American Civil Liberties Union v. Federal Bureau of Prisons ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
AMERICAN CIVIL LIBERTIES UNION, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 20-2320 (RBW)
)
FEDERAL BUREAU OF PRISONS, )
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiffs, American Civil Liberties Union and American Civil Liberties Union
Foundation (collectively, the “plaintiffs”), bring this civil action against the defendant, the
Federal Bureau of Prisons (the “Bureau”), pursuant to the Freedom of Information Act (the
“FOIA”), 5 U.S.C. § 552. See generally Complaint for Injunctive and Declaratory Relief
(“Compl.”), ECF No. 1. Currently pending before the Court are (1) the Defendant’s Motion for
Summary Judgment (“Def.’s Mot.” or the “defendant’s motion”), ECF No. 38, and (2) the
Plaintiffs’ Cross-Motion for Summary Judgment (“Pls.’ Mot.” or the “plaintiffs’ motion”), ECF
No. 41. Upon careful consideration of the parties’ submissions, 1 the Court concludes for the
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Memorandum in Support of Defendant’s Motion for Summary Judgment (“Def.’s Mem.”), ECF
No. 38-2; (2) the Defendant’s Statement of Material Facts Not in Dispute (“Def.’s Facts”), ECF No. 38-3; (3) the
Memorandum of Points and Authorities in Support of Plaintiffs’ Cross-Motion for Summary Judgment and
Opposition to Defendant’s Motion for Summary Judgment (“Pls.’ Mem.”), ECF No. 41-1; (4) the Plaintiffs’
Statement of Material Facts in Support of Plaintiffs’ Cross-Motion for Summary Judgment (“Pls.’ Facts”), ECF No.
41-9; (5) the Plaintiffs’ Response to Defendant’s Statement of Material Facts Not in Dispute in Support of
Defendant’s Motion for Summary Judgment (“Pls.’ Resp. to Def.’s Facts”), ECF No. 41-10; (6) the Reply
Memorandum in Further Support of Defendant’s Motion for Summary Judgment and Memorandum in Opposition to
Plaintiffs’ Motion for Summary Judgment (“Def.’s Opp’n”), ECF No. 49; (7) the Defendant’s Response to
Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’ Cross Motion for Summary Judgment (“Def.’s Resp.
to Pls.’ Facts”), ECF No. 49-4; (8) the Defendant’s Response to Plaintiffs’ Statement of Material Facts in Support of
Plaintiffs’ Cross Motion for Summary Judgment (“Def.’s Reply”), ECF No. 50; (9) the Plaintiffs’ Reply in Support
(continued . . .)
following reasons that it must grant in part and deny in part both the defendant’s motion for
summary judgment and the plaintiffs’ cross-motion for summary judgment.
I. BACKGROUND
A. Factual Background
On August 6, 2020, the plaintiffs submitted a FOIA request to the Bureau, “seeking
information related to COVID-19 and the costs of carrying out federal executions.” See Pls.’
Facts ¶ 1; see Def.’s Resp. to Pls.’ Facts ¶ 1. Specifically, the plaintiffs sought “information for
ten subcategories related to the federal executions, including information about COVID-19
testing at [Federal Correctional Complex (‘]FCC[’)] Terre Haute, Indiana, contact tracing, and
cost and staff data for the federal executions.” Pls.’ Facts ¶ 2; see Def.’s Resp. to Pls.’ Facts ¶ 2;
see also Declaration of Cassandra Stubbs, Attorney at Law (“Stubbs Decl.”), Exhibit (“Ex.”) 1
(Request Under Freedom of Information Act (“FOIA Request”)) at 4–6, ECF No. 41-3. The
plaintiffs requested this information “in order to inform the public about matters of significant
public interest related to how the federal government was carrying out the federal executions[,]”
Pls.’ Facts ¶ 5; see Def.’s Resp. to Pls.’ Facts ¶ 5, “sought expedited processing[,]” Pls.’ Facts ¶
6; see Def.’s Resp. to Pls.’ Facts ¶ 6, and “requested that [the Bureau] produce the records in
advance of the next scheduled execution” following the filing of the initial Complaint, which
was scheduled for August 26, 2020, Pls.’ Facts ¶ 9; see Def.’s Resp. to Pls.’ Facts ¶ 9 (disputing
the plaintiffs’ representation of an alleged August 24, 2020 execution date and stating that the
execution date was actually August 26, 2020); Stubbs Decl., Ex. 1 (FOIA Request) at 8 (“The
(. . . continued)
of Cross-Motion for Summary Judgment (“Pls.’ Reply”), ECF No. 52; (10) the Defendant’s Supplemental
Memorandum of Law (“Def.’s Supp. Mem.”), ECF No. 55; (11) the Plaintiffs’ Response to Defendant’s
Supplemental Memorandum of Law (“Pls.’ Resp. to Def.’s Supp. Mem.”), ECF No. 56; and (12) the defendant’s
Notice of Supplemental Authority (“Def.’s Notice”), ECF No. 57.
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[plaintiffs] therefore ask[] that the requested information be disclosed within ten days, in advance
of the next federal executions, the first of which is scheduled for August 26, 2020.”).
On August 7, 2020, the Bureau “acknowledged the request . . . and indicated that the
request would be expedited to the best of [the Bureau’s] ability.” Def.’s Facts ¶ 3; see Pls.’
Resp. to Def.’s Facts ¶ 3. According to the Bureau, “[o]verall, [it] conducted searches that were
reasonably calculated to locate all records responsive to [the p]laintiffs’ requests.” Def.’s Facts ¶
9; see Pls.’ Resp. to Def.’s Facts ¶ 9; see also Def.’s Facts ¶¶ 4–8 (detailing search procedures
conducted for specific requests); Pls.’ Resp. to Def.’s Facts ¶¶ 4–8. However, “[b]y August 21,
2020, [the d]efendant had not produced any records[.]” Pls.’ Facts ¶ 10; see Def.’s Resp. to Pls.’
Facts ¶ 10. The plaintiffs filed their initial Complaint in this case on August 21, 2020, see Pls.’
Facts ¶ 11; Def.’s Resp. to Pls.’ Facts ¶ 11; Compl. at 1, and the Bureau “processed all of the
potentially responsive records that they located[,] and produced . . . material to [the p]laintiffs on
a rolling basis between September 18, 2020[,] and January 7, 2021[,]” Def.’s Facts ¶ 10; see Pls.’
Resp. to Def.’s Facts ¶ 10.
However, the defendant withheld some information, claiming exemptions pursuant to 5
U.S.C. § 552(b)(4) (“Exemption 4”); 5 U.S.C. § 552(b)(6) (“Exemption 6”); 5 U.S.C. §
552(b)(7)(C) (“Exemption 7(C)”); 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”); and 5 U.S.C. §
552(b)(7)(F) (“Exemption 7(F)”). 2 See Def.’s Facts ¶¶ 11–12, 14–16; Pls.’ Resp. to Def.’s Facts
¶¶ 11–12, 14–16.
2
The defendant also withheld information pursuant to exemption pursuant to 5 U.S.C. § 552(b)(7)(A) (“Exemption
7(A)”). See Def.’s Facts ¶ 13; Pls.’ Resp. to Def.’s Facts ¶ 13. However, in its Supplemental Memorandum of Law,
filed on July 23, 2021, the defendant indicated that “[o]n July 1, 2021, the Attorney General directed a review of the
Department of Justice’s policies and procedures regarding the administration of existing federal laws governing
capital sentences, and imposed a moratorium on federal executions during the pendency of that review.” Def.’s
Suppl. Mem. at 1. The defendant further stated that “[a]fter considering how these developments affect the issues in
this case, [the Bureau] has determined that it will no longer rely on Exemption 7(A) to withhold records or portions
of records in this case[,]” id., but that “[t]he majority of the records and portions of records that [the Bureau]
(continued . . .)
3
As set out in the Vaughn Index, ECF 38-8, the information withheld in part or in
full includes:
• Job titles and job posts redacted from COVID-19 contact tracing and
spreadsheets (Categories 4–7 of the Vaughn Index);
• Redactions of the names of vendors, contractors, and related cost
information on a Tracking Report (Category 8 of the Vaugh[n] Index);
• Redactions or whole withholdings of the identities of companies who
procured [p]entobarbital, descriptions of the substance, quantity and
concentration of the pentobarbital; information about production
timelines; purchase dates and deliveries in vouchers, contracts, invoices,
emails, obligations, payment reports, and vendor payment forms
(Categories 9, 10, 13, and 15 of the Vaughn Index); [and]
• Redactions that might reveal the numbers of individuals who participated
in staffing of the execution (Categories 16 and 19 of the Vaughn Index).
Pls.’ Facts ¶ 21 (underlines added); see Def.’s Resp. to Pls.’ Facts ¶ 21; see also Declaration of
Kara Christenson (“Christenson Decl.” or the “Christenson Declaration”), Ex. D (Vaughn
Index), ECF No. 38-8.
B. Procedural Background
On August 21, 2020, the plaintiffs filed their initial Complaint in this case, see Compl. at
1, and on September 4, 2020, the plaintiffs filed their Amended Complaint, see Amended
Complaint for Injunctive and Declaratory Relief (“Am. Compl.”), ECF No. 17-1. On March 5,
2021, the defendant filed its motion for summary judgment, see Def.’s Mot, and on April 23,
2021, the plaintiffs filed their cross-motion for summary judgment and opposition to the
defendant’s motion, see Pls.’ Mot. The defendant filed its opposition to the plaintiffs’ cross-
(. . . continued)
previously withheld pursuant to Exemption 7(A) remain properly withheld under other FOIA exemptions[,]” id.Furthermore, the defendant represented that “[t]he few pieces of information that were withheld solely pursuant to
Exemption 7(A), including information in Records 8 and 10 relating only to the identity of specialty medical
suppliers and their equipment, w[ould] be released in a supplemental production on or before August 6, 2021.” Id.
at 2 (emphasis in original). Thus, the defendant no longer claims exemption of any records pursuant to Exemption
7(A).
4
motion and its reply in support of its motion on June 4, 2021, see Def.’s Opp’n; Def.’s Reply,
and the plaintiffs filed a reply in support of their cross-motion on July 2, 2021, see Pls.’ Reply.
On July 8, 2021, the defendant “request[ed] leave of the Court to file a supplemental
memorandum of law” regarding the effect of “the Attorney General direct[ing] a review of the
Department of Justice’s policies and procedures regarding the administration of existing federal
laws governing capital sentences” on “[the Bureau]’s legal arguments or the application of any
FOIA exemptions in this matter.” Unopposed Motion for Leave to File a Supplemental
Memorandum of Law at 1, ECF No. 53. The Court granted this request, see Order at 1 (July 15,
2021), ECF No. 54, and the defendant filed its supplemental memorandum of law on July 23,
2021, see Def.’s Suppl. Mem. at 1. The plaintiffs filed a response to the defendant’s
supplemental memorandum of law on August 3, 2021. See Pls.’ Resp. to Def.’s Suppl. Mem.
Finally, on October 7, 2021, the defendant filed a notice of supplemental authority, namely, an
opinion issued in Citizens for Resp. and Ethics in Wash. v. U.S. Dep’t of Just., 567 F. Supp. 3d
204 (D.D.C. 2021), “one of two other pending cases in this district involving FOIA requests for
records regarding the Bureau[’s] [ ] acquisition of pentobarbital and involving some of the same
and substantially similar records as the records at issue in this case.” See Def.’s Notice at 1. The
plaintiffs did not file a response to the defendant’s notice.
II. STANDARD OF REVIEW
The Court must grant a motion for summary judgment “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). When ruling on a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
5
150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving
party’s favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or
denials,” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at
248), but must instead present specific facts “such that a reasonable [factfinder] could return a
verdict for the non[-]moving party,” Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d
19, 23 (D.C. Cir. 2013) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations
unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Rsch.
Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring)
(alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm’n, 663 F.2d 120, 127 (D.C.
Cir. 1980)). If the Court concludes that “the non[-]moving party has failed to make a sufficient
showing on an essential element of [its] case with respect to which [it] has the burden of proof,”
then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Thus, when “ruling on cross-motions for summary judgment, the [C]ourt shall grant
summary judgment only if one of the moving parties is entitled to judgment as a matter of law
upon material facts that are not genuinely disputed.” Shays v. Fed. Electoral Comm’n, 424 F.
Supp. 2d 100, 109 (D.D.C. 2006).
“FOIA cases typically are resolved on motions for summary judgment.” Ortiz v. U.S.
Dep’t of Just., 67 F. Supp. 3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border
Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The “FOIA requires federal agencies to disclose,
upon request, broad classes of agency records unless the records are covered by the statute’s
exemptions.” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001);
see also Wash. Post Co. v. U.S. Dep’t of Just., 863 F.2d 96, 101 (D.C. Cir. 1988) (“[The] FOIA
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is to be interpreted with a presumption favoring disclosure and exemptions are to be construed
narrowly.”). In a FOIA action, the agency has “th[e] burden of demonstrating that the withheld
documents are exempt from disclosure[,]” Boyd v. U.S. Dep’t of Just., 475 F.3d 381, 385 (D.C.
Cir. 2007), and this burden “cannot be met by mere conclusory statements,” Wash. Post Co., 863
F.2d at 101. “The agency may meet this burden by filing affidavits describing the material
withheld and the manner in which it falls within the exemption claimed[,]” King v. U.S. Dep’t of
Just., 830 F.2d 210, 217 (D.C. Cir. 1987), and by “show[ing] how release of the particular
material would have the adverse consequence that the [FOIA] seeks to guard against,” Wash.
Post Co., 863 F.2d at 101.
Courts will grant summary judgment to the agency in a FOIA case only if the agency can
prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and
the inferences to be drawn from them are construed in the light most favorable to the FOIA
requester.” Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp. 2d 115, 119 (D.D.C.
2005) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus,
in a lawsuit brought to compel the production of documents under the FOIA, “an 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 either has been produced . . . or is wholly[, or
partially,] exempt from [disclosure].’” Students Against Genocide, 257 F.3d at 833 (first
alteration in original) (quoting Goland v. Cent. Intel. Agency, 607 F.2d 339, 352 (D.C. Cir.
1978)). Even when the requester files a motion for summary judgment, the government
“ultimately [has] the onus of proving that the [documents] are exempt from disclosure.” Pub.
Citizen Health Rsch. Grp., 185 F.3d at 904 (alterations in original) (quoting Nat’l Ass’n of Gov’t
Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)). However, “[t]he burden upon the
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requester is merely ‘to establish the absence of material factual issues before a summary
disposition of the case could permissibly occur.’” Id. at 904–05.
In 2016, Congress amended the FOIA to add a “foreseeable harm” requirement, which
allows withholding of information “only if the agency reasonably foresees that disclosure would
harm an interest protected by an exemption” or the “disclosure is prohibited by law.” 5 U.S.C.
§ 552(a)(8)(A)(i). “Stated differently, pursuant to the FOIA Improvement Act, an agency must
release a record—even if it falls within a FOIA exemption—if releasing the record would not
reasonably harm an exemption-protected interest” and if the law does not prohibit the disclosure.
Jud. Watch, Inc. v. U.S. Dep’t of Com., 375 F. Supp. 3d 93, 98 (D.D.C. 2019) (quoting
Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 73 (D.D.C. 2018)).
III. ANALYSIS
The defendant argues that it is entitled to summary judgment because it “conducted a
reasonable search, and each of [its] withholdings is justified under the appropriate FOIA
exemption[.]” Def.’s Mem. at 2. However, the plaintiffs in their cross-motion for summary
judgment contest the defendant’s withholdings based on all claimed exemptions, see Pls.’ Mem.
at 1–2, and argue that “even if some information has been properly withheld under those
exemptions, [the Bureau] has failed to adequately segregate and produce the non-exempt
material[,]” id. at 2. 3 The Court will therefore address the parties’ arguments regarding each of
the defendant’s claimed FOIA exemptions in turn, followed by an analysis of segregability. 4
3
The plaintiffs also argue that “[the Bureau’s] motion is defective on its face, because its factual support for the
invocation of exemptions is inadequate and rests on a declaration that fails to satisfy” requirements of affidavits or
declarations submitted in support of a motion for summary judgment. Pls.’ Mem. at 16. The plaintiffs refer
specifically to the declaration of Kara Christenson, see Declaration of Kara Christenson (“Christenson Decl.”), ECF
No. 38-4, stating that “Ms. Christenson’s declaration is too thin a reed to support the sweeping asserted facts she
asks this Court to accept[,]” Pls.’ Mem. at 16, and that “[a] motion to strike Ms. Christenson’s declaration on
account of these defects w[ould] be filed shortly[,]” id. at 16 n.6. The Court thereafter considered the plaintiffs’
motion to strike, see Plaintiffs’ Motion to Strike Declaration of Kara Christenson (ECF No. 38-4) (“Pls.’ Mot. to
(continued . . .)
8
A. Exemption 4
Exemption 4 protects from disclosure “trade secrets and commercial or financial
information obtained from a person and privileged or confidential[.]” 5 U.S.C. § 552(b)(4).
“Where withheld records do not contain trade secrets, an agency must establish that the records
are ‘(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential’
to sustain the burden of showing that Exemption 4 was properly applied.” Ctr. for Investigative
Reporting v. U.S. Customs and Border Prot., 436 F. Supp. 3d 90, 108 (D.D.C. 2019) (quoting
Pub. Citizen Rsch. Grp. v. Food and Drug Admin., 704 F.2d 1280, 1290 (D.C. Cir. 1983)).
Here, the defendant has withheld two types of information pursuant to Exemption 4: (1)
“information provided to [the Bureau] by individuals or companies who performed critical
services relating to the federal execution process, such as third-party contractors,” Def.’s Opp’n
at 6 (citing Christenson Decl. ¶¶ 28–29), and (2) “information provided to [the Bureau] by
individuals or companies who provided pentobarbital or performed pentobarbital-related critical
services,” id. (citing Christenson Decl. ¶¶ 28, 30). In effect, the defendant has withheld both the
“identities of the pentobarbital suppliers[,]” id. at 7, and “[i]nformation [a]bout [c]ontract
[t]erms, [p]ricing, and [s]imilar [i]nformation [r]egarding [the Bureau’s] [s]upply of [l]ethal
(. . . continued)
Strike”), ECF No. 44, and in denying the motion, concluded that “the Christenson [D]eclaration is supported by the
personal knowledge, competency, and admissibility required by [Federal] Rule [of Civil Procedure] 56(c)(4)[,]” Am.
C.L. Union v. Fed. Bureau of Prisons, No. 20-cv-2320 (RBW), 2022 WL 1262112, at *6 (D.D.C. Apr. 28, 2022)
(Walton, J.). Therefore, based upon the reasoning in the Court’s opinion denying the plaintiffs’ motion to strike, the
Court also concludes that the Christenson Declaration is admissible in considering the defendant’s summary
judgment arguments. See id. at *2–5 (applying legal standards regarding a motion to strike that are specific to the
summary judgment context).
4
The plaintiffs did not respond to the defendant’s argument that it “[c]onducted an [a]dequate [s]earch[,]” Def.’s
Mem. at 7; see generally Pls.’ Mot., and does not dispute the defendant’s contention that “[o]verall, [the Bureau]
conducted searches that were reasonably calculated to locate all records responsive to [the p]laintiffs’ requests[,]”
Def.’s Facts ¶ 9; see Pls.’ Resp. to Def.’s Facts ¶ 9. Therefore, the Court treats this point as conceded. See
Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010) (“[A]n argument in a dispositive motion that the
opponent fails to address in an opposition may be deemed conceded.”).
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[i]njection [s]ubstances[,]” id. at 11. The parties agree that this information was “obtained from
a person[,]” 5 U.S.C. § 552(b)(4), within the meaning of Exemption 4, see Def.’s Mem. at 14;
Pls.’ Reply at 6, but the plaintiffs “dispute whether the information is commercial and whether it
is confidential[,]” id. Accordingly, the Court will first analyze whether the withheld information
is commercial, and second, analyze whether it is confidential.
1. Whether the Withheld Information is Commercial
The defendant argues that “disclosure of [the identities of] the individuals and companies
who do business with [the Bureau] in connection with [the Bureau’s] federal execution
responsibilities would subject them to controversy and injure their commercial interests[,]”
Def.’s Mem. at 13, and that, “[u]nder these circumstances, the identity of an entity in a
commercial relationship with an agency can be withheld under Exemption 4[,]” id. Moreover,
the defendant states that “beyond their identities, the suppliers and contractors have a
commercial interest in the prices that they set, in product descriptions, and other withheld
information.” 5 Id. at 13–14. In response, the plaintiffs argue that “the identity of the entities that
provided critical services related to the execution[s] and pentobarbital do not qualify as
commercial or financial information and therefore do not fall under Exemption 4.” 6 Pls.’ Mem.
at 20.
5
The defendant does not argue that the information it has withheld constitutes financial information, but rather rests
its argument on the position that the information constitutes commercial information. See generally Def.’s Mem. at
12–14; Def.’s Opp’n at 7–11.
6
The plaintiffs do not contest the defendant’s contention that “the suppliers and contractors have a commercial
interest in the prices that they set, in product descriptions, and other withheld information[,]” Def.’s Mem. at 13–14.
See generally Pls.’ Mem. at 20–22; Pls.’ Reply at 6–7. Therefore, the Court will treat this point as conceded. See
Rosenblatt, 734 F. Supp. 2d at 22 (“[A]n argument in a dispositive motion that the opponent fails to address in an
opposition may be deemed conceded.”).
10
“Exemption 4 is not confined only to records that ‘reveal basic commercial operations . . .
or relate to the income-producing aspects of a business.’” Baker & Hostetler LLP v. U.S. Dep’t
of Com., 473 F.3d 312, 319 (D.C. Cir. 2006) (quoting Pub. Citizen Health Rsch. Grp., 704 F.2d
at 1290) (emphasis omitted) (alteration in original)). Rather, “[t]he exemption reaches more
broadly and applies (among other situations) when the provider of the information has a
commercial interest in the information submitted to the agency.” Id. Moreover, “while a
company may not always have a commercial interest in its name and identity, the Court may [ ]
consider the context in which the issue arises.” Elec. Priv. Info. Ctr. (“EPIC”) v. U.S. Dep’t of
Homeland Sec., 117 F. Supp. 3d 46, 62–63 (D.D.C. 2015). For example, where “[t]he
companies are commercial enterprises doing business with the [g]overnment and the reason they
seek protection from having their participation disclosed is because of the potential effect that
disclosure would have on their businesses[,]” id. at 63, the Court may conclude that their
identities “are correctly considered commercial information in th[at] particular context[,]” id. 7
This is especially true where companies have “taken affirmative steps to protect their identities
by using confidentiality agreements.” Id. at 62. Another member of this Court has specifically
concluded that, because pentobarbital is supplied for executions, “pentobarbital suppliers face a
serious risk to their commercial fortunes should the public become aware that they supply the
7
The plaintiffs rely heavily on Public Citizen v. U.S. Dep’t of Health and Human Servs., 975 F. Supp. 2d 81(D.D.C. 2013), and Hodes v. U.S. Dep’t of Housing and Urban Dev., 532 F. Supp. 2d 108 (D.D.C. 2008), to support
their position that “[c]ourts have repeatedly ruled that identities are not commercial or financial information for
purposes of Exemption 4[,]” Pls.’ Mem. at 20. However, both of these cases either discuss, or rely on cases that
discuss, this issue in the context of a “substantial competitive harm” analysis, see Pub. Citizen, 975 F. Supp. 2d at
106–07 (citing United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557 (D.C. Cir. 2010)); Hodes, 532 F. Supp. 2d at
117–19—a former requirement as part of the Exemption 4 “commercial information” analysis, which the Supreme
Court has rejected, see Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2359 (2019) (“Argus Leader urges
the Court to adopt a ‘substantial competitive harm’ requirement as a matter of policy because it believes FOIA
exemptions should be narrowly construed. But the Court cannot arbitrarily constrict Exemption 4 by adding
limitations found nowhere in its terms.”); id. at 2361 (“Finding at least this ‘competitive harm’ requirement
inconsistent with the terms of the statute, we reverse.”). And, therefore, these arguments advanced by the plaintiffs
are not persuasive in light of the Supreme Court’s holding.
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drug to the government[,]” Citizens for Resp. and Ethics in Wash. (“CREW”) v. U.S. Dep’t of
Just., 567 F. Supp. 3d 204, 212 (D.D.C. 2021); see generally Def.’s Notice. See CREW, 567 F.
Supp. 3d at 212 (“The competitive harm here is quite clear—revelation of the companies’
identity could lead to harassment, cost them business, or force them to exit the pentobarbital
market entirely. This is a ‘competitive disadvantage to the submitting entity’ that ‘could result’
from ‘disclosure.’” (quoting Jud. Watch, Inc., Food & Drug Admin., 449 F.3d 141, 148 (D.C.
Cir. 2006)).
As in CREW, the defendant here supports its position—that disclosure of the
pentobarbital suppliers’ and critical service providers’ identities would create competitive
consequences—with examples of companies who have experienced harassment and competitive
disadvantage in the past “as a result of negative publicity surrounding [their] government
contract[s] to provide lethal injection drugs.” Id.; see Def.’s Mem. at 13; Christenson Decl. ¶¶
33–35. Moreover, the defendant’s declarant has attested that, as to the information withheld
under Exemption 4, including the pentobarbital suppliers’ identities, “the individuals/companies
providing the information have typically kept it private . . . and have expressly required or
requested that the [g]overnment maintain the information as confidential to the greatest extent
possible under the law,” Christenson Decl. ¶ 31, “because those individuals and companies
involved in [the Bureau’s] procurement of [p]entobarbital and third-party contractors who
provide critical execution-related services, are well aware that those involved in the execution
process . . . are commonly subject to harassment, threats, and negative publicity leading to
commercial decline[,]” id. ¶ 32. Thus, the defendant has stated a “potential effect that disclosure
would have on [the suppliers’ and service providers’] businesses[,]” EPIC, 117 F. Supp. 3d at 63,
which is beyond “mere conjecture[,]” CREW, 567 F. Supp. 3d at 212. Moreover, the suppliers
12
and service providers have also “taken affirmative steps to protect their identities[,]” EPIC, 117
F. Supp. 3d at 62, in this case. Accordingly, the Court concludes that the identities of the
individuals or companies who performed critical services relating to the federal execution
process, such as third-party contractors, as well as the identities of the pentobarbital suppliers,
constitute commercial information pursuant to Exemption 4.
2. Whether the Withheld Information is Confidential
The defendant next argues that “both categories of information [withheld] are
confidential because the third-party contractors . . . have typically kept the withheld information
private, [ ] have specifically designated it as proprietary or confidential, and have sought and
received [the Bureau’s] agreement to keep the information confidential to the greatest extent
possible.” Def.’s Mem. at 15 (citing Christenson Decl. ¶¶ 31–32, 38). In response, the plaintiffs
argue that the Bureau has “failed to show that the information is customarily treated as
private[,]” Pls.’ Mem. at 23, and instead, argues that the information should be considered
confidential because of its “association with controversial executions[,]” id., even though
“‘Exemption 4 does not guard against mere embarrassment in the marketplace or reputational
injury[,]’” id. (quoting United Techs. Corp., 601 F.3d at 564). 8
The Supreme Court has articulated “two conditions that might be required for
information communicated to another to be considered confidential[,]” Food Mktg. Inst. v. Argus
Leader Media, 139 S. Ct. 2356, 2363 (2019), within the meaning of Exemption 4: (1) that the
information is “customarily kept private, or at least closely held, by the person imparting it[,]” id.8
The plaintiffs also argue that the defendant has failed to show that the withheld information was treated as private
“because it relies only on the declaration of Ms. Christenson, who lacks any personal knowledge of agreements
made about the designation or treatment of this information.” Pls.’ Mem. at 22. However, the Court has already
addressed this argument in its earlier Memorandum Opinion denying the plaintiffs’ motion to strike the Christenson
Declaration, and concluded that “the Christenson [D]eclaration is supported by the personal knowledge,
competency, and admissibility required by [Federal] Rule [of Civil Procedure] 56(c)(4)[,]” Am. C.L. Union, 2022
WL 1262112, at *6. See supra note 3.
13
(stating that to be “customarily kept private[,]” the information must be “known only to a limited
few[,]” “not publicly disseminated[,]” or “intended to be held in confidence or kept secret”); and
(2) that “the party receiving [the information] provides some assurance that it will remain
secret[,]” id. Although “[t]he [Supreme] Court did not make a holding as to whether both
conditions need be met[,]” CREW, 567 F. Supp. 3d at 213 (citing Food Mktg. Inst., 139 S. Ct. at
2363), both conditions are satisfied in this case.
First, commercial information is considered confidential within the meaning of
Exemption 4 if it is “of a kind that would customarily not be released to the public by the person
from whom it was obtained.” Critical Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d
871, 879 (D.C. Cir. 1992). In determining whether particular information is customarily kept
private, “the [C]ourt will consider how the particular party customarily treats the information,
not how the industry as a whole treats the information.” Ctr. for Auto Safety v. Nat’l Highway
Traffic Safety Admin., 244 F.3d 144, 148 (D.C. Cir. 2001) (citing Critical Mass, 975 F.2d at 872,
878–80) (emphasis added). Furthermore, “[t]o establish submitter custom for purposes of
Exemption 4, ‘it is sufficient for an agency to proceed solely on its sworn affidavits[,]’” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 110 (quoting Jud. Watch, Inc. v. U.S. Dep’t of Com.,
337 F. Supp. 2d 146, 171 (D.D.C. 2004)), so long as the affidavits are “made on personal
knowledge[,]” Animal Legal Def. Fund, Inc. v. Dep’t of Air Force, 44 F. Supp. 2d 295, 303
(D.D.C. 1999). Here, the defendant represents through its declarant that
[t]he commercial information described in both categories [ ], obtained from a
person and submitted to the government, is confidential because the
individuals/companies providing the information have typically kept it private,
have specifically designated the information as proprietary and/or confidential,
and have expressly required or requested that the [g]overnment maintain the
information as confidential to the greatest extent possible under the law, a
condition to which the [g]overnment has agreed to abide during in-person
meetings and/or telephone conference calls.
14
...
This information is kept private because those individuals and companies
involved in [the Bureau’s] procurement of [p]entobarbital and third-party
contractors who provide critical execution-related services, are well aware that
those involved in the execution process (at the state or federal level) are
commonly subject to harassment, threats, and negative publicity leading to
commercial decline.
Christenson Decl. ¶¶ 31–32. Having already concluded that the Christenson Declaration is
“supported by [ ] personal knowledge,” Am. C.L. Union v. Fed. Bureau of Prisons, No. 20-cv-
2320 (RBW), 2022 WL 1262112, at *6 (D.D.C. Apr. 28, 2022), the Court further concludes that
the defendant, through this declaration, has established that the information withheld was
customarily kept confidential, see Ctr. for Investigative Reporting, 436 F. Supp. 3d at 111
(stating that, among other ways, an agency declarant may establish personal knowledge of a
submitter’s custom “by indicating that the agency reached an ‘understanding’ with the submitters
‘that the information w[ould] be held in confidence by the [United States] and not publicly
divulged’” (quoting Jud. Watch, Inc., 337 F. Supp. 3d at 171) (first alteration in original)).
Second, commercial information is considered confidential if “the party receiving [the
information] provides some assurance that it will remain secret.” Food Mktg. Inst., 139 S. Ct. at
2363. Here, the Christenson Declaration clearly establishes that the Bureau made such
assurances. Specifically, as just noted, Christenson states that “the individuals/companies
providing the information . . . have expressly required or requested that the [g]overnment
maintain the information as confidential to the greatest extent possible under the law, a condition
to which the [g]overnment has agreed to abide during in-person meetings and/or telephone
conference calls.” Christenson Decl. ¶ 31. Thus, the representations regarding an “express[]
require[ment] or request[,]” id., by the suppliers and providers, and the statement that “the
15
[g]overnment has agreed to abide[,]” id., by this “condition[,]” id., show that the defendant has
“provide[d] some assurance that [the information] will remain secret[,]” Food Mktg. Inst., 139 S.
Ct. at 2363. Compare Christenson Decl. ¶ 31, with CREW, 567 F. Supp. 3d at 213 (finding
identical commercial information confidential where “‘the [g]overnment ha[d] agreed to abide’
by the companies’ request ‘that the [g]overnment maintain the information as confidential to the
greatest extent possible under law’”) (internal citation omitted). Accordingly, the Court
concludes that the withheld information constitutes confidential commercial information within
the meaning of Exemption 4 and that, therefore, the defendant has properly withheld this
information pursuant to Exemption 4.
B. 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). Exemption 6 is designed “to protect individuals from the injury and embarrassment
that can result from the unnecessary disclosure of personal information” maintained in
government records, U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982), regardless
of “the label [on] the file,” id. at 601. “The Court’s first task in assessing whether non-disclosure
is warranted [pursuant to Exemption 6] is to determine whether the responsive records are
personal, medical or similar files.” Houser v. U.S. Dep’t of Health & Hum. Servs., 486 F. Supp.
3d 104, 115 (D.D.C. 2020) (Walton, J.) (citing Multi Ag. Media LLC v. Dep’t of Agric., 515
F.3d 1224, 1228 (D.C. Cir. 2008)); see Gov’t Accountability Project v. U.S. Dep’t of State, 699
F. Supp. 2d 97, 105–06 (D.D.C. 2010) (“The term[] ‘similar files’ is construed broadly and ‘is
intended to cover detailed [g]overnment records on an individual which can be identified as
applying to that individual.’” (quoting Wash. Post Co., 456 U.S. at 602)). “The information in
16
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 Just., 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y. Times Co. v. Nat’l
Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990)). Once that threshold
requirement is met, the Court must determine whether disclosure of the information “would
constitute a clearly unwarranted invasion of personal privacy.” Multi Ag. Media LLC, 515 F.3d
at 1228 (quoting 5 U.S.C. § 552(b)(6)). “This second inquiry requires [the Court] to balance the
privacy interest that would be compromised by disclosure against any public interest in the
requested information.” Id.Here, the defendant has withheld various records pursuant to Exemption 6, see
Christenson Decl., Ex. D (Vaughn Index) at 1–10 (reflecting withholding based upon Exemption
6 for records 1–10, 12–13, and 15–19), which it applied in order to withhold
names, register numbers, initials, signatures, addresses, email addresses,
telephone numbers, job titles, department titles, law enforcement credential
numbers, and bank account information that could be used to identify [Bureau]
staff, outside law enforcement officers involved in the execution protocol,
third-party contractors, third-party individuals who participated in the federal
government’s procurement of pentobarbital or provided critical
pentobarbital-related services, and other third-party individuals including inmates.
Def.’s Mem. at 18 (citing Christenson Decl. ¶¶ 42, 44, 72). 9 The defendant advances two
primary arguments in support of its Exemption 6 withholdings: (1) that, “[f]or the COVID-
related records, . . . revealing the identities of the specific individuals referenced would
necessarily reveal their sensitive health information[,]” thus implicating privacy concerns, id. at
19 (citing Christenson Decl. ¶ 44); see Christenson Decl., Ex. D (Vaughn Index) at 1–3
9
The defendant withheld these same records pursuant to Exemption 7(C). See Def.’s Mem. at 18. Although the
defendant addresses its application of Exemptions 6 and 7(C) concurrently, see generally id. at 18–20, the Court will
address the application of Exemption 7(C) separately, see infra Section III.C.2.
17
(reflecting COVID-related records requests for records 1–7); and (2) that, “[d]ue to the
controversial nature of the federal execution process, the [Bureau] employees and third-party
individuals whose identifying information was withheld have substantial privacy interests in
avoiding disclosure of their participation in the execution process[,]” Def.’s Mem. at 19–20. In
response, the plaintiffs argue that Exemption 6 is “meant to protect only records that would
identify and threaten specific individuals[,]” and the Bureau has thus impermissibly “claimed [a]
privacy . . . exemption[] for a wide swath of information, much of which has little or nothing to
do with personal information on individuals, and which could not plausibly be used to identify
any individuals.” Pls.’ Mem. at 37. Furthermore, the plaintiffs argue that “[t]he public has an
obvious interest in how [the Bureau] spends taxpayer money and performs its duties[,] . . .
particularly [ ] in the context of the government’s killing of its own citizens during a global
pandemic.” Id. at 38.
1. Whether the Withheld Files Constitute Personal, Medical, or Similar Files
First, as a threshold matter, the Court concludes that all records withheld pursuant to
Exemption 6—except for record 16—constitute “personal, medical or similar files[,]” Houser,
486 F. Supp. 3d at 115, within the meaning of Exemption 6. As reflected in the Vaughn Index,
records 1–7 all contain information related to “COVID-19 testing[,]” see Christenson Decl., Ex.
D (Vaughn Index) at 1–3 (records 1–3, 5, and 7), or COVID-19 “[c]ontact [t]racing[,]” see id.,
Ex. D (Vaughn Index) at 1–3 (records 4 and 6), which clearly qualify as medical files of either
staff or inmates.
Records 8 and 10 are expenses and payment reports, which were redacted pursuant to
Exemption 6 because they included “[i]dentit[ies] of [Bureau] staff, witnesses, and confidential,
third party contractors involved in federal executions[,]” see id., Ex. D (Vaughn Index) at 3–4.
18
Although the files themselves are not personnel or medical files per se, they do constitute
“similar files[,]” 5 U.S.C. § 552(b)(6), to the extent that they reference various individuals’
identities and therefore contain “bits of personal information, such as names . . . , the release of
which would ‘create[] a palpable threat to privacy[,]’” Jud. Watch, Inc., 449 F.3d at 152–53
(quoting Carter v. U.S. Dep’t of Com., 830 F.2d 388, 391 (D.C. Cir. 1987)) (second alteration in
original). See Skybridge Spectrum Found. v. Fed. Commc’ns Comm’n, 842 F. Supp. 2d 65, 83
(D.D.C. 2012) (“[C]ourts look ‘not to the nature of the files,’ but rather to ‘the nature of the
information’ at issue.’” (quoting N.Y. Times Co., 920 F.2d at 1006)).
Records 12 and 17–19 are “[q]uarterly [p]reventative [m]aintenance logs[,]” Christenson
Decl., Ex. D (Vaughn Index) at 6 (record 12), “[i]ncident [c]ommand [s]ystem . . . forms[,]” id.,Ex. D (Vaughn Index) at 9 (record 17), “[o]utside law enforcement meeting sign[-]in sheets[,]”
id., Ex. D (Vaughn Index) at 9 (record 18), and “[d]eployment [r]osters[,]” id., Ex. D (Vaughn
Index) at 10 (record 19), which were withheld because they contain “[i]dentifying information of
[Bureau] staff [and/or] outside law enforcement officers (names, titles, signatures, and phone
numbers) who were involved in federal executions[,]” id., Ex. D (Vaughn Index) at 9; see also
id., Ex. D (Vaughn Index) at 6 (describing the exempt material in record 12 as “[i]dentifying and
contact information, including names, job titles, employee ID numbers, and/or signatures of
[Bureau] staff [and] [i]dentifying information, including names and/or Federal Register Numbers
of [Bureau] inmates” (emphasis added)). Again, while these documents are not medical or
personnel files, the redacted portions contain “bits of personal information, such as names and
addresses,” Jud. Watch, Inc., 449 F.3d at 152, and therefore qualify as “similar files[,]” 5 U.S.C.
§ 552(b)(6); see Houser, 486 F. Supp. 3d at 115, within the meaning of Exemption 6.
19
Finally, records 9, 13, and 15–16 consist of “[v]oucher [v]alidation [r]eports[,]
[c]ontracts[,] . . . emails[,]” Christenson Decl., Ex. D (Vaughn Index) at 4 (record 9), “[v]endor
payment forms[,]” id., Ex. D (Vaughn Index) at 6 (record 13), “[i]nvoices[,]” id., Ex. D (Vaughn
Index) at 7–8 (record 15), and “[an] [e]xpense report[,]” id., Ex. D (Vaughn Index) at 9 (record
16), which were withheld because they contain “[i]dentifying information . . . that could lead to
the identit[ies]” of Bureau Staff and/or third-party pentobarbital suppliers, see id., Ex. D
(Vaughn Index) at 4, 6–9 (emphasis added). Although perhaps the likelihood of revealing
personal information through these files is more attenuated, considering that they contain
information that “could lead to [certain] identities,” id., Ex. D (Vaughn Index) at 4, 6–9
(emphasis added), the Court nonetheless concludes that records 9, 13, and 15 can also be
properly categorized as “similar files” because at least some of the redacted portions of the files
contain “bits of personal information[,]” Jud. Watch, Inc., 449 F.3d at 152. See, e.g.,
Christenson Decl., Ex. D (Vaughn Index) at 4, 6–8 (listing “identifying and contact information”
for Bureau staff and third-party suppliers as part of the files’ contents).
In contrast, the description of record 16 does not identify any actual personal information
contained in the file. Instead, the Vaughn Index describes this file as being redacted to the extent
that it contains “[c]ost information, which could reveal the number of individuals traveling from
a specific location.” Id., Ex. D (Vaughn Index) at 9 (emphasis added). Although “[t]he
information in the file ‘need not be intimate’ for the file to satisfy the standard,” Milton, 783 F.
Supp. 2d at 58 (internal citation omitted), “[i]nformation unrelated to any particular person
presumably would not satisfy the threshold test[,]” Wash. Post Co., 456 U.S. at 602 n.4
(emphasis added). Here, record 16 appears to only contain aggregate personnel costs which the
Bureau states “could reveal the number of individuals traveling from a specific location.”
20
Christenson Decl., Ex. D (Vaughn Index) at 9. However, the Court need not address the issue of
whether record 16 constitutes a “similar file” because “the Supreme Court has embraced the
legislative history [of the FOIA] stating that ‘the balancing of private against public interests, not
the nature of the files in which the information was contained, should limit the scope of the
exemption.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)
(quoting Wash. Post Co., 456 U.S. at 599); see id. (“Accordingly, we turn to th[e balancing of
privacy and public] interests, assuming without deciding that the requested [ ] records are
‘similar files’ under Exemption 6.”). Therefore, concluding that records 1–10, 12–13, 15, and
17–19 constitute “personal, medical or similar files[,]” Houser, 486 F. Supp. 3d at 115, and
assuming without deciding that record 16 qualifies as a “similar file[,]” id.; see Nat’l Ass’n of
Home Builders, 309 F.3d at 33, the Court will next consider whether the privacy interests
implicated outweigh the public interest in disclosure.
2. Whether Privacy Interests Outweigh the Public Interest in Disclosure
Having addressed the threshold issue of whether the withheld records constitute
“personal, medical or similar files[,]” Houser, 486 F. Supp. 3d at 115, the Court must next
determine whether disclosure of the information “would constitute a ‘clearly unwarranted
invasion of personal privacy[,]’” Multi Ag. Media LLC, 515 F.3d at 1228 (quoting 5 U.S.C.
§ 552(b)(6)), by “balanc[ing] the privacy interest that would be compromised by disclosure
against any public interest in the requested information[,]” id. (citations omitted). Specifically,
the Court must determine whether disclosure “‘would compromise a substantial, as opposed to
de minimis, privacy interest,’ because ‘[i]f no significant privacy interest is implicated . . . FOIA
demands disclosure.’” Id. at 1229 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879
F.2d 873, 874 (D.C. Cir. 1989)). However, “[this] standard ‘means less than it might seem,’ as a
21
substantial privacy interest is ‘anything greater than a de minimis privacy interest.’” Ctr. for
Med. Progress v. U.S. Dep’t of Health and Human Servs., No. 21-cv-642 (BAH), 2022 WL
4016617, at *12 (D.D.C. Sept. 3, 2022) (quoting Multi Ag. Media LLC, 515 F.3d at 1229–30).
First, records 1–7, which contain COVID-19-related material, clearly implicate a
substantial privacy interest because individual medical information not only is explicitly
protected from disclosure in the statutory text of Exemption 6, see 5 U.S.C. ¶ 552(b)(6)
(exempting “medical files”), but also falls squarely within a category of information which
“encompass[es] the individual’s control of information concerning his or her person[,]” U.S.
Dep’t of Just. v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763 (1989). As to the
remaining records withheld pursuant to Exemption 6, which relate to the federal execution
process, the defendant argues that “revealing the identities of individuals associated with the
process would reveal highly sensitive information—that those individuals participated in the
federal execution process.” Def.’s Mem. at 19 (citing Christenson Decl. ¶¶ 45, 47–48). The
defendant states that “[Bureau] employees have faced violence due to their work for [the
Bureau]” and “[t]hese concerns are heightened in the context of involvement in the federal
execution process, a highly polarizing topic that has spurred harassment and threats.” Id. at 20
(citing Christenson Decl. ¶ 46). In response, the plaintiffs argue that the defendant’s
representations amount to “doomsday scenarios for such an individual in the unlikely event of
their identification,” which rely on “sensational media coverage of prisoners who have killed
corrections officers in contexts wholly unrelated to executions.” Pls.’ Reply at 18. Furthermore,
the plaintiffs argue that “[the d]efendant’s attempts to diminish the public interest in the federal
government’s execution practices also fail[,]” id. at 19, because “the withheld information
relates to artificial entities with no legitimate privacy interest[,]” id. at 20.
22
“In construing Exemption 6, the D.C. Circuit has repeatedly found a substantial privacy
interest in personal information that could subject individuals to ‘injury and embarrassment.’”
Ctr. for Med. Progress, 2022 WL 4016617, at *13 (quoting Jud. Watch, Inc., 449 F.3d at 153).
Furthermore, “[a] threat of harassment is more than de minimis, and therefore substantial, if the
‘risk’ of harassment is both ‘justified and articulable.’” Id. (quoting Jud. Watch, Inc., 875 F.
Supp. 2d at 47). The defendant’s declaration indicates that “the mission and nature of the work
of these staff members render them vulnerable to harassment, threats[,] or attack[]” and
“disclosure of the names and personal-contact information of these staff members would permit
the targeting of individual employees, as well as potentially their families and friends outside the
workplace.” Christenson Decl. ¶ 45. Additionally, the defendant’s declarant indicates that
[d]isclosure of the names or other identifying information of third parties would
reveal private information of persons who may be engaged in a highly-sensitive
and emotionally-charged issue. . . . Similar to staff names, disclosing the job titles
of third parties may allow these individuals to be identified based on their
positions. Revealing this information would allow fellow officers, and owners,
managers and employees of businesses, along with their friends and families, to
be targeted, and would likely subject these individuals to embarrassment,
harassment, threats or even assault.
Id. ¶ 47. Based upon this and other portions of the defendant’s declaration, see id. ¶¶ 45, 47–
48—factual assertions, which are “accepted as true” unless successfully rebutted, Wilson v.
Dep’t of Transp., 730 F. Supp. 2d 140, 148 (D.D.C. 2010)—the Court concludes that the
defendant has articulated a “‘risk’ of harassment that is both ‘justified and articulable[,]’” Ctr. for
Med. Progress, 2022 WL 4016617, at *13 (quoting Jud. Watch, Inc., 875 F. Supp. 2d at 47).
Furthermore, to the extent that the connection between the withheld information and the
realization of this risk is somewhat attenuated, see Christenson Decl., Ex. D (Vaughn Index) at 4,
6–9 (stating that records 9, 13, and 15–16 were withheld because they contain “[i]dentifying
information . . . that could lead to the identit[ies]” of Bureau Staff and/or third-party
23
pentobarbital suppliers (emphasis added)), “where ‘a substantial probability that disclosure will
cause an interference with personal privacy’ exists, ‘it matters not that there may be two or three
links in the causal chain[,]’” Nat’l Ass’n of Home Builders, 309 F.3d at 34–35 (quoting Nat’l
Ass’n of Retired Fed. Emps., 879 F.2d at 878).
Thus, records 8–10, 12–13, 15, and 17–19, which the defendant claims either contain
direct identifying information or identifying information that could lead to discovery of staff and
third-party identities, see Christenson Decl., Ex. D (Vaughn Index) at 3–10, present a
“substantial probability that disclosure will cause an interference with personal privacy[,]” Nat’l
Ass’n of Retired Fed. Emps., 879 F.2d at 878, even though records 9, 13, and 15 perhaps require
additional “links in the causal chain[,]” id., between disclosure and ultimate identification and
harassment. As to record 16, however, “the problem is one of likelihood, not causation, for the
[Bureau] has failed to show that [identification of individuals] is likely to occur[,]” Nat’l Ass’n
of Home Builders, 309 F.3d at 35 (emphasis added), based upon this particular record. The
Court therefore agrees with the plaintiffs that an “[e]xpense report for personnel costs related to
July/Aug[ust] 2020 executions[,]” Christenson Decl., Ex. D (Vaughn Index) at 9, which the
defendant redacted to the extent that it contained “[c]ost information, which could reveal the
number of individuals traveling from a specific location[,]” id., Ex. D (Vaughn Index) at 9,
would arguably not be likely to lead to the identification of individuals, sufficient that disclosure
“would constitute a clearly unwarranted invasion of privacy[,]” 5 U.S.C. § 552(b)(6) (emphasis
added). See Pls.’ Reply at 17 (“[The Bureau] does not explain how expense totals for each
institution could reveal even the number of staff participating, much less how a hypothetical
investigator, equipped only with the number of staff who participated, would gain sufficiently
proximate access to each institution and its staff to deduce who among them participated through
24
a ‘process of elimination.’”); Dep’t of the Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976)
(“The legislative history is clear that Exemption 6 was directed at threats to privacy more
palpable than mere possibilities.”). Therefore, the Court concludes that the disclosure of records
1–10, 12–13, 15, and 17–19—but not record 16—“would compromise a substantial, as opposed
to de minimis, privacy interest,” Nat’l Ass’n of Retired Fed. Emps., 879 F.2d at 874, based upon
either the disclosure of individual health information, which applies to records 1–7, or
information the disclosure of which would pose a “justified and articulable[,]” Jud. Watch, Inc.,
875 F. Supp. 2d at 47, threat of harassment or a consequence even worse, which applies to
records 8–10, 12–13, 15, and 17–19. 10
Finally, the Court concludes that the privacy interests implicated by disclosure of records
1–10, 12–13, 15, and 17–19 outweigh the public interest in disclosure. The “basic purpose of
[the FOIA] . . . focuses on citizens’ right to be informed about ‘what their government is up
to[,]’” Multi Ag. Media, 515 F.3d at 1231, and “‘a significant public interest in disclosure’ exists
for records that ‘will enable the public to more easily monitor whether [an] agency is carrying
out its statutory duty[,]’” Ctr. for Med. Progress, 2022 WL 4016617, at *14 (quoting Multi Ag.
Media, 515 F.3d at 1232). However, where “there is a substantial privacy interest in the
requested identifying information due to the personal security risks that disclosure poses[,]”
Stotter v. U.S. Agency for Int’l Dev., No. 14-cv-2156 (KBJ), 2020 WL 5878033, at *9 (D.D.C.
Oct. 3, 2020), this will likely outweigh a public interest in disclosure, especially where “the
unredacted information that [the agency] has released already details the agency’s operations and
activities[,]” id. at *8, relevant to the plaintiffs’ request. Although the Court recognizes the
significant public “interest in how [the Bureau] spends taxpayer money and performs its duties[,]
10
Although the Court concludes that record 16 was not properly withheld pursuant to Exemption 6, it does conclude
that it was properly withheld pursuant to Exemptions 7(C) and 7(F). See infra Sections III.C.2, III.C.4.
25
. . . in the context of the [federal executions] during a global pandemic[,]” Pls.’ Mem. at 38, the
Court concludes that “the strong privacy interests the affected individuals have in ‘avoiding
physical danger’ and harassment . . . clearly outweigh the [ ] public benefit, if any, that can be
gained from revealing their identities[,]” Ctr. for Med. Progress, 2022 WL 4016617, at *15
(quoting Judicial Watch, Inc., 449 F.3d at 153). Furthermore, the Court agrees with the
defendant that “any interest by [the p]laintiffs in what their government is up to has largely been
met by the hundreds of pages of documents released by [the Bureau,]” including “extensive
records detailing [the Bureau’s] expenditures in service of federal executions, travel costs, the
number of [Bureau] employees staffed at the Incident Command Center during executions, and
[the Bureau’s] response to COVID-19[.]” Def.’s Opp’n at 28; see Stotter, 2020 WL 5878033, at
*8 (finding that the private interest outweighed the public interest where “the unredacted
information that [the agency] ha[d] released already detail[ed] the agency’s operations and
activities”). Accordingly, the Court concludes that, except for record 16, the Bureau has
properly withheld records 1–10, 12–13, 15, and 17–19 pursuant to Exemption 6.
C. Exemption 7
Exemption 7 prohibits the disclosure of
records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information
(A) could reasonably be expected to interfere with enforcement
proceedings, . . . (C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to disclose the
identity of a confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation, information
furnished by a confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such disclosure could
26
reasonably be expected to risk circumvention of the law, or (F) could reasonably
be expected to endanger the life or physical safety of any individual[.]
5 U.S.C. § 552(b)(7). Therefore, “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 [one of Exemption 7’s] enumerated harm[s.]” Lewis v. U.S. Dep’t of Just., 867 F.
Supp. 2d 1, 18 (D.D.C. 2011) (Walton, J.) (quoting 5 U.S.C. § 552(b)(7)). Here, the defendant
has withheld records 1–10, 12–13, and 15–19 pursuant to Exemption 7(C); records 8, 10, 15, 17,
and 19 pursuant to 7(E); and records 8–10 and 13–19 pursuant to 7(F). See generally
Christenson Decl., Ex. D (Vaughn Index). Accordingly, the Court begins its analysis by
addressing whether the defendant has adequately demonstrated that the requested records were
“compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), and if so, then will turn to the
question of whether the defendant has demonstrated that “the production of such law
enforcement records[,]” id., would result in any of Exemption 7’s “enumerated harm[s,]” Lewis,
867 F. Supp. 2d at 18.
1. Whether the Documents Were “Compiled for Law Enforcement Purposes”
“To fall within FOIA Exemption 7, ‘documents must first meet a threshold requirement:
that the records were ‘compiled for law enforcement purposes.” Elec. Privacy Info. Ctr.
(“EPIC”) v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Pub.
Emps. for Envtl. Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 202–03
(D.C. Cir. 2014)) (internal quotations omitted). “[T]he term ‘compiled’ in Exemption 7 requires
that a document be created, gathered, or used by an agency for law enforcement purposes at
some time before the agency invokes the exemption.” Pub. Emps. for Env’t Resp., 740 F.3d at
203. Furthermore, “[l]aw enforcement entails more than just investigating and prosecuting
individuals after a violation of the law,” id. (emphasis in original), but also “fairly includes . . .
27
the detection and punishment of violations of law[,]” Mittleman v. Off. of Pers. Mgmt., 76 F.3d
1240, 1243 (D.C. Cir. 1993) (internal quotations and citations omitted) (emphasis added), as well
as proactive steps taken to “prevent criminal activity and to maintain security[,]” 100Reporters v.
U.S. Dep’t of State, No. 19-cv-1753 (RDM), 2022 WL 1223709, at *23 (D.D.C. Apr. 26, 2022)
(quoting Sack v. U.S. Dep’t of Def., 823 F.3d 687, 694 (D.C. Cir. 2016)). And,
[w]ith respect to the threshold requirement of showing that the disputed records
were compiled for law enforcement purposes, courts “are more deferential to the
agency’s claimed purpose for the particular records” when “the agency’s
principal function is law enforcement,” and will “scrutinize with some
skepticism the particular purpose claimed” when “the agency has mixed law
enforcement and administrative functions.”
Codrea v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 239 F. Supp. 3d 128, 132
(D.D.C. 2017) (quoting Pub. Emps. for Env’t Resp., 740 F.3d at 203).
Here, the Bureau of Prisons “‘is a law enforcement agency [entitled to] deference’ on its
claims of law enforcement purpose.” Pinson v. Dep’t of Just., 236 F. Supp. 3d 338, 365 (D.D.C.
2017) (quoting Pinson v. U.S. Dep’t of Just., 202 F. Supp. 3d 86, 101 (D.D.C. 2016)).
Furthermore, the records at issue—“all of which address either the [Bureau’s] response to
COVID-19 at FCC Terre Haute or [the Bureau’s] implementation of federal executions,”
Christenson Decl. ¶ 53—were all either compiled as part of the Bureau’s “law enforcement
mission of protecting inmates, staff, and the community[,]” id. (internal quotations omitted); see
Christenson Decl. ¶ 53, or as part of its execution process, “[t]he effectuation of [which] is
unquestionably a punishment for violating the law[,]” CREW, 567 F. Supp. 3d at 215.
Therefore, although the plaintiffs argue that many of the records are tangential to the defendant’s
prison management and execution-related activities and responsibilities, see Pls.’ Mem. at
29–31, considering the significant deference accorded to the Bureau as a law enforcement
agency, see Pinson, 236 F. Supp. 3d at 365, the Court concludes for the following reasons that
28
these two categories of records were “compiled for law enforcement purposes[,]” 5 U.S.C. §
552(b)(7).
First, records 1–7 all relate to the Bureau’s COVID-19 responses, see Christenson Decl.,
Ex. D (Vaughn Index) at 1–3 (describing records 1–7 as concerning “COVID-19 testing” and
“[c]ontact [t]racing” for COVID-19), which falls squarely within the Bureau’s responsibility for
“the custody and care of inmates FCC Terre Haute[,]” Christenson Decl. ¶ 53, a responsibility
which has been accepted by one of the Court’s colleagues as a valid law enforcement purpose,
see, e.g., Pinson v. Dep’t of Just., 313 F. Supp. 3d 88, 114 (D.D.C. 2018) (finding that records
“pertain[ing] to how [the Bureau] . . . monitors and maintains the health and safety of its inmates
and staff . . . were compiled for law enforcement purposes”); Mingo v. U.S. Dep’t of Just., 793
F. Supp. 2d 447, 453 (D.D.C. 2011) (finding records associated with an altercation between
inmates were compiled for law enforcement because they were “created in connection with the
[the Bureau’s] responsibility to ‘protect[] inmates, staff, and the community’”). Therefore, the
Court concludes that records 1–7 were compiled for law enforcement purposes because they
pertain to the Bureau’s “monitor[ing] and maint[enance of] the health and safety of its inmates
and staff[,]” Pinson, 313 F. Supp. 3d at 114.
Second, records 8–10 and 12–19 all pertain in some way to the Bureau’s administration
of the execution process. See Christenson Decl., Ex. D (Vaughn Index) at 3–10 (describing
records 8–10 and 12–19 as, e.g., “[t]racking report for expenses relating to [execution of the]
death penalty[,]” “[c]ontracts . . . for purchase of pentobarbital[,]” “[o]bligation and [p]ayment
[r]eports for expenses incurred . . . relating to the death penalty[,]” “[c]onstruction blueprints for
[the] execution facility[,]” and other documents tangential to the administration of the execution
process). Records created in conjunction with actions undertaken “as part of [the Bureau’s]
29
mandate to implement[] federal death sentences[,]” CREW, 567 F. Supp. 3d at 215, are compiled
for law enforcement purposes because “[t]he effectuation of the death penalty is unquestionably
a punishment for violating the law[,]” id., and therefore encompassed by the term “law
enforcement,” see Mittleman, 76 F.3d at 1243 (“[E]nforcement of the law fairly includes . . . the
detection and punishment of violations of law[.]”). Therefore, the Court concludes that records
8–10 and 12–19 were compiled for law enforcement purposes because they pertain to “[the
Bureau’s] implementation of federal executions[.]” Christenson Decl. ¶ 53. Having concluded
that the withheld records were “compiled for law enforcement purposes[,]” 5 U.S.C. ¶ 552(b)(7),
the Court will next turn to the specific exemptions claimed by the defendant under Exemption 7.
2. Exemption 7(C)
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). The application of this exemption is similar to that of Exemption 6, see
supra Section III.B, as “[b]oth exemptions require agencies and reviewing courts to ‘balance the
privacy interests that would be compromised by disclosure against the public interest in the
release of the requested information.’” 100Reporters LLC v. U.S. Dep’t of Just., 248 F. Supp. 3d
115, 158 (D.D.C. 2017) (quoting Beck v. U.S. Dep’t of Just., 997 F.2d 1489, 1491 (D.C. Cir.
1993)). However, there are two important differences between the two exemptions. First,
“Exemption 7 in general applies only to information compiled for ‘law enforcement purposes.’”
Stonehill v. Internal Revenue Serv., 534 F. Supp. 2d 1, 11 (D.D.C. 2008). Second,
“Exemption 7(C) . . . establishes a lower bar for withholding material,” Prison Legal News v.
Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting Am. C.L. Union v. U.S. Dep’t of
Just., 655 F.3d 1, 6 (D.C. Cir. 2011)), because, “while Exemption 6 requires a ‘clearly
30
unwarranted invasion of personal privacy’ to qualify for withholding, Exemption 7(C) requires
only that disclosure ‘could reasonably be expected to constitute an unwarranted invasion of
personal privacy,’” Stonehill, 534 F. Supp. 2d at 11 (quoting 5 U.S.C. § 552(b)(6)–(7)).
Therefore, because Exemption 6 imposes a higher bar, records properly withheld pursuant to
Exemption 6 are necessarily properly withheld pursuant to Exemption 7(C). See Archibald v.
U.S. Dep’t of Just., 950 F. Supp. 2d 80, 86 (D.D.C. 2013) (Walton, J.) (“[T]he language of the
two exemptions is similar, with Exemption 7(C) providing ‘somewhat broader’ privacy
protection.” (quoting Reporters Comm. for Freedom of Press, 489 U.S. at 756)); Reporters
Comm. for Freedom of Press, 489 U.S. at 756 (noting and finding significant the absence of the
adverb “clearly” from, and the addition of the phrase “could reasonably be expected” to,
Exemption 7(C)).
Here, the defendant applies Exemption 6 and 7(C) to the same set of withholdings. See
Christenson Decl., Ex. D (Vaughn Index) at 1–10 (applying Exemptions 6 and 7(C) to records
1–10, 12–13, and 15–19). Having previously concluded that all of these records meet the
threshold requirement of being “compiled for law enforcement purposes[,]” 5 U.S.C. §
552(b)(7); see supra Section III.C.1, the Court must now determine whether these records “could
reasonably be expected to constitute an unwarranted invasion of personal privacy[,]” 5 U.S.C.
§ 552(b)(7)(C). Because the Court has already concluded that records 1–10, 12–13, 15, and 17–
19 were properly withheld under the narrower standard applicable to Exemption 6, it need not
address whether the withholding of these records meets the broader standard imposed in the
Exemption 7(C) context. Cf. Archibald, 950 F. Supp. 2d at 86 (finding that the Court need not
analyze both exemptions because “if the defendant[ is] not excused from disclosure under the
[broader] privacy protection of Exemption 7(C), then neither will they be excused under
31
Exemption 6”). However, because the Court found that record 16 was not properly withheld
pursuant to Exemption 6, see supra Section III.B, it must now address whether this record is
protected from disclosure under the lower standard imposed pursuant to Exemption 7(C).
The defendant describes the redacted portion of record 16 as “[c]ost information, which
could reveal the number of individuals traveling from a specific location” and applies Exemption
7(C) for what it characterizes as “[i]nformation that could lead to the identity of [Bureau] staff.”
Christenson Decl., Ex. D (Vaughn Index) at 9. As part of its briefing regarding the plaintiffs’
motion to strike, see Plaintiffs’ Motion to Strike Declaration of Kara Christenson (ECF No. 38-4)
(“Pls.’ Mot. to Strike”), ECF No. 44, the defendant filed a supplemental declaration, which states
that
[t]he redacted information could reveal the number of individuals traveling from
each specific location, and thus the number of staff from each of the institutions
participating in the executions. Because the number of staff participating from
each institution is low, revealing the number of staff involved from each
institution would permit identification of the specific individuals by process of
elimination or investigation.
Defendant’s Opposition to Plaintiffs’ Motion to Strike Declaration of Kara Christenson (“Def.’s
Strike Opp’n”), Ex. A (Supplemental Declaration of Kara Christenson (“Suppl. Christenson
Decl.”)) ¶ 14, ECF No. 48-1. And, it is this dual request—the number of personnel associated
with specific facilities—that makes the identification of specific individuals possible. See id.,
Ex. A (Suppl. Christenson Decl.) ¶ 14. “[A]ccept[ing] as true” unrebutted factual assertions
made by the defendant in its declarations, Wilson, 730 F. Supp. 2d at 148, the Court concludes
that although record 16 may not rise to the level of “a clearly unwarranted invasion of personal
privacy[,]” 5 U.S.C. § 552(b)(6) (emphasis added), it “could reasonably be expected to constitute
an unwarranted invasion of personal privacy[,]” 5 U.S.C. § 552(b)(7)(C) (emphasis added). See
Reporters Comm. for Freedom of Press, 489 U.S. at 756 (noting and finding significant the
32
absence of the adverb “clearly” from, and the addition of the phrase “could reasonably be
expected” to, Exemption 7(C)). Thus, in the Exemption 6 context, although record 16 may not
create “a substantial probability that disclosure will cause an interference with personal
privacy[,]” Nat’l Ass’n of Retired Fed. Emps., 879 F.2d at 878, in the Exemption 7(C) context, it
can be “reasonably expected[,]” 5 U.S.C. § 552(b)(7)(C), based upon the defendant’s
representations, that staff identities could be ascertained from these records—even though doing
so would require close investigation. Compare cf. McDonnell Douglas Corp. v. U.S. Dep’t of
Air Force, 375 F.3d 1182, 1191–92 (D.C. Cir. 2004) (affirming the release of data where there
was neither a viable theory nor evidence supporting the defendant’s claim that release would
enable a third party to calculate protected information), with Def.’s Strike Mot., Ex. A (Suppl.
Christenson Decl.) ¶ 14 (“Because the number of staff participating from each institution is low,
revealing the number of staff involved from each institution would permit identification of the
specific individuals by process of elimination or investigation.”).
The Court therefore concludes that this articulated risk amounts to significantly more
than “bare speculation[,]” WP Co. LLC v. U.S. Small Bus. Admin., No. 20-cv-1240 (JEB), 2020
WL 6504534, at *16 (D.D.C. Nov. 5, 2020), and gives rise to the reasonable expectation required
by Exemption 7(C). Furthermore, for the same reasons articulated in the context of the
application of Exemption 6, see supra Section III.B.2, the privacy interests implicated by
disclosure of record 16 outweighs the public interest in disclosure. Accordingly, the Court
concludes that the defendant properly withheld records 1–10, 12–13, and 15–19 pursuant to
Exemption 7(C).
33
3. Exemption 7(E)
Exemption 7(E) protects from disclosure information in law enforcement records, the
release of which
would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions[,] if such disclosure could reasonably be expected to risk
circumvention of the law[.]
5 U.S.C. § 552(b)(7)(E). This exemption “sets a relatively low bar for the agency to justify
withholding[,]” Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42 (D.C. Cir. 2011),
specifically, “‘[r]ather than requiring a highly specific burden of showing how the law will be
circumvented, [E]xemption 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[,]’” id.(second alteration in original) (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d
1190, 1194 (D.C. Cir. 2009)).
Here, the defendant has withheld records 8, 10, 15, 17, and 19 pursuant to Exemption
7(E). See Christenson Decl., Ex. D (Vaughn Index) at 3–5, 7–10. All of these records concern
the federal execution process and were withheld or redacted in order to protect the “[i]dentity of
[h]otel(s) from whom rooms were reserved for overnight lodging of [Bureau] staff, contractors,
and witnesses,” id., Ex. D (Vaughn Index) at 4–5 (records 8 and 10), in addition to
[i]dentifying information . . . contained in the invoices from suppliers . . . that
could lead to the identity of individuals and/or companies from whom the federal
government procured or contemplated procuring [p]entobarbital or related critical
services[, i]dentifying information of [Bureau] staff involved in procurement of
lethal injection substances[, and i]dentifying information of
individuals/companies providing critical services related to the carrying out of a
federal execution[,]
id., Ex. D (Vaughn Index) at 8 (record 15); “[o]peration and check-in time periods,” id., Ex. D
(Vaughn Index) at 9 (record 17); and the “[n]umber and type of weapons deployed/authorized to
34
be used by external security and support staff related to federal executions[,]” id., Ex. D (Vaughn
Index) at 10 (record 19). The defendant states through its declarant that “Exemption 7(E) was
applied to withhold information describing the guidelines, techniques[,] and procedures used to
effectively prepare for and carry out a federal execution[,]” Christenson Decl. ¶ 75, and
specifically, “was applied to information contained in records . . . that would reveal specific law
enforcement techniques and strategies to prepare for and implement a federal execution, as well
as expose [the Bureau’s] capabilities and vulnerabilities in responding to emergencies or unrest
related to carrying out a federal execution[,]” id. ¶ 76. Having previously concluded that all of
these records meet the threshold requirement of being “compiled for law enforcement
purposes[,]” 5 U.S.C. § 552(b)(7); see supra Section III.C.1, the Court must now determine (1)
whether the withholdings constitute information related to “techniques and procedures[,]” 5
U.S.C. § 552(b)(7)(E); (2) whether they relate to “law enforcement investigations or
prosecutions[,]” id.; and (3) whether “disclosure could reasonably be expected to risk
circumvention of the law[,]” id.First, the defendant’s statement in its declaration that the information withheld
“describ[es] the guidelines, techniques and procedures used[,]” Christenson Decl. ¶ 75, in the
federal execution process context make it “facially clear that the withheld records satisfy this
first part of the exemption—that they be ‘techniques and procedures[,]’” CREW, 567 F. Supp. 3d
at 215 (finding that the withheld information constitutes “techniques and procedures” where the
defendant represented that the exemption was applied to withhold “the guidelines, techniques,
and procedures used to obtain [p]entobarbital” (internal citation omitted)). However, “these
‘techniques and procedures’ . . . have nothing to do with ‘law enforcement investigations or
prosecutions.’” Id.
35
Although the administration of punishment—and therefore, the federal execution
process—falls within the broader category of “law enforcement purposes” as part of Exemption
7’s threshold inquiry, see Mittleman, 76 F.3d at 1243 (concluding that the category of “law
enforcement purposes” “fairly includes . . . the detection and punishment of violations of law”),
it does not necessarily fall within the specific sub-categories of “investigations or prosecutions”
covered by Exemption 7(E), 5 U.S.C. § 552(b)(7)(E); see CREW, 567 F. Supp. 3d at 217 (“The
plain meaning of . . . Exemption 7(E) covers the investigation and prosecution phases of the
criminal process but not the punishment phase.”). The records withheld here, and the
defendant’s explanations for their withholdings pursuant to Exemption 7(E), do not identify any
investigatory or prosecutorial function. See generally Christenson Decl. ¶¶ 75–76. Although
internal Bureau procedures have been deemed properly withheld pursuant to Exemption 7(E),
these records have generally pertained to the internal policing of inmates. See, e.g., Pinson, 313
F. Supp. 3d at 117–18 (finding application of Exemption 7(E) appropriate where the withheld
records concerned “equipment to be used during the use of force technique, which staff members
were to perform what role during the use of force, and steps to be taken if the inmate remained
noncompliant[;]” “techniques for investigating criminal activity within a prison facility [and]
factual information developed using these underlying techniques[;]” and “investigative reports
from an intelligence database used by [Bureau] staff during law enforcement investigations”);
Harrison v. Fed. Bureau of Prisons, 611 F. Supp. 2d 54, 66–67 (D.D.C. 2009) (finding
application of Exemption 7(E) appropriate to withhold records indicating when and why an
investigator chose to investigate and listen to a prisoner’s telephone conversations); Allen v. Fed.
Bureau of Prisons, No. 16-cv-708 (CKK), 2019 WL 498804, at *7 (D.D.C. Feb. 8, 2019)
(finding application of Exemption 7(E) appropriate to withhold information regarding
36
investigative and interview techniques applied to inmates because “[i]nvestigative and interview
techniques qualify for protection under Exemption 7(E)”); but see Pinson, 202 F. Supp. 3d at 96,
103–04 (finding that “two memoranda detailing Special Administrative Measures [ ] imposed on
two different individuals in [Bureau] custody” were improperly withheld under Exemption 7(E)
because the defendant “ha[d] not explained the nexus between any information contained in the
memorand[a] and the possible disclosure of investigatory or prosecutorial techniques”).
Furthermore, although internal safety procedures and responses may be protected from
disclosure pursuant to Exemption 7(E), they must still involve some sort of investigatory
function. See, e.g., Pub. Emps. for Env’t Resp., 740 F.3d at 205 (finding that an agency’s
emergency action plan was protected under Exemption 7(E) because it “describe[d] how law
enforcement personnel might investigate the cause of a dam failure[,]” which “may constitute
‘law enforcement investigations’ when there is suspicion of criminal sabotage or terrorism”).
Here, the records withheld by the defendant all pertain to the federal execution process,
but do not on their face involve any investigatory or prosecutorial function, see Christenson
Decl., Ex. D (Vaughn Index) at 3–5, 7–10, even though they concern internal emergency
responses or safety protocol, see id., Ex. D (Vaughn Index) at 10 (withholding the “[n]umber and
type of weapons deployed/authorized to be used by external security and support staff related to
federal executions”). Furthermore, the defendant has failed to establish any clear nexus between
these records and an investigatory or prosecutorial function, instead stating that disclosure of the
records would “reveal specific law enforcement techniques and strategies to prepare for and
implement a federal execution, as well as expose [the Bureau’s] capabilities and vulnerabilities
in responding to emergencies or unrest related to carrying out a federal execution.” Christenson
Decl. ¶ 76; see id. (“If disclosed, this information is reasonably likely to interfere with [the
37
Bureau’s] ability to respond effectively to emergencies that arise during federal executions and
could interrupt and usurp [the Bureau’s] legal mandate to carry out the death penalty.”). Thus,
although the defendant describes the potential effects that could result from disclosure, it does
not establish how these records are investigatory or prosecutorial in nature. See CREW, 567 F.
Supp. 3d at 216–17 (“The [defendant] fails to grapple with the text of the statute and focuses
instead on whether disclosure creates a ‘risk of circumvention of the law,’ and whether the
procedures were described with sufficient specificity[.]” (internal citations omitted)); see also id.
at 215–16 (applying common usage of the terms “investigation” and “prosecution,” and
collecting cases). Therefore, because the techniques and procedures described by the defendant
“have nothing to do with ‘law enforcement investigations or prosecutions[,]’” id. at 215, the
Court concludes that the defendant improperly withheld these documents pursuant to Exemption
7(E). 11
4. Exemption 7(F)
The Court now turns to Exemption 7(F), which authorizes the withholding of information
compiled for law enforcement purposes that “could reasonably be expected to endanger the life
or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “Unlike Exemption 7(C), which
involves a balancing test, Exemption 7(F) ‘is an absolute ban against [the] disclosure of certain
information[,]’” Pinson, 236 F. Supp. 3d at 368 (citations omitted) (quoting Raulerson v.
Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002)), and, “‘within limits, courts defer to the
agency’s assessment of danger,’” id. (quoting Sanchez-Alaniz v. Fed. Bureau of Prisons, No. 13-
11
Because the Court has concluded that the defendant has failed to show that these records do not pertain to “law
enforcement investigations or prosecutions[,]” 5 U.S.C. § 552(b)(7)(E), within the meaning of Exemption 7(E), it
need not reach the last inquiry in the Exemption 7(E) context, namely, whether “disclosure could reasonably be
expected to risk circumvention of the law[,]” id. See CREW, 567 F. Supp. 3d at 217 (finding withholdings under
Exemption 7(E) improper without reaching the inquiry regarding whether “disclosure [could reasonably be expected
to] risk circumvention of the law”).
38
cv-1812 (EGS), 2016 WL 1222214, at *7 (D.D.C. Mar. 28, 2016)). Exemption 7(F)’s “language
is very broad” and “does not require that a particular kind of individual be at risk of harm;”
rather, “‘any individual’ will do.” Pub. Emps. for Env’t Resp., 740 F.3d at 205. “Moreover,
‘[d]isclosure need not definitely endanger life or physical safety; a reasonable expectation of
endangerment suffices.’” Pinson, 236 F. Supp. 3d at 368 (quoting Pub. Emps. for Env’t Resp.,
740 F.3d at 205) (alteration in original) (emphasis in original). Rather, “Exemption 7(F) does
not require concrete evidence in every case.” Pub. Emps. for Env’t Resp., 740 F.3d at 206. “The
terms ‘could’ and ‘expected’ in Exemption 7(F) evince congressional understanding of the many
potential threats posed by the release of sensitive agency information[,]” and “[a]n agency
therefore need only demonstrate that it reasonably estimated that sensitive information could be
misused for nefarious ends.” Id.
Here, the defendant has withheld records 8–10 and 13–19 pursuant to Exemption 7(F).
See Christenson Decl., Ex. D (Vaughn Index) at 3–10. Specifically, the defendant has withheld:
(1) the same information it withheld under Exemptions 6 and 7(C), including “identifying
information . . . that could reveal the identity of individuals involved in the federal execution
process, or of individuals or companies involved in the procurement of pentobarbital or related
critical services,” Def.’s Mem. at 21; see Christenson Decl. ¶ 83; id., Ex. D (Vaughn Index) at 4–
5, 7–10 (records 9–10, 13, and 15–19); (2) “the names of hotels where rooms were reserved for
[Bureau] staff, contractors, and witnesses associated with federal executions[,]” Def.’s Mem. at
21; see Christenson Decl. ¶ 87; id., Ex. D (Vaughn Index) at 4–5 (records 8 and 10); and (3)
“blueprints of the execution facility[,]” Def.’s Mem. at 22; see Christenson Decl. ¶ 82; id., Ex. D
(Vaughn Index) at 7 (record 14).
39
First, regarding the defendant’s withholdings of records containing identifying
information, the Court concludes that these records were properly withheld. Generally,
Exemption 7(F) “has 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[,]” and has also been properly applied by the Bureau “to protect
information concerning inmates, staff, and others[,]” which would “readily reveal the
[individual’s] identity.” Berard v. Fed. Bureau of Prisons, 209 F. Supp. 3d 167, 174 (D.D.C.
2016). Furthermore, the defendant has presented a viable “nexus between disclosure and
possible harm[.]” Antonelli v. Fed. Bureau of Prisons, 623 F. Supp. 2d 55, 58 (D.D.C. 2009).
Specifically, the defendant states that
disclosure of the names, personal identifiers, contact information, and hotel
accommodations of staff or third parties associated with implementing the death
penalty could subject them to being targeted for harassment, threats[,] or assault.
Specifically, the individuals whose identities would be disclosed could reasonably
be expected to be subjected to retaliation, threats, and/or harassment by persons in
the public including anti-death penalty advocates, or other actions at the direction
or discretion of the inmates who have received a sentence of death. While these
inmates may be incarcerated, this does not mean that they are incapable of
committing violent acts either directly against identified staff who may work in
the prison in which they are housed, or at their direction by persons in the
community.
...
[Furthermore, d]isclosure of individuals associated with the federal execution
process could also reasonably be expected to subject the identified individuals to
harassment or threats against their lives or physical safety by persons in the
public, including anti-death penalty advocates.
Christenson Decl. ¶¶ 84–85 (internal citations omitted); see supra Sections III.B, III.C.2
(describing safety risks of disclosure in the context of Exemptions 6 and 7(C)).
Based on these representations, the Court also concludes that the defendant properly
withheld “the names of hotels where rooms were reserved for [Bureau] staff, contractors, and
witnesses associated with federal executions.” Def.’s Mem. at 21. The defendant has articulated
40
“a reasonable expectation of endangerment[,]” Pub. Emps. for Env’t Resp., 740 F.3d at 205, in
stating that “[i]dentifying these hotels could reasonably be expected to endanger individuals
associated with the execution process by ‘providing an opportunity for ill-intentioned individuals
opposed to the death penalty to stake out a particular hotel’ for purposes of harassment or other
nefarious acts[,]” Def.’s Mem. at 22 (quoting Christenson Decl. ¶ 87). Thus, although the harm
that could result from this particular type of harassment is not entirely “definite[] [,]” Pub. Emps.
for Env’t Resp., 740 F.3d at 205, or “concrete[,]” id. at 206, it also is not “unsupported
speculation[,]” Pls.’ Mem. at 39 (quoting Long v. Dep’t of Just., 450 F. Supp. 2d 42, 80 (D.D.C.
2006)). Rather, “[t]he terms ‘could’ and ‘expected’ in Exemption 7(F)” indicate that the Bureau
“need only demonstrate that it reasonably estimated that sensitive information could be misused
for nefarious ends[,]” Pub. Emps. for Env’t Resp., 740 F.3d at 206, which the Court concludes it
has done here.
Finally, the Court concludes that the defendant properly withheld “blueprints of the
execution facility[,]” Def.’s Mem. at 22, pursuant to Exemption 7(F). “[I]n Exemption 7(F)
cases involving documents relating to critical infrastructure, ‘it is not difficult to show that
disclosure may endanger the life or physical safety of any individual[,]’” Pub. Emps. for Env’t
Resp., 740 F.3d at 205–06 (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 582 (2011)
(Alito, J., concurring)) (internal quotations omitted), and “[t]herefore, assuming an agency has
met Exemption 7’s threshold test, it will ordinarily be able to satisfy Exemption 7(F) for
documents relating to critical infrastructure, such as blueprints, maps, and emergency plans[,]”
id. at 206. Here, the defendant states that
[b]ecause of the nature of the blueprints and the level of detail included therein,
releasing any portion of the blueprints of that facility provides opportunity to
probe for vulnerabilities to breach security of the facility, for example by
identifying locations for concealing individuals and/or contraband tools including
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in or around the ventilation system thereby placing staff, inmates, outside law
enforcement officers and witnesses, in both the Execution Facility and the entire
Correctional Complex, in jeopardy and significant risk of harm.
Christenson Decl. ¶ 82. Thus, the Court finds that the defendant has articulated a “nexus
between disclosure and possible harm[,]” Antonelli, 623 F. Supp. 2d at 58, especially given the
Circuit’s regard for critical infrastructure information as inherently sensitive and clearly subject
to the protections of Exemption 7(F), see Pub. Emps. for Env’t Resp., 740 F.3d at 205–06.
Accordingly, having “‘defer[red] to the [Bureau’s] assessment of danger[,]’” Pinson, 236 F.
Supp. 3d at 368 (quoting Sanchez-Alaniz, 2016 WL 1222214, at *7), the Court concludes that
the defendant properly withheld records 8–10 and 13–19 pursuant to Exemption 7(F).
D. Segregability
Finally, the Court must address whether the Bureau provided the plaintiffs with all
reasonably segregable information. Under the FOIA, “[a]ny reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of the portions which
are exempt under this subsection.” 5 U.S.C. § 552(b). “[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) (Walton, J.) (emphasis omitted). Therefore, because “[t]he focus of the
FOIA is information, not documents, [ ] an agency cannot justify withholding an entire document
simply by showing that it contains some exempt material.” Mead Data Ctr., Inc. v. U.S. Dep’t of
Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “A district court’s determination that agency
records are exempt from disclosure under the FOIA is subject to remand if the court does not
also make specific findings on the question of segregability[,]” Jud. Watch, Inc. v. U.S. Dep’t of
Def., 245 F. Supp. 3d 19, 36 (D.D.C. 2017) (Walton, J.), “even if the requester did not raise the
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issue of segregability before the [C]ourt[,]” Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1116 (D.C. Cir. 2007).
To accord the Court the ability to appropriately assess segregability, it “must be provided
with a ‘relatively detailed description’ of the withheld material.” Jud. Watch, Inc., 245 F. Supp.
3d at 36 (citing Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993)). To
comply with this requirement, “[a]gencies must review the withheld documents and determine
whether, absent the exempted material, the resulting document would still be comprehensible, or
whether ‘the result would be an essentially meaningless set of words and phrases.’” Id. at 36
(citing Mead Data Ctr., 566 F.2d at 261). “[T]o show that an entire document cannot be
produced[,]” an agency must conduct “[a] ‘document-by-document’ review and [provide] a
declaration that each piece of information that is withheld is not reasonably segregable[.]” Id.(citing Juarez v. U.S. Dep’t of Just., 518 F.3d 54, 61 (D.C. Cir. 2008)).
Although “[a]gencies are entitled to a presumption that they complied with the obligation
to disclose reasonably segregable material[,]” Ecological Rts. Found. v. U.S. Env’t Protection
Agency, 541 F. Supp. 3d 34, 66 (D.D.C. 2021) (quoting Sussman, 494 F.3d at 1117), an “agency
must provide a ‘detailed justification’ for [the exempt material’s] non-segregability[,]” id.(alterations in original) (quoting Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C.
Cir. 2002)). “Affidavits attesting to the agency’s ‘line-by-line review of each document withheld
in full’ and the agency’s determination ‘that no documents contained releasable information
which could be reasonably segregated from the nonreleasable portions,’ in conjunction with a
Vaughn index describing the withheld record, suffice.” Id. (quoting Johnson, 310 F.3d at 776).
The Court concludes that the Bureau has adequately demonstrated that it “disclose[d all]
reasonably segregable material.” Sussman, 494 F.3d at 1117. The Bureau represents that it
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“conducted a page-by-page and line-by-line review of each responsive record to achieve
maximum disclosure consistent with the access provisions of the FOIA and the FOIA statutory
exemptions[,]” and “[e]very effort was made to provide [the plaintiffs] with all reasonably
segregable, nonexempt information in the responsive records.” Christenson Decl. ¶ 21.
Otherwise, “the [Bureau] withheld the entirety of those records in which exempt information was
inextricably intertwined with non-exempt information.” Id. ¶¶ 40, 49, 70, 73, 80, 88. Based
upon these representations, as well as its review of the Bureau’s declarations and the Bureau’s
briefs, the Court agrees that the Bureau only withheld information that is exempt from disclosure
or material “inextricably intertwined with exempt portions.” Mead Data Cent., Inc., 566 F.2d at
260; see Porup v. Cent. Intel. Agency, 997 F.3d 1224, 1239 (D.C. Cir. 2021) (concluding that
“the [a]gency [ ] carried its burden in demonstrating that it released all segregable portions of the
responsive documents” where it gave sworn statements that “attested that the [a]gency had
‘conducted a page-by-page and line-by-line review, and released all reasonably segregable, non-
exempt information’ within responsive records . . . [and it] determined that no additional
information may be released without divulging information that [ ] falls within the scope of one
or more FOIA exemptions” (internal citations omitted)).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny in part
the defendant’s motion for summary judgment, and grant in part and deny in part the plaintiffs’
cross-motion for summary judgment. The defendant’s motion is granted with respect to the
defendant’s withholdings pursuant to Exemptions 4, 6, 7(C), and 7(F), and denied in all other
respects. The plaintiffs’ motion is granted to the extent it seeks disclosure of the information
withheld pursuant to Exemption 7(E), and denied in all other respects.
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SO ORDERED this 28th day of November, 2022. 12
REGGIE B. WALTON
United States District Judge
12
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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