Landers v. Federal Bureau of Investigation

Filing 24

MEMORANDUM OPINION and ORDER that defendant must produce, for in camera review, all of the documents it has withheld in response to plaintiff's FOIA requests before the close of businesson 8/14/2014, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/24/204. (AHI)

FILED
2014 Jul-24 AM 09:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MARK S. LANDERS,
Plaintiff,
vs.
UNITED STATES DEPARTMENT
OF JUSTICE,
Defendant.

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Civil Action No. CV-12-S-4045-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Mark S. Landers, filed a “Complaint for Disclosure of Agency
Documents” on December 6, 2012, asking that the Federal Bureau of Investigation
(“FBI”) be required to disclose certain information pursuant to the Freedom of
Information Act, 5 U.S.C. § 552.1 The United States Department of Justice later was
substituted, by consent of the parties, for the FBI.2 The case currently is before the
court on cross-motions for summary judgment.3 Upon consideration of the motions,
briefs, and evidence, the court concludes that it should conduct an in camera review

1

Doc. no. 1 (Complaint for Disclosure of Agency Documents). The original complaint was
amended on June 10, 2013, to make more specific allegations about which documents were allegedly
being withheld. Doc. no. 12 (Amended Complaint).
2

See doc. no. 13 (Order substituting the United States Department of Justice for the FBI as
defendant).
3

Doc. no. 16 (plaintiff’s motion for summary judgment); doc. no. 17 (defendant’s motion
for summary judgment).

of the disputed documents before rendering a final decision on the motions for
summary judgment.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant 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). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
2

judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
“Cross motions for summary judgment do not change the
standard.” Latin Am. Music Co. v. Archdiocese of San Juan of the
Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007).
“‘Cross motions for summary judgment are to be treated separately; the
denial of one does not require the grant of another.’” Christian Heritage
Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030
(10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431,
433 (10th Cir. 1979)). “Even where the parties file cross motions
pursuant to Rule 56, summary judgment is inappropriate if disputes
remain as to material facts.” Id.; accord Monumental Paving &
Excavating, Inc. v. Pa. Mfrs.’ Ass’n Ins. Co., 176 F.3d 794, 797 (4th Cir.
1999) (“When considering motions from both parties for summary
judgment, the court applies the same standard of review and so may not
resolve genuine issues of material fact. Instead, [the court must]
consider and rule upon each party’s motion separately and determine
whether summary judgment is appropriate as to each under the Rule 56
standard.”) (citations omitted).
Ernie Haire Ford, Inc. v. Universal Underwriters Insurance Co., 541 F. Supp. 2d
1295, 1297-98 (M.D. Fla. 2008) (alteration in original). See also American Bankers
3

Insurance Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005) (“This court
reviews the district court’s disposition of cross-motions for summary judgment de
novo, applying the same legal standards used by the district court, viewing the
evidence and all factual inferences therefrom in the light most favorable to the
non-movant, and resolving all reasonable doubts about the facts in favor of the
non-moving party.”).
II. SUMMARY OF FACTS
Plaintiff has offered no actual evidence in support of his claims. See Fed. R.
Civ. P. 56(a) (“A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials . . . .”). His original and
amended complaints were not verified. The only evidence he cites in his briefs is a
“Request for Discovery and Inspection” his attorney filed on November 20, 1996,
during the state court criminal proceedings.4

Plaintiff repeatedly attempts to

characterize that document as a FOIA request directed to the FBI, but that
characterization clearly is incorrect. The first sentence of the document reads:
4

Doc. no. 16, at Exhibit 1 (“Request for Discovery and Inspection”).
4

“COMES NOW the Defendant in the above-styled cause and requests the State to
produce the following documents and/or things . . . .”5 Because the document does
not relate to a FOIA request, it is largely irrelevant to the claims in this case. The
remainder of plaintiff’s proposed facts consist of conclusory statements without any
evidentiary support.
Nevertheless, to the extent defendant has admitted some of plaintiff’s proposed
facts, the court will consider them. Otherwise, plaintiff’s conclusory statements are
insufficient for consideration on summary judgment.
A.

FBI Record Storage and Search Procedures
The FBI uses the Central Record System (“CRS”) to maintain information it

has acquired during the course of fulfilling its law enforcement responsibilities. The
CRS uses “a numerical sequence of files, called FBI ‘classifications,’ which are
broken down according to subject matter. The subject matter of a file may relate to
an individual, organization, company, publication, activity or foreign intelligence
matter (or program).”6 Records may be stored at FBI headquarters, or at particular
FBI field offices.7 Records stored in the CRS can be searched electronically by using

5

Id. at 1 (emphasis supplied).

6

Defendant’s evidentiary submission, Exhibit 1 (Affidavit of David M. Hardy) ¶ 28.

7

Id.
5

a computerized system called the Automated Case Support System (“ACS”).8
The ACS searches the “General Indices” of the CRS, which “consist of index
cards on various subject matters” arranged in alphabetical order.9 The entries in the
General Indices fall into two categories:
(a) A “main” entry — A “main” entry, or “main” file, carries the
name corresponding with a subject of a file contained in the CRS.
(b) A “reference” entry — A “reference” entry, sometimes called
“cross-references,” are [sic] generally only a mere mention or reference
to an individual, organization, or other subject matter, contained in a
document located in another “main” file on a different subject matter.10
The FBI’s current policy is to search for and identify only potentially responsive
“main” files during the initial administrative stage of FOIA and Privacy Act requests.
The FBI will search for and identify “cross-reference” files only “if there is sufficient
information to conduct such a search.”11
B.

Plaintiff’s Information Requests and the FBI’s Responses
Plaintiff, Mark Landers, was convicted of murdering his father on May 9, 1997,

and he currently is serving a life sentence without the possibility of parole.12 On May
8

Id. ¶¶ 28-29.

9

Id. ¶ 30.

10

Id.

11

Id. ¶ 34.

12

Hardy Affidavit ¶ 6. See also doc. no. 16 (Plaintiff’s Motion for Summary Judgment), at
1 (Plaintiff’s Statement of Undisputed Facts ¶¶ 1-2); doc. no. 20 (Defendant’s Opposition to
Plaintiff’s Motion for Summary Judgment), at 1 (Defendant’s Response to Plaintiff’s Statement of
6

22, 2007, he sent a letter and Freedom of Information/Privacy Act Request to the FBI,
stating: “I am requesting a copy of my entire F.B.I. file to include all records,
documents and information you have in your file pertaining to me or mentioning my
name.”13 By letter dated September 12, 2007, the FBI acknowledged that it had
received plaintiff’s request and assigned it a file number. The FBI informed plaintiff
that it was “searching the indices to our central records system for the Birmingham
Field Office for the information you requested, and will inform you of the results as
soon as possible.”14 The FBI searched the CRS to identify all potentially responsive
“main” files in the Birmingham and Montgomery Field Offices for “Mark Samuel
Landers,” “Mark S. Landers,” “Mark Landers,” “M. Samuel Landers,” “M.S.
Landers,” and “Samuel Landers.”

The search did not reveal any responsive

documents.15 Therefore, in another letter dated October 2, 2007, the FBI stated: “To
promptly respond to requests, we concentrate on identifying main files in the central
records system for the Birmingham and Mobile Field Offices. No records responsive
to your FOIPA [i.e., “Freedom of Information-Privacy Acts”] request were located
by a search of the automated and manual indices.”16 The letter also informed plaintiff
Undisputed Material Facts) ¶¶ 1-2 (admitting Plaintiff’s Proposed Facts 1-2).
13

Hardy Affidavit ¶ 8 and Exhibit A.

14

Id. ¶ 9 and Exhibit B.

15

Id. ¶ 35.

16

Id. ¶ 10 and Exhibit C (alteration supplied).
7

of his right to file an appeal with the Office of Information and Privacy at the United
States Department of Justice within sixty days.17
Plaintiff appealed by sending a letter to the Office of Information and Privacy
on October 10, 2007. He included “copies of sworn testimony from Alabama Bureau
of Investigations Officer William Rhengness,” which presumably originated from the
state court criminal proceedings.18 During his testimony, Officer Rhengness referred
to three FBI agents with whom he had worked during the investigation into the death
of plaintiff’s father. He also referred to a report in plaintiff’s “case package” that was
never provided to plaintiff or his criminal defense attorney. Plaintiff asked the Office
of Information and Privacy to “run a thorough check for this missing report.”19 The
Associate Director of Office of Information and Privacy responded to plaintiff’s
appeal with a letter dated November 5, 2007, stating, in relevant part:
After carefully considering your appeal, and as a result of
discussions between the FBI and a member of my staff, I am remanding
your request for a further search. If the FBI locates responsive records
through this search, it will send any and all releasable portions of them
to you directly, subject to any applicable fees. You may appeal any
future adverse determination made by the FBI.
If you are dissatisfied with my action on your appeal, you may
seek judicial review in accordance with 5 U.S.C. § 552(a)(4)(B).
17

Id.

18

Id. ¶ 11 and Exhibit D.

19

Hardy Affidavit ¶ 11 and Exhibit D.
8

After the matter was remanded to the FBI, it searched for “main” files in the
FBI Headquarters database containing the same six potential variations of plaintiff’s
name that had previously been searched.20 Plaintiff received a letter from the FBI
dated July 3, 2008, informing him that two pages of information responsive to his
request had been located, but that the pages would not be produced because they were
“exempt in their entirety pursuant to Title 5, United States Code, Section 552 and
Section 552(a), subsections (b)(2), (b)(6), (b)(7)(C), (b)(7)(E) and (j)(2) of the
Freedom of Information and Privacy Act.”21 The FBI again informed plaintiff of his
right to file an appeal within sixty days.22
Plaintiff submitted an appeal to the Office of Information and Privacy on July
31, 2008.23 The Associate Director of the Office of Information and Privacy
responded to plaintiff’s appeal on November 18, 2008, stating:
After carefully considering your appeal, I am affirming, on partly
modified grounds, the FBI’s action on your request. The records
responsive to your request are exempt from the access provision of the
Privacy Act of 1974 pursuant to 5 U.S.C. § 552a(j)(2). See 28 C.F.R. §
16.96 (2008). Because these records are not available to you under the
Privacy Act, your request has been reviewed under the Freedom of
Information Act in order to afford you the greatest possible access to
them.
20

Id. ¶ 37.

21

Id. ¶ 14 and Exhibit G.

22

Id.

23

Id. ¶ 15 and Exhibit H.
9

The FBI properly withheld this information in its entirety because
it is protected from disclosure under the FOIA pursuant to 5 U.S.C. §
552(b)(7)(E). This provision concerns records or information compiled
for law enforcement purposes[,] the release of which would disclose
techniques and procedures for law enforcement investigations or
prosecutions.24
Plaintiff’s next communication with the FBI occurred on June 16, 2009, when
he wrote to request a “Vaughn Index” with regard to the two pages the FBI claimed
were exempt from production.25 A Vaughn Index is somewhat akin to a privilege log.
As the Supreme Court has explained:
“Vaughn Index” is a term derived from Vaughn v. Rosen, 157 U.S.
App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.
Ct. 1564, 39 L. Ed. 2d 873 (1974). The “Index” usually consists of a
detailed affidavit, the purpose of which is to “permit the court system
effectively and efficiently to evaluate the factual nature of disputed
information.” 157 U.S. App. D.C., at 346, 484 F.2d, at 826.
John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n.2 (1989). There is no
indication in the record that the FBI ever responded to plaintiff’s request for a
Vaughn Index.
Plaintiff’s next communication with the FBI occurred on June 1, 2012, when
his attorney sent the FBI a formal FOIA request stating, in pertinent part:
This is a request under the Freedom of Information Act. I am
requesting all F.B.I. files, records, and documentation relating to my
24

Id. ¶ 17 and Exhibit J (alteration supplied).

25

Hardy Affidavit ¶ 18 and Exhibit K.
10

client, Mark Samuel Landers[,] or mentioning his name. I also request
that a “Vaughn Index” concerning any such materials related to Mr.
Landers be provided. Please search the F.B.I.’s indices to the Central
Records System for the information responsive to this request related to
Mr. Landers.26
The FBI responded to plaintiff’s attorney on June 11, 2012, with a letter stating that
plaintiff’s request had been received for processing, and that the FBI would search
the indices to its Central Records System for information responsive to the request.27
The FBI then sent plaintiff’s attorney a letter that was undated, but was mailed on
June 28, 2012, stating that a new search of the indices to the Central Records System
had been conducted, but it did not produce any additional records responsive to
plaintiff’s request. The FBI also stated that it had reviewed the responsive material
located in 2008, and confirmed that the material remained exempt from production
for the reasons previously stated. Plaintiff was once again informed of his right to
appeal within sixty days.28
Plaintiff’s attorney submitted an appeal to the Office of Information Policy on
August 9, 2012.29 The appeal letter stated:

26

Hardy Affidavit ¶ 19 and Exhibit L (emphasis in original) (alteration supplied).

27

Id. ¶ 20 and Exhibit M.

28

Id. ¶ 21 and Exhibit N.

29

The court can discern no explanation from the record whether the “Office of Information
and Privacy” and the “Office of Information Policy” are the same office and, if they are not, what
is the difference between the two.
11

I am writing to appeal the FBI’s denial of my above referenced
FOIPA request relating to my client, Mark Landers. The FBI has
confirmed that they do have records relating to my client, but that such
records will not be produced. It appears that your office has previously
upheld this decision under 5 U.S.C. § 552(b)(7)(E).
My client is currently serving a life without parole sentence in
Alabama for murder. It is believed that the records in the FBI’s
possession may contain exculpatory or otherwise beneficial information
in this regard. Accordingly, it is of great interest to my client to receive
some type of meaningful information concerning these records.
As I’m sure you know, it is quite a difficult task to appeal a denial
based on 5 U.S.C. § 552(b)(7)(E) when absolutely no information has
been given about the records besides the fact that they exist. However,
given the common and vast distribution of investigative materials by the
Department of Justice through the courts’ discovery process, it is
difficult to understand how the release of two (2) pages of FBI
Documents related to Mr. Landers “could reasonably be expected to risk
circumvention of the law” as required by the relevant statute. As such,
my client requests a re-review of these documents to determine if such
a danger truly exists. We also ask that your office consider minimizing
any fears through redaction of the documents before they are released.
Additionally, we request an adequate and meaningful description of any
documents withheld or redacted, and the justification for doing so.30
The Office of Information Policy responded to plaintiff’s appeal by letter dated
September 21, 2012, informing plaintiff that the denial of his request was affirmed
under 5 U.S.C. § 552(b)(7)(E), which protects records or information compiled for
law enforcement purposes. Plaintiff’s request for an itemization and justification for
each item withheld was denied, as plaintiff was “not entitled to such a listing at the
30

Id. ¶ 22 and Exhibit O.
12

administrative stage of processing FOIA requests and appeals.”31
The next action occurred on December 6, 2012, when plaintiff filed his
complaint in this case.32 The FBI conducted a “cross-reference” search on February
8, 2013, and located one cross-reference concerning plaintiff in a ViCAP file.33 Upon
further investigation, the FBI determined that the file actually was a “main” file, and
that it had been erroneously indexed as a cross-reference.34 The FBI also determined
that the two responsive pages it previously located actually were only a ViCAP
summary printout and, after consulting with ViCAP, the FBI was able to locate 23
additional responsive pages.35
Consequently, the FBI mailed plaintiff a letter on March 27, 2013, stating, in
pertinent part:
31

Id. ¶ 24 and Exhibit Q.

32

Doc. no. 1 (Complaint).

33

ViCAP is an acronym for “Violent Criminal Apprehension Program.”

ViCAP maintains a large investigative repository of information relating to major
violent crimes, including homicide. ViCAP’s mission is to operate and maintain the
ViCAP Web National Crime Database. This is a nationwide investigative repository
of violent crimes. ViCAP provides crime analysis support to investigative and
analytical components of crimes. ViCAP provides crime analysis support to
investigative and analytical components of local, state, and federal law enforcement
agencies by collecting, assessing, collating, and analyzing case information. They
also provide investigative leads and recommendations, develop and produce
analytical products, and facilitate multi-agency coordination.
Hardy Affidavit ¶ 7.
34

Id. ¶ 39.

35

Id. ¶ 40.
13

In addition to the original search conducted in connection with
your request, the FBI conducted another search including a search of
cross-reference files. This additional search identified Mobile Field
Office file 252B-MO-36103 and file IR252A-C936. The responsive
records from these files have been processed and information not subject
to a FOIA exemption is being released to you. Of the 74 pages
processed, 15 pages were withheld in part per a FOIA exemption, 35
pages were withheld in full per a FOIA exemption, 9 pages were
withheld as duplicates, and 15 pages were released in full.
The enclosed documents are exempt from disclosure in their
entirety pursuant to the Privacy Act, Title 5, United States Code, Section
552(a), subsection (j)(2). However, these records have been processed
pursuant to the Freedom of Information Act, Title 5, United States Code,
Section 552, thereby affording you the greatest degree of access
authorized by both laws.
Plaintiff also was informed that he had the right to appeal to the Office of Information
Policy within sixty days.36
In another letter dated June 20, 2013, the FBI informed plaintiff as follows:
Following further consultation with subject matter experts
working within the FBI’s Violent Criminal Apprehension Program
(“VICAP”), the FBI has determined that additional information may be
released to you. Enclosed are four pages which were initially removed
in full per FOIA exemptions as listed in the FBI’s March 27, 2013
release letter. The pages were marked FBI Bates Pages Landers-50,
Landers-51, Landers-73 and Landers-74. Two of these pages are now
being released in part (Landers-50 and Landers-73) with applicable
FOIA exemptions asserted and two pages are being released in full
(Landers-51 and Landers-74).37

36

Id. ¶ 26 and Exhibit R, at 2.

37

Id. ¶ 27 and Exhibit S, at 2.
14

The letter indicated on a previous page that the FBI was relying on the exemptions
found in 5 U.S.C. §§ 552(b)(6), 552(b)(7)(C), and 552a(j)(2).38
III. DISCUSSION
The Freedom of Information Act (“FOIA”) requires federal agencies to make
certain records and other information available to the public upon request. See
generally 5 U.S.C. § 552(a). “The purpose of FOIA ‘is to encourage public
disclosure of information so citizens may understand what their government is
doing.’” Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235,
1244 (11th Cir. 2008) (quoting Office of Capital Collateral Counsel, Northern
Region of Fla. v. United States Department of Justice, 331 F.3d 799, 802 (11th Cir.
2003)). As such, FOIA is “a broad disclosure statute which evidences a ‘strong
public policy in favor of public access to information in the possession of federal
agencies.’” Cochran v. United States, 770 F.2d 949, 954 (11th Cir. 1985) (citations
omitted).
Even so, “‘Congress realized that legitimate governmental and private interests
could be harmed by release of certain types of information,’ . . . and provided for
certain exceptions to the rule of broad disclosure.” News-Press v. United States
Department of Homeland Security, 489 F.3d 1173, 1191 (11th Cir. 2007) (quoting
38

Id., Exhibit S, at 1.
15

Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621 (1982)). In keeping
with the policy behind the Act, the exceptions are construed narrowly, and the
government bears the burden of proving that a requested document is exempted.
Moye, O’Brien, O’Rourke, Hogan, & Pickert v. National R.R. Passenger Corp., 376
F.3d 1270, 1277 (11th Cir. 2004) (citations omitted). The government can satisfy that
burden by producing affidavits or a Vaughn Index, or by submitting the withheld
documents to the court for in camera review. Miccosukee Tribe, 516 F.3d at 1258.
Any affidavits must “provide an adequate factual basis for the district court to render
a decision.” Id. (citing Miscavige v. I.R.S., 2 F.3d 366, 368 (11th Cir. 1993)). If the
government relies on a Vaughn index, it must contain “‘a relatively detailed
justification, specifically identifying the reasons why a particular exemption is
relevant and correlating those claims with the particular part of a withheld document
to which they apply.’” Id. (quoting Mead Data Central, Inc. v. U.S. Department of Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977), and also citing Dellums v. Powell, 642
F.2d 1351, 1361 (D.C. Cir. 1980)).
If an individual believes an agency has wrongly withheld information or
records, he can file a complaint with a federal district court, which “has jurisdiction
to enjoin the agency from withholding agency records and to order the production of
any agency records improperly withheld from the complainant.” 5 U.S.C. §
16

552(a)(4)(B). “In such a case the court shall determine the matter de novo, and may
examine the contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the exemptions set forth in
subsection (b) of this section, and the burden is on the agency to sustain its action.”
Id.
Defendant relies upon FOIA exemptions 6, 7(C), 7(D), and 7(E) to support its
withholding and redaction of certain pages requested by plaintiff. Exemption 6
allows the government to withhold “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 7 allows the government to withhold the
following items, among others:
records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information . . . (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 reasonably be
expected to risk circumvention of the law . . . .
17

5 U.S.C. § 552(b)(7). Pursuant to Exemptions 6 and 7(c), the FBI states that it has
withheld the names and/or other identifying information for “FBI special agents and
support personnel, third parties who provided information to the FBI, third parties
merely mentioned in the records, and state and/or local law enforcement officers.”39
The FBI also states that it has asserted Exemption 7(D) “to protect confidential
sources and confidential source information.”40 Finally, the FBI states that it has
asserted Exemption 7(E) “to protect interviewing methods, local law enforcement
agency documents, behavioral analysis questions, and sensitive ViCAP
information.”41
As evidentiary support for the application of those exemptions, defendant
offers the affidavit of David M. Hardy, the Section Chief of the FBI’s
Record/Information Dissemination Section, who spends thirty-six paragraphs, spread
over approximately seventeen pages, explaining the reasons for withholding
documents pursuant to each exemption. Defendant also provides copies of all the
documents it did produce to plaintiff,42 and a Vaughn Index detailing, for each
category of information requested by plaintiff: the total number of pages; the date of
39

Doc. no. 18 (Memorandum in Support of Defendant’s Motion for Summary Judgment),

40

Id. at 25-26.

41

Id. at 26.

42

Hardy Affidavit, at Exhibit U.

at 22.

18

creation; any applicable exemption and an explanation of its application; the FBI’s
decision on the request; and the corresponding paragraphs of Hardy’s affidavit.43
Upon review of all the information currently in the record, the court is inclined
to conclude that defendant has satisfied its burden of proving it properly withheld
and/or redacted portions of the requested information pursuant to the cited
exemptions. Even so, out of an abundance of caution, and, in keeping with the
“‘strong public policy in favor of public access to information in the possession of
federal agencies,’” the court will conduct an in camera review of the contested
documents to determine whether they fall under any of the applicable exemptions.
Cochran, 770 F.2d at 954.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, defendant is ORDERED to produce, for in
camera review, all of the documents it has withheld in response to plaintiff’s FOIA
requests. Paper copies of those documents must be organized in a three-ring binder
and submitted to the chambers of the undersigned on or before the close of business
on August 14, 2014.

43

Id. at Exhibit T.
19

DONE this 24th day of July, 2014.

______________________________
United States District Judge

20