Boehm v. Federal Bureau of Investigation , 948 F. Supp. 2d 9 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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JOSEF F. BOEHM, )
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Plaintiff, )
)
v. ) Civil Action No. 09-2173 (ABJ)
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FEDERAL BUREAU OF )
INVESTIGATION, et al., )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Josef Franz Boehm brings this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (2006). Plaintiff’s
complaint challenges defendants’ responses to written requests that he made to the Federal
Bureau of Investigations (“FBI”), the Executive Office for United States Attorneys (“EOUSA”),
and the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”). The
requests sought copies of any records in agency files from the years 2000 to 2009 that mention or
concern Joseph Franz Boehm. All three agencies have now responded to plaintiff’s requests by
conducting searches, disclosing some responsive records, and providing their reasons for
withholding others. Defendants have filed a motion for summary judgment. Defs.’ Mot. for
Summ. J. (“Defs.’ Mot.”) [Dkt. # 36]. Plaintiff opposes the motion, challenging the adequacy of
the agencies’ searches and their withholdings. Pl.’s Response to Defs.’ Mot. for Summ. J. (“Pl.’s
Opp.”) [Dkt. # 42]. Because the agencies conducted adequate searches, but they have not
provided adequate explanations for some of their withholdings, the Court will grant in part and
deny in part defendants’ motion.
BACKGROUND
Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in
Seagoville, Texas. Compl. [Dkt. # 1] ¶ 1. In 2004, he pled guilty to one count of conspiracy to
commit the crime of sex trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591(a)(1),
and one count of conspiracy to distribute controlled substances to persons under age twenty-one,
in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 859(a). Court Minutes, United
States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska Nov. 22, 2004) [Dkt. # 692]; see also
Hardy Decl. [Dkt. # 36-5] ¶ 5. In May 2005, he was sentenced in the United States District
Court for the District of Alaska to approximately eleven years in prison. Judgment, United
States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska May 16, 2005) [Dkt. # 779-1].
On June 22, 2009, plaintiff submitted written requests to the FBI, the EOUSA, and the
CRM under the Privacy Act and FOIA. Ex. A to Luczynski Decl. [Dkt. # 36-4] (EOUSA); Ex. B
to Hardy Decl. (Criminal Division of DOJ); Ex. A to Argall Decl. [Dkt. # 36-2] (FBI). All of the
requests stated:
I am requesting access to all records in agency files, including but not
limited to all documents and records concerning Josef Franz Boehm . . .
for the years between 2000 and 2009 inclusive. . . . This is an all-inclusive
request and includes any document, wherever located, in which the name
of Josef Franz Boehm is made mention or listed including investigations
of persons or business entities other than Josef Franz Boehm.
Id. The requests included plaintiff’s date of birth, social security number, register number, place
of birth, and the criminal case number of the offense for which he is currently incarcerated. Id.I. Request to the EOUSA
The EOUSA acknowledged receipt of plaintiff’s request by letter dated August 18, 2009.
Ex. B to Luczynski Decl. On August 27, 2010, it responded to the request. Ex. C to Luczynski
Decl. The response stated that the records plaintiff sought were located in a system of records
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that is exempt from the access provisions of the Privacy Act. Id. However, pursuant to FOIA,
the EOUSA released 92 pages of responsive material in full and 128 pages in part. Id. In
addition it withheld 1,545 pages of responsive material under FOIA Exemptions 3, 5, 7(C), 7(D),
and 7(F), as well as grand jury material. Id. The letter also stated that the EOUSA had located
records that originated with the FBI and that those the records were being referred to the FBI for
review and for direct response to plaintiff. Id. The letter also notified plaintiff of the procedure
for appealing the EOUSA’s decision. Id.According to the declaration of David Luczynski, Attorney Advisor for the EOUSA, the
EOUSA referred 2,414 pages of material to the FBI. Luczynski Decl. ¶ 6. In addition, on
October 27, 2010, the EOUSA referred to the FBI case audiotapes and DVDs that had been
compiled prior to plaintiff’s prosecution. Id. ¶ 7. The EOUSA also received a four-page referral
letter sent by the CRM on March 14, 2011. Id. ¶ 8.
II. Request to the CRM
On July 21, 2009, the CRM sent plaintiff a letter acknowledging its receipt of his request
and notifying him that additional information was required. Ex. 2 to Cunningham Decl. [Dkt.
# 36-3]; Cunningham Decl. ¶ 7. Plaintiff provided the additional information to the agency, Ex.
3 to Cunningham Decl., and the agency acknowledged receipt on August 31, 2009, Ex. 4 to
Cunningham Decl. The CRM’s first substantive response to plaintiff’s request stated that all of
the responsive documents uncovered by its search were exempt from disclosure under FOIA
Exemption (7)(A) because the records related to an open and ongoing law enforcement
proceeding and release could reasonably be expected to interfere with the proceeding. Ex. 5 to
Cunningham Decl. However, the agency later determined that the records should no longer be
withheld under Exemption 7(A), but that the FBI – not the CRM – was the proper processing
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agency for the records because they had originated with the FBI. Cunningham Decl. ¶ 14. The
CRM then forwarded the records to the FBI for processing and direct reply to plaintiff. Id.The CRM also received 202 pages of material from the FBI, which the CRM later
determined to have originated from the EOUSA and the U.S. Marshals Service. Id. ¶¶ 15, 16.
The CRM forwarded the documents to the originating agencies. Id. The CRM did not identify
any responsive materials that had originated with it. See id. ¶ 17.
III. Request to the FBI
The FBI acknowledged receipt of plaintiff’s request by letter dated July 8, 2009. Ex. B to
Argall Decl. On September 14, 2009, it responded to the request by a second letter. Ex. C to
Argall Decl. That response stated that the material requested was located in an investigative file
which is exempt from disclosure pursuant to FOIA Exemption 7(A). Id. It further stated that
plaintiff could file an appeal by writing to the DOJ Office of Information Policy, and that any
appeal must be received within sixty days from the date of the response letter. Id. The Office of
Information Policy has no record of receiving a notice of appeal from plaintiff, Argall Decl. ¶ 10,
and plaintiff does not claim that he filed one, see Pl.’s Opp. at 7–8 (arguing that failure to
exhaust does not preclude the Court from hearing plaintiff’s claims).
IV. Documents referred to the FBI from other agencies
By letter dated November 12, 2010, the FBI informed plaintiff that it had received
approximately 4,791 pages of material from other agencies that had originated with the FBI, and
that the material might be responsive to his request. Ex. C to Hardy Decl. [Dkt. # 36-6]. The
FBI determined that all of this material was exempt from disclosure under the Privacy Act.
Hardy Decl. ¶ 26. However, the FBI eventually released 1,359 pages of responsive material
under FOIA, of which 431 pages were released in full and 928 pages were released in part. Id.4
¶ 27; see also Exs. E, G, J, M, O to Hardy Decl. [Dkt. # 36-6]. The FBI also released sixteen
responsive CDs containing audio and two responsive DVDs containing video to plaintiff under
FOIA. Hardy Decl. ¶ 27. The FBI withheld 2,763 pages in full, of which 628 pages were
withheld because they were duplicates of other released pages and 2,135 pages were withheld
under FOIA exemptions and/or a court order sealing them. Id.V. Procedural Background
Plaintiff, acting pro se, filed the complaint in this action on November 16, 2009. The
complaint alleges that “defendants have failed, refused, and neglected to comply with Plaintiff’s
reasonable requests for records, documents, and discovery.” Compl. ¶ 10. It seeks an order
requiring defendants to produce all documents responsive to his request, including without
limitation, all Brady and Jenks Act material relevant to his criminal case, all communications
about him by the United States Attorney’s Office, all FBI 302 reports concerning him, all in-
house agency reports, documents, and records naming him, and all material exculpatory or
impeaching documents concerning the criminal investigation of him. Compl. at 3. After
defendants notified the Court and plaintiff of their withholdings, the Court ordered plaintiff to
notify the Court whether he intended to challenge some or all of the FOIA exemptions and, if so,
to indicate to the Court whether he wanted to designate a representative sample or have
defendants propose the sample and allow him to supplement it. Minute Order (June 29, 2011).
In response, plaintiff filed a motion for Vaughn index, [Dkt. # 19], and a notice of intent
to challenge the asserted FOIA exemptions, [Dkt. # 20] (“Notice of Intent”). Plaintiff requested
that he designate the representative sample. Notice of Intent. Defendants opposed plaintiff’s
motion and requested that the Court order defendants to designate a representative sample within
thirty days, and order plaintiff to designate supplemental material within thirty days after
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defendants’ designation. [Dkt. # 21]. By Minute Order of September 30, 2011, the Court
ordered defendants to prepare a representative sample of documents that they were withholding
under FOIA exemptions, transmit the sample to plaintiff accompanied by a letter explaining the
representative nature of the sample, and file a notice of designation with the Court by October
31, 2011. The Court further ordered plaintiff to designate any supplemental material and file a
notice of designation with the Court by December 1, 2011.
Defendants filed their notice of designation on October 31, 2011. [Dkt. # 22]. The
EOUSA has filed a declaration by David Luczynski, an Attorney Advisor with the EOUSA who
is responsible for matters related to FOIA, Luczynski Decl. ¶ 1, that states that the EOUSA
reviewed all of the responsive documents and prepared a 200-page sample out of unredacted and
partially redacted pages. Luczynski Decl. ¶ 9 & n.1. According to the declaration, the sample
was chosen to be “both a fair representative of all the FOIA Exemptions taken, and to also reflect
the wide variety of documents contained within the release.” Id. ¶ 9. The sample was sent to
plaintiff on October 28, 2011. 1 Id. ¶ 9. In addition, the EOUSA provided a Vaughn index of all
of the documents in the representative sample as well as a supplemental Vaughn index of a 154-
page representative sample of the 1,545 pages of documents that were withheld in full. Id. ¶¶ 9,
10. According to Luczynski, “[t]hese records are selected as a fair and accurate representation”
of the withheld documents. Id. ¶ 10.
The FBI has submitted a declaration by David M. Hardy, the Section Chief of the
Record/Information Dissemination Section, Records Management Division of the FBI, Hardy
Decl. ¶ 1, which states that the FBI has designated a representative sample consisting of 422
pages, one CD, one DVD, and one audiotape. Id. ¶ 24; Ex. P to Hardy Decl. [Dkt. # 36-7].
1 The same sample was filed on the public docket in this action on April 30, 2013. Notice
of Filing of Representative Sample [Dkt. # 45].
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According to the declaration, this sample is representative of documents that were both withheld
in part and withheld in full. Hardy Decl. ¶ 24. In addition, the FBI provided a Vaughn index of
all of the documents in the representative sample along with a key to the codes used in the
Vaughn index. Hardy Decl. at 8–13 (“FBI Vaughn Index”); Summary of Justification
Categories, Hardy Decl. at 17–18. The Hardy declaration states that the indexed documents are
representative of all the FOIA exemptions cited and reflective of the variety of documents
contained within the responsive records. Hardy Decl. ¶ 24.
Plaintiff did not designate any supplemental material in response to defendants’
designations. On January 18, 2012, the Court entered a scheduling order for dispositive motions.
Sched. Order [Dkt. # 26]. Defendants filed a motion for summary judgment on November 23,
2012. Defs.’ Mot. Counsel subsequently entered an appearance on behalf of plaintiff, Notice of
Appearance [Dkt. # 39]; see Minute Order (Jan. 25, 2013), and plaintiff filed an opposition to
defendants’ motion through counsel, Pl.’s Opp. Defendants filed their reply on April 11, 2013.
Defs.’ Reply to Pl.’s Response to Mot. for Summ. J. (“Defs.’ Reply”) [Dkt. # 44].
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing there is a
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genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550
U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam).
ANALYSIS
I. The Privacy Act
The Privacy Act provides:
Each agency that maintains a system of records shall . . . upon request by
any individual to gain access to his record or to any information pertaining
to him which is contained in the system, permit him . . . to review the
record and have a copy made of all or any portion thereof in a form
comprehensible to him . . . .
5 U.S.C. § 552a(d)(1). Thus, any material that is subject to the disclosure provision of the
Privacy Act must be a “record” that is, in turn, contained in a “system of records.” Fisher v.
Nat’l Inst. of Health, 934 F. Supp. 464, 468 (D.D.C. 1996).
When a plaintiff challenges an agency’s withholding of documents under the Privacy
Act, the court determines de novo whether the withholding was proper, and the burden is on the
agency to sustain its action. 5 U.S.C. § 552a(g)(2)(A); Doe v. United States, 821 F.2d 694, 697–
98 (D.C. Cir. 1987) (finding that in this context, de novo means “a fresh, independent
determination of ‘the matter’ at stake,” and the court need not give “deference . . . to the
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agency’s conclusion”) (en banc); see also Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009).
“[T]he [Privacy] Act ‘safeguards the public from unwarranted collection, maintenance, use, and
dissemination of personal information contained in agency records . . . by allowing an individual
to participate in ensuring that his records are accurate and properly used.” McCready v.
Nicholson, 465 F.3d 1, 7–8 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d
1403, 1407 (D.C. Cir. 1984).
Defendants assert that all of the records at issue here fall under an exemption to
disclosure, codified at 5 U.S.C. § 552a(j)(2) (“Exemption j(2)”). Exemption j(2) applies if: (1)
the records are stored in a system of records that has been designated by the agency to be exempt
from the Privacy Act’s disclosure requirements, and (2) the system of records is “maintained by
an agency or component thereof which performs as its principal function any activity pertaining
to the enforcement of criminal law[s]” and consists of “information compiled for the purpose of
a criminal investigation.” 5 U.S.C. § 552a(j)(2); see also Defs.’ Mem. in Support of Mot. for
Summ. J. (“Defs.’ Mem.”) [Dkt. # 36-1] at 9–10.
Plaintiff has not opposed defendants’ assertion of Exemption (j)(2) over any of the
material at issue in this case, so the Court may properly treat defendants’ assertion as conceded.
See McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 69 (D.D.C. 2012), citing
Howard v. Locke, 729 F. Supp. 2d 85, 87 (D.D.C. 2010) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised
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by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”). 2
II. FOIA
“[A]ccess to records under [FOIA and the Privacy Act] is available without regard to
exemptions under the other.” Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.
Cir. 1987). Accordingly, the Court will next turn to plaintiff’s FOIA claims.
The purpose of FOIA is to require the release of government records upon request and to
“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed.” Nat’l Labor
Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 242 (1978). At the same time,
Congress recognized “that legitimate governmental and private interests could be harmed by
release of certain types of information and provided nine specific exemptions under which
disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l
Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by
Congress between the public’s right to know and the government’s legitimate interest in keeping
2 In addition, the Court is satisfied that defendants have met their burden to show that
Exemption (j)(2) applies to any responsive records covered by the Privacy Act. With respect to
the FBI records, the Hardy declaration states that the records relate to investigations and/or
matters within the FBI’s investigatory authority, and were compiled as a result of the coordinated
legitimate law enforcement efforts between local law enforcement and the FBI to investigate
child sex trafficking and drug violations. Hardy Decl. ¶ 26. And with respect to the EOUSA
records, the Luczynski declaration states that plaintiff’s entire request pertains to criminal
investigations, and therefore the responsive records were necessarily compiled for law
enforcement purposes. Luczynski Decl. ¶ 15. Criminal case files maintained by U.S. Attorney’s
Offices are part of the DOJ Privacy Act System of Records and are designated by the agency as
exempt from the Privacy Act’s disclosure requirements under 28 C.F.R. § 16.81(a)(4). See
Adionser v. DOJ, 811 F. Supp. 2d 284, 301 (D.D.C. 2011) (finding records from criminal case
files to be exempt from disclosure under Exemption (j)(2), affirmed by No. 11-5093, 2012 WL
5897172, at *1 (D.C. Cir. Nov. 5, 2012); Plunkett v. DOJ, -- F. Supp. 2d --, Civ. A. No. 11-
0341(RWR), 2013 WL 628546, at *11 (D.D.C. Feb. 20, 2013) (same).
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certain information confidential.”). The Supreme Court has instructed that “FOIA exemptions
are to be narrowly construed.” Abramson, 456 U.S. at 630.
To prevail at the summary judgment phase in a typical FOIA action, an agency must
satisfy two elements. First, the agency must demonstrate that it has made “a good faith effort to
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in its
affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such
agency affidavits attesting to a reasonable search “are afforded a presumption of good faith[,]”
Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be
rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting
Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show
that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership
Conference on Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). After asserting and
explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a
record” and provide it to the requesting party, “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b).
Once a FOIA request has been processed, a plaintiff is required to exhaust all
administrative remedies before bringing an action to compel disclosure of documents. See 28
C.F.R. § 16.9(c) (2012); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Failure to exhaust
such remedies bars the lawsuit. See Banks v. DOJ, 813 F. Supp. 2d 132, 138–39 (D.D.C. 2011)
(granting agency’s motion for summary judgment in FOIA action where the plaintiff failed to
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file an administrative appeal before filing the lawsuit); Schwaner v. Dep’t of Army, 696 F. Supp.
2d 77, 81 (D.D.C. 2010) (same). A plaintiff is deemed to have exhausted his administrative
remedies with respect to his FOIA request when an agency “fails to comply with the applicable
time limit provisions” of FOIA. 5 U.S.C. § 552(a)(6)(C)(i). The agency has twenty days to
make an initial determination, and following an administrative appeal of a FOIA decision,
twenty days to make a determination on the appeal. 5 U.S.C. § 552(a)(6)(A)(i)–(ii).
The district court reviews the agency's action de novo, and “the burden is on the agency
to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). Once the case comes to court, “FOIA cases are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009). In any motion for summary judgment, the Court “must view the evidence in the
light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and
eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546
F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,
“a court may award summary judgment solely on the basis of information provided by the
agency in declarations[.]” Moore, 601 F. Supp. 2d at 12.
1. Defendants are entitled to summary judgment as to the documents that originated
with the FBI and that were located at the FBI at the time the request was received
because plaintiff failed to exhaust his administrative remedies.
Defendants first argue that summary judgment is warranted for the subset of documents
that originated with the FBI and that were located at the FBI at the time the request was received
by the agency. Defs.’ Mem. at 5. These documents were processed by the FBI and, in a letter
dated September 14, 2009, plaintiff was informed that the FBI was withholding them under
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FOIA exemption 7(A) and that they were exempt from the Privacy Act’s disclosure
requirement. 3 Ex. C to Argall Decl. In addition, the letter informed plaintiff that he could file an
appeal by writing to the Director of the Office of Information Policy for DOJ within sixty days.
Id. Defendants assert that the Office of Information Policy never received an appeal from
plaintiff, Argall Decl. ¶ 10, and therefore that plaintiff’s challenge in this Court to the FBI’s
withholding of these records is barred for failure to exhaust administrative remedies.
Plaintiff does not claim that he filed an administrative appeal of the FBI’s decision.
Rather, he argues that failure to exhaust does not preclude judicial review of his challenge. Pl.’s
Opp. at 7–8. Plaintiff is correct that “the exhaustion requirement is not jurisdictional because the
FOIA does not unequivocally make it so.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
2003). “[S]till, as a jurisprudential doctrine, failure to exhaust precludes judicial review if the
purposes of exhaustion and the particular administrative scheme support such a bar.” Wilbur v.
CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal quotation marks omitted), quoting Hidalgo,
344 F.3d at 1258–59. And “the FOIA’s administrative scheme favors treating failure to exhaust
as a bar to judicial review.” Hidalgo, 344 F.3d at 1259. Moreover, permitting plaintiff to obtain
judicial review without exhausting his administrative remedies in this case would undermine the
purpose for the exhaustion requirement: “preventing premature interference with agency
processes, affording the parties and the courts the benefit of the agency’s experience and
expertise, or compiling a record which is adequate for judicial review.” Id. (alterations and
internal quotation marks omitted), quoting Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993).
Since plaintiff did not object to the FBI’s decision before the Office of Information Policy, the
3 FOIA exemption 7(A) applies to records or information compiled for law enforcement
purposes when their production could reasonably be expected to interfere with enforcement
proceedings. 5 U.S.C. § 552(b)(7)(A).
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agency has not had a chance to reconsider its initial decision in light of his objections, and this
Court does not have before it the record that such a review would have produced.
Plaintiff argues that this case is distinct because the FBI has waived the affirmative
defense of failure to exhaust by not raising it in a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) and not asserting it in the answer to plaintiff’s complaint. Pl.’s Opp. at 8.
This is plainly wrong; defendants asserted the failure to exhaust defense with particularity as the
“third defense” in their answer to plaintiff’s complaint. Answer [Dkt. # 4] at 2 & n.2.
Accordingly, that defense has not been waived under Federal Rule of Civil Procedure 12(h). See
Fed. R. Civ. P. 12(h)(2) (stating that failure to state a legal defense to a claim may be raised in
any pleading allowed or ordered under Rule 7(a), which includes an answer to a complaint).
Plaintiff also argues that the FBI should be estopped from raising the exhaustion defense
because it continued to provide documents to plaintiff after he filed suit. Pl.’s Opp. at 8. This
argument is misleading. While the FBI did continue to provide documents to plaintiff even after
it asserted the exhaustion defense in this Court, they were documents that had been referred to
the FBI from other agencies because they originated from the FBI but were housed in a different
agency at the time of the request. See Hardy Decl. ¶¶ 6–23. Plaintiff offers no evidence that the
FBI ever revisited its initial decision regarding the documents that originated from the FBI and
were located at the FBI at the time the agency received the request. Those are the only records
with which the FBI’s September 14, 2009 decision was concerned. Therefore, the Court will not
consider whether such conduct would warrant estoppel.
Consistent with the precedent from this circuit, the Court finds that plaintiff is barred for
failure to exhaust administrative remedies from challenging the FBI’s decision on the subset of
documents that originated from the FBI and were located at the FBI at the time of plaintiff’s
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request. See also Love v. FBI, 660 F. Supp. 2d 56, 59–60 (D.D.C. 2009) (finding that the
plaintiff’s failure to exhaust his administrative remedies barred his claim); Callaway v. U.S.
Dep’t of Treasury, Civ. A. No. 04-1506(RWR), 2006 WL 6905083, at *4–5 (D.D.C. Apr. 26,
2006) (finding that the plaintiff’s challenge to some of the agency’s withholdings was barred for
failure to exhaust administrative remedies because the plaintiff did not appeal the agency’s
decision to the Office of Information Policy).
2. The defendant agencies performed adequate searches.
Plaintiff next asserts that defendants did not perform adequate searches for records
responsive to his request. To prevail in a FOIA case, the agency must demonstrate that it has
made “a good faith effort to conduct a search for the requested records, using methods which can
be reasonably expected to produce the information requested.” Ogelsby v. U.S. Dep’t of Army,
920 F.2d 57, 68 (D.C. Cir 1990). “[A]t the summary judgment phase, an agency must set forth
sufficient information in its affidavits for a court to determine if the search was adequate.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing
Ogelsby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search “are afforded a
presumption of good faith,” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8
(D.D.C. 2004), and “can be rebutted only ‘with evidence that the agency’s search was not made
in good faith.’” Id., quoting Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69
(D.D.C. 2001).
To show that the CRM and the EOUSA performed adequate searches for information
responsive to plaintiff’s requests, defendants have submitted declarations by John Cunningham
III – a Trial Attorney in the CRM currently assigned to the FOIA and Privacy Act Unit,
Cunningham Decl. ¶ 1; and David Luczynski.
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The Cunningham declaration states that the CRM searched its central index of records,
“which is the most comprehensive system of records maintained by the Division and contains
information about people referred to in potential/actual cases and other matters of concern to the
Criminal Division.” Cunningham Decl. ¶ 10. It used plaintiff’s name as a search term, as well
as the names of the co-defendants in his criminal case. Id.; see also Ex. 3 to Cunningham Decl.
In addition, since plaintiff had indicated in his submission of materials to the CRM that the
sections of the CRM that he reasonably believed may contain responsive records were the Child
Exploitation and Obscenity Section, the Narcotics and Dangerous Drugs Section, and the FOIA
and Privacy Act Unit of the Office of Enforcement Operations, the CRM made specific requests
to those units. Cunningham Decl. ¶ 10; see also Ex. 3 to Cunningham Decl. Responsive
documents were found only in the Child Exploitation and Obscenity Section. Cunningham Decl.
¶¶ 10, 12. Those documents were originally withheld under FOIA Exemption 7(A), but that
exemption was later determined to be inapplicable. Id. ¶¶ 13–14. However, the CRM
determined that the documents had originated from the FBI, so they were referred to that agency
for further processing. Id. ¶ 14. In addition, the CRM received materials from other agencies for
processing, but it determined that none of those documents had originated with the CRM and it
referred the material to the agencies where the materials had originated for further processing.
Id. ¶¶ 15–16. The declarant states that in his experience, it is not unusual for the CRM to locate
no original records in response to Privacy Act requests from federal inmates because it is not the
agency responsible for prosecuting or investigating most federal criminal cases. Id. ¶ 17.
Consistent with that experience, the declarant notes that plaintiff in this case was prosecuted by
the United States Attorney’s Office in Anchorage, Alaska, and not by the CRM. Id.
16
The Luczynski declaration states that, upon receiving plaintiff’s request, the EOUSA
forwarded it to the FOIA contact for the District of Alaska because each United States
Attorney’s Office maintains the case files for criminal matters prosecuted by that office.
Luczynski Decl. ¶ 12. The FOIA contact for the District of Alaska searched for records from the
case files in plaintiff’s criminal case, and sent emails to the Assistant United States Attorneys in
the Criminal Division to ascertain whether they had any responsive records. Id. To search for
files, the FOIA contact used the “LIONS” system, which is a computer system used by United
States Attorneys’ Offices to access databases which can be used to retrieve files pertaining to
cases and investigations based on a defendant’s name, the internal administrative number for the
case, and the district court case number. Id. The FOIA contact used plaintiff’s name as the
search term. Id. According to the declarant, “[a]ll responsive documents to Plaintiff’s FOIA
request would have been located in the [United States Attorney’s Office] for the District of
Alaska . . . . There are no other record systems or locations within EOUSA or DOJ in which
other files pertaining to Plaintiff’s name were maintained.” Id. 4
These affidavits establish that the agencies searched the databases that were likely to turn
up documents responsive to plaintiff’s requests using search terms that correspond to the scope
of the requests. In addition, because the EOUSA had employees who were familiar with
plaintiff’s criminal case, it also requested additional documents from those individuals. The
Court therefore finds, on the basis of defendants’ affidavits, that the searches were “reasonably
calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir.
1983).
4 Any challenge to the adequacy of the FBI’s search is barred by plaintiff’s failure to
exhaust his administrative remedies for the reasons already explained by the Court.
17
Plaintiff’s main objection to the adequacy of the agencies’ searches is that they did not
uncover all of the documents that he believes they should have. Pl.’s Opp. at 5–7. While the
defendants have uncovered over 4,000 documents, plaintiff posits that the searches were
deficient because he believes “the actual number of responsive documents currently in the
government’s possession. . . total[s] around 15,000.” Boehm Decl. [Dkt. # 42-1] ¶ 4; see also
Pl.’s Opp. at 5–6 (“[O]nly a fraction of the documents known to exist have to date been produced
or even cited for exemption by defendants. Of the nearly 15,000 documents Plaintiff
encountered as part of his criminal prosecution, only 4173 have been identified by defendants.”).
But plaintiff provides no support for his belief that the government possesses 15,000 responsive
documents or that a prosecution of an individual for the charges involved here would have
generated that volume of paper. 5 In addition, his argument does not account for any withheld
documents that originated from, and were in the possession of, the FBI at the time his requests
were received – which this Court has already determined that it may not review because plaintiff
failed to exhaust his administrative remedies to challenge the agency’s response to his request.
In addition, plaintiff does not identify any problems with the way in which the search was
conducted, but rather challenges the results of the search. However, “the issue to be resolved is
not whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485
(D.C. Cir. 1984); Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)
(“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the search.”); see also Adionser v. DOJ, 811
5 The government does not indicate how many documents were used in plaintiff’s criminal
prosecution and since plaintiff ultimately pled guilty to the criminal charges against him, there is
no list of government exhibits on the public docket for his criminal case. Case No. 3:04-cr-
00003-JWS (D. Alaska).
18
F. Supp. 2d 284, 293 (D.D.C. 2011) (rejecting a plaintiff’s challenge to the adequacy of a search
because he challenged it “based on the results of the search rather than the actual method by
which” the search was conducted).
Plaintiff has provided no basis for the Court to find that the search in this case was
inadequate. This case is therefore distinguishable from the case he cites, Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 326–28 (D.C. Cir. 1999), in which the D.C. Circuit found a
search for a particular document to be inadequate because the document was produced to the
requester with pages missing, and there were other obvious places and sources likely to turn up
the missing pages that had not been searched. Pl.’s Opp. at 5.
Plaintiff also argues that defendants’ searches failed to uncover documents related to his
criminal case that were mentioned in a report about prosecutorial misconduct in the case United
States v. Theodore F. Stevens, Case. No. 08-cr-231 (D.D.C. 2009), and that would have been
responsive to his request. Pl.’s Opp. at 6. According to plaintiff, this proves that the government
did not act in good faith in searching for responsive documents. Id. While it is true that a
plaintiff can rebut an agency’s initial demonstration of the adequacy of the search with evidence
that the search was not made in good faith, see Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69
(D.D.C. 2001), plaintiff has not made a showing of bad faith here. First, the report that plaintiff
cites does not contain any indication that the documents plaintiff claims should have been
released were created and retained by the CRM or the EOUSA. See Callaway v. U.S. Dep’t of
Treasury, 893 F. Supp. 2d 269, 275 (D.D.C. 2012), quoting Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 152 (1980) (“The FOIA ‘only obligates [an agency] to
provide access to those [documents] which it in fact has created and retained.”). Moreover, even
if the agencies have the documents, there is some possibility that they have been legitimately
19
withheld in full under a FOIA exemption. And although plaintiff argues vigorously that the
withholding of any of these documents would not be appropriate, Pl.’s Opp. at 6–7, that inquiry
is not part of the assessment of the adequacy of the search and it will be addressed in connection
with the Court’s assessment of defendants’ asserted FOIA exemptions on the merits. See infra
Section 4. Since plaintiff has presented no evidence that the CRM and the EOUSA did not
perform their searches in good faith, and since the agencies have demonstrated that their searches
were reasonably calculated to uncover all relevant documents, the Court finds that the searches
were adequate.
3. With certain exceptions, the Vaughn indices provided by defendants are adequate
and the Court need not review the withheld documents in camera.
Both the FBI and the EOUSA have provided plaintiff and the Court with Vaughn indices
of a representative sample of the withheld documents. Contrary to arguments advanced by
plaintiff, the fact that each entry in the indices is representative of other documents that have not
been individually indexed does not reveal any deficiency in the quality of the indices.
“Representative sampling is an appropriate procedure to test an agency’s FOIA exemption
claims when a large number of documents are involved.” Bonner v. U.S. Dep’t of State, 928
F.2d 1148, 1151 (D.C. Cir. 1991).
Moreover, defendants’ use of representative sampling complied with this Court’s
directions. Defendants first proposed proceeding by sampling in their status reports of May 12,
2011, [Dkt. # 14], and June 27, 2011, [Dkt. # 15]. By Minute Order of June 29, the Court
ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA
exemptions that defendants asserted and, if so, to indicate whether he wanted to designate a
representative sample or have defendants propose the sample and allow him to supplement it as
may be appropriate. Plaintiff proceeded to file a motion for Vaughn Index, [Dkt. # 19], and a
20
notice of intent to challenge the government’s asserted FOIA exemptions, [Dkt. # 20]. He did
not oppose defendants’ proposal to proceed via sampling in either pleading and, in fact, in the
notice of intent, he stated that he wanted to designate the representative sample. See Notice of
Intent at 1.
By Minute Order of September 30, 2011, the Court ordered defendants to prepare the
representative sample of the documents it was withholding and transmit the sample to plaintiff
along with a letter explaining the representative nature of the sample by October 31, 2011. The
Minute Order also permitted plaintiff to designate any supplemental material by December 1,
2011. As explained above, defendants complied with the Minute Order, see Notice of
Designation of Representative Sample, [Dkt. # 22], but plaintiff did not designate any
supplemental material. At no point did plaintiff oppose defendants’ proposal to proceed via
sampling. The Vaughn indices now at issue index each of the documents in defendants’
representative sample. So, the Court cannot find that the categorical nature of the indices is
improper. See Bonner, 928 F.2d at 1151 (finding that since the representative sample was
selected by agreement of the parties, “[t]here is therefore no attack on the sample’s capacity to
represent the entire group of . . . documents”).
Although plaintiff complains that the Vaughn indices include “generically-grouped
categorical listings of documents,” Pl.’s Opp. at 10, both indices include specific descriptions of
each representative document, whether it is being withheld in full or in part, and specific
justifications for the withholding. See Hardy Decl. at 8–13, 17–18 (“FBI Index”); Attachments 1
& 2 to Luczynski Decl. (“EOUSA Index”). Along with this information, defendants have also
provided the Court with a copy of all of the redacted representative documents. Ex. P to Hardy
Decl. (FBI); Notice of Filing of Representative Sample [Dkt. # 45] (EOUSA). Except as noted
21
later in this Memorandum Opinion, defendants’ Vaughn indices and submissions satisfy the
requirement that an agency withholding information must “provide a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.”
Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).
Plaintiff’s other objections to the adequacy of the Vaughn indices – that there is no way
for the Court or plaintiff to determine where defendants searched for responsive materials or
indicate which agencies were in possession of which documents, and that the searches turned up
only a fraction of the nearly 15,000 documents it should have, Pl.’s Opp. at 10, – are merely
restatements of his objections to the adequacy of the agencies’ searches, which this Court has
already rejected.
Accordingly, the Court finds defendants’ Vaughn indices to be adequate – except as
specifically indicated later in this Memorandum Opinion – and the Court need not conduct an in
camera inspection of the documents. See PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C. Cir. 1993),
quoting Schiller v. Nat’l Labor Relations Bd., 964 F.2d 120, 1209 (D.C. Cir. 1992) (“[I]n
camera review is generally disfavored. It is ‘not a substitute for the government’s obligation to
justify its withholding in publicly available and debatable documents.’”).
4. With certain exceptions, the FOIA exemptions defendants have invoked
adequately justify their withholdings
Plaintiff also challenges the specific FOIA exemptions under which defendants have
withheld information. The Court will assess each of them.
A. Exemption 3
Defendants relies on Exemption 3 to withhold information covered by 18 U.S.C.
§ 3509(d) and Federal Rule of Criminal Procedure 6(e).
22
FOIA Exemption 3 authorizes the government to withhold information that is:
[S]pecifically exempted from disclosure by statute . . . if that statute
(A)(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular
types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009
[enacted Oct. 28, 2009], specifically cited to this paragraph.
5 U.S.C. § 552(b)(3).
Plaintiff concedes defendants properly invoked Exemption 3 to withhold the names and
identifying information of child victims and witnesses in plaintiff’s prosecution pursuant to the
Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d), which statutorily prohibits
disclosure of those types of information. Pl.’s Opp. at 12. However, he objects to defendants’
invocation of Federal Rule of Criminal Procedure 6(e) as a basis for withholding information
concerning the grand jury proceedings in his criminal case. Defendants have withheld all
information obtained pursuant to a grand jury subpoena that was contained in an FBI report of
investigation, Hardy Decl. ¶ 40 & p. 11; names of grand jury witnesses, EOUSA Index at 1; and
a draft indictment, EOUSA Supplemental Vaughn Index at 9. They justify the withholding under
Federal Rule of Criminal Procedure 6(e), which bars disclosure of “matters occurring before [a]
grand jury.” Defs.’ Mem. at 12.
While Rule 6(e) is not so broad as to bar disclosure of all materials that a grand jury sees
or hears, it does cover information that would “tend to reveal some secret aspect of the grand
jury’s investigation such matters as the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, the deliberations or questions of jurors,
23
and the like.” Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987) (internal
quotation marks omitted).
Plaintiff does not dispute that Federal Rule of Criminal Procedure 6(e) is a “statute” for
purposes of Exemption 3 or that it prohibits disclosure of matters occurring before a grand jury.
Pl.’s Opp. at 12–13; see also Fund for Constitutional Govt. v. Nat’l Archives & Records Serv.,
656 F.2d 856, 867 (D.C. Cir. 1981). Instead, he argues that since there is no reasonable
expectation that the identities of the testifying witnesses would remain secret, the withholding of
that information is improper. 6 Pl.’s Opp. at 12–13. According to plaintiff, the names of most of
the “purported victims who testified in the grand jury,” have been revealed to the public at the
sentencing hearing, through television, radio, or other media, and through civil suits that some or
all of the victims brought against plaintiff for which they gave depositions that have become a
part of the public record. 7 Pl.’s Opp. at 13. However, plaintiff cites no case law to support the
theory that the public disclosure of any of this type of information makes 6(e) inapplicable, and
he has submitted no evidence that any of this information has actually been made public. He
offers only conclusory assertions.
Notwithstanding both parties’ failures to produce any case law on this issue, there is
relevant precedent from this Circuit. Although “Rule 6(e) does not create a type of secrecy
6 Plaintiff also argues that it is improper to withhold the identities of individuals on the
grand jury, Pl.’s Opp. at 12–13, but since there is no indication that this information is being
withheld, the Court will not address that argument.
7 Although it is unclear whether plaintiff is also arguing that the public domain exception
to the agencies’ assertions of Exemption 3 applies here, the Court notes that such an argument
also fails. Under the public domain exception, information preserved in a public record is not
exempt from disclosure through any FOIA exemption. See Marino v. DEA, 729 F. Supp. 2d 237,
244 (D.D.C. 2010). The requester bears the burden of demonstrating that the information sought
is already in the public domain. See id., citing Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.
1992). Plaintiff has not met that burden here.
24
which is waived once public disclosure occurs,” In re North, 16 F.3d 1234, 1245 (D.C. Cir.
1994), quoting Barry v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990), the D.C. Circuit has
found that “when information is sufficiently widely known” it can lose its character as Rule 6(e)
material. In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998). In that case,
the D.C. Circuit released the identity of a person subpoenaed to appear before the grand jury
after his attorney had publicized that fact. Id.; see also In re North, 16 F.3d at 1245 (finding that
Rule 6(e) did not bar release of a report containing grand jury material because the information
in the report had been widely publicized); In re Grand Jury Subpoena, Judith Miller, 493 F.3d
152, 154 (D.C. Cir. 2007) (“Although not every public disclosure waives Rule 6(e) protections,
one can safely assume that the ‘cat is out of the bag’ when a grand jury witness – in this case
Armitage – discusses his role on the CBS Evening News.”). So although defendants casually
dismiss plaintiff’s argument as “miss[ing] the mark,” Defs.’ Reply at 7, it has some teeth.
The problem here, though, is that plaintiff has not supplied the Court with any evidence
that the information being withheld was widely publicized or even disclosed to the public at all.8
Thus, there is no basis to conclude that the evidence withheld, which often does remain secret,
has become such a matter of public record that Exemption 3 should not apply.
Plaintiff also argues that the government’s assertion of Exemption 3 is too broad:
“Nothing in the case law supports the proposition that the government can simply state that all
responsive grand jury documents fall within the exemption . . . .” Pl.’s Opp. at 13. In this
8 The Court seriously questions whether information concerning the identity of minor
witnesses would have been made part of the public record at the plea or at the time of sentencing.
One cannot tell from a review of the criminal docket on PACER since the records that pre-date
plaintiff’s attempts to obtain post-conviction relief were submitted in paper form before the
District Court of Alaska made the change to electronic filing. But the fact that plaintiff’s new
counsel sought access to records under seal, see Mot. Requesting Access to Docs. Filed Under
Seal, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska July 16, 2010) [Dkt.
# 1011], suggests that at least some aspects of the prosecution were not a matter of public record.
25
circuit, “[t]he disclosure of information ‘coincidentally before the grand jury [which can] be
revealed in such a manner that its revelation would not elucidate the inner workings of the grand
jury’ is not prohibited.” Senate of Puerto Rico, 823 F.2d at 582, quoting Fund for Constitutional
Gov’t, 656 F.2d at 870. But the EOUSA has given more detailed descriptions of the withheld
grand jury documents than plaintiff indicates. The Vaughn index describes the type of
information that was withheld: the names of grand jury witnesses and other contextual
information that could lead to the derivation of the name from letters that were exchanged by
attorneys, EOUSA Index at 1, and a draft of a grand jury indictment, EOUSA’s Supplemental
Index at 9. The Court is satisfied that this information would tend to reveal the secret workings
of the grand jury and has been appropriately withheld. 9 See Senate of Puerto Rico, 823 F.2d at
582.
However, the description of the one representative document that the FBI has withheld
under Rule 6(e) is vague: “FBI FD-302 form, Information obtained pursuant to Federal Grand
Jury subpoena.” Hardy Decl. at 11 (BOEHM-2738). The Hardy declaration does little more to
clarify the basis for the withholding. Hardy states, “Exemption [3] has been asserted to protect
information obtained pursuant to a Grand Jury Subpoena on page BOEHM-2738. Disclosure of
this material would clearly violate the secrecy of the grand jury proceedings and could reveal the
inner workings of the Federal Grand Jury that considered this case.” Hardy Decl. ¶ 40. But this
description is not detailed enough for the Court to determine whether disclosure of the particular
record would reveal some secret aspect of the grand jury’s investigation or whether the
information was simply peripheral to the grand jury investigation. See Senate of Puerto Rico,
9 In addition, this information has been withheld under other FOIA exemptions that the
Court will uphold. See EOUSA Index at 1 (also invoking Exemptions 7(C) and 7(F); EOUSA’s
Supplemental Index at 9 (also invoking Exemption 3 and 5).
26
823 F.2d at 582. Is the FBI 302 an agent’s summary of material submitted to the grand jury
pursuant to subpoena? A witness interview? Accordingly, the Court will remand representative
document BOEHM-2738 and the other responsive documents it represents to the agency for
closer review and supplementation of the basis for the withholding.
Moreover, the Luczynski declaration explains that the U.S. Attorney’s Offices may not
have even processed some documents that might have been responsive to plaintiff’s request if
they were found to be “related to the grand jury.” Luczynski Decl. ¶ 11. But Rule 6(e) is not so
broad; it shields matters “occurring before the grand jury.” So, the EOUSA has not provided a
sufficient factual basis – or legal support – for its position that these materials are categorically
exempt from not only disclosure but any FOIA processing. This set of materials will therefore
also be remanded for further processing and a supplementation of the record.
B. Exemption 5
Exemption 5 allows agencies to withhold records if the requested documents include
“inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency[.]” 5 U.S.C. § 552(b)(5). In determining
whether a document was properly withheld under Exemption 5, a court must ensure that the
document satisfies two conditions: (1) “its source must be a Government agency, and [(2)] it
must fall within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). These privileges include the attorney work product and
deliberative process privileges. Id. Because the documents originated from the FBI and from
the EOUSA (which is a section within DOJ), the first prong is not at issue here. The Court
27
therefore will examine only the second prong of the standard articulated in Klamath: whether
the withheld documents are protected by the claimed privilege. 532 U.S. at 8.
Plaintiff concedes that “[t]o the extent that defendants have provided sufficient
information regarding withheld documents that may be determined to be attorney work product
or otherwise civilly privileged . . . those documents are likely properly withheld.” Pl.’s Opp. at
15. But he continues: “To the extent that such documentation contains witness statements or
any other exculpatory or mitigating Brady materials[,] however, the government must segregate
the exempted information and provide the remaining factual information.” Id. Plaintiff provides
no support for the proposition that exculpatory or Brady materials cannot be withheld under
Exemption 5. And although neither party provides any relevant precedent, there is case law from
this circuit that expressly negates that theory. See Williams & Connolly v. Sec. & Exch.
Comm’n, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (“[D]isclosure in criminal trials is based on
different legal standards than disclosure under FOIA, which turns on whether a document would
usually be discoverable in a civil case. . . . If [plaintiff’s counsel] believes that its client should
have received the notes during his criminal trial, FOIA is neither a substitute for criminal
discovery . . . nor an appropriate means to vindicate discovery abuses . . . .”) (citations omitted).
Plaintiff also argues – without pointing to any specific documents – that the Vaughn
index is not sufficiently detailed and that there is no indication that the agency has released all
segregable information. Pl.’s Opp. at 9–11. The Court disagrees. The FBI and EOUSA’s
Vaughn indices as well as the EOUSA’s supplemental Vaughn index, combined with the
explanations in the Hardy and Luczynski declarations, give detailed descriptions of the
information that has been withheld, and reveal that the agencies released segregable
28
information. 10 Since plaintiff offers no evidence that the descriptions in the declarations are
false, the Court finds them to be sufficient. See Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981) (“[I]t is now well established that summary judgment on the basis of such
agency affidavits is warranted if the affidavits describe the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”).
Accordingly, the Court will uphold defendants’ Exemption 5 withholdings.
C. Exemption 7(C)
FOIA Exemption 7(C) exempts documents compiled for law enforcement that “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). Because this is a lower standard than the standard for Exemption 6, which
requires a “clearly unwarranted” invasion of privacy, id. 552(b)(6) (emphasis added), the Court
will address Exemption 7(C) before it addresses Exemption 6.
In order for particular records to qualify for this exemption, the agency must first
demonstrate that the documents were compiled for law enforcement purposes. See Rural Hous.
Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974). Both the Luczynski and
Hardy declarations state that all of the information at issue was compiled for law enforcement
purposes because it was compiled to as part of the investigation and criminal prosecution of
plaintiff. Luczynski Decl. ¶ 21; Hardy Decl. ¶ 42. Plaintiff does not contest those assertions.
10 For example, document number 6 in the EOUSA’s Vaughn index is described as “a
printout of . . . an online news article from the ‘Alaska News.’ The only redactions are
handwritten notes on the margin which contained attorney thoughts and observations about the
matter.” EOUSA Index at 3.
29
This Circuit has consistently held that, where a FOIA request for law enforcement
records invokes the privacy interests of any third party mentioned in those records (including
investigators, suspects, witnesses, and informants), the exemption applies unless there is an
overriding public interest in disclosure. See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir.
2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009). So the first step in any Exemption
7(C) analysis is to determine whether any privacy interest exists, and then the court balances the
privacy interest against the public interest in disclosure. See, e.g., People for the Ethical
Treatment of Animals v. Nat’l Insts. of Health Dep’t of Health & Human Servs., 853 F. Supp. 2d
146, 154–59 (D.D.C. 2012).
a) There is a privacy interest in the withheld information
According to the Luczynski and Hardy declarations, as well as the Vaughn indices, the
information withheld under Exemption 7(C) is identifying information – including names,
addresses, phone numbers, e-mail addresses, social security numbers, license plate numbers,
birth dates, job descriptions, ages, and photographs – of child victims, third parties of
investigative interest, third parties who provided information to the FBI or local law
enforcement, potential witnesses in plaintiff’s criminal case, other third parties, local law
enforcement officers, FBI Special Agents, FBI support employees, and non-FBI federal
governmental personnel. Hardy Decl. ¶¶ 45–46; Luczynski Decl. ¶¶ 21–23.
“As a general rule, third-party identifying information contained in [law enforcement]
records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, -- F. Supp.
2d --, Civ. A. No. 10-1280(RMC), 2013 WL 1226607, at *12 (D.D.C. Mar. 27, 2013), citing
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995)
(stating that under Exemption 7(C), an agency may “redact the names, addresses, or other
30
identifiers of individuals mentioned in investigatory files in order to protect the privacy of those
persons”); see also Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990), quoting Stern v.
FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984) (“Exemption 7(C) takes particular note of the ‘strong
interest’ of individuals, whether they be suspects, witnesses, or investigators, ‘in not being
associated unwarrantedly with alleged criminal activity.’”).
Plaintiff concedes that the exemption applies to identifying information about child
victims and witnesses. Pl.’s Opp. at 17. However, he argues that there is no privacy interest in
the identities of the local law enforcement officers who have appeared in the press concerning
his criminal case. 11 Id. It is well established that Exemption 7(C) protects the identities of local
law enforcement officers. See, e.g., Thompson v. DOJ, 851 F. Supp. 2d 89, 99–101 (D.C. Cir.
2012); Negley v. FBI, 825 F. Supp. 2d 63, 70–73 (D.D.C. 2011); Adionser v. DOJ, 811 F. Supp.
2d 284, 299 (D.D.C. 2011). And while there is some support for the notion that a private citizen
waives her privacy interest in information when she voluntarily brings that information into the
public domain, see Nation Magazine, 71 F.3d at 896, plaintiff has not met his burden of showing
that has occurred here. To establish that a privacy interest has been waived, the plaintiff bears
the burden of showing that the information: “(1) is ‘as specific as the information previously
released’; (2) ‘match[es] the information previously disclosed’; and (3) ‘was made public
through an official and documented disclosure.’” McRae v. DOJ, 869 F. Supp. 2d 151, 165
(D.D.C. 2012), quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Plaintiff has not
met that burden here. As described above, plaintiff has presented no evidence that any
11 Plaintiff actually discusses the privacy interest in disclosure in the section of his
opposition concerning Exemption 6, not Exemption 7(C). However, because both Exemptions 6
and 7(C) require a balancing of the privacy interest in the withheld information against the public
interest in disclosure, the Court will consider his privacy interest arguments in assessing the
government’s application of Exemption 7(C).
31
individual publicly disclosed his or her role in his criminal prosecution, much less that the
information publicly disclosed is the same as the information being withheld. See Span v. DOJ,
696 F. Supp. 2d 113, 122 (D.D.C. 2010), quoting Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
1999) (“Because Span has not identified any specific information or . . . ‘the exact portions’ of a
specific document that is in fact ‘preserved in a permanent public domain,’ his public domain
challenge fails.”). Accordingly, the Court finds a substantial privacy interest in the withheld
identifying information.
b) The privacy interest at stake outweighs the public’s interest in disclosure.
Where a legitimate privacy interest exists, the requester must “(1) show that the public
interest sought to be advanced is a significant one, an interest more specific than having the
information for its own sake, and (2) show the information is likely to advance that interest.”
Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007), quoting Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004) (internal quotation marks omitted). The Supreme Court has
determined that the only relevant public interest for purposes of Exemption 7(C) is “the citizens’
right to be informed about what their government is up to.” DOJ v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 773 (1989) (internal quotation marks omitted). In
determining whether to disclose a document, a court must weigh “the nature of the requested
document and its relationship to the basic purpose of the Freedom of Information Act to open
agency action to the light of public scrutiny.” Id. at 772, quoting Dep’t of Air Force v. Rose, 425
U.S. 352, 372 (1976). “That purpose, however, is not fostered by disclosure of information
about private citizens that is accumulated in various governmental files but that reveals little or
nothing about an agency’s own conduct.” Id. at 773. Moreover, courts in this Circuit have
consistently held that where an individual seeks law enforcement records that implicate the
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privacy interests of a third party, the requester bears the burden of asserting the public interest at
play. See, e.g., Boyd, 475 F.3d at 387; Lewis, 609 F. Supp. 2d at 84; Fischer v. DOJ, 596 F.
Supp. 2d 34, 47 (D.D.C. 2009). Law enforcement records may be withheld under Exemption
7(C) “if the privacy interest at stake outweighs the public’s interest in disclosure.” Nation
Magazine, 71 F.3d at 893 (citations omitted).
Plaintiff argues that the public interest here is government wrongdoing. “Plaintiff is
trying to obtain information to show that the government had a pattern of failing to disclose
material information, specifically information relating to Bill Allen or anyone connected with
him.” Pl.’s Opp. at 19. And plaintiff submits portions of reports about prosecutorial misconduct
in the Theodore Stevens case that he claims prove that misconduct occurred in his case as well.
See Att. 1, 2 to Boehm Decl. However, the portions of the reports plaintiff provides do not
reveal any misconduct in his own criminal case – rather, they reveal prosecutorial misconduct in
the Stevens case that arose because the prosecutor did not disclose information to the Stevens
defense team that it had disclosed during plaintiff’s case. Id. So, those portions of the reports do
not tend to suggest that prosecutorial misconduct occurred in plaintiff’s criminal case. See, e.g.,
Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (finding that a requester failed to establish a
valid public interest because he did not “produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred”), quoting
Favish, 541 U.S. at 174; Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (same).
Plaintiff also argues that withholding information as to which authorities investigated him
for his criminal case raises Sixth Amendment concerns because “who these individuals were and
who they spoke with is relevant to the determination of whether evidence was properly compiled
and disclosed in his case.” Pl.’s Opp. at 19. This argument fails because, as described above,
33
disclosure in a FOIA case is governed by different standards than disclosure in a criminal case.
The only factors relevant to the Exemption 7(C) analysis are the privacy interest and the public
interest in disclosure. “That the [agency]’s denial of his FOIA requests may hinder his efforts to
challenge his conviction or sentence . . . is irrelevant.” Pugh v. FBI, 793 F. Supp. 2d 226, 232–
33 (D.D.C. 2011), citing Oguaju v. United States, 378 F.3d 1115, 1116–17 (D.C. Cir. 2004).
Because plaintiff has failed to identify any public interest that would overcome the
privacy interest protected by Exemption 7(C), the Court concludes that defendants’ withholdings
were proper. And because the withholdings were proper under Exemption 7(C), the Court need
not consider Exemption 6. 12
D. Exemption 7(D)
FOIA Exemption 7(D) protects against the disclosure of the identities of confidential
informants. The provision states that “in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal investigation,” any “information
furnished by a confidential source” is exempt from FOIA’s disclosure requirement. 5 U.S.C. §
552(b)(7)(D). Under this exemption, a person is considered a confidential source “if the person
provided information under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred.” Parker v. DOJ, 934 F.2d 375, 378 (D.C.
Cir. 1991).
Plaintiff expresses doubt that the government actually used any confidential informants in
this criminal case. See Pl.’s Opp. at 21 (“[T]here was never information revealed during the
prosecution of Mr. Boehm that the government had any confidential sources. . . . there is no
12 According to the Hardy declaration, the FBI has also invoked Exemption 2 to protect
internal telephone numbers of FBI personnel. Hardy Decl. ¶ 33. Because the Court finds that
this information was properly withheld under Exemption 7(C), it will not reach Exemption 2.
34
indication that any discussions of confidentiality ever took place between witnesses and
investigators.”). However, he provides no evidence that confidential informants were not used in
his case or that the government ever represented to him that no confidential informants were
used. So the Court must assess whether defendants have made a sufficient showing that the
individuals being protected were confidential informants.
There is no general “presumption that a source is confidential within the meaning of
Exemption 7(D) whenever [a] source provides information [to a law enforcement agency] in the
course of a criminal investigation,” DOJ v. Landano, 508 U.S. 165, 181 (1993), and a source’s
confidentiality must be determined on a case-by-case basis, id. at 179–80. In this circuit, “the
violence and risk of retaliation attendant to drug trafficking warrant an implied grant of
confidentiality to a source.” Higgins v. DOJ, -- F. Supp. 2d --, Civ. A. No. 10-1485(RLW), 2013
WL 358177, at *12 (D.D.C. Jan. 30, 2013), citing Mays v. DEA, 234 F.3d 1324, 1329 (D.C. Cir.
2000).
The Luczynski declaration provides that under Exemption 7(D), the EOUSA withheld
“the identities of individuals and material that the individuals provided in connection with the
investigation of plaintiff for violation of the federal criminal laws.” Luczynski Decl. ¶ 27.
According to Lucynski, the withholdings include “information that was provided with an express
assurance of confidentiality, as well as information from which the assurance of confidentiality
could be reasonably inferred.” Id. The declaration, however, offers no explanation about how
the EOUSA determined that an assurance of confidentiality existed. As to the information that
was determined to have been provided under an express assurance of confidentiality, the
declaration does not indicate what markings or labels on the documents lead the EOUSA to that
conclusion. And as to the information that was determined to have been provided under an
35
implied assurance of confidentiality, the declaration does not explain whether the information
concerned drug trafficking, or whether there was some other reason why the EOUSA concluded
that the an assurance of confidentiality had been implied. So, the Court cannot find that the
EOUSA has met its burden with respect to the material it has withheld under this exemption, and
it will remand these documents to the agency for a supplementation of the basis for the
withholding.
The FBI provides a more detailed picture of the FBI records being withheld under this
exemption. The Hardy declaration divides the types of information withheld into categories.
First, the FBI withheld the confidential informant file numbers and permanent source
symbol numbers of certain informants given express assurances of confidentiality. Hardy Decl.
¶¶ 61–65.
Second, the FBI withheld the names and identifying data of, and information provided
by, individuals who assisted in the investigation of plaintiff and others with an express assurance
of confidentiality. Id. ¶¶ 66–68. According to the declaration, the express assurance of
confidentiality is demarcated with designations of “Protected Identify,” “Cooperating Witness,”
or “Cooperating Source.” Id. ¶ 66. This information is sufficient for the Court to determine that
the information withheld was from confidential sources.
Finally, the FBI withheld the names, identifying information and information provided by
individuals under an implied assurance of confidentiality. Hardy Decl. ¶¶ 59–60. The Hardy
declaration explains that the individuals “were reporting on distribution of cocaine to individuals
under the age of 18, often for purposes of sexual gratification.” Id. ¶ 59. Therefore, according to
the Hardy declaration, “it can be implied that these individuals would reasonably fear that
disclosure of their identity would place them in danger, because other individuals who had
36
involvement with the defendants were not incarcerated, including traffickers in narcotics.” Id.
¶ 59. The declaration also states that the only information that has been withheld is the
individual’s name and the information that the individual provided, but only to the extent that the
information would identify the individual. Id. This description of the individuals and the
withheld information makes clear that the individuals being protected were reporting on the type
of activities that warrant an implied grant of confidentiality. Moreover, it provides a rationale
for protecting the information so that the protected individuals will not be subject to reprisal and
so that it does not dissuade others from reporting information in the future. Id. Accordingly, the
FBI has demonstrated that withholding the information is proper. See Higgins, 2013 WL
358177, at *12–13.
Plaintiff also claims that even if discussions of confidentiality did occur, “most testifying
individuals in this case later publicly identified themselves via radio, newspaper stories,
television interview, public lawsuits, or allowed their names to be used in a published book.”
Pl.’s Opp. at 21. But, as already described, plaintiff provides no evidence that any informants in
his case later publicly identified themselves, let alone evidence that they identified themselves in
a way that would waive the protection of Exemption 7(D). See Parker, 934 F.2d at 378, quoting
Dow Jones & Co. v. DOJ, 908 F.2d 1006, 1011 (D.C. Cir. 1990) (finding that the protection of
7(D) is only waived if “the exact information given to the FBI has already become public, and
the fact that the informant gave the same information to the FBI is also public”).
Plaintiff finally argues that since the government had no confidential sources, it is most
likely claiming Exemption 7(D) to withhold information from “the sources that it did have under
the erroneous theory that such an exemption may be claimed for anyone communicating with the
government regarding a criminal investigation.” Pl.’s Opp. at 22. But since plaintiff has failed
37
to establish that the government did not utilize confidential sources – either with express or
implied assurances of confidentiality – and since the government denies invoking Exemption
7(D) as broadly as plaintiff implies, Defs.’ Reply at 10; Luczynski Decl. ¶ 27; Hardy Decl.
¶¶ 59–68, and there is no evidence of bad faith, the Court will not adopt plaintiff’s theory.
E. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records “to the extent that the
production of such . . . information . . . would disclose techniques and procedures for law
enforcement investigations of prosecutions, or would disclose guidelines for law enforcement
investigations of prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Plaintiff does not dispute that the records at
issue here were compiled for law enforcement purposes. Pl.’s Opp. at 22.
“Exemption 7(E) sets a relatively low bar for the agency to justify withholding: Rather
than requiring a highly specific burden of showing how the law will be circumvented, exemption
7(E) only requires that the [agency] demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.’” Blackwell v. FBI, 646 F.3d 37, 42
(D.C. Cir. 2011) (alteration in original) (internal quotation marks omitted).
The FBI is the only agency that has invoked Exemption 7(E) to withhold responsive
records. It has withheld three types of records under that exemption. First are documents
showing methods of data collection, organization and presentation contained in ChoicePoint
reports and discussion of ChoicePoint records in FBI electronic communications. The Hardy
declaration explains that although the data contained in the sources is publicly available, the
manner in which the data is searched, organized and reported to the FBI is an internal technique
that is not known to the public. Hardy Decl. ¶ 72. Therefore, the disclosure of the reports and
38
information about their design and makeup could enable criminals to employ countermeasures to
avoid detection. Hardy Decl. ¶ 71. The D.C. Circuit has upheld the FBI’s withholding of
records to protect methods of data collection, organization, and presentation contained in
ChoicePoint reports under the same justifications that the FBI has provided here. Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). Because the FBI has provided sufficient information for
the Court to find that disclosure of the ChoicePoint reports and the electronic communications
about them might create a risk of circumvention of the law, the Court finds the withholdings to
be proper.
Second, the FBI has withheld information in form FD-515 FBI Accomplishment Reports
“which would reveal the use of specific investigative assistance or techniques in this case.”
Hardy Decl. ¶ 73. FD-515 forms are used by FBI Special Agents to report investigative
accomplishments, such as arrests, indictments, or convictions. Id. at 10 n.10. Only one FD-515
report appears on the FBI’s Vaughn index and the index indicates that it was withheld in part. Id.
at 10. At least three courts in this district have upheld the agency’s withholding of an entire FBI-
515 form. Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C. 1995); Putnam v. DOJ, 873 F. Supp.
705, 717 (D.D.C. 1995); Delviscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995). The Court finds
that the FD-515 Accomplishment reports were appropriately withheld in this case based on the
explanation in the Hardy declaration that disclosure of the special investigative assistance or
techniques used in this case might reasonably create a risk of circumvention of those techniques.
Other courts in this district have found that the ratings column of the form FD-515 is properly
withheld under Exemption 7(E). See, e.g., Sellers v. DOJ, 684 F. Supp. 2d 149, 164 (D.D.C.
2010); Concepcion v. FBI, 606 F. Supp. 2d 14, 43 (D.D.C. 2009); Peay v. DOJ, No. 04-1859,
39
2007 WL 788871, at *6 (D.D.C. Mar. 14, 2007). Accordingly the Court will uphold the
agency’s partial withholding of the representative FD-515 report.
Third, the FBI has withheld an FBI/Police Operational Plan and information pertaining to
the techniques used to facilitate the activity of a source. Hardy Decl. ¶ 73. Again, the Hardy
declaration states that if criminals were alerted to this information, they would be able to alter
their behavior in ways that would diminish the ability of law enforcement to rely on this type of
information. Id. The Court finds that to be an appropriate justification for withholding the
information under Exemption 7(E) because it explains how disclosure could reasonably be
expected to risk circumvention of the law.
Plaintiff’s objections to these withholdings are not clearly delineated. It appears that he
objects to the withholding of any documentation relating to “improper coaching of testimony”
because such a technique is not legal. Pl.’s Opp. at 23. But he cites no precedent for this
assertion, and in any event, the description of the withheld materials reflect that they relate to
investigatory techniques and not to witness preparation for Court testimony.
Accordingly, the Court finds that the FBI’s withholdings under Exemption 7(E) are
proper, that the Vaughn index describes the withheld material in sufficient detail, and that the
FBI has met its burden of showing that all segregable material was released.
F. Exemption 7(F)
Exemption 7(F) exempts from disclosure information compiled for law enforcement
purposes to the extent that disclosure “could reasonably be expected to endanger the life or
physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Again, plaintiff does not oppose
defendants’ assertion that the documents at issue here were compiled for law enforcement
purposes. Pl.’s Opp. at 23–24. In determining whether Exemption 7(F) applies, courts look for
40
some nexus between disclosure and possible harm and whether deletions were narrowly made to
avert the possibility of such harm. Albuquerque Publ’g Co. v. DOJ, 726 F. Supp. 851, 858
(D.D.C. 1989).
The Luczynski declaration reveals that the EOUSA has withheld identifying information
about individuals who work for the government or who provided information in the course of an
investigation under Exemption 7(F). Luczynski Decl. ¶¶ 29–30. According to the declaration,
there may be individuals still at large who were involved with the cocaine trafficking and sexual
exploitation of underage women that was the focus of the investigation into plaintiff. Id. ¶ 29.
Although plaintiff argues that defendants proffer no evidence that the investigation into plaintiff
concerned any violence, Pl.’s Opp. at 24, courts in this circuit typically consider a conspiracy to
distribute cocaine to be “a violent enterprise, in which a reputation for retaliating against
informants is a valuable asset . . . .” Mays, 234 F.3d at 1331. In addition, this exemption has
generally been interpreted “to apply to names and identifying information of law enforcement
officers, witnesses, confidential informants and other third persons who may be unknown to the
requester.” Anotonelli v. Fed. Bur. Of Prisons, 823 F. Supp. 2d 55, 58 (D.D.C. 2009).
Therefore, the Court finds that the EOUSA has established that disclosure of the withheld
information – identifying information about informants and individuals who work for the
government – could reasonably be expected to endanger the safety of those individuals by
making them available to un-detained participants in the cocaine trafficking and sexual
exploitation activities that were the focus of the investigation into plaintiff. On that basis, the
Court finds that the EOUSA’s withholdings under Exemption 7(F) were proper.
41
According to the Hardy declaration, the FBI has asserted Exemption 7(F) to protect a law
enforcement interview with plaintiff. Hardy Decl. ¶ 75. 13 The basis for the withholding is that
the release of the interview could reasonably be expected to endanger the life and/or physical
safety of plaintiff. Plaintiff challenges this justification, stating that “it seems unlikely that
plaintiff, knowing the existence of this document, would seek its disclosure if doing so would
result in a threat on his life . . . .” Pl.’s Opp. at 24.
Generally this exemption protects the identities of federal employees, informants, and
third persons who may be unknown to the requester, Durham v. DOJ, 829 F. Supp. 428, 434
(D.D.C. 1993), and neither party provides any case law about whether Exemption 7(F) can
properly be asserted to protect the safety of the requester himself. The Court has identified only
one relevant opinion from this district. Mosby v. Hunt, Civ. A. No. 09-1917(JDB), 2010 WL
2794250, at *1 (D.D.C. July 15, 2010), summarily affirmed 2011 WL 3240492 (D.C. Cir. July 6,
2011). In Mosby, the government asserted Exemption 7(F) over certain redactions under the
theory that “release of the redacted information creates a safety risk mostly to plaintiff.” Id. The
court observed that “by its terms, Exemption 7(F) protects ‘any individual,’” which could be read
to include even the requester of the information. Id. at *1 (emphasis added). It ultimately
decided that the redactions were proper because the agency “reasonably determined that the
disclosure of the withheld information could ‘jeopardize the safety of individuals(s),’ [sic]
including plaintiff.” Id.In a different case, Ray v. FBI, another court in this district declined to protect the
identifying information of the FOIA requester in a document responsive to his request, even
though the information was about the requester’s activities as a confidential informant, which
13 The pages being withheld are BOEHM 3853–3858. Hardy Decl. ¶ 75 n.38.
42
was entitled to protection under Exemption 7(D). 441 F. Supp. 2d 27, 37 (D.D.C. 2006) (“In
light of [plaintiff’s] apparent waiver [of exemption 7(D)’s confidential informant protection], the
Court is not inclined to protect plaintiff from information about himself.”)
Here, the only individual that the FBI is seeking to protect is plaintiff. Hardy Decl. ¶ 75.
Given that plaintiff has waived any concern for his own safety, the Court finds that Exemption
7(F) is inapplicable. However, since the FBI has also asserted Exemptions 6 and 7(C) over
portions of the interview, See Hardy Decl. at 12, the Court will remand to the agency to release
all portions of the interview that are being withheld under Exemption 7(F), but not under
Exemptions 6 or 7(C).
Finally, plaintiff opposes defendants’ assertion of Exemption 7(F) on the basis that most
of the individuals whose information is being protected have already been publicly identified
through their own lawsuits or actions or by way of the investigation into the Stevens case. Pl.’s
Opp. at 25. As the Court has already discussed in detail, this argument fails because plaintiff
fails to submit evidence that any particular individual publicly identified him or herself or that
the information publicly disclosed is the same as the information being protected here.
5. Defendants have met their burden of showing that they extracted segregable
portions of responsive records.
FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a
record” and provide it to the requesting party “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b)(9). “[I]t has long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt
portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004),
quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Agencies and courts must “differentiate among the contents of a document rather than treat it as
43
an indivisible ‘record’ for FOIA purposes.” Abramson, 456 U.S. at 626. Regardless of whether
a party actually challenges an agency’s determination on the segregability of requested records, a
district court must not “simply approv[e] the withholding of an entire document without entering
a finding on segregability, or the lack thereof.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d
1205, 1210 (D.C. Cir. 1992) abrogated on other grounds by Milner v. Dep’t of Navy, 131 S. Ct.
1259, 1271 (2011) (internal quotation marks omitted); see also Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1116 (D.C. Cir. 2007) (“If the district court approves withholding without such a
finding [of segregability], remand is required even if the requester did not raise the issue of
segregability before the court.”). The district court’s findings of segregability must be
“specific.” Sussman, 494 F.3d at 1116.
The government bears the burden of demonstrating that no reasonably segregable
material exists in the withheld documents. Army Times Publ’g Co. v. Dep’t of Air Force, 998
F.2d 1067, 1068 (D.C. Cir. 1993). The agency must “provide[] a ‘detailed justification’ and not
just ‘conclusory statements’ to demonstrate that all reasonably segregable material has been
released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010); see also Armstrong, 97 F.3d
at 578 (affirming summary judgment where government affidavits explained non-segregability
of documents with “reasonable specificity”). The government may meet its obligation of
“reasonable specificity” with “[t]he combination of the Vaughn index and [agency] affidavits.”
Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also Loving v.
Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008). Whether the Vaughn index is sufficient “turns
on whether the agency has sufficiently explained why there was no reasonable means of
segregating factual material from the claimed privilege material.” Wilderness Soc’y, 344 F.
44Supp. 2d at 18. “[A] blanket declaration that all facts are so intertwined” is not sufficient to meet
this burden. Id. at 19.
The Court finds that, except where identified above, defendants have met their burden of
showing with reasonable specificity that they disclosed all segregable material. Throughout the
Hardy declaration, the declarant consistently identifies the specific information that the FBI has
withheld from documents, i.e., names and identifiers, symbols, phone numbers, etc. And where
full documents have been withheld, the Vaughn index in combination with the declaration and
the copies of the representative sample documents that have been filed on the docket in this case
explain why no segregable material could be released. See, e.g., Hardy Decl. ¶¶ 38, 48, 60, 68.
Although the section of the Luczynski declaration labeled “Segregability” contains only a
conclusory assurance that the EOUSA considered the segregability of the requested records and
that no reasonably segregable non-exempt information was withheld, Luczynski Decl. ¶ 31, the
Court finds that the EOUSA has also met its burden of showing with reasonable specificity that
all segregable responsive information has been disclosed to plaintiff. As explained throughout
this Memorandum Opinion, the Vaughn index and supplemental Vaughn index, the descriptions
in the Luczynski declaration of the particular information withheld, and the copies of
representative sample documents that have been filed on the docket together provide sufficient
information about the particular information that was withheld and its ability to be segregated
from non-exempt information.
CONCLUSION
For the abovementioned reasons, the Court will grant in part and deny in part defendants’
motion for summary judgment. The Court will remand for closer review and supplementation of
the basis for the withholding: (1) the representative document found at page number BOEHM-
45
2738 and any documents it represents; (2) documents that the EOUSA has withheld under the
explanation that they are “related to the grand jury”; and (3) information that the EOUSA has
withheld under Exemption 7(D). The Court will also remand the representative document found
at page numbers BOEHM 3853 to 3858, and any documents it represents, to the FBI for the
release to plaintiff of all portions that are being withheld under Exemption 7(F), but not under
Exemptions 6 or 7(C). A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: June 10, 2013
46