Shapiro v. Department of Justice , 34 F. Supp. 3d 89 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
RYAN NOAH SHAPIRO, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0729 (PLF)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
OPINION
This is a Freedom of Information Act case brought by plaintiff Ryan Noah
Shapiro against the United States Department of Justice. Shapiro has requested information
about Aaron Swartz, a recently deceased computer programmer, activist, and doctoral candidate
at MIT. It is alleged that Swartz committed suicide after becoming the subject of an intensive
federal investigation. This matter is now before the Court on the parties’ cross-motions for
summary judgment. 1
1
The papers considered in connection with the pending motions include the
following: plaintiff’s complaint (“Compl.”) [Dkt. No. 1]; defendant’s motion for summary
judgment (“Def.’s Mot. Summ. J.”) [Dkt. No. 5]; defendant’s statement of undisputed material
facts (“Def.’s Stmt. Facts”) [Dkt. No. 5-2]; plaintiff’s motion for summary judgment (“Pl.’s Mot.
Summ. J.”) [Dkt. No. 7-1]; plaintiff’s statement of undisputed material facts (“Pl.’s Stmt. Facts”)
[Dkt. No. 7-7]; declaration of David M. Hardy (“Hardy Decl.”) [Dkt. No. 5-3]; defendant’s
opposition to plaintiff’s summary judgment motion and reply in support of its own summary
judgment motion (“Def.’s Opp. Pl.’s Mot. Summ. J.”) [Dkt. Nos. 10, 11]; declaration of Dennis
J. Argall (“Argall Decl.”) [Dkt. Nos. 10-1, 11-1]; plaintiff’s opposition to defendant’s summary
judgment motion and reply in support of his own summary judgment motion (“Pl.’s Opp. Def.’s
Mot. Summ. J.”) [Dkt. No. 12]; Order of November 1, 2013, directing defendant to deliver
unredacted documents to the court for in camera review (“Nov. 1, 2013 Order”) [Dkt. No. 13];
defendant’s notice of in camera submission (“Notice”) [Dkt. No. 15].
I. BACKGROUND
After plaintiff submitted his FOIA request, the Federal Bureau of Investigation, a
component within the Department of Justice, indicated that it had located 23 pages responsive to
plaintiff’s request. Hardy Decl., Ex. G at 53-75; see Pl.’s Stmt. Facts ¶¶ 5-6. The FBI provided
four of these pages in full to plaintiff. Pl.’s Stmt. Facts ¶ 5. Seventeen of these pages were
withheld in part pursuant to Exemptions 6, 7(C), 7(E), and 7(F) of the FOIA. Pl.’s Stmt. Facts
¶¶ 5, 26. Two documents – a total of four pages – were withheld as duplicates of documents
previously provided. Id. ¶ 6. Plaintiff contends that the FBI improperly withheld information
contained in these 23 pages. Specifically, plaintiff argues that the government has improperly
withheld information under FOIA Exemptions 6 and 7(C) and has improperly withheld the
duplicate pages. Pl.’s Mot. Summ. J. 5-15.2 In addition, plaintiff argues that the search
undertaken by the FBI was inadequate. Id. at 2-5.
Given the small number of documents at issue in this case, the Court issued an
Order on November 1, 2013, directing the government to deliver to the Court for in camera
review unredacted copies of the following pages: Swartz-1 to Swartz-7, Swartz-10, Swartz-12 to
Swartz-20, and Swartz-22 to Swartz-23. On December 13, 2013, the government delivered hard
copies of these documents, in unredacted form, to the undersigned’s Chambers and filed a notice
of in camera submission on the docket. See Notice. The Court has now reviewed the documents
submitted in camera and has concluded that, on the issue of whether the government improperly
withheld information in the 23 pages initially released, the defendant’s motion for summary
judgment should be granted and the plaintiff’s cross-motion should be denied.
2
As noted below, the government also asserts Exemption 7(F) with respect to
certain information, see Def.’s Mot. Summ. J. 14, but the Court does not independently consider
this Exemption. The government has withdrawn its assertion of Exemption 7(E). See Def.’s
Opp. Pl.’s Mot. Summ. J. 7.
2
With two exceptions (Swartz-3A-3B and Swartz-22-23), which the government
has withheld in toto on the ground that they are duplicates of documents already disclosed, the
documents at issue have all been provided in redacted form. The redactions are of names and
telephone numbers. The government has indicated the FOIA exemptions on which it relies for
each redaction and the nature of the information redacted. All redacted portions of the
documents have been withheld as “clearly unwarranted” and “unwarranted” invasions of privacy
pursuant to Exemptions 6 and 7(C), respectively. In addition, after the listed exemption or
exemptions invoked with respect to each redaction, the government has also added a number – 1,
2, 3 or 4 – and has provided an explanation for each such number through the Declaration of
David M. Hardy, an employee of the Federal Bureau of Investigation who identifies himself as
the Section Chief of the Record/Information Dissemination Section, Records Management
Division, in Winchester, Virginia. See Hardy Decl. ¶ 1. The four sub-categories under
Exemptions 6 and 7(C) are characterized as follows: (1) names and/or identifying information of
FBI Special Agents and support personnel; (2) names and/or identifying information of third
parties who provided information to the FBI; (3) names and/or identifying information of third
parties merely mentioned; and (4) name of a non-FBI federal government employee. See id.
¶¶ 35-42. The Court has examined the redacted portions of the relevant documents at issue in
the context of each overall document and, with these descriptions in mind, has applied the FOIA
and the relevant case law.
The Court also has considered the parties’ arguments relating to the adequacy of
the FBI’s search and has carefully examined the representations made by the FBI’s declarants.
The Court is not persuaded that the FBI has conducted “a good faith, reasonable search of those
systems of records likely to possess the requested information,” as required under the FOIA. See
3
Lardner v. FBI, 852 F. Supp. 2d 127, 133 (D.D.C. 2012). It therefore will hold the parties’
summary judgment motions in abeyance in part, pending further briefing and additional
processing of records, as appropriate.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).
In a FOIA action to compel production of agency records, the agency is entitled to summary
judgment if no material facts are in dispute and if it demonstrates that each document that falls
within the class requested has been produced, is unidentifiable, or is wholly exempt from the
FOIA’s disclosure requirements. Moayedi v. U.S. Customs and Border Protection, 510 F. Supp.
2d 73, 78 (D.D.C. 2007) (citing Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)). Summary
judgment may be based solely on information provided in an agency’s supporting affidavits or
declarations if they are relatively detailed and when they 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.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 182 (D.D.C.
2011).
4
B. Exemptions Invoked
1. Exemption 6
Exemption 6 protects “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The term “similar files” is construed broadly and is “intended to cover detailed
Government records on an individual which can be identified as applying to that individual.”
U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (citation omitted). “The
information in the file ‘need not be intimate’ for the file to satisfy the standard, and the threshold
for determining whether information applies to a particular individual is minimal.” Milton v.
U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting New York Times Co. v.
Nat’l Aeronautics and Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990)).
Information protected under Exemption 6 includes such items as a person’s name,
address, place of birth, employment history, and telephone number. See Nat’l Ass’n of Retired
Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); see also Gov’t Accountability
Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010) (personal email addresses);
Schmidt v. Shah, No. 08-2185, 2010 WL 1137501, at *9 (D.D.C. Mar. 18, 2010) (employees’
home telephone numbers); Schwaner v. Dep’t of the Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010)
(names, ranks, companies and addresses of Army personnel); United Am. Fin., Inc. v. Potter, 667
F. Supp. 2d 49, 65-66 (D.D.C. 2009) (name and cell phone number of an “unknown individual”).
Once this threshold inquiry is met, the Court employs a balancing test to
determine whether the public interest in disclosure outweighs the privacy interests of the relevant
individuals. Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 260
5
(D.C. Cir. 1982). It is the requester’s obligation to demonstrate the existence of a significant
public interest in disclosure. See Coleman v. Lappin, 680 F. Supp. 2d 192, 196 (D.D.C. 2010).
2. Exemption 7(C)3
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S.
615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must
establish that the records at issue were compiled for law enforcement purposes, and that the
material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster,
673 F.2d 408, 413 (D.C. Cir. 1982).
Exemption 7(C) protects from disclosure information in law enforcement records
that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). Exemption 7(C) recognizes that the stigma of being associated with any
law enforcement investigation affords broad privacy rights to those who are connected in any
way with such an investigation unless a significant public interest exists for disclosure. U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773-75 (1989);
SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991). In
determining whether this exemption applies to particular material, the Court must balance the
interest in privacy of individuals mentioned in the records against the public interest in
disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007); Beck v.
Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993); Davis v. U.S. Dep’t of Justice, 968 F.2d
1276, 1281 (D.C. Cir. 1992). The privacy interest at stake belongs to the individual, not to the
3
It is the FBI’s practice to assert Exemption 6 in conjunction with Exemption 7(C).
Hardy Decl. ¶ 33 n.2.
6
government agency, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. at 763-65; Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d at 875 (noting
individual’s significant privacy interest “in avoiding the unlimited disclosure of his or her name
and address”), and individuals have a “strong interest in not being associated unwarrantedly with
alleged criminal activity.” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir.
1984). “[T]he only public interest relevant for purposes of Exemption 7(C) is one that focuses
on ‘the citizens’ right to be informed about what their government is up to.’” Davis v. U.S. Dep’t
of Justice, 968 F.2d at 1282 (quoting Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. at 773). It is the requester’s obligation to articulate a public interest sufficient to
outweigh an individual’s privacy interest, and the public interest must be significant. See Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
The D.C. Circuit has consistently held that Exemption 7(C) “protects the privacy
interests of all persons mentioned in law enforcement records, including investigators, suspects,
witnesses and informants, and has determined that such third-party information is categorically
exempt from disclosure under [E]xemption 7(C), in the absence of an overriding public interest
in its disclosure.” Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (internal
quotation marks and citations omitted); see Sussman v. U.S. Marshals Serv., 494 F.3d at 1116
(names, addresses, telephone numbers, social security numbers and other private information
about law enforcement officers, other government employees, and third parties other than a third
party who had authorized the release of records about himself to the requester); Richardson v.
U.S. Dep’t of Justice, No. 09-1916, 2010 WL 3191796, at *7-8 (D.D.C. Aug. 13, 2010)
(identities of and personal information about FBI Special Agents, Metropolitan Police
Department officers, law enforcement technicians, an Assistant United States Attorney, and
7
eyewitnesses to an attempted murder); Lasko v. U.S. Dep’t of Justice, 684 F. Supp. 2d 120, 132
(D.D.C. 2010) (identities of DEA Special Agents and laboratory personnel, and state and local
law enforcement officers); Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 47 (D.D.C.
2009) (citing Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)) (identities
of investigators, suspects, witnesses, and informants); Zavala v. Drug Enforcement Admin., 667
F. Supp. 2d 85, 100 (D.D.C. 2009) (identities of law enforcement officers and other government
employees); Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008) (identities of
federal and local law enforcement personnel).
C. Application of Exemptions to Documents at Issue
As noted, supra at 3, in this case the FBI has redacted and thus withheld four
categories of information: (1) names and/or identifying information of FBI Special Agents and
support personnel; (2) names and/or identifying information of third parties who provided
information to the FBI; (3) names and/or identifying information of third parties merely
mentioned; and (4) name of a non-FBI federal government employee.
With respect to the names, telephone numbers, and other identifying information
of FBI Special Agents and support personnel, the FBI’s declarant, David Hardy, states that
among other tasks, these individuals were responsible for conducting, supervising, and/or
maintaining the investigative documents responsive to plaintiff’s requests. Hardy Decl.
¶¶ 35-37. He also states that “[p]ublicity (adverse or otherwise) regarding any particular
investigation . . . may seriously impact [FBI Special Agents and support personnel’s]
effectiveness in conducting other investigations.” Id. ¶ 35. Disclosure of their identities may
result in “unnecessary, unofficial questioning as to the conduct of any investigations, whether or
not they are currently employed by the FBI.” Id. The declarant further states that Special
8
Agents “come into contact with all strata of society, conducting searches and making arrests,
both of which result in reasonable but nonetheless serious disturbances” to the persons searched
or arrested, and these persons may target or seek revenge on the agents. Id. ¶ 36.
With respect to FBI support personnel, the declarant states that such personnel
were assigned to handle tasks relating to assistance to local law enforcement agencies. Hardy
Decl. ¶ 37. Furthermore, he says, they have been, and may continue to be, in positions with
access to information “regarding official law enforcement investigations, and therefore could
become targets of harassing inquires for unauthorized access to investigations if their identities
were released.” Id. In the FBI’s view, there is no public interest sufficient to outweigh the
privacy interests of its Special Agents and support personnel. Id. ¶¶ 36, 37. Redaction of the
names of federal, state and local law enforcement personnel and support staff under
circumstances similar to those described here has routinely been upheld for the reasons stated by
the declarant. See supra at 5-7. After reviewing the redactions, the Court agrees that the
redactions made by the FBI are justified under Exemptions 6 and 7(C). 4
The FBI also withholds the names, telephone numbers, and other identifying
information of third parties who provided information to the FBI, as well as of individuals who
were only incidentally mentioned in records responsive to plaintiff’s request. Hardy Decl. ¶¶ 38,
41-42. Its declarant explains that individuals interviewed by the FBI often fear that if their
identities are exposed, they will face harassment, threats, and possible physical harm, and must
be assured that their identities will be confidential. Id. ¶¶ 41-42. With respect to those merely
mentioned in the FBI’s records, the declarant explains that disclosure of their identities in
4
The FBI also withholds the names of FBI employees under Exemption 7(F).
Because the Court concludes that this information properly is withheld under Exemption 7(C), it
need not address whether Exemption 7(F) also applies. See Simon v. Dep’t of Justice, 980 F.2d
782, 785 (D.C. Cir. 1992).
9
connection with records responsive to plaintiff’s request risks subjecting them to possible
suspicion, criticism, and/or harassment, as a connection to the FBI can carry a negative
connotation. Id. ¶ 38. After reviewing the redacted information, which contains the names and
other identifying information of individuals who provided information to the FBI, or were
otherwise mentioned in FBI reports, the Court is persuaded that the disclosure of such
information would constitute an unwarranted invasion of privacy.
Finally, the FBI has withheld the name of a non-FBI federal employee. The FBI’s
declarant explains that disclosure of this information could subject the individual to unauthorized
injuries and harassment, Hardy Decl. ¶¶ 39-40, and the Court agrees. 5
D. Adequacy of the Search
To establish that its search for responsive records was adequate, an agency must
show that it 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.
Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). A search need not be exhaustive, Miller v.
U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and an agency’s failure to find a
particular document does not undermine the determination that the search was adequate. Wilbur
v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, Washington Bureau v. U.S.
Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). The adequacy of a search is not
determined by its results, but by the method of the search itself, Weisberg v. Dep’t of Justice, 745
F.2d at 1485, and a court is guided in this determination by principles of reasonableness.
Oglesby v. Dep’t of the Army, 920 F.2d at 68.
5
In addition, the Court does not find the withholding of duplicate pages to be
improper in this case.
10
The FBI’s declarants, David M. Hardy and Dennis J. Argall, state that in response
to the plaintiff’s request, the FBI initially searched the FBI’s Central Records System (“CRS”), a
centralized FBI record system containing over 116.5 million records, but did not locate any
responsive documents. Hardy Decl. ¶ 25; Argall Decl. ¶ 6. In addition, the FBI searched the
Request Tracking System of the FOIPA Document Processing System, in order to locate
previous requests for similar information, and was able to locate the 23 pages discussed above.
Hardy Decl. ¶ 22. Plaintiff raises several objections to the adequacy of the FBI’s search, three of
which have merit.
1. Whether Request Was Improperly Limited to Records Relating to Criminal Investigations
The CRS is a centralized records system containing administrative, applicant,
criminal, personnel, and other files compiled for law enforcement purposes. Argall Decl. ¶ 6.
The FBI interpreted plaintiff’s request as seeking access to records relating to Swartz in the
context of a specific law enforcement investigation. Id. Mr. Argall explains that records
responsive to plaintiff’s request therefore would be “of a criminal investigative nature and
responsive records would reside in the CRS.” Id. This statement leaves open the possibility that
records relating to Swartz outside the context of a criminal investigation may be located in
databases other than the CRS. Id.
The plaintiff maintains that his request was not confined to documents relating to
a criminal investigation, and the Court agrees. Although some of the background information
included in plaintiff’s FOIA request discusses a criminal investigation of Swartz, the plaintiff’s
request appears to be much broader. In his FOIA request, the plaintiff stated:
I request disclosure of any and all records that were prepared,
received, transmitted, collected and/or maintained by the FBI,
the Terrorist Screening Center, the National Joint Terrorism Task
11
Force, or any Joint Terrorism Task Force relating or referring to
the deceased person Aaron H. Swartz.
Hardy Decl., Ex. A at 1; see also McKinley v. F.D.I.C., 807 F. Supp. 2d 1, 7 (D.D.C. 2011)
(when a request “reasonably describe[s] the records sought . . . an agency also has a duty to
construe a FOIA request liberally”) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d at
890).
In light of the Court’s view that the plaintiff’s request is not confined to records
“of a criminal investigative nature,” the FBI will be directed to consider whether responsive
records would reasonably reside outside the CRS, and either perform any additional appropriate
searches in databases or records systems outside the CRS or explain why additional searches
would not be appropriate.
2. Whether an Index Search Is Adequate
A document that references a specific individual will be indexed in the CRS to the
individual’s name if the individual is a subject, suspect, or victim. Hardy Decl. ¶¶ 16-17. The
decision to index names other than subjects, suspects, and victims is a discretionary decision
made by FBI staff. Id. In his request, plaintiff requested that the FBI conduct a full-text search
of the Electronic Case File (“ECF”) within the CRS, rather than merely an index search. Hardy
Decl., Ex. A at 7. The FBI, however, declined to conduct a full-text search, but only searched
records indexed by Aaron Swartz’s name (and phonetic variations of Swartz’s name). Argall
Decl. ¶ 8.
Mr. Argall explained that the FBI “does not conduct ECF text searches in
response to all requests, particularly in those instances, as is the case here, [where] no such
search was warranted.” Argall Decl. ¶ 8. Mr. Argall provides little further explanation as to why
12
no further search was warranted, simply that “there was no reasonable basis for [the FBI] to
conclude that additional records about [Swartz] resided in the CRS.” Id.
Although the Court recognizes that a full-text search may not be warranted in
every case, it finds the FBI’s explanation as to why it was unwarranted here to be lacking. The
Court therefore will direct the FBI to either conduct a full-text search of ECF or provide further
explanation as to why such a search is unnecessary in this particular case.
3. Whether the FBI Reasonably Excluded Records Received After the Cut-Off Date
During the course of this litigation, the FBI also searched for and identified
previous requests made by Aaron Swartz for FBI records on topics other than Swartz himself, as
well as any requests made by third parties for FBI records pertaining to Swartz. Argall Decl. ¶ 5.
The FBI identified and provided to plaintiff eight FOIA/Privacy Act requests made by Swartz.
Id. The FBI stated that any requests made by other third parties about Swartz were received after
the search cut-off date for plaintiff’s request, and therefore were outside the scope of plaintiff’s
request. Id.
As the plaintiff points out, an agency’s decision to withhold documents received
after the search cut-off date, but during the course of processing, is not always reasonable. See
Public Citizen v. Dep’t of State, 276 F.3d 634, 643 (D.C. Cir. 2002) (citing McGehee v. CIA, 697
F.2d 1095, 1102 (D.C. Cir. 1983)). In the present case, the FBI has not informed the plaintiff or
the Court what the cut-off date was or whether the third-party requests were received after the
processing of plaintiff’s request. The Court therefore is unable to determine whether the FBI’s
decision to withhold the third-party requests is a reasonable one. The Court will direct the FBI to
provide the third-party requests and related documents received after the cut-off date or explain
further why its decision to withhold these documents is reasonable.
13
The plaintiff raises a number of other challenges to the adequacy of the search,
but the Court does not find any of these to have merit. 6
III. CONCLUSION
For the reasons discussed above, the Court finds that the FBI has not improperly
withheld information in the 23 pages that it initially deemed responsive to plaintiff’s request and
provided to plaintiff. On the issue of whether the FBI properly invoked Exemptions 6 and 7(C)
in withholding certain information in these documents, the Court will grant defendant’s motion
for summary judgment in part, and deny plaintiff’s motion for summary judgment in part.
The Court is not convinced, however, that the FBI has adequately searched for
and produced records responsive to plaintiff’s request. It therefore will hold the parties’ cross-
motions for summary judgment in abeyance with respect to the search issue, pending further
explanation by the government.
An appropriate Order accompanies this Opinion.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
DATE: March 31, 2014 United States District Judge
6
Although the plaintiff contends that the FBI did not search the FBI’s Guardian
Threat Tracking System, Mr. Argall stated in his declaration that the records in this system are
migrated into the CRS, which was searched. Argall Decl. ¶ 9. Plaintiff also asserts that news
sources suggest that the FBI conducted additional investigations into Swartz, but such
speculation is merely that: speculative, and therefore insufficient to raise a genuine question
about the adequacy of the search. See Shapiro v. U.S. Dep’t of Justice, --- F. Supp. 2d ----, 2014
WL 953270, at *6 (D.D.C. 2014) (“Agency declarations are accorded ‘a presumption of good
faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.’”) (quoting SafeCard Servs., Inc. v. Sec. & Exch. Comm’n,
926 F.2d at 1200).
14