                                                       [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 10-12416                ELEVENTH CIRCUIT
                        Non-Argument Calendar             JANUARY 14, 2011
                      ________________________               JOHN LEY
                                                              CLERK
                 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.
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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