WINN v. U.S. DEPARTMENT OF JUSTICE

Filing 24

MEMORANDUM OPINION. Signed by Judge John D. Bates on 02/06/2019. (lcjdb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

H. RICHARD WINN,
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,

Civil Action No. 17-833 (JDB)

Defendant.

MEMORANDUM OPINION
Plaintiff H. Richard Winn brought this action pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against defendant Department of
Justice (DOJ) seeking documents responsive to three FOIA requests he submitted to the Federal
Bureau of Investigation (FBI). The government has since released responsive documents to Winn
but has withheld some materials as exempted from disclosure. Both parties filed cross-motions
for summary judgment. For the reasons explained below, the DOJ’s motion for summary
judgment will be granted and Winn’s cross-motion for summary judgment will be denied.
BACKGROUND
Winn is a physician and neurosurgeon who served as the chairman of the Department of
Neurological Surgery at the University of Washington School of Medicine from 1983 until 2002.
Decl. of David M. Hardy (“Hardy Decl.”) [ECF No. 15-2] ¶ 5. In 1999, FBI officials began
investigating claims for medical services performed by the department’s faculty that were
submitted to Medicare and Medicaid. Plea Agreement at 4, United States v. H. Richard Winn, No.
2:02-cr-00235-RSL-1 (W.D. Wash. July 16, 2002), ECF No. 3.

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Winn was charged with

obstructing this investigation, and he ultimately pled guilty to that charge in 2002. Id. at 1, 16.
Thirteen years later, on March 30, 2015, Winn submitted a FOIA request to the FBI to
obtain files to use in his memoirs. See Ex. A to Def.’s Mot. for Summ. J. (“2015 Request”) [ECF
No. 15-3] at 2; 1 Pl.’s P. & A. in Supp. of His Cross-Mot. for Summ. J. & Opp’n to Def.’s Mot. for
Summ. J. (“Pl.’s Mot. & Opp’n”) [ECF No. 16-1] at 2. He asked for “[his] own FBI files” and
provided names under which the files might be found. 2015 Request at 2. He also included Form
DOJ-361, which certified his identity so that the agency could release his own records to him. Id.
at 4; see 28 C.F.R. § 16.3 (requiring requester seeking “records about himself” to verify his
identity). Three days later, the FBI acknowledged receipt of the request and advised Winn that it
had initiated a search for responsive records. Def.’s Stmt. of Undisputed Material Facts (“Def.’s
Stmt.”) [ECF No. 15] ¶ 2; Ex. B to Def.’s Mot. for Summ. J. [ECF No. 15-3] at 6.
In July 2015, the FBI informed Winn that it had “located approximately 4000 pages of
records potentially responsive to the subject of [his] request,” which it identified as “Winn, Herbert
Richard.” Ex. D to Def.’s Mot. for Summ. J. [ECF No. 15-3] at 10. It reminded Winn that 4000
pages was only an estimate, and that “some information may not be responsive to [his] subject”
and “some of the information may be withheld in full pursuant to FOIA / Privacy Act
exemption(s).” Id. In a separate letter, the FBI also advised him that processing of his request
would be delayed because of the volume of the records and because the FBI would need to consult
with or collect records from other FBI or agency offices. Ex. C to Def.’s Mot. for Summ. J. [ECF
No. 15-3] at 8.
Eight months passed without any further information from the FBI. See Def.’s Stmt. ¶ 3;

Defendant’s exhibits are filed in three docket entries. Part 1 includes Exhibits A through the first portion
of Exhibit H. See Ex. Pt. 1 [ECF No. 15-3]. The remainder of Exhibit H can be found in Exhibit Part 2. See Ex. Pt.
2 [ECF No. 15-4]. Exhibits I through N can be found in Exhibit Part 3. See Ex. Pt. 3 [ECF No. 15-5]. For ease of
reference, the Court cites to the PDF pagination of Exhibit Parts 1, 2, and 3.
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Pl.’s Mot. & Opp’n at 2. Winn then sent a second FOIA request to the FBI on March 22, 2016,
again stating that he was “writing to obtain [his] own FBI files,” and attaching Form DOJ-361.
Ex. F to Def.’s Mot. for Summ. J. (“2016 Request”) [ECF No. 15-3] at 16–18. In this request, he
also explained that he was “seeking any and all files related to the investigation of the University
of Washington School of Medicine in Seattle, WA . . . beginning in 1990.” Id. at 16. Winn stated
that he had “made the same request” one year prior. Id.
Another year passed, and on March 9, 2017, Winn submitted a third FOIA request to the
FBI. Ex. H to Def.’s Mot. for Summ. J. (“2017 Request”) [ECF No. 15-3] at 23. He again
requested “[his] own FBI files,” and explained that he was “seeking any and all files related to the
investigation of the University of Washington School of Medicine in Seattle, WA . . . beginning
in 1990.” Id. at 24.
On May 5, 2017, Winn filed the instant lawsuit seeking the release of all records responsive
to his three FOIA requests. Compl. [ECF No. 1] at 6. Two months later, the Record / Information
Dissemination Section (“RIDS”) of the FBI conducted a search for responsive records using the
names Winn had provided and located one investigative file. Hardy Decl. ¶ 25. This file pertained
to the relevant investigation into Winn, but also included information pertaining to other suspects
in the investigation. Id. ¶¶ 25 & n.5. The FBI only processed records in the file that related to its
investigation of Winn. Id. ¶ 25 n.5. In total, the FBI determined that 915 of the originally estimated
4000 pages were responsive to Winn’s requests. Id. ¶ 4.
Between August 31, 2017, and December 29, 2017, the FBI released 619 pages of records
in full or in part. Id. ¶¶ 4, 15–18. The FBI also withheld 296 pages in full, citing statutory
exemptions that permit FOIA materials to be withheld because they were compiled for law
enforcement purposes, identify confidential sources, are grand jury materials, or are personnel,

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medical, or other personally-identifying materials. Id. ¶¶ 4, 32, 34–61 (citing Federal Rule of
Criminal Procedure 6(e) and 5 U.S.C. §§ 552(b)(3), (6), (7)(C), (7)(D), (7)(E)).
The government then filed a motion for summary judgment asserting that it had conducted
an adequate search for responsive records and had now produced all non-exempt, non-segregable
records responsive to Winn’s requests. Mem. of Law in Supp. of Def.’s Renewed Mot. for Summ.
J. (“Def.’s Mot.”) [ECF No. 15] at 1. 2 Winn responded in opposition and filed a cross-motion for
summary judgment. In doing so, he conceded that the FBI’s search for the investigative file was
adequate and that it had properly invoked applicable FOIA exemptions to withhold information.
See Pl.’s Mot. & Opp’n at 1, 3 & n.1. However, he argued that he actually sought all records
within the investigative file, not just his records, and that the FBI improperly narrowed the scope
of his requests by excluding the majority of the records within the file. Id. at 3–6. He also
contended that although the FBI’s search for the investigative file was adequate, the FBI did not
establish that it had conducted an adequate search for responsive records within the investigative
file. Id. at 6 n.4. Finally, Winn argued that that the government did not establish that it had
released all reasonably segregable non-exempt information. Id. at 6–7. The parties’ motions are
now fully briefed and ripe for consideration.
LEGAL STANDARD
Summary judgment is appropriate “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). The party seeking summary judgment bears the initial burden of demonstrating the absence
of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
moving party may successfully support its motion by identifying those portions of the record,
Although the government titled its brief “Renewed Motion for Summary Judgment,” this is the
government’s first and only motion for summary judgment.
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including affidavits or declarations, which it believes can demonstrate the absence of a genuine
dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); see Celotex, 477 U.S. at 323.
In determining whether a genuine issue of material fact exists, the Court must “view the
facts and draw reasonable inferences ‘in the light most favorable to the party opposing the
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation and alteration omitted). A nonmoving party, however, must establish more than the “mere existence of a scintilla of evidence”
in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “Summary
judgment is warranted if the plaintiff has failed to ‘present affirmative evidence . . . to defeat a
properly supported motion for summary judgment.’” Durant v. D.C. Gov’t, 875 F.3d 685, 696
(D.C. Cir. 2017) (quoting Liberty Lobby, 477 U.S. at 257), cert. denied sub nom. Durant v. District
of Columbia, 138 S. Ct. 2608 (2018).
In FOIA cases, a district court reviews the record de novo to determine whether summary
judgment is warranted, and the agency bears the burden of establishing that it has complied with
its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B); Roseberry-Andrews v. Dep’t of Homeland
Sec., 299 F. Supp. 3d 9, 18 (D.D.C. 2018). The court may grant summary judgment in favor of
the agency only after the agency has established “that it has fully discharged its disclosure
obligations under FOIA.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir.
1983).
DISCUSSION
The only issues before the Court are whether (1) the FBI appropriately identified the scope
of Winn’s request as seeking records relating to him, rather than as seeking the entire file pertaining
to the health insurance fraud investigation; (2) whether the FBI conducted an adequate search for
responsive documents within the investigative file; and (3) whether the FBI has demonstrated that

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it complied with its obligation to disclose reasonably segregable material. The Court will consider
each in turn.
I. The Scope of Winn’s Request
Winn asserts that the FBI improperly excluded from the scope of its review files pertaining
to the FBI’s investigation of the University of Washington School of Medicine that were
responsive to his request. Pl.’s Mot. & Opp’n at 5. Although his first FOIA request in March
2015 only described “[his] own FBI files,” 2015 Request at 2, Winn asserts that he later clarified
in his subsequent two FOIA requests that he was requesting all files relating to the University of
Washington School of Medicine investigation, Pl.’s Mot. & Opp’n at 5. Winn claims that the FBI
had further notice of the intended scope of his requests when Winn’s counsel informed DOJ in
November 2017 and January 2018 that Winn sought the entire investigative file, not just his own
records. Decl. of Scott A. Hodes (“Hodes Decl.”) [ECF No. 16-3] ¶¶ 4–5.
Under FOIA, agencies must construe record requests liberally in favor of disclosure, Nat.
Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), but those requests
must “reasonably describe[] such records,” 5 U.S.C. § 552(a)(3)(A). Agencies are not “required
to divine a requester’s intent,” nor must they “expand their searches beyond ‘the four corners of
the request.’” Am. Chemistry Council, Inc. v. U.S. Dep’t of Health and Human Servs., 922 F.
Supp. 2d 56, 62 (D.D.C. 2013) (citation omitted).
Here, Winn’s requests were clear: he sought his “own FBI files.” 2015 Request at 2; 2016
Request at 16; 2017 Request at 24. In his initial request, Winn never mentioned the University of
Washington investigation and stated only that he sought his own files. 2015 Request at 2. Then,
in 2016, he asserted that he was making “the same request” as he had the prior year. 2016 Request
at 16 (emphasis added). Both the 2015 and 2016 requests also included Form DOJ-361 certifying

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his identity, which suggested that he was seeking only his own records. 2015 Request at 4; 2016
Request at 18. Indeed, even in his complaint, Winn has described his FOIA requests as seeking
records “concerning himself.” Compl. ¶ 12; see also id. ¶¶ 17, 19 (stating he sought “records
pertaining to himself”).
Even construing the three FOIA requests liberally, their most natural reading is that Winn
sought the full set of all records pertaining to him “while nonetheless evincing a heightened interest
in a specific subset” of his records relating to the University of Washington investigation. LaCedra
v. Exec. Office for U.S. Att’ys, 317 F.3d 345, 348 (D.C. Cir. 2003). Although he stated in his
2016 and 2017 requests that he was “seeking any and all files related to the investigation of the
University of Washington School of Medicine in Seattle, WA,” he first asserted that he was
seeking just his own files. 2016 Request at 16; 2017 Request at 24. Hence, Winn only “reasonably
described” his own records, and clarified that he particularly sought his records relating to the
investigation. See id.; see also Suppl. Decl. of David M. Hardy, Ex. 1 to Def.’s Opp’n & Reply
(“Hardy Suppl. Decl.”) [ECF No. 20-1] ¶ 4 (“[T]he FBI interpreted this additional language to
mean that Plaintiff sought his records within the FBI’s investigation in the University of
Washington.”); Ex. B to Def.’s Mot. at 6 (identifying subject of Winn’s requests as “Winn, Herbert
Richard”); Ex. D to Def.’s Mot. at 10 (same). 3

Although Winn insists that the FBI “clearly found” all of the records in the University of Washington
investigation file to be responsive to his requests, Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. (“Pl.’s Reply”) [ECF No.
21] at 5, the FBI only stated that the records in the investigative file were “potentially responsive,” Ex. D to Def.’s
Mot. at 10. This does not suggest that all records in the file were in fact responsive. Nor is it relevant, as Winn
contends, that the FBI grouped the three requests at issue in this case with a separate FOIA request, which is not at
issue in this case, that Winn made for documents concerning another investigation subject, Albert Harris. See Pl.’s
Mot. & Opp’n at 5 (citing Ex. I to Gov’t’s Mot. (“Aug. 2017 Letter”) [ECF No. 15-5] at 3). Even if the FBI determined
that some records would be responsive to both sets of requests, this does not mean that the agency understood that
Winn had requested the entire investigative file.
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That Winn eventually informed the FBI that he actually intended to seek all records relating
to the investigation, including those that do not pertain to him, does not change the scope of his
requests. He only told the DOJ that he wanted the full investigative file after the FBI had searched
for records responsive to his original requests and had begun to produce documents. See Hodes
Decl. ¶¶ 4–5. At that point, the FBI had no “obligation to search anew based upon a subsequent
clarification.” Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); see also Williams
v. Ashcroft, 30 F. App’x 5, 6 (D.C. Cir. 2002) (per curiam) (holding agency “was not required to
search for or provide” materials that were not included in plaintiff’s initial FOIA request). The
FBI’s only obligation was to disclose non-exempt records responsive to Winn’s original requests
that it had located through an adequate search. 5 U.S.C. § 552(a)(3)(A), (C).
II.

The FBI’s Search for Responsive Documents
The FBI has satisfied its obligation to conduct an adequate search. Under FOIA, an agency

must make “a good faith effort to conduct a search for the requested records, using methods which
can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). It may demonstrate that its search was reasonable through
supporting affidavits that are “‘relatively detailed[,]’ . . . nonconclusory and submitted in good
faith.” Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citation omitted). “If the record
leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is
not proper.” Kowalczyk, 73 F.3d at 388 (citation and alteration omitted).
Although Winn concedes that the FBI’s search of its Central Records System (“CRS”) for
the investigative file was adequate, he challenges the adequacy of the FBI’s search of the
investigative file itself. But Winn does not contest any of the FBI’s representations or “provide
‘countervailing evidence’ as to the adequacy of the agency’s search.” Iturralde v. Comptroller of

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Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (citation omitted). Instead, his argument once again
rests on his assertion that the FBI improperly narrowed the scope of his requests when conducting
its search. Winn contends that the FBI’s description of its review of the investigative file was
insufficient because it did not identify the scope of responsive records, and he argues that the scope
should have included “all documents pertaining to the Department of Neurology” and to the
“overall investigation itself.” Pl.’s Reply at 5–6; see Pl.’s Mot. & Opp’n at 6 n.4.
But the Court has already found that the FBI’s interpretation of the scope of Winn’s
request––records concerning “Winn, Herbert Richard” and his provided aliases—was reasonable.
The agency was “not obliged to look beyond the four corners of the request” when searching for
responsive documents. Kowalczyk, 73 F.3d at 389. Nor was it obliged to produce records from
the investigative file that were not responsive to his requests. Pub. Investors Arbitration Bar Ass’n
v. SEC, 930 F. Supp. 2d 55, 72 (D.D.C. 2013) (“[I]t is elementary that an agency’s decision to
withhold non-responsive material is not a violation of FOIA.”), aff’d on other grounds, 771 F.3d
1 (D.C. Cir. 2014). 4
In any event, the FBI did describe its search for responsive records. The FBI submitted
declarations from RIDS Section Chief David M. Hardy that explain in detail the steps the FBI took
to search for responsive documents. After describing the FBI’s CRS and explaining how index
searches are generally conducted, Hardy stated that the FBI conducted an index search in the CRS
using the versions of Winn’s name that he had provided. Hardy Decl. ¶¶ 19–25. Hardy confirmed
that this search was of “the only records systems likely to maintain responsive records, and that no
other records systems are likely to maintain responsive records.” Id. ¶ 26. The search returned

Of course, an agency may not redact non-responsive information from non-exempt responsive records. Am.
Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016). But there
is no allegation here that the FBI redacted non-responsive portions of responsive documents; the FBI only withheld
entirely non-responsive documents that were located within the investigative file.
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one file pertaining to the University of Washington investigation. Id. ¶ 25. However, because the
investigation involved multiple suspects, Winn was only “one of many subjects indexed as a main
subject” of the file. Id. ¶ 25 n.5. The FBI therefore processed records within the file that “related
to [its] investigation of [Winn],” and omitted records that pertained only to other subjects and
hence were not responsive to Winn’s requests. Id.
This description is sufficiently detailed for the Court to conclude that the FBI’s search for
responsive records, including its search of the investigative file, was adequate.

True, the

declaration’s description of the agency’s review of the file could have been more detailed. For
example, it could have reiterated that the FBI deemed a particular document to be responsive if
the record included one of the search terms, i.e., variations of Winn’s name. But an affidavit need
not “set forth with meticulous documentation the details of an epic search for the requested
records.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). And the agency’s criteria for
evaluating whether a record was responsive to Winn’s request was explained to Winn when the
agency released the first set of documents to him: a record within the file was deemed unresponsive
“if no information about [his] subject”—i.e., H. Richard Winn—“was in the body of the document
itself.” Aug. 2017 Letter at 3. Any inadequacy of the description of the FBI’s search is “no more
than marginal and does not render the grant of summary judgment inappropriate.” Perry, 684 F.2d
at 127.
III.

Release of Reasonably Segregable Information
Finally, Winn contends that the FBI has not established that all reasonably segregable, non-

exempt information has been released. Under FOIA, “[a]ny reasonably segregable portion of a
record” must be released after exempt information has been redacted. 5 U.S.C. § 552(b). The
agency must “show with ‘reasonable specificity’ why the documents” it has withheld “cannot be

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further segregated.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996)
(citation omitted). “In determining whether the FBI has met this obligation, it is ‘entitled to a
presumption that it complied with the obligation to disclose reasonably segregable material,’”
which must be rebutted by the requester. Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)
(citation and alteration omitted).
Here, the Vaughn index and three affidavits submitted by the agency describe in sufficient
detail why the information the FBI withheld cannot be further segregated. The FBI conducted a
page-by-page review of each document to identify non-exempt information that could be released.
Hardy Suppl. Decl. ¶ 6. A page was withheld in full only when the FBI determined that any nonexempt information was “inextricably intertwined with protected personal information” and that
“[p]roviding additional information would disclose only incoherent words and phrases divorced
from context, or meaningless pieces of information.” Id. ¶ 10. This is sufficient to discharge the
agency’s obligation. See, e.g., Touarsi v. U.S. Dep’t of Justice, 78 F. Supp. 3d 332, 350 (D.D.C.
2015) (“It is settled law . . . that an agency need not segregate and disclose ‘disjointed words,
phrases, or even sentences which taken separately or together have minimal or no informational
content.’” (citation omitted)).
Winn has not submitted any evidence to rebut the FBI’s sworn assertions. Instead, he
appears to challenge only the FBI’s failure to review and release non-responsive records from the
investigative file. See Pl.’s Reply at 7. 5 But, as discussed above, the FBI was not required to
search for, process, or release records that were not responsive to Winn’s requests. Hence, the

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In his cross-motion and opposition brief, Winn also asserted that other agencies who reviewed the records
did not make segregability findings. Pl.’s Mot. & Opp’n at 6. As the government explained, the FBI merely consulted
with other agencies regarding information within the records and the FBI alone made all final segregability
determinations. Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. & Reply in Supp. of Mot. for Summ. J. [ECF No. 19]
at 8; see also Hardy Decl. ¶¶ 70–74. Winn did not respond to the government’s explanation in his reply.

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Court finds that the FBI has established that it has released all reasonably segregable, non-exempt
information.
CONCLUSION
For the foregoing reasons, the Court will grant [15] the DOJ’s motion for summary
judgment and deny [16] Winn’s cross-motion for summary judgment. A separate order will issue
on this date.

/s/
JOHN D. BATES
United States District Judge
Dated: February 6, 2019

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