                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2005

Fabiano v. McIntyre
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2734




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Recommended Citation
"Fabiano v. McIntyre" (2005). 2005 Decisions. Paper 857.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/857


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                                                   NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                          NO. 04-2734
                       ________________

                    ELEANOR R. FABIANO,
                               Appellant

                                   v.

    THOMAS J. MCINTYRE, Chief of Freedom of Information and
    Privacy Act Unit; RICHARD L. HUFF, Co Director of Office of
Information and Privacy; FEDERAL BUREAU OF INVESTIGATION;
          *UNITED STATES DEPARTMENT OF JUSTICE

           *As Amended by Clerk's Order dated 7/16/04

          _______________________________________

          On Appeal From the United States District Court
                    For the District of New Jersey
                    (D.C. Civ. No. 03-cv-00420)
          District Judge: Honorable Joseph H. Rodriguez
          _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                          July 1, 2005

     Before: SLOVITER, BARRY and FISHER, Circuit Judges.

                      (Filed: July 13, 2005)
                   _______________________

                          OPINION
                   _______________________
PER CURIAM

       Eleanor R. Fabiano appeals from the order of the United States District Court for

the District of New Jersey granting summary judgment in favor of the United States

Department of Justice and the Federal Bureau of Investigation (FBI) in this Freedom of

Information Act (FOIA) action. We will affirm.

       Fabiano, relying on the FOIA, sought information relating to the prosecution and

conviction of her son, John Fabiano, for child pornography. Specifically, she requested

the computer code names used in the FBI’s “Innocent Images” investigation, the real

names of the two individuals using the code names “BearapinSt” and “Herman4321,” and

the identity of a person using the code name “Mendy13,” “Mindy13,” or “Mandy13.”

Although the defendants released several documents, they asserted that some material

was exempt from disclosure under Exemption (b)(7)(C), 5 U.S.C. § 552(b)(7)(C). The

District Court agreed and granted the defendants’ motion for summary judgment.

       We agree with the District Court that the defendants are permitted to withhold

information relating to the names of certain individuals. As explained by the District

Court, the release of such information could reasonably be expected to constitute an

unreasonable invasion of privacy that is not outweighed by the public interest in

disclosure. See Manna v. U.S. Dept. of Justice, 51 F.3d 1158, 1166 (3d Cir. 1995). On

appeal, Fabiano challenges the failure to release the code names used by the FBI in its

investigation of her son. However, the FBI informed Fabiano that it could not locate a



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list of code names in its “Innocent Images” files. The FBI cannot release information that

it does not have. Moreover, even if the defendants could identify the individuals

associated with the code names, their identities could legitimately be withheld under

Exemption (b)(7)(C).

       For the foregoing reasons, we will affirm the judgment of the District Court.

Appellees’ motion for summary affirmance is denied as moot.




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