Villar v. Federal Bureau of Investigation et al
Filing
60
///ORDER granting 55 Motion for Summary Judgment; denying 56 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla) Modified on 7/23/2018 to modify docket text to reflect the court order DENIED document no. 56. (gla).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Villar
v.
Civil No. 15-cv-270-LM
Opinion No. 2018 DNH 141
Federal Bureau of Investigation
O R D E R
Richard Villar, a prisoner, brings this suit under the
Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), challenging
the refusal of the Federal Bureau of Investigation (“FBI”) to
disclose certain documents and information that he requested
pursuant to that statute.
Following the court’s order denying
the parties’ motions for summary judgment without prejudice, the
FBI and Villar have filed second cross motions for summary
judgment.
STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant.
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
“Where, as here, the parties have filed
cross motions for summary judgment, the court applies the same
standard applicable to all summary judgment motions, but
considers the motions separately.”
Citizens for a Strong New
Hampshire, Inc. v. I.R.S., No. 14-CV-487-LM, 2015 WL 5098536, at
*3 (D.N.H. Aug. 31, 2015).
BACKGROUND
I.
Factual Background
In April 2006, Richard Villar was indicted on charges of
bank robbery and conspiring with two others to commit bank
robbery under 18 U.S.C. §§ 371 and 2113(a).
The two co-
conspirators pled guilty to the charges against them.
Villar’s
case proceeded to trial, where a jury convicted him of bank
robbery and conspiracy to commit bank robbery.
Villar was
sentenced to a 60-month sentence for one count and a concurrent
188-month sentence for the other count.
In May 2010, Villar sent the FBI a Freedom of Information
Act and Privacy Act request letter, in which he requested all
records or data in the FBI’s possession stored “specifically
under my name and /or an identifier assigned to my name.”
no. 43-3 at 1.
Doc.
Under a section in the letter entitled “SPECIFIC
2
REQUESTS,” Villar requested several documents relating to Shauna
Harrington, a witness who testified at his criminal trial.
That
request included, among other things, interview notes, police
reports, and criminal history about Harrington and any records
of inducements that the government provided Harrington in
exchange for her testimony.
Doc. no. 43-3 at 3.
Because Villar’s request for records concerning Harrington
could have included documents other than those covered by
Villar’s main request for the documents stored under his name,
the FBI opened two separate requests.
the records related to Villar.
The first request covered
The second request covered the
FBI’s records relating specifically to Harrington.
Pursuant to its policy for third-party requests, the FBI
refused to search for any records about Harrington unless Villar
provided authorization from Harrington, proof of Harrington’s
death, or a “clear demonstration that the public interest in
disclosure outweighs the personal privacy interest and that
significant public benefit would result from the disclosure of
the requested records.”
Doc. no. 43-4 at 1.
In response to the request concerning information about
Villar, the FBI conducted a search of its records and identified
3
615 pages1 of documents that were responsive.2
In September
2012, the FBI released 388 pages of documents to Villar, 126 of
which contained redactions.
The FBI withheld the remaining 227
pages of documents in their entirety.
86.
See doc. no. 43-2 at ¶
In support of its decision to not disclose all of the
requested information, the FBI cited several exemptions to FOIA.
Villar appealed the FBI’s response to his request for
records stored under his name to the Department of Justice’s
Office of Information Policy.
The Office of Information Policy
denied his appeal in June 2015.
II. Procedural Background
Villar then brought this suit, proceeding pro se,3 asserting
a FOIA claim against the FBI challenging the response to his
FOIA request.
In addition, Villar brought claims against David
Hardy, the Section Chief for the FBI’s Records Management
The FBI first informed Villar that it had identified 651
documents responsive to the request for records in his file.
See doc. no. 43-6. The FBI now contends that there were 615
documents responsive to that request. Doc. no. 43-2 at ¶ 86.
1
Initially, the FBI refused to disclose any of the
documents in Villar’s files, asserting that they were part of a
“pending or prospective law enforcement proceeding.” Doc. no.
43-8 at 1. Villar successfully appealed that decision to the
Department of Justice’s Office of Information Policy, which
remanded Villar’s request back to the FBI. See doc. no. 11.
2
3
Villar has since obtained an attorney.
4
Division, and Brian Keefe, an FBI Special Agent.
The court
previously dismissed Villar’s claims against Hardy and Keefe.
Doc. no. 40.
Following that order, the parties filed cross motions for
summary judgment on Villar’s remaining FOIA claims.
nos. 43 & 47.
See doc.
In its order on those motions, the court granted
the FBI’s motion for summary judgment on any claims arising out
of Villar’s request to search for records about Harrington
because Villar had failed to exhaust his administrative remedies
for that request.
Doc. no. 53 at 10.
As to the request for records in Villar’s file, the court
denied both the FBI’s and Villar’s motions for summary judgment.
With respect to the FBI’s motion, the court concluded that the
government’s Vaughn index did not provide a sufficient factual
basis to assess whether the withheld material was exempt from
disclosure.
With respect to Villar’s motion, the court
concluded that there were disputed issues of fact that precluded
summary judgment.
In addition, the court rejected Villar’s
argument that the FBI waived its right to assert certain FOIA
exemptions by failing to raise those exemptions in its
administrative response to him.
The court’s denial of the
parties’ motions for summary judgment, however, was without
prejudice to them filing second motions for summary judgment.
5
DISCUSSION
The FBI and Villar move again for summary judgment on the
remaining portion of Villar’s FOIA claim concerning the records
about him.4
In preparing its second motion for summary judgment,
the FBI reconsidered its original withholdings, and, as a
result, released in full twelve pages of documents that it
originally withheld.
See doc. no. 55-4.
Accordingly, the FBI’s
motion now asserts that it properly withheld 215 pages in full
and properly redacted material from another 126 pages.
The FBI
contends that its withholdings and redactions are justified
under FOIA Exemptions 6, 7(C), 7(D), and 7(E).
See 5 U.S.C.
§ 552(b)(6) and (b)(7)(C), (D), and (E).
In support, the FBI incorporates its original motion for
summary judgment, which argued that the withheld material was
Although Villar’s FOIA request to the FBI sought all
records stored under his name, the complaint that he filed in
this action appears to seek only documents concerning
Harrington, which is likely a much narrower universe of
documents than that which the FBI withheld. Despite pointing
this fact out in its motion for summary judgment, the FBI’s
motion addresses all the material that it withheld in response
to Villar’s FOIA request, not just material concerning
Harrington. Villar’s response to the FBI’s motion concerns the
disclosure of all withheld material, not just that concerning
Harrington. Because Villar was pro se when he filed his
complaint, and because the parties appear to agree that the
scope of Villar’s FOIA claim challenges the entirety of the
FBI’s withholding, the court will construe Villar’s FOIA claim
in that manner.
4
6
exempt from disclosure under FOIA.
See doc. no. 43.
The FBI
also filed a second Vaughn index providing additional factual
support for its claimed exemptions.
In response, Villar argues
that the FBI’s revised Vaughn index is inadequate and that the
FBI has improperly withheld in full numerous documents.
Finally, Villar argues that the court should view the withheld
documents in camera.
In support of his motion for summary judgment, Villar
incorporates his objection to the FBI’s first motion for summary
judgment, see doc. no. 45, which argued that the FBI’s claimed
exemptions did not apply.5
In response, the FBI again
incorporates its original motion for summary judgment.
FOIA requires federal agencies to make their records
available to any person upon request.
5 U.S.C. § 552(3).
FOIA
was “‘enacted to facilitate public access to Government
documents’ and ‘designed to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.’”
Union Leader Corp. v. U.S. Dep't of Homeland Sec.,
749 F.3d 45, 49–50 (1st Cir. 2014) (quoting U.S. Dep't of State
v. Ray, 502 U.S. 164, 173 (1991)).
“FOIA's basic policy of full
agency disclosure furthers the statute’s essential purpose of
Villar also incorporated this document in support of his
first motion for summary judgment. Doc. no. 47.
5
7
permitting citizens to know ‘what their government is up to.’”
Id. at 50 (internal quotation marks omitted).
The statute’s “right of access is not absolute, however, as
FOIA exempts certain categories of materials from disclosure in
order to effectuate the goals of the FOIA while safeguarding the
efficient administration of the government.” Id. (internal
quotation marks omitted); see also 5 U.S.C. § 552(b) (providing
exemptions).
“To fulfill the broad purposes of FOIA, [courts]
construe these exemptions narrowly.”
F.3d 65, 69 (1st Cir. 2014).
Stalcup v. C.I.A., 768
“FOIA further mandates that ‘any
reasonably segregable portion of a record shall be provided to
any person requesting such records after deletion of the
portions which are exempt under [section 552(b)].’” Carpenter v.
U.S. Dep't of Justice, 470 F.3d 434, 442 (1st Cir. 2006)
(quoting 5 U.S.C. § 552(b)).
“[T]he government agency bears the burden of proving the
applicability of a specific statutory exemption.” Union Leader
Corp., 749 F.3d at 50.
“That burden remains with the agency
when it seeks to justify the redaction of identifying
information in a particular document as well as when it seeks to
withhold an entire document.”
173).
Id. (quoting Ray, 502 U.S. at
To meet that burden, “courts often require the
withholding agency to provide a ‘Vaughn’ index,” which sets
8
forth the factual basis for the claimed exemptions.
470 F.3d at 442.
Carpenter,
In addition, “[t]he district court must
determine de novo whether the agency has met its burden.”
Union
Leader, 749 F.3d at 50.
I.
Vaughn Index
Ordinarily, a Vaughn index “includes a general description
of each document sought by the FOIA requester and explains the
agency’s justification for nondisclosure of each individual
document or portion of a document.”
Church of Scientology Int’l
v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994).
The
index serves the following three purposes:
[I]t forces the government to analyze carefully any
material withheld, it enables the trial court to
fulfill its duty of ruling on the applicability of the
exemption, and it enables the adversary system to
operate by giving the requester as much information as
possible, on the basis of which he can present his
case to the trial court.
Id. at 228 (quoting Maynard v. C.I.A., 986 F.2d 547, 557 (1st
Cir. 1993)).
When assessing a Vaughn index, “[i]t is the function, not
the form, which is important, and the question is whether the
particular taxonomy employed afford[s] the FOIA requester a
meaningful opportunity to contest, and the district court an
adequate foundation to review, the soundness of the
withholding.”
Id.
To satisfy this test, the index “must supply
9
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. (internal quotation marks
omitted).
This justification must also include a factual basis
supporting the agency’s segregability conclusion.
31.
Id. at 230-
In practical terms, this means that when an agency
withholds a document in full or several pages of a document in
full, it must explain why the withheld material does not contain
any other segregable and disclosable material.
Id. at 230-33.
In support of its first motion for summary judgment, the
FBI submitted a coded Vaughn index.
See doc. no. 43-26.
filing relied on a series of justification codes.
That
As explained
in the second declaration of David M. Hardy, doc. no. 43-2, each
code referred to a specific category of material that, the FBI
contended, was exempt from disclosure under specific statutory
exemptions, id. at ¶ 54.
For pages that the FBI disclosed in
redacted form, the agency stamped a justification code on the
face of the document next to the corresponding redaction to
explain the basis for withholding the material.
For pages
withheld in full, the FBI provided a table that identified the
page number withheld and referenced an exemption code to justify
that withholding.
The FBI did not provide descriptions of the
10
documents or specific descriptions of the material it withheld.
Rather, the second Hardy declaration generally described the
category of material that the FBI argued was exempt under each
code.
In its order on the parties’ first motions for summary
judgment, the court acknowledged that the First Circuit has
approved of the use of coded indices in certain circumstances.
Doc. no. 53 at 13-15 (citing Maynard, 986 F.2d at 559 & 559
n.13).
Nevertheless, the court concluded that the FBI’s index
was insufficient for two principal reasons.
Id. at 15-16.
First, the index did not describe the contents of the documents
for which it was claiming an exemption to FOIA’s disclosure
requirement.
Id.
For the pages that the FBI had withheld in
full, the lack of description of those pages’ contents made it
functionally impossible for Villar or the court to evaluate the
applicability of the claimed exemptions.
Second, the FBI failed
to demonstrate that it had conducted an appropriate
segregability analysis and instead relied on conclusory
assertions about segregability in the second Hardy declaration.
Id. at 16.
In support of its renewed motion for summary judgment, the
FBI has submitted a new Vaughn index.
See doc. no. 55-3.
The
FBI contends that this index explains its withholdings in more
11
detail and cures the problems that the court identified in its
previous order.
In response, Villar argues that the new index
fails because, like the FBI’s last submission, this one does not
“attempt to particularize each exemption to the actual document
withheld” and relies exclusively on “the generalized
description[s] contained in the Hardy Declaration.”
Doc. no.
56-1 at 1-2.
The court agrees with the FBI that its new index is
sufficient.
Unlike its first index, the new index identifies
and describes each document that the FBI has withheld in full or
in part.
This provides meaningful context that allows Villar
and the court to evaluate the applicability of the FBI’s claimed
exemptions.
In addition, the index describes the specific
content in each document that the FBI has withheld and provides
a justification for why that material is exempt.6
Although, as
Villar notes, these justifications often match the same
generalized justifications that the FBI relied on in its
original motion for summary judgment, they are now linked to a
description of the specific withheld material.
The FBI,
therefore, has particularized these justifications to the
withheld material.
Finally, the FBI’s new index also explains
This description is located in the section in each entry
entitled “segregability analysis.”
6
12
why it concluded that the withheld material contained no
segregable, disclosable information.
Because of these features, the new index provides a
sufficient factual basis to allow both Villar and the court to
evaluate the applicability of the claimed exemptions and whether
the FBI conducted a proper segregation analysis.
II. FOIA Exemptions
The FBI contends that its withholdings are justified under
FOIA exemptions b(6), b(7)(C), b(7)(D), and b(7)(E).
See 5
U.S.C. § 552(b) (setting forth exemptions to FOIA’s disclosure
requirement).
In response, Villar argues that the exemptions
are not applicable.
A.
Exemptions 6 and 7(C)
Pursuant to Exemptions 6 and 7(C), the FBI has withheld
responsive material that contains the names or other identifying
information of third parties.
Specifically, this material
includes the names and identifying information of government and
law enforcement personnel and other third parties with a
connection to Villar’s criminal investigation.
For each record
that the FBI claims is exempt from disclosure under Exemption 6,
it also asserts Exemption 7(C) as a separate basis for its
withholding.
13
FOIA Exemption 6 exempts from FOIA’s disclosure requirement
“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)
exempts from FOIA’s disclosure requirement “records or
information compiled for law enforcement purposes . . . to the
extent that the production of such [] records or information
. . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(c).
The statutory language in Exemption 6, which requires that
the disclosure actually constitute “a clearly unwarranted”
invasion of personal privacy, “is less protective of personal
privacy than Exemption 7(C) . . . .”
50 n.4.
Union Leader, 749 F.3d at
Accordingly, when an agency asserts both exemptions to
justify withholding material that has been compiled for law
enforcement purposes, “[the court] need not address Exemption 6
separately because ‘all information that would fall within scope
of Exemption 6 would also be immune from disclosure under
Exemption 7(C).’”
Moffat v. U.S. Dep’t of Justice, 716 F.3d
244, 250 n.4 (1st Cir. 2013) (internal quotation marks omitted);
Union Leader, 749 F.3d at 50 n.4.
Because there is no dispute
that the records at issue here were compiled for law enforcement
14
purposes, the court will assess only the applicability of
Exemption 7(C).
“To determine whether the government may rely on Exemption
7(C) to withhold documents, [the court] balance[s] the privacy
interest at stake in revealing the materials with the public
interest in their release.” Eil v. U.S. Drug Enf't Admin., 878
F.3d 392, 398 (1st Cir. 2017) (internal quotation marks
omitted).
The Supreme Court has observed “that an individual’s
privacy interest is ‘at its apex’ when he or she is involved in
a law enforcement investigation.”
Stalcup, 768 F.3d at 73
(quoting Nat'l Archives & Records Admin. v. Favish, 541 U.S.
157, 166 (2004)).
Once the government demonstrates that a
legitimate privacy interest recognized under Exemption 7(C) is
present, “the party seeking disclosure must show (1) that there
is a ‘significant’ public interest in disclosure, and (2) that
the requested information is ‘likely to advance that interest.’”
Eil, 878 F.3d at 398 (quoting Favish, 541 U.S. at 172).
1.
Privacy Interests
In support of its withholdings, the FBI contends that the
third parties identified in the withheld material have
substantial privacy interests in not having their participation
or connection to a criminal investigation revealed.
In
interpreting Exemption 7(C), the “[Supreme] Court has rejected
15
‘cramped notion[s] of personal privacy,’ [U.S. Dep't of Justice
v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 763
(1989)], and instead has interpreted the exemption as
‘protect[ing] a broad notion of personal privacy, including an
individual's interest in avoiding disclosure of personal
matters,’ Carpenter, 470 F.3d at 438.”
at 50-51.
Union Leader, 749 F.3d
Therefore, the privacy interest “encompasses the
individual's control of information concerning his or her
person, and when, how, and to what extent information about them
is communicated to others.”
Carpenter, 470 F.3d at 438
(internal quotation marks and alterations omitted).
Consistent with this privacy interest, the Supreme Court has
emphasized that the “disclosure of records regarding private
citizens, identifiable by name, is not what the framers of the
FOIA had in mind.”
Carpenter, 470 F.3d at 438-39 (quoting
Reporters Comm., 489 U.S. at 765-66).
Rather, “the FOIA’s
central purpose is to ensure that the Government’s activities be
opened to the sharp eye of public scrutiny, not that information
about private citizens that happens to be in the warehouse of
the Government be so disclosed.”
489 U.S. at 774).
16
Id. (quoting Reporters Comm.,
a.
Private Parties Mentioned in FBI Files
Pursuant to Exemption 7(C), the FBI has withheld the names
and identifying information of people of investigative interest,
including Villar’s co-conspirators, people who provided
information to the FBI, and people who are mentioned in the
agency’s records because they came into contact with the FBI’s
investigation.
In support, Hardy asserts in his second
declaration that these individuals have strong privacy interests
in keeping their identity confidential.
Hardy states that
revealing the identity of these third parties and thereby
positively associating them with a criminal investigation would
create a negative stigma.
Hardy also contends that disclosing
the identity of individuals who participated in or were
connected to the criminal investigation could expose them to
harassment or reprisal.
In response, Villar argues that Harrington and his two coconspirators have diminished privacy interests because they have
been arrested.
Villar also contends that his two co-
conspirators have no privacy interests in the withheld
information because they waived those interests when they signed
plea agreements with the government.
“Exemption 7(C) recognizes that the stigma of being
associated with any law enforcement investigation affords broad
17
privacy rights to those who are connected in any way with such
an investigation unless a significant public interest exists for
disclosure.”
Ortiz v. United States Dep't of Justice, 67 F.
Supp. 3d 109, 121 (D.D.C. 2014) (internal quotation marks
omitted).
Therefore, the class of individuals who possess a
privacy interest under Exemption 7(C) is broad and includes
investigatory targets, those who provide information to law
enforcement, and third parties mentioned in investigative files.
See Maynard, 986 F.2d at 566 (observing that “confidential
sources . . . and investigatory targets . . . have significant
privacy interests in not having their names revealed.”);
Carpenter, 470 F.3d at 439 (recognizing privacy interest of
witnesses, informants, and those who provide information to law
enforcement); Moffat, 716 F.3d at 251 (recognizing privacy
interests of people merely mentioned during law enforcement
interviews); Jett v. Fed. Bureau of Investigation, 241 F. Supp.
3d 1, 12–13 (D.D.C. 2017) (protecting identity of individuals
mentioned in FBI files); Hertz Schram PC v. F.B.I., No. 12-CV14234, 2014 WL 764682, at *12 (E.D. Mich. Feb. 25, 2014) (same).
Nevertheless, Villar contends that three particular people,
Harrington and Villar’s two co-conspirators, possess a
diminished privacy interest because they have been arrested for
crimes.
In support, Villar relies on Union Leader.
18
In that
case, the First Circuit considered whether Exemption 7(C)
permitted the United States Immigration and Customs Enforcement
to redact the names of six aliens from forms that contained
summaries of the aliens’ arrest and criminal conviction history.
749 F.3d at 49.
The First Circuit held that Exemption 7(C) did
not shield the names from disclosure.
Id. at 56.
In doing so, the First Circuit acknowledged that Supreme
Court precedent “makes clear that . . . arrestees do indeed have
a privacy interest concerning their underlying convictions and
arrests.”
n.13).
Id. at 51 (citing Reporters Comm., 489 U.S. at 762
The court, however, concluded that those privacy
interests were diminished because the information concerning
their convictions and arrests was already in the public domain.
Id. at 53 (“[A]lthough the arrestees have a cognizable privacy
interest in their names, that interest is attenuated both by the
status of their underlying convictions and arrests as matters of
public record and by the limited nature of the Union Leader’s
proposed investigation.”).
After balancing those diminished
interests against what the court concluded was a valid public
interest in disclosure proffered by the plaintiff, the court
held that Exemption 7(C) was inapplicable.
Id. at 56.
Union Leader does not weigh in favor of disclosure here.
Contrary to Villar’s assertion, Union Leader does not adopt a
19
broad rule “that the privacy interests of arrestees are less
than that of ordinary citizens.”
Doc. no. 45 at 6.
Rather,
Union Leader holds that arrestees possess a diminished privacy
interest in information about their arrests and criminal
convictions, because that information is a matter of public
record.
Id. at 55.
Here, Villar points to no specific
information that he seeks that is already in the public record,
and a review of the FBI’s Vaughn index demonstrates that much of
the withheld information is likely nonpublic.
For example, the
FBI has withheld information detailing third-party interviews
with its agents, information about the investigation into
Villar’s co-conspirators (neither of whom ever had public
trials), and other internal FBI memoranda.
Harrington and Villar’s two co-conspirators have a
legitimate privacy interest in preventing the disclosure of this
nonpublic material.
Carpenter, 470 F.3d at 439 (concluding that
even if a person’s identity is known it is “a further invasion
of [that person’s] protected privacy interest to positively
identify him with a given criminal matter and reveal the records
or information that he provided”); Burge v. Eastburn, 934 F.2d
577, 579–80 (5th Cir. 1991) (concluding that trial witnesses had
privacy interest in not revealing the nonpublic information they
provided to investigators).
20
Moreover, to the extent there is any publicly available
information in the withheld material, that information is still
exempt from disclosure under Exemption 7(C).
That is because,
as discussed in detail below, Villar has not demonstrated a
legitimate public interest favoring disclosure that could
outweigh even a diminished privacy interest in the withheld
material.
See Maynard, 986 F.2d at 566 (“Plaintiff here has
failed to suggest how the disclosure of the names would reveal
what the government is up to.
We need not, therefore, dwell
upon the balance between privacy and public interests: something
outweighs nothing every time.” (internal quotation marks and
alterations omitted)).
Therefore, the fact that Harrington and
Villar’s co-conspirators are arrestees does not weaken their
respective privacy interests to the point where disclosure is
warranted.
Villar also contends that the FBI cannot assert the privacy
interests on behalf of his co-conspirators because each of them
waived those interests when pleading guilty to offenses related
to the bank robbery.
In support, Villar relies on a provision
in his co-conspirators plea agreements, in which they agreed to
waive “all rights . . . to request or receive from any
department or agency of the United States any records pertaining
to the investigation or prosecution of this case, including
21
without limitation any records that may be sought under the
Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act
of 1974, 5 U.S.C. § 552a.”
See United States v. Joshua Gagnon,
06-CR-85-PB-02, Doc. no. 28 at 12 (D.N.H.); United States v.
Dedra Scott, 06-CR-85-PB-03, Doc. no. 46 at 12 (D.N.H.).
Under
the plain terms of the provision on which Villar relies, his coconspirators waived the right to request documents under FOIA,
not the privacy rights that FOIA protects.
Accordingly,
Villar’s waiver theory fails.
Therefore, the court concludes that the FBI has demonstrated
a valid privacy interest on behalf of the private third parties
mentioned in the withheld documents.
b.
Law Enforcement and Government Officials
Pursuant to Exemption 7(C), the FBI has withheld the names
and identifying information of law enforcement personnel and
government officials, including FBI special agents and support
personnel, local and state law enforcement personnel, and nonFBI federal government personnel.
In support of the asserted
privacy interest, Hardy contends in his second declaration that
disclosing the identity of these government employees to the
public would expose them to harassment and potential reprisal.
In response, Villar argues that government officials possess a
diminished privacy interest in protecting their identities.
22
The First Circuit has held that law enforcement and other
government personnel possess significant privacy interests in
not having their names or involvement in a criminal
investigation revealed.
Moffat, 716 F.3d at 251–52 (concluding
that FBI properly withheld information about FBI personnel and
characterizing privacy interests at stake as “substantial”);
Maynard, 986 F.2d at 566 (upholding refusal to disclose names of
FBI agents and support personnel because those individuals “have
significant privacy interests in not having their names
revealed.”); Sensor Sys. Support, Inc. v. F.A.A., 851 F. Supp.
2d 321, 334–35 (D.N.H. 2012) (“Law enforcement personnel have
significant privacy interests in keeping their names or other
identifying information from being generally disclosed.”).
The
First Circuit has explained that recognition of this privacy
interest is appropriate because:
One who serves his state or nation as a career public
servant is not thereby stripped of every vestige of
personal privacy, even with respect to the discharge of
his official duties. Public identification of any of
these individuals could conceivably subject them to
harassment and annoyance in the conduct of their
official duties and in their private lives.
New England Apple Council v. Donovan, 725 F.2d 139, 142 (1st
Cir. 1984) (quoting Miller v. Bell, 661 F.2d 623, 630 (7th Cir.
1981), abrogated in part on other grounds by U.S. Dep’t of
Justice v. Landano, 508 U.S. 165, 181 (1993)).
23
Villar, however, cites Perlman v. U.S. Dep't of Justice, 312
F.3d 100, 103 (2d Cir. 2002), cert. granted, judgment vacated
sub nom. Perlman v. Dep't of Justice, 541 U.S. 970 (2004).
In
Perlman, the Second Circuit explained that while government
employees possess a “somewhat diminished” privacy interest, they
do “not surrender all rights to personal privacy.”
F.3d at 107.
Perlman, 312
To the extent Perlman holds that government
employees do not maintain a significant privacy interest, it
contradicts First Circuit precedent and is, therefore, not
applicable here.
Moreover, as explained above, even if the
government employees in this case possess a diminished privacy
interest, disclosure is still not warranted because Villar has
not demonstrated any public interest in favor of disclosure that
would outweigh even a diminished privacy interest.
Therefore,
Perlman does not support disclosure of the identity of
government agents here.
Accordingly, the court finds that the law enforcement
personnel and government agents referenced in Villar’s FBI file
possess a privacy interest in not having their identities
revealed.
2.
Public Interest in Disclosing Information
Villar argues that there is a public interest in obtaining
information that could “corroborate his claim of innocence.”
24
Doc. no. 45 at 9.
Specifically, Villar contends that the
information he seeks could show that the government failed to
disclose evidence that it provided benefits to Harrington in
exchange for her trial testimony.
In response, the government
asserts that Villar’s assertions are too speculative to
establish a public interest in disclosure.
As discussed above, because the FBI has asserted legitimate
privacy interests, Villar must show “(1) that there is a
‘significant’ public interest in disclosure, and (2) that the
requested information is ‘likely to advance that interest.’”
Eil, 878 F.3d at 398 (quoting Favish, 541 U.S. at 172).
“Whether an invasion of privacy is unwarranted will ‘turn on the
nature of the requested document and its relationship to the
basic purpose of the [FOIA] to open agency action to the light
of public scrutiny.’” Carpenter, 470 F.3d at 440 (quoting
Reporters Comm., 489 U.S. at 772).
“[T]he innocence or guilt of a particular defendant tells
the [c]ourt nothing about matters of substantive law enforcement
policy that are properly the subject of public concern.”
Moffat, 716 F.3d at 252 (quoting Carpenter, 470 F.3d at 441).
“But this is not to say that information requested by a criminal
defendant may never implicate the public interest.”
Id.
Rather, a FOIA requester challenging his or her conviction must
25
“connect his deeply personal stake in [the requested]
information to a larger governmental function.”
Moffat, 716
F.3d at 252.
For example, a disclosure that “could shed light on
possible government misconduct” could serve the public interest.
Carpenter, 470 F.3d at 441.
When such an interest is asserted,
however, “‘the requester must establish more than a bare
suspicion in order to obtain disclosure.’”
541 U.S. at 174).
Id. (quoting Favish
“Rather, ‘the requester must produce evidence
that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.’”
Id.
(quoting Favish 541 U.S. at 174).
In support of his claim that the government provided
undisclosed benefits to Harrington in exchange for her
testimony, Villar points to evidence that an FBI special agent
and a prosecutor declined to arrest Harrington at a pre-trial
interview after she informed them that there could be a warrant
out for her arrest.
At Villar’s trial, Harrington testified
that she informed the prosecutor and the agent that there could
be an arrest warrant for her stemming from her failure to appear
in court to answer drug charges in Massachusetts.
at 36, 48-49.
Doc. no. 24-1
Harrington further testified that the agent did
not arrest her because she was scheduled to enter a
26
rehabilitation facility the following day.
Id. at 36.
Harrington also testified that she intended to resolve the issue
concerning her failure to appear for court.
Id.
Prior to his cross examination of Harrington, Villar’s
counsel requested the disclosure of any benefits that the
government provided Harrington in exchange for her testimony.
In response, the prosecutor informed the court that all Jencks
and Giglio material had been provided to Villar’s counsel and
further stated that “we have nothing to do whatsoever with her
rehab.”
Doc. no. 24-1 at 45.
Villar presents no evidence—beyond naked speculation—that
the government’s representations during his criminal trial were
false.
Further, Villar points to no authority, and the court is
aware of none, that requires federal agents to execute an arrest
warrant, particularly one originating from a different
jurisdiction.
Rather, law enforcement traditionally has
discretion in deciding whether to arrest someone when it has
legal authority to do so.
See Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 760–61 (2005) (observing that there is a
“well established tradition of police discretion” when deciding
whether to execute legal authority to arrest a person); Robinson
v. Lioi, 536 F. App'x 340, 345 (4th Cir. 2013) (noting that “a
police officer has discretion in the execution of arrest
27
warrants” (citing Castle Rock, 545 U.S. at 764)).
Moreover,
Harrington’s scheduled treatment in a rehabilitation facility
the next day is a plausible reason why the agent declined to
arrest her.
In short, there is no evidence in the record “that
would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Carpenter, 470 F.3d
at 442 (internal quotation marks omitted).
Therefore, Villar
has not demonstrated that a valid public interest supports
disclosure.
Because no valid public interest favoring disclosure has
been shown, the legitimate privacy interests that the FBI has
asserted preclude disclosure of the documents at issue.
Accordingly, the FBI properly withheld the material containing
information about third parties under Exemption 7(C).
B.
Exemption 7(D)
The FBI withholds material that, it contends, will disclose
the names and identifying data of confidential sources, as well
as the information provided by those sources.
In response,
Villar argues that the FBI has failed to demonstrate that the
sources at issue were confidential sources under the statute.
Villar also argues that the FBI cannot raise Exemption 7(D)
because it failed to raise that exemption in its administrative
response to him.
28
Exemption 7(D) to FOIA exempts from “disclosure agency
records ‘compiled for law enforcement purposes . . . by criminal
law enforcement authority in the course of a criminal
investigation’ if release of those records ‘could reasonably be
expected to disclose’ the identity of, or information provided
by, a ‘confidential source.’”
§ 552(b)(7)(D)).
Landano, 508 U.S. at 167 (quoting
“Unlike under 7(C), if the government
demonstrates that the information requested was given under an
assurance of confidentiality, 7(D) does not require a further
showing that privacy interests outweigh any public interest in
disclosure.”
Moffat, 716 F.3d at 252-53.
“Thus, Exemption 7(D)
provides greater protection to a narrower class of persons than
does 7(C).” Id. (internal quotation marks omitted).
1.
Waiver of Exemption
In his objection to the FBI’s original motion for summary
judgment, Villar argued that the FBI waived its right to assert
Exemption 7(D) because it did not raise those exemptions in its
administrative response to him.
The court rejected this theory
in its order disposing the parties’ original motions for summary
judgment.
In doing so, the court concluded that an “agency
cannot ‘waive’ its right to invoke an exception prior to suit.”
Doc. no. 53 at 18 (quoting Hodes v. U.S. Dep’t of Hous. & Urban
Dev., 532 F. Supp. 2d 108, 114 n.2 (D.D.C. 2008) and citing
29
Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 361 n.2 (S.D.N.Y.
2008)).
To the extent Villar intended to raise this argument again
by incorporating his response to the FBI’s original motion for
summary judgment, that argument fails.
Villar has presented no
argument as to why the court should reconsider his waiver
theory.
Therefore, the court denies Villar’s motion for summary
judgment to the extent it relies on the waiver theory.
2.
Confidentiality of Source
Here, the FBI contends that two of the sources it is
protecting were operating under express grants of
confidentiality, while the rest were operating under implied
grants of confidentiality.
In response, Villar contends that
the FBI has not adequately demonstrated that a grant of express
confidentiality existed for the sources.
a.
Express Grants of Confidentiality
Where an agency asserts that a source provided information
under an express grant of confidentiality, “it is required to
come forward with probative evidence that the source did in fact
receive an express grant of confidentiality.’” Dorsey v. Exec.
Office for United States Attorneys, 83 F. Supp. 3d 347, 356
(D.D.C. 2015) (quoting Davin v. U.S. Dep't of Justice, 60 F.3d
30
1043, 1061 (3d Cir. 1995)), aff'd in part, remanded in part sub
nom. Dorsey v. Exec. Office for U.S. Attorneys, No. 15-5104,
2016 WL 1272941 (D.C. Cir. Feb. 10, 2016).
In support of its argument that the two sources at issue
were provided express assurances of confidentiality, the FBI
relies on the second Hardy declaration.
In that declaration,
Hardy states that the FBI provided both sources with an express
grant of confidentiality.
As further evidence in support of
that assertion, Hardy asserts that the FBI paid one source for
his or her assistance “as a non-source symbol numbered
informant.”
Doc. no. 43-2 at ¶ 72.7
Hardy further asserts that
this source’s name was annotated with the words “Protect
Identity” after their name in internal FBI documents.
Id.
As for the other source, Hardy states that this source
expressly asked for confidentiality.
In addition, Hardy attests
that the FBI also used the words “Protect Identity” next to this
source’s name in its investigatory records.
Based on this evidence, the court concludes that both
sources were provided express grants of confidentiality.
Hardy explains in his second declaration that a source
symbol number is provided to individuals providing information
over an extended period.
7
31
b.
Implied Grants of Confidentiality
In support of its assertion that the remaining sources
provided information under an implied assurance of
confidentiality, the FBI points to the violent nature of the
crime at issue and the sources’ role in providing information
that led to the indictment.
Although not every source who provides information to the
FBI is a “confidential” source under Exemption 7(D), the
government may point to circumstances that support an inference
that a source was cooperating under an implied assurance of
confidentiality.
Landano, 508 U.S. at 179.
In doing so, the
relevant question is “whether the particular source spoke with
an understanding that the communication would remain
confidential.”
Sandoval v. U.S. Dep't of Justice, No. CV 16-
1013 (ABJ), 2017 WL 5075821, at *12 (D.D.C. Nov. 2, 2017)
(quoting Landano, 508 U.S. at 172).
In determining whether such
an understanding was present, courts have “examin[ed] factors
such as the nature of the crime and the source’s relation to
it.”
Landano, 508 U.S. at 179.
Based on those factors, courts have generally concluded
that “[c]rimes involving violence and the risk of retaliation
warrant an implied grant of confidentiality.”
Island Film, S.A.
v. Dep't of the Treasury, 869 F. Supp. 2d 123, 137 (D.D.C. 2012)
32
(citing cases).
In that same vein, courts have found that
sources who provide information about armed robbery do so under
an implied grant of confidentiality.
Thomas v. U.S. Dep't of
Justice, 531 F. Supp. 2d 102, 111–12 (D.D.C. 2008) (violent
nature of bank robbery warranted finding of implied grant of
confidentiality); Meserve v. U.S. Dep't of Justice, No. CIV.A.
04-1844 (RBW), 2006 WL 2366427, at *9 (D.D.C. Aug. 14, 2006)
(finding implied grant of confidentiality for sources who
provided information about an armed robbery).
In addition, the case for finding an implied grant of
confidentiality is greater when the source has been able to
provide information about the crime that is “singular in
nature,” meaning that it is “the kind of information that, if it
were revealed to the public, could be traced to a particular
source.”
Labow v. U.S. Dep't of Justice, 831 F.3d 523, 531–32
(D.C. Cir. 2016); see also 3 Federal Information Disclosure §
17:102 (citing Labow and making the same point).
In his second declaration, Hardy asserts that the sources
“provided assistance and valuable information specific in nature
throughout the armed bank robbery investigation,” and that their
assistance helped lead to the indictment of Villar and his coconspirators.
Doc. no. 43-2 at ¶ 74.
Hardy further asserts
that the sources provided information that was “singular in
33
nature, and if released could reveal their identities.”
¶ 70.
Id. at
Hardy also asserts that “[a]ll of the individuals could
reasonably fear that disclosure of their identities would place
them in danger of possible retaliation, harassment, and/or could
reasonably be expected to cause them physical harm, especially
due to the violent nature of the crime under investigation.”
Id. at ¶ 75.
Based on the foregoing statements, the court concludes that
the sources at issue were operating with an understanding that
their participation would remain confidential.
Therefore, the
information identifying those sources and the information they
provided is exempt from disclosure.
C.
Exemption 7(E)
Pursuant to Exemption 7(E), the FBI has withheld material
that it contends would reveal nonpublic investigative techniques
and procedures or nonpublic aspects of its known investigative
techniques and procedures.
In support, the FBI argues that this
information is exempt from FOIA because its disclosure would
allow criminals to circumvent the law.
The only argument that
Villar raises in objection to the application of Exemption 7(E)
is his argument that the FBI waived its right to assert that
exemption because it did not raise the exemption in its
34
administrative response to him.
As discussed above, however,
the court has rejected that theory.
Exemption 7(E) exempts from FOIA’s disclosure requirement
all agency “records of information compiled for law enforcement
purposes, but only to the extent that the production of such
[records]. . . would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk
circumvention of the law.”
5 U.S.C. § 552(b)(7)(E).
To
withhold records containing information about techniques or
procedures under Exemption 7(E), the agency must show “(i) that
the withheld records or information would disclose techniques
and procedures for law enforcement investigations and (ii) that
their disclosure would reasonably risk circumvention of the
law.”
Sack v. U.S. Dep't of Def., 823 F.3d 687, 694 (D.C. Cir.
2016).8
Other circuit courts of appeal have concluded that the
circumvention of law requirement “applies only to guidelines for
law enforcement investigations or prosecutions, not to
techniques and procedures.” Am. Civil Liberties Union of N.
California v. United States Dep't of Justice, 880 F.3d 473, 491
(9th Cir. 2018); Allard K. Lowenstein Int'l Human Rights Project
v. Dep't of Homeland Sec., 626 F.3d 678, 681–82 (2d Cir. 2010).
The First Circuit has not addressed this issue. Because the FBI
has demonstrated that the release of the techniques and
procedures at issue here would indeed risk the circumvention of
8
35
When assessing whether an agency has demonstrated that
disclosure would risk the circumvention of law, courts:
Look[] not just for circumvention of the law, but for a
risk of circumvention; not just for an actual or
certain risk of circumvention, but for an expected
risk; not just for an undeniably or universally
expected risk, but for a reasonably expected risk; and
not just for certitude of a reasonably expected risk,
but for the chance of a reasonably expected risk.
Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011) (internal
quotation marks omitted).
Accordingly, to withhold documents
pursuant to Exemption 7(E), the FBI need not meet a highly
specific burden, but rather must “demonstrate logically how the
release of the requested information might create a risk of
circumvention of the law.”
Id.
Here, the FBI has withheld information about bank security
measures, its modus operandi tracking, its collection and
analysis of information, statistical ratings of its
investigative techniques, and certain monetary payments that it
made for investigative purposes.
The FBI contends that this
information must be withheld because its disclosure will risk
the circumvention of law.
law, the court need not consider whether the circumvention of
law requirement applies to all records in Exemption 7(E)’s
ambit.
36
1.
Bank Security Measures
The FBI withheld information providing details about the
various security measures that were at the bank, including
surveillance equipment, other security devices, and bait money,
which is money that the FBI uses to track criminals following
the commission of a robbery.
In his second declaration, Hardy
asserts that the withheld material provides details about the
types of security measures present at the robbery, how they were
implemented, and where they were located.
Hardy further asserts
that if this information were disclosed, would-be criminals
could use it to devise countermeasures to avoid bank security.
Courts have generally held that information about bank
security measures is exempt from FOIA disclosure under Exemption
7(E) because revealing such information would risk the
circumvention of law.
See, e.g., Ford v. Dep't of Justice, 208
F. Supp. 3d 237, 254 (D.D.C. 2016) (bank surveillance video
properly withheld under Exemption 7(E)); Maguire v. Mawn, No.
02-2164, 2004 WL 1124673, at *3 (S.D.N.Y. May 19, 2004)
(concluding that information about bait money exempt); Rivera v.
FBI, No. 98-0649, slip op. at 9-10 (D.D.C. Aug. 31, 1999)
(holding that information about bank security measures is exempt
under Exemption 7(E)); Dayton Newspapers, Inc. v. FBI, No. C-385-815, 1993 WL 1367435, at *6 (S.D. Ohio Feb. 9, 1993)
37
(concluding that agency properly withheld details of bank
security devices and equipment used in bank robbery
investigation); Malloy v. U.S. Dep't of Justice, 457 F. Supp.
543, 545 (D.D.C. 1978) (approving withholding of information
about bank security devices and bait money).
The court finds the reasoning of these cases persuasive.
Accordingly, the FBI has satisfied its burden of demonstrating
that the disclosure of the information at issue could risk the
circumvention of law.
Therefore, the information concerning
bank security measures was properly withheld.
2.
Modus Operandi Tracking
The FBI redacted information in one page detailing the bank
robbery techniques it tracks as markers of a criminal’s modus
operandi.
In his second declaration, Hardy asserts that
disclosing the variety of robbery techniques that it tracks in
connection with its modus operandi summaries “would give
criminals additional techniques to possible [sic] use in future
robberies.”
Doc. no. 43-2 at ¶ 81.
The court finds that the
FBI has logically demonstrated why disclosure of the modus
operandi summaries would risk a circumvention of the law.
38
3.
Collection and Analysis of Information
The FBI redacted material from two pages detailing the
methods it uses to collect and analyze the information it
obtains for investigative purposes.
In his second declaration,
Hardy contends that disclosing this information would provide
criminals knowledge of these FBI techniques, including when
specific techniques are used, and the usefulness of the
information obtained from them.
Hardy further asserts that this
knowledge would allow criminals to deploy countermeasures that
limit the effectiveness of the techniques.
The court agrees that criminals, armed with the knowledge
of these investigative techniques, could develop methods to
counter the techniques’ effectiveness and thereby circumvent the
law.
Courts that have considered whether such information
qualifies for exemption under Exemption 7(E) have come to the
same conclusion.
Shapiro v. Cent. Intelligence Agency, 247 F.
Supp. 3d 53, 71–72 (D.D.C. 2017) (holding that information
concerning collection and analysis methods is exempt from
disclosure); Johnson v. Fed. Bureau of Investigation, No. CV 141720, 2016 WL 5162715, at *6 (E.D. Pa. Sept. 21, 2016) (same).
Therefore, the FBI has demonstrated that disclosing information
about its collection and analysis methods could risk
circumvention of the law.
39
4.
Statistical Information
The FBI redacted portions of FD-515s (its form for tracking
certain law enforcement milestones) which contain statistical
ratings of the effectiveness of over 40 publicly known
investigative techniques.
Hardy asserts that disclosure of this
information would risk circumvention of law because this
information could allow criminals to “change their activities
and modus operandi in order to circumvent and avoid detection
and/or surveillance in the future.”
Doc. no. 43-2 at ¶ 83.
Hardy also states that “[b]y understanding which techniques are
the most effective, criminals have knowledge of the techniques
they need most to avoid in order not to be apprehended.”
Id.
These assertions sufficiently demonstrate that disclosure
of the statistical ratings would risk the circumvention of law.
See Frankenberry v. F.B.I., 567 F. App'x 120, 125 (3d Cir. 2014)
(affirming district court’s finding that statistical ratings
could be withheld under Exemption 7(E)); Westmoreland v. Fed.
Bureau of Investigation, No. CV 13-2058(CKK), 2015 WL 5063181,
at *6 (D.D.C. Aug. 26, 2015) (permitting the FBI to redact
statistical rating information about investigative techniques);
Rosenberg v. U.S. Dep't of Immigration & Customs Enf't, 959 F.
Supp. 2d 61, 80 (D.D.C. 2013) (same).
40
Accordingly, the FBI
properly redacted the statistical ratings from the FD-515s in
Villar’s file.
5.
Monetary Payments
The FBI redacted information in three pages of an internal
communication, which detailed a request for a payment to a
source.
Hardy asserts that the redacted information contains
details about the amount paid to the source and the
justifications supporting that payment.
In support of his
assertion that this information is exempt, Hardy contends that
“[r]evealing the amount of money the FBI has paid (or it plans
to pay for particular aspects of an investigation) would reveal
the FBI’s level of focus on certain types of law enforcement or
intelligence gathering efforts.”
Although this reasoning
presents an attenuated connection to potential circumvention of
law, the court nevertheless concludes that the risk is logical
enough for the FBI to meet its burden under Exemption 7(E).
Disclosing the amount of the payment and the justifications
for that payment would likely reveal strategic decisions
underlying the FBI’s law enforcement methods.
Poitras v. Dep't
of Homeland Sec., No. CV 15-1091 (BAH), 2018 WL 1702392, at *13
(D.D.C. Mar. 29, 2018) (concluding that FBI properly withheld
information about the amount of money it used to implement
certain investigative techniques because disclosing such
41
information would “reveal sensitive strategic decisions made by
the FBI”); see also Johnson v. Fed. Bureau of Investigation, No.
CV 14-1720, 2016 WL 5162715, at *6 (E.D. Pa. Sept. 21, 2016)
(concluding that the FBI properly withheld information about
monetary payments). Were this strategic information to be
disclosed, criminals would have knowledge from which they could
infer how much resources the FBI devotes to certain crimes or in
certain situations.
This, in turn, could result in criminals
changing their activities to reduce the risk of apprehension.
Accordingly, the FBI properly withheld information concerning
the monetary payments made for investigative techniques, which
it asserted under Exemption 7(E).
III. Segregability
The FBI contends that it has satisfied its burden of
demonstrating segregability by providing a more detailed Vaughn
index and a declaration that attests that it has released all
segregable material.
In response, Villar argues that the FBI
“fails to explain its conclusions that each withheld document
contains no segregable, disclosable material . . . .”
In
addition, Villar challenges the FBI’s withholding in full of
several pages under Exemptions 7(C) and 7(D) based on their
references to third parties.
Villar argues that those pages
“could [have been] provided with identification of the [FBI
42
agents] and third party individuals redacted . . . .”
Doc. no.
56-1 at 2.
FOIA requires that “any reasonably segregable portion of a
record shall be provided to any person requesting such records
after deletion of the portions which are exempt under [section
552(b)].” Carpenter, 470 F.3d at 442–43 (quoting 5 U.S.C. §
552(b)).
“Non-exempt information or materials may be withheld
only where it ‘is so interspersed with exempt material that
separation by the agency, and policing of this by the courts
would impose an inordinate burden.’”
Id. (quoting Church of
Scientology Int'l, 30 F.3d at 228).
Further, when an agency
properly invokes Exemption 7(C) or 7(D) to protect the identity
of an individual, it may withhold all information that could
reasonably be expected to disclose that individual’s identity.
See Boyd v. Exec. Office for United States Attorneys, 161 F.
Supp. 3d 1, 11 (D.D.C. 2015), aff'd by Court of Appeals, No. 165133, 2016 WL 6237850 (D.C. Cir. Sept. 16, 2016) (“[W]here a
person's identity might be revealed based on the content of the
document, courts have permitted agencies to withhold the records
in their entirety under Exemption 7(C)”); 5 U.S.C. §
552(b)(7)(D) (exempting information or records that “could
reasonably be expected to disclose the identity of a
confidential source”).
43
“An agency bears the burden of demonstrating that all
reasonably segregable portions of a record have been disclosed,
and may do so by ‘offering an affidavit with reasonably detailed
descriptions of the withheld portions of the documents and
alleging facts sufficient to establish an exemption.’”
Competitive Enter. Inst. v. U.S. Dep't of Treasury, No. CV 121838-RMC, 2018 WL 1587468, at *6 (D.D.C. Apr. 2, 2018) (quoting
Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th
Cir. 2008)).
In his second declaration, Hardy asserts that “[e]very
effort was made to provide plaintiff with all material in the
public domain and with all reasonably segregable, non-exempt
information in the responsive records.”
Doc. no. 43-2 at ¶ 54.
Hardy further attests that “[n]o reasonably segregable,
nonexempt portions have been withheld from plaintiff.”
Id.
Although in its order on the parties’ first motions for summary
judgment, the court concluded that these assertions were
conclusory, the FBI, through its second Vaughn index, has
provided more detail to support them.
As discussed above, each
entry in the new Vaughn index contains a segregability analysis
which identifies and describes the withheld material in each
document and provides a reason why that material is exempt from
disclosure.
44
After reviewing these entries and the coded documents that
the FBI provided to Villar, the court is satisfied that the FBI
conducted a proper segregability analysis.
Many of the pages of
documents released to Villar were released in part, in redacted
form.
These documents contain pinpoint redactions, which are
narrow in scope and only excise the exempt material, such as the
names or other identifying information of law enforcement
personnel or third parties.
These targeted redactions support
Hardy’s assertion that the FBI conducted a detailed
segregability analysis.
Sennett v. Dep't of Justice, 962 F.
Supp. 2d 270, 279–80 (D.D.C. 2013).
Further, for pages withheld in full the FBI has
sufficiently explained what the withheld material is and why
withholding it is justified under FOIA.
For most of the pages,
the FBI has explained that any nonexempt information is so
intertwined with exempt material that no information could be
reasonably segregated for release and any effort to do so would
produce disjointed words, phrases, or sentences that provide no
informational value.
In addition, the FBI has explained that it
was necessary to withhold several pages in full because they
contain information that would likely disclose the identity of a
third party whose privacy is protected under an exemption.
45
Based on its review of the FBI’s submission, including the
careful redactions in the pages that it released to Villar, the
court credits the FBI’s assertion that it conducted a proper
segregability analysis on these documents.
In doing so, the court rejects Villar’s argument that the
FBI improperly withheld several pages to protect the identities
of third parties because the agency could have simply redacted
the names of those parties.
The subjects of the pages that
Villar challenges relate specifically to third parties.
For
example, many of the pages detail the assistance that sources or
other parties provided the agency or summarize important
investigation milestones about suspects other than Villar.
It
is a reasonable inference, as the FBI contends, that disclosing
the highly-personalized information contained in these documents
would likely reveal the identity of the third-party subjects of
those documents.
Therefore, the court concludes that the FBI
properly withheld in full the pages that Villar challenges.
Accordingly, the court concludes that the FBI conducted an
appropriate segregability analysis for the material that it
withheld.
46
IV.
In Camera Review
Villar contends that the court should not grant summary
judgment because it should first review the documents in camera.
Villar does not specify which documents he believes warrant in
camera review.
In camera review is designed for situations where the
“agency affidavits [are] ‘too generalized to establish
eligibility for an exemption.’”
Maynard, 986 F.2d at 557
(quoting Church of Scientology, 611 F.2d at 742).
Moreover, “in
camera review is particularly appropriate when the documents
withheld are brief and limited in number.”
Id.
In other words,
“full in camera reviews are appropriate in cases involving a
very limited number of relatively brief documents.”
Id.
(quoting Ingle v. Dep’t of Justice, 698 F.2d 259, 264 (6th Cir.
1983)).
Here, the FBI’s affidavit sufficiently demonstrates its
entitlement to the claimed exemptions.
Further, the volume of
pages at issue in this case makes it inappropriate for a full in
camera review.
The court declines to conduct an in camera
review here.
47
CONCLUSION
For the foregoing reasons, the court grants the FBI’s
motion for summary judgment (doc. no. 55) and denies Villar’s
motion for summary judgment (doc. no. 56).
The clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
July 23, 2018
cc:
Counsel of Record
48
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?