CANNING v. DOJ
Filing
106
MEMORANDUM OPINION to the Motion and Cross-Motion for Summary Judgment. Signed by Judge Gladys Kessler on 7/13/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE CANNING,
Civil Action No. 01-2215{GK)
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Pro Se Plaintiff George Canning
action against Defendant,
("Plaintiff"),
brings this
Federal Bureau of Investigation ("FBI"
or "Defendant"), under the Freedom of Information Act ("FOIA"), 5
U.S.C.
§
552. This matter is now before the Court on Defendant's
Motion· for Summary Judgment on Behalf of the Federal Bureau of
Investigation
Plaintiff's
Documents
("Def. 's
Cross-Motion
for
Mot.")
Partial
[Dkt.
Summary
52]
and
Judgment
and
No.
Supplemental Vaughn Indices ("Pl.'s Mot.") [Dkt. No. 69].
Upon consideration of the Motions, Oppositions, Replies, the
entire
record
herein,
and
for
the
reasons
discussed
below,
Defendant's Motion for Summary Judgment is granted in part and
denied in part and Plaintiff's Cross-Motion is granted in part and denied in part.
-1-
,-
BACKGROUND 1
I.
A. FOIA Requests
On October
12,
1995,
Mr.
Canning
submitted separate
FOIA
requests to the FBI Headquarters ("FBI HQ") , the FBI' s Boston Field
Office,
Field
Philadelphia Field Office,
Office.
Mr.
Canning's
and Washington Metropolitan
requests
related
to
the
FBI's
investigation and prosecution of the conspiracy to kidnap Lewis
duPont Smith and the investigation of Eastern States Distributors
Inc. of Upper Darby,
("ESDI") Pennsylvania, during the time frame
1991 through 1992.
In his requests , Mr. Canning seeks: ( i) al 1 records concerning
the FBI's investigation of ESDI from 1991 to 1992; (ii) all records
concerning court-ordered Title
III wiretaps. of telephones used
during the ESDI investigation;
(iii)
all records concerning the
involvement of individuals, agencies, or organizations other than
the FBI and the U.S. Attorney's Office for the Eastern District of
Virginia;
locations,
and
(iv)
a complete search of all filing systems and
including Electronic Surveillance
1
( "ELSUR")
indices.
Pursuant to Local Civil Rule 7(h), "[i]n determining a motion for summary
judgment, the Court may assume that facts identified by the moving party in
its statement of material facts are admitted, unless such a fact is
qmtroverted in the statement of genuine issues filed in opposition to the
motion." Consequently, unless otherwise noted, the ·Court states only
uncontroverted facts takeri from the parties' Sta.tements of Material Facts.
-2-
Mr. Canning attached a privacy waiver from Lewis duPont Smith to
each of his requests.
Upon receipt of Mr. Canning's FOIA requests, the FBI processed
and released responsive documents to Mr. Canning. The FBI asserted
FOIA Exemptions 2,
3,
6,
7(C)
and 7(D)
to
justify withholding
certain documents from production.
The FBI also referred three
documents
to
for United States Attorneys
( "EOUSA")
and two documents to the Criminal Division for review
the
Executive Office
and direct response to Mr. Canning. The Criminal Di vision and EOUSA
informed Mr.
Canning
that
recognized FOIA exemptions,
documents,
intra-agency
concerning
agreement,
were
withholding,
pursuant
to
certain material from the referred
including the names and addresses of third parties of
investigative interest,
1992
they
the names of FBI Special Agents,
memorandum
(with
subsequent
revisions)
the
parties'
the FBI prepared, with Mr. Canning's input,
a sample
Title
III
wiretap
intercepts.
Per
and a
Vaughn Index in lieu of an exhaustive account of the withheld
material.
B. Procedural History
On October 26,
See Compl.
2001~
[Dkt. No.
Mr. Canning brought suit in this Court.
l] . On January 28,
2005,
the FBI filed its
pending Motion for Summary Judgment. On May 27, 2005, Mr. Canning
-3-
filed
his
Cross-Motion
for
Partial
Summary
Judgment
and
for
Supplemental Vaughn Indices. Both motions have been fully briefed
and are ripe for review. See Dkt. Nos. 52, 68, 69, 79, 81.
On March 20,
Directing the
updates
to
disclosures.
FBI
2009,
Mr. Canning filed a Motion for an Order
to Re-Review its
the· U.S.
See Pl.' s
Attorney
Mot.
FOIA Releases
General's
for Order
in light of
guidelines
[Dkt No.
88] .
for
FOIA
The Court
granted Mr. Canning's corollary request to stay the case pending
the completion of the FBI's re-review. Id. On December 14, 2009,
the FBI notified the Court that it had completed its re-review of
over 5,000 responsive pages and released additional material to
Mr. Canning. See Def.'s Status Report [Dkt No. 94].
II.
STANDARD OF REVIEW
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 {D.D.C.
2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. ·supp.
2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary
judgment in favor of an agency's claim that it has fully discharged
its
disclosure
obligations
under
FOIA
is
well-established ....
[T]he agency bears the burden of showing that there is no genuine
issue of material fact, even when the underlying facts are viewed
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in ,the light most favorable to the requester." Weisberg v. U.S.
Dep't of Justice,
705 F.2d 1344, 1350
(D.C. Cir. 1983); see also
Fed. R. Civ. P. 56(c).
The court may award summary judgment solely on the basis of
"[a] reasonably detailed affidavit, setting forth the search terms
and the
type
of
search performed,
and averring that all files
likely to contain responsive materials
(if
such records exist)
were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
If the agency withholds any material on the basis of statutory
exemptions,
the agency's affidavits must also
(1)
"describe the
documents and the justifications for nondisclosure with reasonably
specific detail;"
(2 )" "demonstrate that the information withheld
logically falls within the claimed exemption;" and must not be (3)
"controverted by either contrary evidence in the record nor by
evidence of agency bad faith." Military Audit Project v.
Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations
are accorded "a presumption of good faith, which cannot be rebutted
by
'purely
speculative
discoverability of
claims
about
other documents.'"
the
existence
SafeCard Servs.,
S.E.C., 926 F.2d.1197, 1200 (D.C. Cir. 1991)
Inc.
v.
(quoting Ground Saucer
Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981)).
-5-
and
III. ANALYSIS
Mr. Canning does not challenge the sufficiency of the FBI's
search for responsive records. Instead, Mr. Canning contends:
(1)
that the FBI has improperly withheld and redacted documents under
various FOIA exemptions;
release
all
requests;
non-exempt
and
( 3)
the
(2) the FBI has failed to segregate and
information
Court
responsive
should order
the
to
FBI
his
to
FOIA
prepare
supplemental Vaughn Indices. The Court will consider each of Mr.
Canning's arguments in turn.
A. Contested Exemptions2
1.
Exemption 3
FOIA Exemption 3 precludes release of information that has
been:
specifically exempted from disclosure by [another]
statute [that]
( i) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld.
5
u.s.c.
§
552 (b) (3).
2
The FBI has asserted FOIA Exemption 2 to withhold certain material, an
assertion that Mr. Canning has not challenged. The FBI is thus entitled to
summary judgment on its uncontested exempti0n claims. With no material facts
in dispute as to material withheld under uncontested exemptions, the Court
finds that the FBI has met its burden and released all segregable
information. See Students Against Genocide v. U.S. Dep't of State, 257 F.3d
828, 833 (D.C. Cir. 2001). Nor has Mr. Canning pointed to any legal authority
to the contrary.
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In determining
whether
Exemption
3
properly
the
whether "[1]
Court conducts a two-part test that considers:
applies,
the
statute in question [is] a statute of exemption as contemplated by
.exemption 3 ... [and whether]
[2] the withheld material satisf [ies]
the criteria of the exemption statute." Fitzgibbon v. C.I.A., 911
F.2d 755,
761
(D.C.
Cir.
1990)
(citing C.I.A.
v.
Sims,
471 U.S.
159, 167 (1985)).
The FBI has withheld documents under Exemption 3 based on
Title III of the Omnibus Crime Control and Safe Streets Act of
1968,
18 U.S.C..
2510-20
§§
("Title III")
and Rule
6(e)
of the
Federal Rules of Criminal Procedure. Def.'s Mot. at 23. The Title
III
material
communications
interception,
information
relates
and
to
consists
the
targeted
derived
from
further utilized in the
withheld
under
subpoena;
Rule
of
interception
"the
number
individuals
the
Title
[FBI's]
6 (e)
FBI's
III
assigned
(iv)
certain
to
the
locations,
and/or
and
intercepts,
which
was
investigation." Id. The material
includes:
(i)
a
Federal
Grand
Jury
(iii) the name and identifying information of
private citizen subpoenaed to testify . before a
Jury;
of
(ii) the company name and employee served with a Federal
Grand Jury subpoena;
a
the
telephone
records
and
that
identifies
specific records subpoenaed by the Federal Grand Jury;
(v) and the
-7-
information
Federal Grand
dates,
company name and employee served with any Federal Grand
Jury subpoena. Id. Mr. Canning concedes that Rule 6(e) and Title
III constitute statutes of exemption for the purposes of Exemption
3 but argues that the FBI has applied them in an overly-broad
manner in order to withhold material in this case. Pl.'s Mot. at
20.
Turning first to the Title III material, Mr. Canning contends
that
Title
III
intercepted
bars
the
conversations,
disclosure
of
not
information
other
number assigned to the interception,
individuals,
·or
locations.
specific
instances
withheld
the
in
identities
the
of
Id.
at
sample
only
content
such
as
of
the
the identities of targeted
22.
Mr!
Vaughn
targeted
the
Canning
Index
telephone
identifies
where
the
FBI
subscribers
and
administrative information connected to intercepted conversations.
Id.
at 24.
The FBI argues that because Title III mandates that
intercepted communication applications must be sealed, the statute
protects not only the content of the communication, but also the
paperwork applying for and granting the authority which generally
includes the identities of the targets involved. Def.'s Opp.
[Dkt.
No. 79] at 13.
Mr. Canning's argument is not convincing. Without directing
the Court to any legal authority supporting his interpretation of
-8-
Title III of
an interpretation that would mandate the disclosure
identifying information intimately connected to
communications -Mr.
intercepted
Canning-would have the Court make the leap
that such information should be released.
The Court is unwilling to take such a step in light of other
cases to the contrary. See, e.g., Roberts v. F.B.I., 845 F. Supp.
2d 96, 101 (D.D.C. 2012)
disclosure
the
(concluding that Title III exempted from
identities
locations of microphones,
of
targeted
Supp. 3d 192, 206 (D.D.C. 2016)
[Exemption 3' s
targeted
and the identities of participants in
intercepted conversations); House v.
extended
individuals,
U.S~
Dep't of Justice, 197 F.
(recognizing that uthis Court has
protections]
to
the
application for
a
wiretap and all supporting materials submitted to the court to
obtain a Title III wiretap.").
Indeed, requiring the government to release the identities,
time and locations of targets might shed light on the content of
the underlying communication,
thereby defeating the very purpose
of Title III's exemption provision. The Court concludes that the
FBI
has appropriately asserted Exemption 3 over the Title III
material.
Nonetheless,
the
Court
finds
persuasive
Mr.
Canning's
argument that even if Exemption 3 shields the Title III material,
-9-
the FBI must disclose some of the withheld information because the
government has already officially acknowledged it. Pl.'s Mot. at
25. Mr. Canning directs the Court's attention to a July 9,
1992
letter from Assistant Attorney General Robert Mueller that was
previously released by the Office of Information Policy ("OIP") in
I
response to a FOIA request. Fourth Canning Deel.
Ex. A.
[Dkt. No. 69-1],
The letter explicitly authorizes the interception of the
communications of Donald L.
Moore,
Jr.
and Edgar N.
Smith with
regard to the 1992 case concerning the conspiracy to kidnap Lewis
duPont Smith. Id. In its Opposition, the FBI offers no response to
Mr. Canning's argument.
The Court of Appeals has concluded that "the government cannot
rely on an otherwise valid exemption claim to justify withholding
information that has been 'officially acknowledged' or is in the
'public domain."' Davis v. U.S. Dep't of Justice,
1279
(D.C.
Cir.
1992)
(quoting Afshar,
968 F.2d 1276,
702 F.2d at 1130-34 and
Fitzgibbon, 911 F. 2d at. 765-66). An official acknowledgment must
meet three criteria:
specific
as
the
(1)
the information requested "must be as
information
previously
released;"
(2)
the
information "must match the information previously disclosed;" and
(3) the information "must already have been made public through an
official and.documented disclosure." Id. To the extent Mr. Canning
-10-
•.
seeks the disclosure of the identities of Donald Moore and Edgar
Smith in the withheld material, Mr. Canning has met these factors.
The
letter written by Assistant Attorney General Mueller,
disclosed by OIP,
and
unambiguously indicates that Moore and Smith
were the subjects of the wiretaps. See Fourth Canning Deel., Ex.
A. Mr. Canning is therefore entitled to all instances in which the
FBI has withheld the names of Smith and Moore in the context of
Title III intercepted communications relating to the kidnapping
conspiracy case.3
Turning next to the material that the FBI has withheld under
Rule 6(e) of the Federal Rules of Criminal Procedure, Mr. Canning,
again,
does not dispute that Rule 6(e)
Exemption 3. Pl.'s Mot. at 20.
"little
of
kidnapping
the
grand
jury's
plot]
which
is
falls under the ambit of
Instead, he argues that there is
investigation
still
secret"
and
[into
the
therefore
Smith
he
is
entitled to the withheld information which, Mr. Canning assumes,
was previously disclosed in the government's Jencks disclosures in
that case. Id. at 26-27. The FBI, Mr. Canning contends,
"has not
shown that the material it has withheld ... has not been disclosed
By the same token, to the extent that the FBI is withholding portions of the
July 9, 1992 letter from Robert Mueller that were publically disclosed by
OIP, the FBI must release the same portions to Mr. Canning. Because the
letter discloses the address of Donald Moore, Mr. Canning is also entitled to
this information in the material the FBI has withheld.
-113
to
the
public [.]"
Id.
at
27.
Mr.
Canning,
however,
has
it
backwards. To prevail on a public domain argument, the plaintiff,
not the government,
bears the burden of production to point to
specific information in the public domain that appears to duplicate
that being
w~thheld.
Davis, 968 F.2d at 1279. Because Mr. Canning
has not carried that burden, his request for the Rule 6(e) material
must be denied.
2.
Exemption 7(C)
FOIA Exemption 7 (C)
enforcement
purposes
protects
to
the
information compiled for law
extent
that
disclosure
"could
reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C.
§
552(b) (7) (C). In determining whether
Exemption 7(C) applies, the Court must balance the public interest
in disclosure with the privacy interests implicated by the release
of the material. Computer Prof'ls for Soc. Responsibility v. U:S.
Secret
Serv.,
witnesses,
72
F.3d
897,
904
(D.C.
Cir.
1996).
Suspects,
investigators, and third parties all have substantial
privacy interests that are implicated by the public release of law
enforcement investigative materials. Id.; Davis, 968 F.2d at 1281.
Courts recognize that the disclosure of such material may lead to
embarrassment
and
physical
or
reputational
individuals. See SafeCard, 926 F.2d at 1205.
-12-
harm
to
these
'I
It "is well established that the only public interest relevant
for purposes of Exemption 7(C) is one that focuses on the citizens'
right to be informed about what their government is up to." Davis,
968 F.2d at 1282 (internal quotations omitted). Whether disclosure
of private information is warranted under Exemption 7(C) turns on
whether the information "sheds light on an agency's performance of
its statutory duties."
u. s.
Dep' t
of Justice v.
for Freedom of the Press, 489 U.S. 749, 773
The FBI has asserted Exemption 7 (C)
and/or identifying information of:
law enforcement officers;
(iii)
(i)
Reporters Comm.
(1989).
to withhold the names
FBI personnel;
third parties of
(ii)
local
investigative
interest to the FBI or local law enforcement agencies;
(iv) third
parties mentioned in investigatory records (v)sources who provided
information under an express assurance of confidentiality;
third
parties
interviewed
by
FBI;
the
(vi)
commercial
(vii)
institutions and employees; and (viii) an attorney representing a
third party. Gehle Deel.
Mr.
Canning
[Dkt. No. 52-3)
maintains
that
~
the
57.
FBI
officially
has
acknowledged, and therefore must disclose,
some of this withheld
information,
the
investigation,
including
the
subjects
of
Smith
kidnapping
the subscribers to wiretapped telephones, and the
individuals accused in the indictments.
-13-
Pl.'s Mot.
at 29-32.
In
support of his position, Mr.
public
government
Canning has identified a number of
documents
explicitly
indicating
that
the
subjects of the Smith kidnapping case included Donald L. Moore,
Jr.,
Galen G.
Kelly,
Edgar Newbold Smith,
and Robert Point.
In
addition to the aforementioned July 9, 1992 letter from Assistant
Attorney General Robert Mueller, Mr. Canning has identified:
(1)
the Criminal Complaint charging these individuals with conspiracy
to kidnap Lewis duPont Smith;
(2) an FBI News Release announcing
the arrests of these individuals;
(3) the corresponding indictment
in the Eastern District of Virgina;
and
(4)
a
1992 memorandum
released by EOUSA in a FOIA disclosure naming Kelly,
Moore and
Smith as subjects of the investigation. See Fourth Canning Deel.,
Exs. C-F.
These
documents,
some
of
which
.government in previous FOIA releases,
that the roles of Moore,
Kelly,
were
disclosed
by
the
make it abundantly clear
Smith, and Point as subjects of
the kidnapping investigation exist in the public domain. With these
precise
examples,
Mr.
Canning has
met
his
burden to
identify
specific documents in the public record that duplicate the material
being withheld by the FBI. 4 Davis,
968 F. 2d at 1279.
The Court
Relatedly, Mr. Canning has identified a June 12, 1996 document previously
released by EOUSA that appears to match the description of a document the
government has withheld, serial SubZl-5. See Pl.'s Mot. at 6. If SubZl-5 is
4
-14-
therefore grants Mr. Canning's Motion for Partial Summary Judgment
regarding the withholding of the names of Donald Moore, Jr., Galen
Kelly,
Edgar Newbold Smith, and Robert Point as subjects of the
investigation and
subscribers
to
the
telephones
that
the
FBI
wiretapped. s
3.
Exemption 7(D)
FOIA Exemption 7 (D)
information
compiled
allows an agency to exempt records or
for
law
enforcement
purposes
where
such
information "could reasonably be expected to disclose the identity
of
a
confidential· source ... which
confidential
basis."
5
U.S. C.
furnished
information
552 (b) (7) (D)
§
To
invoke
on
a
this
exemption, an agency must show either that the source spoke only
under
express
assurances
of
confidentiality
or
that
the
circumstances support an inference of confidentiality. U.S. Dep't
of Justice v. Landano, 508 U.S. 165, 174 (1993).
The
FBI
identities
provided
of
has
and
invoked Exemption
information
information
to
the
7 (D)
received
FBI
during
to withhold:
from
the
(i)
the
individuals
who
course
of
the
investigation into the plot to abduct Lewis duPont Smith under an
identical to the EOUSA document that lies in the public domain, the FBI must
also release it to Mr. Canning.
5 The FBI also generally asserts Exemption 6 in conjunction with its Exemption
7(C) claims. See Steward Deel. [Dkt. No. 79-1] , 17. Because the Court has
concluded that certain of this information lies in the public domain, it need
not examine whether Exemption 6 applies to those materials.
-15-
...
implied assurance of confidentiality; (ii) information provided by
individuals who were interviewed under an express assurance . of
confidentiality; (iii) source symbol numbers; and (iv) information
provided
by
and/or
identifying
data
concerning
source
symbol
numbers. Def.'s Mot. at 35-37.
Mr. Canning's principal challenge to the FBI's assertion of
Exemption 7(D) concerns the withholding of information concerning
.Douglas
Poppa,
the
government's
kidnapping conspiracy trial.
key
witness
According to Mr.
in
the
federal
Canning,
Poppa' s
role in the trial and underlying investigation was sufficiently
public that he cannot be considered a
the purposes of Exemption 7(D).
Mr.
"confidential" source for
Canning further points out
that although the FBI initially withheld references to Poppa in
its .disclosures, following the 2009 re-review of its FOIA releases,
the FBI disclosed that Poppa was an FBI source. See Pl.'s Status
\
Report
~-
[Dkt. No.
96] at 5-6 (identifying specific pages in which
the FBI disclosed that Poppa was "working at the direction of the
FBI"). Therefore, Mr. Canning argues,
the information concerning
Poppa is officially in the public domain and cannot be withheld
from disclosure.
The Court agrees with Mr.
Canning.
In asserting a claim of
prior disclosure, plaintiffs bear the burden of production to point
-16-
to
specific
information in
the
public
domain
that
appears
to
duplicate that being withheld. Davis, 968 F.2d at 1279. Mr. Canning
has clearly met his burden. He has identified specific instances
in which the FBI has disclosed to him, in the FOIA context, Poppa's
identity and role in the kidnapping investigation. See Pl. 's Status
Report at 5-6. Accordingly,
Mr.
Canning's
favor
as
it
the Court grants summary judgment in
relates
to
the
FBI' s
assertion
of
Exemption 7(D) to withhold information concerning Poppa's role in
the kidnapping investigation. To the extent that the FBI continues
to withhold Poppa's name and identifying information
(including
source symbol numbers assigned to Poppa) from Mr. Canning, it shall
disclose this material forthwith.
Mr. Canning also challenges the FBI's invocation of Exemption
7 (D) to withhold information obtained from sources under an implied
assurance of confidentiality. Pl.'s Mot. at 19. Mr. Canning takes
issue with the fact that the FBI states that the sources "were
interviewed
under
confidentiality may
circumstances
be
implied"
from
but
which
does
an
not
assurance
provide
explanation to support an inference of confidentiality.
response,
the
FBI
argues
that
the
implied
of
further
Id.
assurances
In
of
confidentiality can be substantiated by the nature of the crime,
in this case a high-profile kidnapping. Def.'s Opp. at 10.
-17-
The Court is not persuaded by the FBI' s reasoning. In Landano,
the Supreme Court concluded that the government is not entitled to
a presumption that all sources supplying information in the course
of a criminal investigation are confidential sources within the
definition of Exemption 7(D). 508 U.S. at 181. Although an implied
grant of confidentiality may at times be inferred from the nature
of a criminal investigation, see id., the FBI has,
in this case,
done
should
nothing
more
confidentiality
than
just
assert
because
that
the
the
Court
underlying
case
infer
concerned
a
kidnapping conspiracy.
The FBI has not provided any explanation as to the connection
between the sources and the criminal activity.
"Nor is there any
description of the circumstances which purportedly gave rise to
the implication that the source(s) provided information to the FBI
only
with
the
understanding
that
their
identities
and
the
information they provided would· not be released to the public."
Gamboa v. Exec. Office for U.S. Attorneys, 65 F. Supp. 3d 157, 170
(D.D.C.
2014)
(concluding
that
information under Exemption 7 (D)
the
FBI
improperly
withheld
under an implied assurance of
confidentiality) .
As Mr. Canning highlights, the government has the obligation
to "point to more narrowly defined circumstances that ... support
-18-
t:. .
the
inference"
Because
the
of
confidentiality.
FBI has not done
so,
Landano,
508
U.S.
at
the Court concludes
172.
that an
assurance of confidentiality between the FBI and its informants in
the kidnapping case cannot be
implied.
Accordingly,
the Court
grants summary judgment in Mr. Canning's favor as far as it relates
to
the
documents
the
FBI
has
withheld
under
Exemption
7(D)
containing the identities of individuals who provided information
to the FBI under a purported implied assurance of confidentiality
during the course of the kidnapping investigation.
B. Segregability
Mr. Canning contends that the FBI has failed to segregate and
release
all
non-exempt
information
responsive
to
his
FOIA
requests. Pl.'s Mot. at 32. FOIA requires that "[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." 5 U.S.C.
§
552(b).
"[N]on-exempt portions of a document
must be disclosed unless they are inextricably intertwined with
exempt portions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842,
851 (D.C. Cir. 2010)
(quoting Mead Data Cent., Inc. v. U.S. Dep't
of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To demonstrate
that all reasonably segregable material has been released,
agency
must
provide
a
"detailed
-19-
justification"
for
its
the
non-
segregability. Mead Data, 566 F.2d at 261. "However, the agency is
not required to provide so much detail that the exempt material
would be effectively disclosed." Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
Mr.
Canning
information
that
focuses
the
FBI
his
segregability
has
withheld
argument
under
on
Exemption
the
7 {C) .
Specifically, he argues that the FBI's blanket assertion that it
has reviewed all pages to ensure all the segregable non-exempt
information was released is inadequate to meet its burden of proof.
Concerning the material the FBI has withheld under Exemption
7(C) that the Court has not already ordered disclosed, see supra,
the Court finds that the FBI has met its obligation to release all
segregable information.
As discussed above, an agency is not required to provide so
much detail that the exempt material is in effect disclosed. The
Court of Appeals held in Johnson that a comprehensive Vaughn index,
along with an affidavit that a
line~by-line
of each document withheld in full,
segregability review
was sufficient to fulfill the
agency's obligation to show that further segregability was not
feasible. See Johnson, 310 F.3d at 776. Like the agency in Johnson,
the FBI has provided a detailed Vaughn index and an affidavit
asserting
that
each
responsive
-20-
document
was
reviewed
for
segregability. See Gehle Deel. , 54. During the FBI's re-review of
its FOIA releases, it re-considered each redaction and withholding
to
determine
released.
Id.
whether
Where
information previously wi thhe1d
the "
factual
justification for
could be
claiming an
exemption appeared discretionary or marginal, the FBI erred on the
side of disclosure. Id.
Accordingly,
demonstrated
denies
M~.
that
the
Court
it has
finds
that
released all
the
FBI
has adequately
segregable material
and
Canning's Motion for Summary Judgment on this issue. 6
C. Supplemental Vaughn Indices
Pursuant to the Parties' agreement, the FBI prepared a sample
Vaughn Index in lieu of an exhaustive account of the withheld
material.
Al though Mr.
Canning played a
role
in selecting the
documents to be included in the sample Index, he now contends that
the FBI should prepare supplemental Vaughn Indices.
First,
Mr.
Canning argues that the FBI should account for a document, WMFO
serial
SubL-14,
that
it
released
to
Mr.
Canning
after
the
Mr. Canning also points to a gap in the disclosed serials to suggest that
the FBI may be withholding additional material without justification. Pl.'s
Mot. at 41. In its supporting declaration, the FBI attributes the gap to an
inadvertent skip in the serialization process. See Gehle Deel. ~40-42. The
Court accords the FBI's declaration a presumption of good faith. See
SafeCard, 926 F.2d at 1200 (recognizing that agency affidavits are accorded
"a presumption of good faith, which cannot be rebutted by purely speculative
claims about the existence and discoyerability of other documents) (internal
quotation marks omitted) .
6
-21-
preparation of the initial sample Vaughn Index. Because he did not
have the opportunity to consider whether to include this document
in the sample Index, Mr. Canning insists it should be incorporated
into a supplemental Vaughn Index.
Pl.'s Mot.
at 42. Second, Mr.
Canning maintains that the FBI's sample Vaughn Index is vague and
confusing. Id. at 43.
The Court finds both of Mr. Canning's arguments unpersuasive.
There is no set formula for a Vaughn Index or declarations, but
they must "provide[] a relatively detailed justification [for any
nondisclosure] ,
specifically
identif [y]
the
reasons
why
a
particular exemption is relevant and correlat[e] those claims with
the particular part of a withheld document to which they apply."
Judicial Watch, Inc. v. Food
Cir.
2006)
&
Drug Admin., 449 F.3d 141, 146 (D.C.
(quoting Mead Data,
Canning's first argument,
Mr.
566 F. 2d at 251) . Regarding Mr.
Canning overlooks the function of
the sample Vaughn Index. A sample Index does not purport to contain
every document the government chooses to withhold. Rather, as the
FBI
has
underscored,
the
purpose
is
to
allow
the
Court
to
extrapolate its conclusions from the representative sample to the
larger group of withheld materials. The Vaughn Index in this case
adequately fulfills that purpose.
-22-
Turning to Mr. Canning's second argument, after Mr. Canning
raised his concerns regarding the confusing nature of the sample
Vaughn Index,
the
FBI
re-reviewed
the
documents
at
issue
and
"remarked them in an effort to make it easier for Plaintiff to
read and understand the exemptions claimed." Def. 's Opp. at 18.
The FBI also provided Mr.
Canning with additional
regarding the withheld material. See Steward Deel.
information
~
41.
In his
Reply Motion, Mr. Canning does not suggest that the FBI's remedial
steps were insufficient to address his concerns.
Pl.'s Reply
[Dkt. No.
81]. Accordingly,
See generally
the Court will consider
the issue resolved and deny Mr. Canning's Motion for Supplemental
Vaughn Indices.
IV.
CONCLUSION
For the
Judgment
foregoing reasons,
shall
Plaintiff's
be
granted
Cross-Motion
in
for
Defendant's Motion for Summary
part
and
Partial
denied
Summary
part
and
Judgment
and
in
Supplemental Vaughn Indices shall be granted in part and denied in
part.
Further, Plaintiff's Motion for an Order Directing the FBI to
Re-Review
its
FOIA
Releases
for
Discretionary
Release
of
Information [Dkt. No. 88] shall be denied as moot in light of the
-23-
'.
fact
that
the
FBI
conducted
the
re-review
that
Mr.
requested.
An Order shall accompany this Memorandum Opinion.
July 13, 2017
Copies to: attorneys on record via ECF
and to:
George Canning
60 Sycolin Road
Leesburg, VA 20175
-24-
Canning
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