County of Santa Clara
Law Offices of thePublic Defender
120 West Mission Street
San Jose, CA 95110
(408) 299-7700 / Fax (408) 998-8265
MOLLY O'NEAL
Public Defender
June 1, 2016
Director
Office of Information Policy (OIP)
United States Department of Justice, Suite 11050
1425 New York Avenue, NW
Washington, D.C. 20530-0001
RE:Freedom of Information Act Appeal
Request No. 1349806-000
Subject: Pham, Dat Van (et al)
Dear Director,
I am counsel for Thoai Huynh. On April 8, 2016, I sent to the Federal Bureau of Investigation a request under the Freedom of Information Act, on behalf of my client. The request was parceled into several segments and I am now addressing Request Number 1349806-000, Subject: Pham, Dat Van (et al).
On May 11, 2016, I received a letter from David M. Hardy, Section Chief, Record/Information Dissemination Section Records Management Division, dated May 9, 2016, denying my request. Saidletter stated that the documents requested were exempted from disclosure under 5 U.S.C. 552(b) which exempts disclosure of law enforcement records which, if disclosed, “[c]ould reasonably be expected to constitute an unwarranted invasion of personal privacy.”
I hereby appeal this denial of my request pursuant to 28 C.F.R. 16.8. Because the strong public interest in governmental conduct of criminal prosecutions outweighs the minimal invasion of privacy that would be caused by release of these records, release would not constitute “an unwarranted invasion of personal privacy.” This appeal is based on the attached memorandum of points and authorities.
As required by statute, I anticipate a response from your agency within 20 days.
Thank you for your attention to this matter.
Sincerely,
Kelley Paul Kulick
Deputy Public Defender
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOIA APPEAL
I.
RELEASE OF THE REQUESTED IMMIGRATION RECORDS WOULD NOT CONSTITUTE A “CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY.”
The Freedom of Information Act mandates broad disclosure of government documents. “[D]isclosure, not secrecy, is the dominant objective of the Act,” and any exemptions to that disclosure requirement “must be narrowly construed.” Department of the Air Force v. Rose (1976) 425 U.S. 352, 361. Accordingly, the government bears the burden of establishing that an exception to disclosure applies. Ibid.
When invoking Exemption 6 as the basis for withholding requested documents, “the Government must establish that the invasion of the interviewees' privacy would be ‘clearly unwarranted.’” Department of State v. Ray (1991) 502 U.S. 164, 172. Further, “the Government's burden in establishing the requisite invasion of privacy to support an Exemption 6 claim is heavier than the standard applicable to Exemption 7(C)” which applies more narrowly to law enforcement documents. Ibid. (citing United States Department of Justice v. Reporter Committee for Freedom of the Press (1989) 489 U.S. 749, 756.) “It is believed that the scope of [Exemption 6] is held within bounds by the use of the limitation of ‘a clearly unwarranted invasion of personal privacy.’” Department of State v. Washington Post (1982) 456 U.S. 595, 600 (quoting Senate Judiciary Committee S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965).) As the Supreme Court has repeatedly emphasized,
For unless the invasion of privacy is “clearly unwarranted,” the public interest in disclosure must prevail. As we have repeatedly recognized, FOIA's “basic policy of ‘full agency disclosure unless information is exempted under clearly delineated statutory language,’ . . . focuses on the citizens' right to be informed about “what their government is up to.” Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose.
Department of State v. Ray, supra, 502 U.S. at 177-178; Department of Justice v. Reporters Committee, supra, 489 U.S. at 773; Department of Air Force v. Rose, supra, 425 U.S. at 360-61.
Thus, “the text of the exemption requires the Court to balance ‘the individual's right of privacy’ against the basic policy of opening ‘agency action to the light of public scrutiny.’” Department of State v. Ray, supra, 502 U.S. at 175; Department of Air Force v. Rose, supra, 425 U.S. at 372.
In the present matter, Thoia Huynh, by and through his attorney of record, has requested from the FBI, records and information regarding individuals involved in his pending murder trial. Mr. Thoai Huynh is charged with the murder of Danh Nguyen on July 7, 2003, in San Jose, California. As part of the discovery provided by the District Attorney’s Office in the homicide of Danh Nguyen, the defense received information on an “Operation Grey Eagle.” This information named the gang, Monterey Park Wah Ching and identified key members Dat Van Pham, Vinh Quoc Duong, Cam Simon Quang Ta, “Oscar,” Kin Yew Leoung, Patrick H. Pai, Nghi Cam Ta, Dai Quang Han, Thang Nguyen, Khanh Nguyen, and “Rich or Alec.” The information included pictures of most of these members, their contact information, monikers, and suspected crimes. Dat Van Pham was known for violence, weapons, cocaine, moving ecstasy, importing 300 to 400 pounds of marijuana and 2-55 gallon drums of Ephedrine per week.
The discovery provided to our office by the deputy district attorney prosecuting Mr. Huynh also stated that the San Jose Police department partnered with the Federal Bureau of Investigation for assistance as there were international drug ties implicated in this homicide. In particular, an agent by the name of “Dave Shoots” (spelling as to last name may be incorrect), worked directly with San Jose Police Detective Hahn in the investigation of this case in 2003. Discovery also states that a Vietnamese FBI agent utilized one of the key witnesses in the homicide case, Than Tran, to do an undercover drug deal with possible homicide suspect, Dat Pham. As stated above, Dat Pham is a central member of the Monterey Park Wah Ching and part of Operation Grey Eagle. This undercover drug buy was intended to allow an arrest of Dat Pham so that he could be questioned about the murder in San Jose. With the assistance of federal agents, Dat Pham sold Than Tran approximately one kilogram of cocaine and an arrest was made of Dat Pham. San Jose police then travelled to interview Dat Pham about the homicide. In addition, either San Jose police or FBI agents entered Dat Pham’s name into the Western States Information Network (WSIN), which triggered contact from an inter-agency task force named “LA Impact.” LA Impact identified Dat Pham as a suspected “hit man” responsible for many murders in Southern California.
Mr. Huynh seeks the requested information on these individuals to determineif the investigation into the homicides with which he is charged is accurate. Mr. Huynh’s current counsel reasonably believes that the investigating agencies failed to pursue viable investigatory leads in this case that may have resulted in the prosecution of several of the named individuals instead of Mr. Huynh. Several federal government agencies were involved in the investigation of this case. Thus, the manner in which these agencies conducted their work and the information which these agencies, including the FBI, have on the named individuals is an area of legitimate public interest. Release of the requested documents will further the purpose of the FOIA of “opening ‘agency action to the light of public scrutiny’” by exposing both the failure of federal government agencies to fully and fairly investigate a homicide. See Department of State v. Ray, supra, 502 U.S. at 175; Department of Air Force v. Rose, supra, 425 U.S. at 372.
The contents of theFBIfiles on these named individuals are a matter of public concern. Given the strong public interest in open and public criminal trials and all matters related to them, the public interest at stake here is indeed substantial. Mr. Huynh is charged with murder, implicating his federal rights to due process and a fair trial. Both the Freedom of Information Act and the United States Constitution guarantee Mr. Huynh the right to view these materials. Therefore, the public interest in disclosure of the records requested here outweighs the limited intrusion on the individual privacy of those involved.
Respectfully submitted,
Kelley Paul Kulick
Deputy Public Defender
Assistant Public Defenders: Jose G. Guzman, J.J Kapp, and Michele Diederichs