption of records of the Secret
Service compiled against an individual “of interest” to the Service because he had
been twice convicted of threatening the life of the President of the United States).
The reasons Seidel gave for nondisclosure are more than sufficient to support the
withholding of the documents.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of the Department.
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