ACOSTA v. FEDERAL BUREAU OF INVESTIGATION et al

Filing 35

MEMORANDUM OPINION re 34 Order on 30 Motion for Summary Judgment. Signed by Judge James E. Boasberg on 9/23/13. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAMUEL ACOSTA,
Plaintiff,
v.

Civil Action No. 12-1578 (JEB)

FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

MEMORANDUM OPINION
This case concerns the efforts of pro se Plaintiff Samuel Acosta, a federal prisoner, to
obtain documents about himself from assorted government agencies through the Freedom of
Information Act. On April 17, 2013, this Court issued a Memorandum Opinion dismissing a
number of Government Defendants for Plaintiff’s failure to exhaust administrative remedies.
See Acosta v. FBI (Acosta I), No. 12-1578, 2013 WL 1633068 (D.D.C. Apr. 17, 2013). The
remaining Defendants – the Federal Bureau of Investigation and the Executive Office of United
States Attorneys – now move for summary judgment, arguing that their search for responsive
documents was adequate and that they properly withheld certain documents under appropriate
FOIA exemptions. As the Court agrees, it will grant their Motion.
I.

Background
Beginning in 2010, Plaintiff sent various FOIA requests to government agencies under 5

U.S.C. § 552 et seq., seeking all records concerning his criminal prosecution. See id. at *1. In
Acosta I, and in a subsequent Minute Order of May 17, 2013, the Court dismissed all Defendants
except EUOSA and the FBI. Those agencies have now released 805 pages in full to Plaintiff.

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See Mot., Attach. 4 (Declaration of David Luczynski), ¶ 10 & Exh. G (FOIA Letter). Having
done so, they have now renewed their Motion for Summary Judgment. The remaining dispute
involves six EOUSA documents totaling 127 pages and 30 pages of FBI documents, all of which
have been withheld either in part or in full. See Luczynski Decl., Exh. H (EOUSA Vaughn
Index); Mot., Attach. 3 (Declaration of David Hardy), Exh. G (FBI Redacted or Withheld Pages).
Because some of the explanations for Defendants’ withholdings were quite generic, the Court
ordered them to provide copies of EOUSA documents 3 and 5 and the FBI’s pages labeled
Acosta 21, 22, 24, 25, and 30 for in camera inspection. See Minute Orders of Sept. 10-11, 2013.
The Government provided these documents on September 16th, and the Court has now reviewed
all of them, along with the redacted copies provided to Plaintiff.
II.

Legal Standard
Summary judgment may be granted 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). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the
moving party’s affidavits or declarations may be accepted as true unless the opposing party
submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456 (D.C. Cir. 1992).

2

FOIA cases typically and appropriately are decided on motions for summary judgment.
See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency
bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142, n.3 (1989). The Court may grant summary judgment based solely on information provided
in an agency’s affidavits or declarations when they describe “the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III.

Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

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the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
The Court will look first at the adequacy of Defendants’ search for responsive
documents, turn next to the exemptions they claim justify withholding certain documents, and
finish by assessing the segregability of those documents.
A. Adequacy of the Search
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” ValenciaLucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in
original).
The adequacy of an agency’s search for documents requested under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To

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meet its burden, the agency may submit affidavits or declarations that explain the scope and
method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)
(per curiam). The affidavits or declarations should “set[] forth the search terms and the type of
search performed, and aver[] that all files likely to contain responsive materials (if such records
exist) were searched.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Absent
contrary evidence, such affidavits or declarations are sufficient to show that an agency complied
with FOIA. See Perry, 684 F.2d at 127. “If, however, the record leaves substantial doubt as to
the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d
at 542.
Attached to their Motion, Defendants have submitted the Declarations of David
Luczynski, Attorney Advisor with EOUSA, and David Hardy, Section Chief of the
Record/Information Dissemination Section, Records Management Division, of the FBI, which
explain in detail the steps that Defendants took to search for responsive records, including:
•

Efforts undertaken to identify where relevant documents might be located, see
Luczynski Decl., ¶ 11;

•

Requests to the U.S. Attorney’s office for the Southern District of Iowa to search
for and send all responsive records to EOUSA, see id.;

•

Search of the “LIONS” system by Plaintiff’s name, see id.; and

•

Certification that there were no records systems or locations not searched where
responsive files might have been found.

See id.
Plaintiff contends that the above-detailed search was inadequate because Defendants have
not laid out “what specific reports and documents were uncovered, … which databases were
searched,” or what other agencies may have responsive documents. Opp. at 10. Plaintiff’s claim
is belied by Defendants’ declarations, which explain precisely what documents were uncovered,
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which database was searched, which offices had responsive records, and why other offices were
not searched. See Luczynski Decl., ¶ 11; Hardy Decl., ¶¶ 11-12. Absent contrary evidence –
which Plaintiff does not provide – Defendants’ declarations are sufficient to show that they
complied with FOIA. See Perry, 684 F.2d at 127.
The Court, therefore, finds summary judgment proper on the adequacy of the search.
B. Exemptions
As a preliminary note, although Defendants claimed the broader protection of Privacy
Act Exemption j(2), this exemption was not, in fact, used to justify the withholding of any
information challenged here. See Luczynski Decl., ¶ 14 (request processed “under both the
FOIA and PA in order to provide the requester with the maximum disclosure authorized by
law”); Hardy Decl., ¶ 16 (requests “processed under the access and disclosure provisions of the
FOIA to achieve maximum disclosure”). Therefore, this Court does not reach the issue of the
propriety of Defendants’ invocation of Privacy Act Exemption (j)(2), and it may move to the
specific claimed FOIA exemptions.
1. Exemption 3
One hundred and seven pages of grand jury transcripts constitute the bulk of the withheld
documents. See FOIA Letter; EOUSA Vaughn Index. As the basis for withholding these
transcripts, Defendants cite, inter alia, FOIA Exemption 3, which covers records “specifically
exempted from disclosure by statute” provided that such statute either “(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). The relevant statute here – Federal Rule of Criminal Procedure
6(e) – bars the disclosure of matters occurring before a grand jury. See Fed. R. Crim. P.

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6(e)(2)(B). Because it was affirmatively enacted by Congress, Rule 6(e) is recognized as a
“statute” for Exemption 3 purposes. See Fund for Constitutional Gov’t. v. Nat'l Archives &
Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981). The Rule’s grand-jury-secrecy requirement
is applied broadly and embraces any information that “tend[s] to reveal some secret aspect of the
grand jury's investigation, [including] the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, the deliberations or questions of jurors,
and the like.” Lopez v. Dep’t. of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (internal
quotation marks omitted). In the absence of a statutory exception to the general presumption of
grand jury secrecy – not an issue here – Rule 6 is “quite clear that disclosure of matters occurring
before the grand jury is the exception and not the rule,” and “the rule's ban on disclosure is for
FOIA purposes absolute and falls within . . . Exemption 3.” Fund for Constitutional Gov't., 656
F.2d at 868. As the documents here encompass transcripts of actual testimony before the grand
jury, they clearly fall within the parameters of Exemption 3.
In light of this, Plaintiff’s claim that “there exists a significant public interest” in
releasing the grand jury transcripts, see Opp. at 22, is simply not a cognizable response to an
otherwise valid FOIA withholding based on Exemption 3. To be sure, there are circumstances in
FOIA cases in which “public interest” claims may be validly raised and considered. For
example, assertions of Exemption 7(C) may implicate “the public interest in disclosure,” Am.
Civil Liberties Union v. U.S. Dept. of Justice, 655 F.3d 1, 12 (D.C. Cir. 2011), as the Court
discusses in Section III.B.3, infra. While Defendants also seek to shield the grand jury
transcripts based on Exemption 7(C), the Court need not consider such argument since
Exemption 3 alone protects the transcripts from disclosure.

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2. Exemption 5
Although Defendants withheld three documents under Exemption 5 – grand jury
transcripts, a prosecution memorandum, and a copy of an attorney’s handwritten notes – as the
Court has already resolved the withholding of the grand jury transcripts under Exemption 3, it
need only analyze the remaining two documents under Exemption 5. FOIA Exemption 5 applies
to “inter-agency or intra-agency memorandums or letters which would not be available by law to
a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Withholdings
are restricted to “those documents, and only those documents, normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also United
States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 (1984). In contrast to disclosures in that
context, and contrary to Plaintiff’s contention, see Opp. at 16, the needs of a particular plaintiff
are irrelevant to a court’s determination of whether a particular communication is exempt from
disclosure under (b)(5). See Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d
1181, 1184 (D.C. Cir. 1987) (citing Sears, Roebuck, 421 U.S. at 149).
Exemption 5 encompasses three distinct components – namely, the deliberative-process
privilege (sometimes referred to as “executive privilege”), the attorney work-product privilege,
and the attorney-client privilege. See Am. Immigration Council v. U.S. Dep’t of Homeland Sec.,
905 F. Supp. 2d 206, 216 (D.D.C. 2012). As the Court finds Defendants’ withholdings are
appropriate under the attorney work-product privilege, it need not delve into the parties’
arguments regarding the others.
The attorney work-product prong of Exemption 5 extends to “documents and tangible
things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P.
26(b)(3)(A). As this Court has noted in the past, the work-product privilege is relatively broad,

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encompassing documents prepared for litigation that is “foreseeable,” if not necessarily
imminent. See Am. Immigration Council, 905 F. Supp. 2d at 221. The privilege is not
boundless, however:
While it may be true that the prospect of future litigation touches
virtually any object of a [law-enforcement agency] attorney’s
attention, if the agency were allowed “to withhold any document
prepared by any person in the Government with a law degree
simply because litigation might someday occur, the policies of the
FOIA would be largely defeated.”
Senate of the Com. of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d
574, 586-87 (D.C. Cir. 1987) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d
854, 865 (D.C. Cir. 1980)). When reviewing a withholding under the work-product prong, the
“‘testing question’ . . . is ‘whether, in light of the nature of the document and the factual situation
in the particular case, the document can fairly be said to have been prepared or obtained because
of the prospect of litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (quoting
Senate of the Com. of Puerto Rico, 823 F.2d at 586 n.42) (emphasis added). At a minimum, the
government must demonstrate that the lawyer who prepared the document possessed the
“subjective belief that litigation was a real possibility, and that belief must have been objectively
reasonable.” In re Sealed Case, 146 F.3d at 884.
The Court has now reviewed the two outstanding documents in camera and is satisfied
that they comport with the exemption’s requirements. EOUSA Document 3 is a prosecution
memorandum clearly prepared in anticipation of Plaintiff’s prosecution. It lays out the
prosecution’s theory of the case along with the evidence it planned to adduce at trial. It is thus
exempt from production. EOUSA Document 5 is a copy of the handwritten notes of an attorney.
While it does not contain the myriad pieces of exemptible information that Defendants assert, see

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Vaughn Index, Justification for Doc. 5, it nevertheless constitutes the mental impressions of an
attorney, prepared in anticipation of Plaintiff’s case, and is thus clearly exempt from production.
3. Exemptions 6 and 7(C)
Plaintiff next challenges EOUSA’s and the FBI’s withholding of certain documents or
portions of documents under FOIA Exemptions 6 and 7(C). 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 7(C) excludes “records of
information compiled for law enforcement purposes . . . to the extent that the production of such
law enforcement records or information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Both provisions require
agencies and reviewing courts to “balance the privacy interests that would be compromised by
disclosure against the public interest in release of the requested information.” Beck v. Dep’t of
Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d
1276, 1281 (D.C. Cir. 1992)).
Although both exemptions require agencies and reviewing courts to undertake the same
weighing of interests, the balance tilts more strongly toward nondisclosure in the context of
Exemption 7(C) because “Exemption 7(C)’s privacy language is broader than the comparable
language in Exemption 6 in two respects.” Reporters Comm., 489 U.S. at 756. First, Exemption
6 encompasses “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the
adverb “clearly.” See id. Second, Exemption 6 prevents disclosures that “would constitute” an
invasion of privacy, while Exemption 7(C) targets disclosures that “could reasonably be
expected to constitute” such an invasion. See id. Both differences are the result of specific
amendments, reflecting Congress’s conscious choice to provide greater protection to law-

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enforcement materials than to personnel, medical, and other similar files. See id. Courts have
accordingly held that Exemption 7(C) “establishes a lower bar for withholding material” than
Exemption 6. ACLU v. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck, 997 F.2d
at 1491.
As a result, if the records and information Defendants seek to withhold in this case were
“compiled for law enforcement purposes,” the Court need only address whether the agency has
properly withheld these documents under Exemption 7(C), and there is no need to consider the
higher bar of Exemption 6. Here, Plaintiff never argues that the records were not compiled for
law-enforcement purposes. Nor would he have much luck doing so given that the records all
relate to either the FBI’s criminal investigation of him or EOUSA’s criminal investigation and
prosecution of him. See Hardy Decl., ¶ 20; FBI Redacted or Withheld Pages; Luczynski Decl., ¶
22. This threshold question answered, the Court must now consider the privacy interests at stake
in disclosure and the public interest in release.
The first step in the Exemption 7(C) analysis is to determine whether there is, in fact, a
privacy interest in the materials sought. See ACLU, 655 F.3d at 6. In this context, the Supreme
Court has rejected a “cramped notion of personal privacy” and emphasized that “privacy
encompass[es] the individual’s control of information concerning his or her person.” Reporters
Comm., 489 U.S. at 763. To constitute a privacy interest under FOIA, the claimed interest must
be “substantial.” Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008); see
also Roth v. Dep’t of Justice, 642 F.3d 1161, 1174 (D.C. Cir. 2011). “[S]ubstantial,” however,
“means less than it might seem. A substantial privacy interest is anything greater than a de
minimis privacy interest.” Multi Ag Media, 515 F.3d at 1229-30.

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Defendants identify several categories of people whose names or other identifying
information appear in the remaining documents. See Mot. at 9-12; Luczynski Decl., ¶ 23; Hardy
Decl., ¶¶ 18, 24-33 & p. 7 (accompanying chart) (“FBI Special Agents and support personnel,”
“third parties who provided information,” “local law enforcement personnel,” “third parties
merely mentioned,” “non-FBI federal government personnel,” and “third parties who provided
information to the FBI”). Hardy’s Declaration and the Vaughn Index accompanying
Luczynski’s Declaration explain the privacy interests that these people possess. See EOUSA
Vaughn Index; Hardy Decl., ¶¶ 24-33. The Court, moreover, has compared the redacted EOUSA
and FBI documents given to Plaintiff with the unredacted copies provided for in camera
inspection. The vast majority of redactions on pages withheld are careful and pinpointed
redactions of names, words, clauses, and sentences, including, for example, pages that contain
only IP addresses and other identifying computer information.
The Court finds each of these privacy interests substantial, a decision consistent with
D.C. Circuit law. As it relates to the private citizens, for example, “third parties who may be
mentioned in investigatory files, as well as . . . witnesses and informants who provided
information during the course of an investigation,” have a privacy interest in the contents of lawenforcement records. Nation Magazine, Wash. Bureau v. Customs Serv., 71 F.3d 885, 894 (D.C.
Cir. 1995); see also Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (“It goes
almost without saying, moreover, that individuals other than [the target of the investigation]
whose names appear in the file retain a strong privacy interest in not being associated with an
investigation involving professional misconduct . . . .”). Indeed, this interest is so strong that our
Circuit has “adopted a categorical rule permitting an agency to withhold information identifying
private citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to

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confirm or refute compelling evidence that the agency is engaged in illegal activity.’” Schrecker
v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard, 926 F.2d at 1206).
In response, Plaintiff argues that a significant public interest exists in the potential
exoneration of “a wrongfully convicted man.” See Opp. at 18. This interest, however, is not a
public one. The public interest, as Circuit precedent makes clear, “does not include helping an
individual obtain information for his personal use” to attack his conviction. Oguaju v. United
States, 288 F.3d 448, 450 (D.C. Cir. 2002), vacated and remanded on other grounds, 541 U.S.
970, (2004), reinstated, 378 F.3d 1115 (D.C. Cir. 2004). While Plaintiff makes several
references to government misconduct as a justification for disclosure, see Opp. at 22-23, the
“requester must establish more than a bare suspicion in order to obtain disclosure.” Nat'l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Plaintiff “must produce
evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.” Id. Plaintiff has produced no such evidence here.
While the Court has found substantial privacy interests in this matter, it would have
reached the same outcome even with only a modest privacy interest. “[W]here we find that the
request implicates no public interest at all, ‘[w]e need not linger over the balance; something ...
outweighs nothing every time.’” Beck v. Dep't of Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993)
(quoting National Ass'n of Retired Fed'l Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir.
1989)); see also Davis, 968 F.2d at 1282 (“[E]ven if a particular privacy interest is minor,
nondisclosure remains justified where … the public interest in disclosure is virtually
nonexistent.”).
Defendants, therefore, appropriately withheld EOUSA documents 1, 2, and 4 along with
the FBI’s pages labeled Acosta 1 through 29, under Exemption 7(C).

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4. Exemption 7(E)
Exemption 7(E) authorizes the Government to withhold records and documents if, inter
alia, they were “compiled for law enforcement purposes,” provided that their publication “would
disclose techniques and procedures for law enforcement investigations or prosecutions.” 5
U.S.C. § 552(b)(7)(E). The FBI invokes this Exemption for one record: Acosta 30. See FBI
Redacted or Withheld Pages. In order for the Government to invoke the “techniques and
procedures” prong of 7(E), it must demonstrate that its withholdings meet three basic
requirements. First, the Government must show that the documents were in fact “compiled for
law enforcement purposes” and not for some other reason. 5 U.S.C. § 552(b)(7)(E). Given that
the record at issue relates to the FBI’s criminal investigation of Plaintiff, see Hardy Decl., ¶ 20;
FBI Redacted or Withheld Pages, the Government clears this bar. Second, the Government must
show that the records contain law-enforcement techniques and procedures that are “generally
unknown to the public.” Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F.
Supp. 2d 13, 36 (D.D.C. 2012). Finally, the Government must show that disclosure “could
reasonably be expected to risk circumvention of the law.” Id.
The FBI provided this document to the court for in camera review. The document
contains information relating to the FBI’s access of internet message boards. Disclosure of this
document, which contains undercover law-enforcement techniques and procedures not generally
known to the public, could risk circumvention of the law. This document, therefore, was
properly withheld.
C. Segregability
Plaintiff next objects – in rather cursory fashion – that Defendants’ segregability analysis
is conclusory. See Opp. at 20-21. While the Government is “entitled to a presumption that [it]

14

complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703
F.3d 575, 582 (D.C. Cir. 2013), this presumption of compliance does not obviate its obligation to
carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency must
provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained
nonsegregability of documents with “reasonable specificity”). “Reasonable specificity” can be
established through a “combination of the Vaughn index and [agency] affidavits.” Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
The only redactions to the two EOUSA documents released in part are four instances of
FBI agents’ names. See EOUSA Vaughn Index. While four other EOUSA documents have
been withheld in their entirety, there is no material that could have been released on these pages.
More specifically, the Court’s in camera review of the prosecution memorandum and the
handwritten notes of an attorney satisfy it that these documents do not have segregability
problems. Similarly, a handwritten letter from an inmate to the Government is properly withheld
in full because the inmate’s handwriting may identify him. Finally, Exemption 3 protects all 107
pages of withheld Grand Jury transcripts from release.
As for the FBI documents, the Hardy Declaration maintains:
•

“Every effort was made to provide plaintiff with all material in the
public domain and with all reasonably segregable portions of
releasable material.
No reasonably segregable, nonexempt
portions were withheld from plaintiff. To further describe the
information withheld could identify the very material which the
FBI seeks to protect,” Hardy Decl., ¶ 17;
15

•

“The FBI has attempted to release all segregable portions of the
information provided by these individuals without revealing their
identifies.” id., ¶ 26; and

•

“After extensive review of the documents at issue, the FBI has
determined that there is no further reasonably segregable
information to be released.”

Id., ¶ 37.
Although some of this language may appear generic, having reviewed the redacted
documents and the Hardy Declaration, the Court finds that no segregability problem exists here.
The documents have careful and pinpointed redactions of names, words, clauses, and sentences.
While a number of other documents have been withheld in their entirety, having reviewed them
in camera, the Court is satisfied that there is no material that could have been released on these
pages.
The Court’s review of the redacted documents and its in camera inspection, coupled with
the Hardy Declaration and the EOUSA’s Vaughn Index, establish that no segregability problem
exists here. The Court, therefore, grants Defendants’ Motion on this issue.
IV.

Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting

judgment in Defendants’ favor.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 23, 2013

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