GATSON v. FEDERAL BUREAU OF INVESTIGATION

Filing 53

OPINION. Signed by Judge John Michael Vazquez on 8/31/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TOKYO GATSON,
Plaintiff

Civil Action No. 15-5068
OPINION

V.

FEDERAL BUREAU OF INVESTIGATION,
Defendant.

John Michael Vazguez, U.S.D.J.
I.

INTRODUCTION

This matter comes before the Court by way of Plaintiff Tokyo Gatson (“Gatson” or
“Plaintiff’) and Defendant the Federal Bureau of Investigation’s (the “FBI” or the “Government”
or “Defendant”) cross-motions for summary judgment. D.E. 2$ & 30. The Court considered the
written submissions of the parties’ and decides the motions without oral argument pursuant to
Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons that follow,
Defendant’s motion for summary judgment is granted, and Plaintiffs motion is denied.2

Defendant’s brief in support of its motion for summary judgment (D.E. 28) will be referred to as
“Def. Br.” Plaintiffs brief in support of its motion for summary judgment (D.E. 31) will be referred
to as “P1. Br.” In a letter to the Court, Plaintiff clarified that his brief in opposition to Defendant’s
motion is the same brief that Plaintiff filed in support of his motion for summary judgment. D.E.
50. Therefore, the Court will consider Plaintiffs sole brief for those dual purposes. In light of
Plaintiffs filing of only one brief, Defendants informed the Court that its brief in opposition to
Plaintiffs motion for summary judgment (D.E. 40 (“Def. Opp.”)) would also serve as its reply
brief in further support of its motion for summary judgment, (D.E. 51).
2

After filing his motion for summary judgment, Plaintiff filed two motions seeking to take
discovery in this matter. D.E. 33 & 34. In its opposition brief, the Government opposed these

II.

FACTS3 AND PROCEDURAL HISTORY
A. Plaintiffs Record Requests

This matter concerns pro se Plaintiffs request to the FBI4 pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C.

§

552, for certain records and documents relating to himself,

thirteen FBI Special Agents, Plaintiffs prison ceilmates, and the “James Bond Gang.” Declaration
of Tokyo Gatson (“Gatson Deci.”)

¶ 1. Tn particular, on February 11, 2015, Plaintiff requested:

• Copies of any and all files, FBI teletype, “field notes,” T.R.A.K
Messages, correspondence, memoranda, E-mails, Text, faxes, and
other records, whether paper or electronic or otherwise which,
directly or indirectly, report upon, concern, reference or refer to the
Requestor Mr. Tokyo Daniel Gatson between November 5, 2012
through February 11, 2015.
• Copies of any and all documents, correspondence, T.R.A.K
Messages, memoranda, E-mails, Text, faxes, and other records,
whether paper or electronic or otherwise which reflecting
communications between any government agency or official
motions. In a letter order, the Court denied Plaintiffs discovery motions. D.E. 42. Therefore,
the discovery motions are not addressed in this Opinion.
The facts of this matter derive from Defendant’s statement of undisputed material facts and
Plaintiffs declaration. Contrary to Local R. of Civ. P. 56.1, Plaintiff did not file his own statement
of undisputed material facts or respond to Defendant’s statement. This procedural defect results
in the Court accepting Defendant’s statement of facts as true. See Friedman v. Bank ofAm., NA.,
No. 09—2214, 2012 WL 1019220, at *6 n.2 (D.N.J. Mar. 26, 2012) (“[T]he court will consider any
statement of fact which was not denied by the Plaintiffs with a citation to the record as undisputed
for the purposes of this motion for summary judgment.”). However, because Plaintiff is
proceeding pro se and did include his version of the facts in a declaration, D.E. 31, the Court
considered Plaintiffs factual contentions. Plaintiffs factual averments do not change the Court’s
analysis.
Defendant argues that in a Freedom of Information Act case, the only proper defendant is a
federal agency as opposed to an agency component. Therefore, Defendant asks that the
Department of Justice (“DOJ”) be substituted as defendant for the FBI. The issue of whether the
FBI may be the sole defendant in a FOIA case is not settled. Ginarte v. Mttetler, 534 F. $upp. 2d
135, 137 n.4 (D.D.C. 200$) (noting that there is “disagreement. about whether the FBI, and like
agency components, are subject to FOIA in their own names”). However, “the weight of authority
is that subcomponents of federal executive departments may, at least in some cases, be properly
named as FOIA defendants.” Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 101
(D.D.C. 2012). Therefore, the FBI will remain as named defendant in this case.
‘

.

2

.

directly or indirectly, report upon, concern, reference or refer to the
Requestor Mr. Tokyo Daniel Gatson between November 5, 2012
through February 11,2015.
Copies of any and all documents, correspondence, T.RA.K
Messages, memoranda, E-mails, Text, faxes, and other records,
whether paper or electronic or otherwise which reflecting
communications between any Bergen County Prosecutor or official
directly or indirectly, report upon, concern, reference or refer to the
Requestor Mr. Tokyo Daniel Gatson between November 5, 2012
through February 11,2015.
Copies of any and all records[,] documents, memoranda,
correspondence[,] E-mails, Text, faxes, and other records, whether
paper or electronic or otherwise which pertain to any disciplinary
matters that may have involved the following Special Agents: SA
Benjamin E. Mininger; SA Jordan Bensen; SA Carlos Morales; SA
Ryan Alexander Guerra; SA Gregory Donovan; SA Paul Szabo; SA
Kurt Limpert; SA Buddy Early; SA Douglas Dye; SA Ruben
Marchand; SA Mason Gant; SA Joshua Thompson; SA Cory Cloud;
and
Copies of any and all records regarding any remedial measures or
additional policies implemented by the U.S. Attorney’s office to
prevent future unauthorized practice of law by the following Special
Agents: SA Benjamin E. Mininger; SA Jordan Bensen; SA Carlos
Morales; SA Ryan Alexander Guerra; SA Gregory Donovan; SA
Paul Szabo; SA Kurt Limpert; SA Buddy Early; SA Douglas Dye;
SA Ruben Marchand; SA Mason Gant; SA Joshua Thompson; SA
Cory Cloud; and
• Copies of any and all documents, correspondence, memoranda, E
mails, Text, faxes, and other records, whether paper or electronic
“which contain any debriefing/proffer statements made/given by
Requestor Mr. Tokyo Gatson’s Cellrnates between October 11, 2013
through February 11,2015.
• Copies of any and all files, FBI teletype, “field notes,”
correspondence, T.R.A.K Messages, memoranda, E-mails, Text,
faxes, and other records, whether paper or electronic or otherwise
which, directly or indirectly, report upon, concern, reference or refer
to the Bergen County “James Bond Gang” between November 5,
2012 through February 11, 2015.

Id.

3

Plaintiff was also a defendant in another matter in this District. United States v. Gatson, et
at., Crim. No. 13-705. That case was presided over by Judge Martini. Plaintiff was indicted, found
guilty in November2015 following a multi-week jury trial, and sentenced in 2016. It appears that
Plaintiffs FOIA requests related, at least in part, to the underlying criminal investigation and/or
prosecution. To be clear, Plaintiffs FOIA request is reviewed pursuant to different legal standards
than those relating to discovery in Plaintiffs criminal case. To the extent Plaintiff had concerns
with the discovery produced in his criminal prosecution, such issues needed to be raised with Judge
Martini.
Defendants located approximately 1,750 pages ofrecords responsive to Plaintiffs requests.
Defendant’s undisputed statement of material facts (“D$OF”) (D.E. 28-5)

¶ 15. Afier reviewing

these records, Defendants determined that multiple exemptions under FOIA and one exemption
under the Privacy Act, 5 U.S.C.

§ 552a, warranted withholding many of the documents from

production. Defendants ultimately produced 163 pages in full and 6 pages in redacted form in
response to Plaintiffs FOIA request.

Id.

¶J 19-21. Plaintiff filed a complaint challenging

Defendant’s withholding of the remaining documents.
B. The FBI’s Record Keeping Systems

The FBI uses an extensive system of record keeping known as the Central Records System
(“CRS”). DSOF

¶

24. The CRS consists of “applicant, investigative, intelligence, personnel,

administrative, and general files compiled and maintained by the FBI in the course of fulfilling
its” duties. Id. The CRS spans the entire FBI and includes the records of FBI headquarters, FBI
field offices, and FBI legal attaché offices throughout the world. Id. Records in the CRS are
categorized according to a variety of subject matters, such as individual (persons), organization,
and event (e.g., terrorist attack or bank robbery). Id.

4

¶ 27. Information within CRS is indexed as

¶ 26. A main entry pertains to records indexed

either a “main entry” or a “reference entry.” Id.

according to the primary subject of a file, such as a particular individual or organization. Id. A
reference entry is a cross-reference to a record that merely mentions an individual, organization,
or other subject matter contained within a “main entry.” Id. The FBI does not index every
individual, event, or subject matter in the CR5, but rather only information that is considered
relevant and necessary for future retrieval. Id.

¶ 26-27.

The FBI’s Automated Case Support System (“ACS”) is an electronic, integrated case
management system that became effective in 1995. Id.

¶ 2$. As a result, over 105 million CRS

records were converted from prior systems into ACS. Id. The FBI’s Universal Index application
(“UNI”) is an automated index of the CR$ that permits file retrieval by way of index searching.
Id.

¶ 29. Individual names are recorded with identifying information such as date of birth, race,

sex, locality, Social Security number, address, and/or date of an event. Id. Currently, UNI consists
of approximately 112.5 million searchable records and is updated daily with newly indexed
material. Id.
Effective July 1, 2012, the FBI implemented “Sentinel,” its “next-generation case
management system” that provides a “web-based interface to its users” with the “same automated
application that is utilized in ACS.” Id.

¶ 30. Sentinel did not replace ACS, but rather works

conjunctively through an “index data sharing nexus.

.

.

whereby information indexed into Sentinel

is replicated or ‘backfired’ into ACS. Id. In other words, Sentinel builds on ACS and shares its
operational purpose by providing another portal to locate FBI records within the CRS. Id.
C. The FBI’s Search Terms and Methods

Upon receipt of Gatson’s request, the FBI assigned the request two different request
numbers with one called the “James Bond Gang” request (FOPIA Request Number 1322161-000)

5

and the other named the “Tokyo Gatson” request (FOIPA Request Number 1322150-000). The
FBI’s Record/Information Dissemination Section conducted a CRS index search for responsive
records employing the UNI application ofACS and a Sentinel index search by using the following
search terms: “James Bond Gang” and “Tokyo Gatson,” along with nine aliases found during the
search

--

“Tokoyo,” “Christopher Wright,” “Daniel Gatson,” “Daniel Tokyo Gatson,” “Tokyo D.

Gatson,” “Akeem Boone,” Jarrell Bordeaux,” “Jerry Montgomery,” and “Marc Rainey.” Id.

¶ 32.

The FBI’s search included a three-way phonetic breakdown of “Tokyo Gatson,” a string search
for “James Bond Gang,” and an on-the-nose search for the eight aliases.5 Id. The FBI used
Gatson’s date ofbirth and other identifying information to facilitate the identification of responsive
records. Id. After conducting the search, the FBI identified only cross-reference records indexed
to the James Bond Gang and both main and cross-reference records indexed to Gatson’s name. Id.
The FBI identified 169 pages of responsive records that it determined were not exempt
under any FOIA exemption. The FBI released to Gatson 163 pages in full and 6 pages in redacted
form.
D. Procedural History
Plaintiff filed a one-count Complaint alleging that Defendant improperly withheld
outstanding documents located during its FOIA search. At the time Defendant filed its motion for

Defendant explained that a three-way phonetic search is conducted on a computer through ACS
by first breaking a “name down and search[ing] the index for three different breakdowns.”
Declaration of David M. Hardy ¶ 36 n.6 (D.E. 28-7). Next, “the computer breaks names down
based on their phonetic characteristics.” Id. The computer’s results are “based on whether or not
they phonetically match a certain percentage of the first and last name searched.” Id.
A string search is defined as a “search of all names whose starting characters match the
characters typed into the name field. Id. ¶ 36 n.7. This “search will automatically capture
variations of the names searched.” Id.
An on-the-nose search consists only of the exact name entered into the search field. Id. ¶
36n.8.
6

summary judgment, Plaintiff was incarcerated in the Essex County Correctional facility in
Newark, New Jersey. Declaration of David M. Hardy (“Hardy Deci.”)

¶ 6 (D.E. 28-7). Also at

the time this motion was filed, Plaintiff had already been convicted by a jury in the matter before
Judge Martini, as referenced above.

Plaintiff was convicted of federal crimes relating to

conspiracy to transport stolen property in interstate commerce and interstate transportation of
stolen property. Id. Judge Martini thereafter sentenced Plaintiff to 300 months imprisonment.
Docket No. 2:13-00705 at D.E. 159. On July 11,2016, Plaintiff filed a notice of appeal. Id. at
D.E. 162. As of the date of this Opinion, Plaintiffs appeal is still pending.6
III. LAW AND ANALYSIS
A. Standard of Review

In a FOIA case, like all other civil matters, “{s]ummary judgment may be granted only if
the movant shows that ‘there exists no genuine issue of material fact that would permit a reasonable
jury to find for the nonmoving party” and the movant is entitled to judgment as a matter of law.
Berger v. I.R.S., 487 F. Supp. 2d 482, 492 (D.N.J. 2007), aff’d, 28$ F. App’x 829 (3d Cir. 2008)
(quoting Miller v. hid. Hosp., 843 F.2d 139, 143 (3d Cir. 198$)). A fact is “material” when a
dispute over that fact “might affect the outcome of the suit under the governing law.” Anderson
v. LibertyLobby, Inc., 477 U.S. 242,248 (1986). Importantly, “[fjactual disputes that are irrelevant
or unnecessary will not be counted.” Id. A material fact raises a “genuine” dispute “if the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Williams v.
Borough of W Chester, $91 F.2d 458, 459 (3d Cir. 1989) (quoting Liberty Lobby, 477 U.S. at

Plaintiffs appeal is pending under docket number 16-3 135. The Court takes judicial notice of
the fact that this appeal remains pending. See S. Cross Overseas Agencies, Inc. v. Wah Kwong
SInping Gip. Ltd., 181 f.3d 410, 427 (3d Cir. 1999) (noting that a court may take judicial notice
of the existence of other court proceedings).
6

7

248). “Where the record taken as a whole could not lead a reasonable trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Flee. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

“When analyzing the

sufficiency of the evidence, the court must view the facts and any reasonable inferences drawn
therefrom in the light most favorable to the party opposing summary judgment.” Inter Vest, Inc. v.
Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003) (citing Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 456 (1992)).

Summary judgment is appropriate “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under those
circumstances, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 322-23. However, to withstand a motion for summary judgment, the
nonmoving party need only “come forward with evidence which, if believed, would support a
finding in its favor.” In re Bressman, 327 f.3d 229, 237 (3d Cir. 2003).
A motion for summary judgment is typically used to adjudicate FOIA cases. Manna v.
US. Dep’t ofJustice, 832 F. Supp. 866, 870 (D.N.J. 1993), aff’d, 51 F.3d 1158 (3d Cir. 1995).
“[A] district court may award summary judgment on the basis of agency affidavits alone where
the affidavits are sufficiently detailed and are submitted in good faith.” Id. Agency affidavits are
generally “accorded a presumption of good faith which cannot be rebutted by purely speculative
claims about the existence and discoverability of other documents.” Venkataram v. Office ofInfo.
Policy, No. 09-6520, 2013 WE 3871730, at *3 (D.N.J. July 25, 2013). “[Am agency is entitled to
summary judgment if its affidavits describe the withheld information and the justification for

8

withholding with reasonable specificity, demonstrating a logical connection between the
information and the claimed exemption, and are not controverted by either contrary evidence in
the record nor by evidence of agency bad faith.” Am. friends Serv. Comm. v. Dep ‘t ofDef through
Def Logistics Agency, $31 F.2d 441, 444 (3d Cir. 19$7) (internal citation and quotation marks

omitted). The agency’s decision to withhold information is reviewed tie novo and “the burden is
on the agency to justify its action.” Manna, $32 F. Supp. at $70 (D.N.J. 1993).
B. FOIA Overview

FOIA provides that a government “agency shall make available to the public” certain
information specified in the statute. 5 U.S.C.

§

552. “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.” A&L.R.B. v. Robbins Tire &
Rttbber Co., 437 U.S. 214, 242 (197$).

“Under FOIA, a government agency must promptly

release agency documents, upon request, subject to nine specific statutory exemptions.” Manna,
$32 F. Supp. at $70. If an exemption does not apply, the record must be released to the person
requesting it. Lame v. US. Dep’t of Jttstice, 654 F.2d 917, 921 (3d Cir.l981).

Should an

exemption apply to only a portion of a record, then “{a]ny reasonably segregable, non-exempt
portion of a record is to be made available to the person requesting that record.” Id. “If the agency
has failed to release the requested information, and administrative appeals have been exhausted,
the individual seeking disclosure can obtain review of the agency’s denial in a federal district
court.” Id.
C. The Vaughn Index
“The review of FOIA cases ‘is made difficult by the fact that the party seeking disclosure
does not know the contents of the information sought and is, therefore, helpless to contradict the

9

government’s description of the information or effectively assist the trial judge.” Davin v. US.
Dep ‘t of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995) (quoting fern v. Bell, 645 F.2d 1213, 1222
(3d Cir. 1981)). To combat this difficulty, the government prepares a “Vaughn’ index, identifying
each document withheld, the statutory exemption claimed, and a particularized description of how
each document withheld falls within a statutory exemption.”
document-by-document Vaughn index is not always necessary.

Id.

Importantly, however, a

“[A]n agency may submit a

Vaughn Index that describes documents by category when a document-by-document index would
reveal the very information the agency seeks to protect.” Qatanani v. Dep ‘t of Justice, No. 124042, 2015 WL 1472227, at *12 (D.N.J. Mar. 31, 2015).
Here, Plaintiff argues that the fifly-six page declaration of David M. Hardy7 is an
insufficient Vaughn index in describing the bases for not producing the 1750 withheld documents.
Plaintiff concedes that agency affidavits in FOIA cases “are accorded a presumption of good faith,
which camot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” P1. Br. at 3 (quoting SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.
Cir. 1991)). However, Plaintiff then speculates that he “believes” that Defendant has not complied
with their FOIA obligations. Plaintiff maintains that Mr. Hardy does not “list or describe the
responsive documents at issue” nor does he provide any information on “how the exemptions relate
to the nature of the documents themselves.” P1. Br. at 6. The Court disagrees.

Mr. Hardy is the Section Chief of the Record/Information Dissemination Section, Records
Management Division for the FBI. Hardy Decl. ¶ 1. Mr. Hardy’s declaration also attaches 16
exhibits (Exhibits A P) concerning Plaintiffs FOIA request and the FBI’s correspondence with
Plaintiff concerning the status of his request. As discussed, the FBI divided Plaintiffs request
and assigned it two different FOPIA request numbers, once concerning the James Bond Gang
and the other addressing Tokyo Gatson. Although the FBI referred to the different names and
numbers in its correspondence with Plaintiff, Plaintiff did not appear to realize that the FBI had
assigned two different numbers and titles to his request.
—

10

Mr. Hardy explains that the withheld documents relate to ongoing criminal investigations
and prosecutions (including of Gatson himself whose appeal remains pending) and that providing
a document-by-document description of these records would undermine the Government’s
interests in maintaining the confidentiality of documents pertaining to currently pending
investigations and prosecutions. Hardy DecI.

¶J

50, 54.

categories that comprised the withheld documents.8
category. Id.

¶ 54.

Mr. Hardy named twelve different

He then provides a description of each

Mr. Hardy also attests that the FBI divided the documents into evidentiary,

investigative, and administrative materials; describes the kinds of information contained in each
category; and explains the harms that could arise from disclosure. Id.

¶J

57-69. Mr. Hardy

indicates that the FBI reviewed records to identify reasonably segregable information that would
not jeopardize any ongoing or future enforcement proceedings, which resulted in the 169 pages of
non-exempt documents being released to Plaintiff Id. ¶j 55, 68.
As noted, other than Plaintiffs “belief,” he fails to provide any concrete reasons as to why
Mr. Hardy’s declaration is insufficient.

The Court finds that the categorical description is

appropriate in this matter and that the Hardy declaration is a sufficiently detailed Vaughn index of
the categories of withheld documents. See Qatanani, 2015 WL 1472227, at *12.
U. Adequacy of the Search

When searching for documents pursuant to a FOIA request, the adequacy of the
government’s search is not measured by the documents that are actually uncovered, but rather

8

The twelve categories of documents are: (1) FD-3 02 form for reporting information that may be
subject of testimony, (2) FD-340, 1A envelope, (3) FD-395, advice of rights form, (4) fD-597
receipt of property form, (5) fD-999, liaison with external organizations form, (6) FD-1036 import
form, (7) F-1036, electronic communication, (8) fD-1087, evidence and Sentinel data log form,
(9) OBD 277 form, (10) court documents, (11) miscellaneous administrative documents, and (12)
other investigative documents. Hardy Dccl. ¶ 54.
11

whether the search was “reasonably calculated to uncover all relevant documents.” Abdefattah v.
US. Dep ‘t ofHomeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quoting Oglesbv v. US. Dep ‘t of
Army, 920 F.2d 57, 6$ (D.C. Cir. 1990)). In other words, “the adequacy of a F OIA search is

generally deterniined not by the fruits of the search, but by the appropriateness of the methods
used to carry out the search.”

Qatanani, 2015 WL 1472227, at *7 (quoting Iturratde v.

Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). Therefore, an agency’s search
is sufficient when it provides a “reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely to contain responsive materials were
searched.” Abdefattah, 48$ F.3d at 182 (internal quotation marks omitted).
In this case, Plaintiff argues that the Government “provided custodians with vague search
instructions” and the custodians’ search terms were inadequate or they did not specify which terms
they used in their search. P1. Br. at 8. Plaintiff also claims that the FBI did not disclose the
timeframe in which it conducted the search. Id. at 9. In regard to the method used, Plaintiff
criticizes the Government for conducting a search where “much (but not all) of it was ‘manual.”
Id.

Finally, Plaintiff argues that “most custodians cannot be ‘trusted’ to run effective searches

because designing legally sufficient electronic searches the discovery or FOIA contexts is not part
of their daily responsibilities.” Id. at 10. The Court finds that each of these contentions are without
merit.
The FBI’s search terms and methodology were sufficient. The FBI conducted a three-way
phonetic breakdown search of “Tokyo Gatson,” a string search for “James Bond Gang,”9 and an

In his declaration, Plaintiff certifies that “at no time has the Plaintiff Mr. Tokyo Gatson
indicate[dj in his request anything about ‘the James Bond Gang.” Gatson Deci. ¶ 3 (emphasis
omitted). Plaintiff states that “[tb change the [s]ubject matter from ‘Mr. Tokyo Gatson’ to ‘James
Bond Gang’ shows Mr. David M. Hardy, obviously, found some records responsive to the Plaintiff
Mr. Tokyo Gatson[’s] request.” Id. ¶ 4 (emphasis omitted). This, however, simply is not the case
12

on-the-nose search for nine of Plaintiffs suspected aliases. Hardy Decl.

¶ 36. The FBI also used

Plaintiffs date of birth and other identifying information to facilitate the identification of
responsive records. Although Plaintiff claims that the FBI could have included additional search
terms of “names or things” connected to Plaintiff, the relevant inquiry is not whether the
Government conducted the most expansive search possible or a perfect search.

Instead, the

question is whether the FBI’s search terms were reasonably calculated to uncover documents
responsive to Plaintiffs request. The search terms employed by the government satisfy this
burden. Indeed, the variations used in searching Plaintiffs name and the James Bond Gang, as
well as searching nine of his suspected aliases demonstrate that the scope of the FBI’s search was
broader in scope than what Plaintiff asked for in his request. Plaintiff provides no basis as to
support his claim that FBI custodians could not run an effective search using these particular terms.
Accordingly, Plaintiffs argument that the search terms were inadequate or unspecified is without
any support in the record.
Additionally, the FBI searched for records pertaining to the time period that Plaintiff
specified in his request. Therefore, Plaintiff may not logically argue that the tirneframes searched
were unknown.
Finally, contrary to Plaintiffs contentions, the FBI did not conduct a manual search of its
records, but rather conducted an electronic search of its CRS files. Therefore, Plaintiffs argument
that the FBI conducted an improper manual search is unsupported by the record.

and is belied by Plaintiffs own affidavit. The FBI conducted a search in response to Plaintiffs
FOIA request, which asked for information pertaining to both Gatson himself as well as the James
Bond Gang. See id. ¶ 1; Hardy DecI. ¶ 32. The FBI then provided Plaintiff with the responsive
documents that it concluded that not fall into any of FOIA’s exemptions. Therefore, Plaintiffs
argument is without merit and is expressly contradicted by wording of his FOIA request.
13

For these reasons, the Court concludes that the search tenns and methodology used were
sufficient.
E. FOIA Exemptions

Defendant argues that it properly withheld documents in response to Plaintiffs FOIA
request pursuant to seven FOIA exemptions. Plaintiff argues that Defendant improperly invoked
each of the exemptions.1° The Court disagrees and concludes that Defendant properly withheld
documents pursuant to each of the FOIA exemptions’1 asserted by Defendant.’2
i. Exemption 7 Threshold
5 U.S.C.

§

552(b)(7) permits the government to withhold “records or information

compiled for law enforcement purposes” where the release of these records would result in one of

10

Plaintiff also makes arguments concerning issues that were not raised by Defendant. First,
Plaintiff claims that the FBI improperly withheld documents that were referred to another agency
for “consultation” to determine whether an exemption applies. P1. Br. at 8. Defendant, however,
did not indicate that it referred any documents to another agency for this purpose. Additionally,
Plaintiff contends that the Government cannot make a blanket statement that exempt information
is so inextricably intertwined with non-exempt material that the non-exempt material must be
withheld. P1. Br. at 4. The FBI did not raise this argument. The Court finds Plaintiffs arguments
to be without merit and not based on the facts presented by Defendant.
Although Plaintiff made his request pursuant to FOIA, Defendant first considered the request
pursuant to the Privacy Act. The Privacy Act generally allows a person to have a right to access
government records about him or herself, unless a Privacy Act exemption applies. 5 U.S.C. §
552a(d). Exemption (j)(2) permits an agency to promulgate rules regarding the non-disclosure of
system records “maintained by an agency or component thereof which performs as its principal
function any activity pertaining to the enforcement of criminal laws, including police efforts to
prevent, control, or reduce crime or to apprehend criminals.” 5 U.S.C. § 552a(j)(2). Under this
exemption, the Department of Justice promulgated a rule exempting from disclosure law
enforcement records maintained in the FBI’s CRS. 28 C.f.R. § 16.96(a)(1). Here, the FBI
withheld records that were part of its CRS and were created due to the FBI’s criminal investigation
into interstate transportation of stolen property. Hardy Decl. ¶ 40. The Court finds that Defendant
properly applied Exemption (j)(2).
12

The Court also conducted an in camera review of an exparte declaration from Defendant, and
the Court finds that the contents of the declaration to be unrelated to any issue raised by Plaintiff
concerning the government’s FOIA production.
14

six specified harms. Thus, a threshold requirement under Exemption 7 is that the withheld records
were “compiled for law enforcement purposes.” 5 U.S.C.

§ 552(b)(7). Here, Mr. Hardy certified

that the documents requested fall under the FBI’s law enforcement purposes because they were
amassed during the Government’s criminal investigation of Gatson and his accomplices. Hardy
Deci.

¶ 43. Investigation of crimes is undoubtedly a law enforcement purpose.

See Baez v. F.B.I.,

443 F. Supp. 2d 717, 724 (E.D. Pa. 2006) (concluding that “there is no question” that “records
pertain[ing] to the investigation of crimes” are “compiled for law enforcement purposes”). There
is no dispute that Plaintiff was investigated and prosecuted.

Therefore, the preliminary

requirement of Exemption 7 is satisfied.
ii. Exemption 7(A)

Exemption 7(A) authorizes non-disclosure of records where release of such information
“could reasonably be expected to interfere with enforcement proceedings.”
552(b)(7)(A).

5 U.S.C.

§

“To fit within Exemption 7(A), the government must show that (1) a law

enforcement proceeding is pending or prospective and (2) release of the information could
reasonably be expected to cause some articulable hanm” Manna v. US. Dep ‘t ofJustice, 51 F.3d
1158, 1164 (3d Cir. 1995). “A pending appeal of a criminal conviction qualifies as a pending or
prospective law enforcement proceeding for purposes of Exemption 7(A).” Kidder v. F.B.I., 517
F. Supp. 2d 17,27 (D.D.C. 2007).
Here, the Government properly invoked Exemption 7(A). At the time of Gatson’s FOIA
request, a criminal prosecution was pending in the District of New Jersey for federal crimes
relating to interstate transportation of stolen property. As of the date of this Opinion, Gatson’s
appeal of his conviction remains pending. Therefore, at all relevant times, law enforcement
proceedings have been pending against Plaintiff himself.

15

Additionally, the release of the requested records could be reasonably expected to cause
articulable harm. The FBI provided numerous reasons why disclosure of the requested documents
would interfere with the pending prosecution and potential prosecutions, including but not limited
to, (1) the identification of law enforcement personnel and witnesses who could be targeted for
potential intimidation or physical harm, and (2) the improper use of evidence uncovered by the
government, including the alteration or destruction of evidence or the creation false evidence.
Defendant also states that the release of records exchanged between the FBI and other law
enforcement agencies could harm pending proceedings by revealing the scope, focus, and targets
of those investigations, thereby permitting suspects to potentially destroy evidence or alter their
behavior.

Finally, Defendant notes that the release of certain records could reveal confidential

law enforcement sources.

Id.

¶J

56, 60, 61.

For these reasons, the Court concludes the

Government properly invoked Exception 7(A).
iii. Exemption 3

According to 5 U.S.C. 552(b)(3) (“Exemption 3”), a government agency may withhold
records that are “specifically exempted from disclosure by statute” other than FOIA, if that statute
“requires that the matters be withheld from the public in such a manner as to leave no discretion
on the issue” or “establishes particular criteria for withholding or refers to particular types of
matters to be withheld.” Additionally, if the statute was “enacted after the date of enactment of
the OPEN FOIA Act of 2009, [it must] specifically cite[J to this paragraph.” Id. “Exemption 3
differs from the other FOIA exemptions in that its applicability depends less on the detailed factual
contents of specific documents.” McDonnell v. United States, 4 F.3d 1227, 1246 (3d Cir. 1993).
Rather, “the sole issues for decision in determining the applicability of Exemption 3 to a particular
set of documents are the existence of either type of relevant statute and the inclusion of withheld

16

material within the statute’s coverage.” Id.

Here, the Government asserted Exemption 3 in

connection with five statutes: Federal Rule of Criminal Procedure 6(e) (grand jury materials); 31
U.S.C.

§

5311 (the Bank Secrecy Act “BSA”); 18 U.S.C.

3123 (the “Pen Register Statute”); and 1$ U.S .C.

§

2510-2520 (“Title III”); 18 U.S.C.

§

§ 3509 (the “Child Victims’ and Child Witnesses’

Rights Act”).’3 Each exemption will be addressed in turn.
1. Grand Jury Materials

federal Rule of Criminal Procedure 6(e) exempts information from disclosure under FOIA
when the “material would tend 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, or the deliberations or questions of jurors.” Hodge v. F.B.I., 703 F.3d 575,

580 (D.C. Cir. 2013) (internal quotation marks omitted); see also Mtuphy v. Exec. Office for US.
Attorneys, 789 f.3d 204, 206 (D.C. Cir. 2015) (explaining that “although anile [such as Rule 6(e)]

is not generally considered to be a statute, it qualifies as one under FOIA because the Congress
has enacted it into positive law”).
Here, the FBI properly withheld grand jury materials pursuant to Exemption 3. The FBI
withheld records containing names of witnesses and prospective witnesses who were called to
testify to the grand jury; the names of companies and their employees who were served with
subpoenas to testify; documents identifying records subpoenaed by the grand jury; and other
internal workings of the grand jury. Hardy DecI.

¶ 72.

These are the precise types of grand jury

records that fall under Rule 6(e) and Exemption 3. Therefore, the FBI properly withheld these
documents.

‘

All five of these statutes were enacted prior to the OPEN FOIA Act of 2009. Hardy Decl.
72-73, 77, 79, 81.

17

¶f

2. Bank Secrecy Act

The BSA provides that “report[s] [created pursuant to the BSA] and records of reports are
exempt from disclosure under [FOIA], and may not be disclosed under any State, local, tribal, or
territorial ‘freedom of information’, ‘open government’, or similar law.” 31 U.S.C.

§

5319.

The

Financial Crimes Enforcement Network (“finCEN”)’4 has primary responsibility for
implementing the provisions of the BSA. Hardy Deci. ¶ 73. In accordance with the plain language
of the BSA, courts have recognized that the BSA qualifies as a withholding statute under
Exemption 3. See, e.g., Berger v. I.R.S., 487 F. Supp. 2d 482, 496 (D.N.J. 2007), aff’d, 28$ F.
App’x 829 (3d Cir. 2008). In this case, the FBI withheld information obtained from F1nCEN
during the course of its criminal investigation activities. Hardy Deci. ¶ 76. These documents were

obtained by FinCEN pursuant to the BSA and are statutorily exempt from disclosure. Therefore,
the Court finds this information was properly withheld pursuant to Exemption 3.
3. Title III

Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, otherwise
known as Title III, “to comprehensively and stringently regulate the interception of wire, oral and
electronic communications.” Manna, $15 F. Supp. at 810. Title III protects from disclosure
records memorializing intercepted materials as well as “the applications made and the court orders
granted for the interceptions.” Id. at 811. “Title III has been held to fall squarely within the scope
of Exemption 3.”

Id.

Such information may not be disclosed except in three limited

circumstances: (1) when disclosure is between law enforcement officers and “is appropriate to the
proper perforniance of the official duties of the officer making or receiving the disclosure,” (2)

14

FinCEN was established to “enhance U.S. national security, deter and detect criminal activity,
and safeguard financial systems from abuse by promoting transparency in the U.S. and
international financial systems. Hardy DecI. ¶ 73.
1$

when use of such information is necessary for “proper performance of [the law enforcement
officer’s] official duties,” or (3) persons testifying under oath. 1$ U.S.C.

§ 2517(l)-(3).

In this case, the Government invoked Exemption 3 “to protect the request for assistance to
support [Title] III wiretap and [Title] III communication analysis.” Hardy Decl.

¶ 78. The three

exceptions to non-disclosure do not apply here. Therefore, the FBI properly invoked Exemption
3 to withhold these materials.
4. Pen Register Statute

The Pen Register Statute’5 protects from disclosure information pertaining to certain court
“order[s] authorizing or approving the installation and use of a pen register or a trap and trace
device” and information pertaining to “the existence of the pen register or trap and trace device or
the existence of the investigation.” 1$ U.S.C.

§ 3 123(d). Orders authorizing the use of pen

registers must remain sealed unless otherwise ordered by the court. Id. Courts have concluded
that the Pen Register Statute falls within the purview of Exemption 3. See, e.g., Labow v. US.
Dep’t ofJustice, 66 F. Supp. 3d 104, 120 (D.D.C. 2014), rev’d on other grounds, Labow v. U.S.

Dep ‘t ofJttstice, $31 F.3d 523 (D.C. Cir. 2016); Sennett v. Dep ‘t ofJttstice, 962 F. Supp. 2d 270,
282 (D.D.C. 2013).
Here, the Government invoked Exemption 3 and the Pen Register Statute to withhold
documents with information consisting of the identities and phone numbers of the individuals who
are subjects of a pen register/trap and trace device, as well as court documents relating to its
approval. Hardy Decl.

¶ $0. These documents fall under the Pen Register Statute’s purview and

were therefore properly withheld by the FBI. Additionally, the FBI was correct to withhold any

A pen register is a device that records phone numbers dialed to or from a target telephone.
Hardy Decl. ¶ 79.
19

sealed court order prohibiting disclosure of documents relating to the installation of a pen register
or a trap and trace device. See Morgan v. US. Department of Justice, 923 F.2d 195 (D.C. Cir.
1991).
5. Child Victims’ and Child Witnesses’ Act

The Child Victims’ and Witnesses’ Act requires certain information about abused children
or children who witnessed a crime to be kept in a secure place, and only be released to certain
persons authorized to participate in the proceedings. 1$ U. $ C.
.

§ 3 509(d)( I). The statute “qualifies

as an Exemption 3 withholding statute.” Rodriguez v. US. Dep’t of Army, 31 F. Supp. 3d 218,
237 (D.D.C. 2014). In this case, the FBI asserted Exemption 3 to protect the names and other
identifying information of children who were included in records concerning residential burglaries.
Therefore, these documents were properly withheld.
iv. Exemption 5

Exemption 5 prohibits the disclosure of “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party
552(b)(5).

.

.

.

in litigation with the agency. 5 U.S.C.

§

These documents “include the privilege for attorney work-product and what is

sometimes called the ‘deliberative process’ privilege. Work product protects mental processes of
the attorney, while deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions
and policies are formulated.” Dep ‘t ofInterior v. Kiamath Water Users Protective Ass ‘n, 532 U.S.

1, 8 (2001) (internal quotation marks and citations omitted). The rationale of the deliberative
process privilege is “that were agencies forced to operate in a fishbowl, the frank exchange of ideas
and opinions would cease and the quality of administrative decisions would consequently suffer.”
Red/and Soccer Club, Inc. v. Dep ‘t ofArmy of US., 55 F.3d 827, 854 (3d Cir. 1995) (quoting First

20

Eastern Corp. v. Mainwaring, 21 f.3d 465, 468 (D.C.Cir.1994)).

The deliberative process

privilege requires that a document is both “predecisional” and “deliberative.” Abdefattah, 488
f.3d at 183. “A document is predecisional if it was drafted to aid a decision maker in reaching his
or her decision, and it is deliberative if it reflects the give[]-and-take of the consultative process.”
Qatanani, No. 12-4042, 2015 WL 1472227, at *8 (internal quotation marks omitted).

“The

exemption thus covers recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the policy of the
agency.” Coastal States Gas Corp. v. Dep ‘t ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980).
Here, the FBI properly withheld the Newark Field Office’s draft e-discovery request for
FBI Headquarters and the proposed strategy and discussion of progress regarding the arrest of
persons connected with a Greenwich, Connecticut burglary.

As to the deliberative process

privilege, these documents are predecisional because they were created before a final decision was
made as to which electronic documents would be requested or how arrests would take place.
Harvey Deci. ¶ 86. The documents are deliberative because they contain the opinions, conclusions,
and recommendations of FBI personnel. Id. If these documents were released, FBI personnel
could in the future reasonably hesitate to offer their honest and frank opinions to superiors and
coworkers knowing that their opinions could become a matter of public record. Id. see also Schell
v. US. Dep ‘t of Health & Human Sen’s., 843 F.2d 933, 940 (6th Cir. 1988) (quoting Ditdman

Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)) (“[T]he key
question in Exemption 5 cases is whether disclosure of materials would expose an agency’s
decisionmaking process in such a way as to discourage discussion within the agency and thereby
undermine the agency’s ability to perform its functions.”). Therefore, the FBI properly invoked
the deliberative process privilege under Exemption 5.

21

The Government also properly withheld the draft e-discovery request pursuant to the
attorney work-product privilege. The documents were prepared by a Newark Field Office Special
Agent at the request of an FBI attorney in regard to the criminal matter pending against Gatson
and his co-defendants. Id.

¶ $7. Therefore, the FBI appropriately withheld these documents under

Exemption 5.
v. Exemptions 6 and 7(C)

The Government asserts that it properly withheld eight categories of documents pursuant
to Exemptions 6 and 7(C). These categories are identifying information regarding (1) FBI Special
Agents and support personnel; (2) local law enforcement personnel; (3) third parties who provided
information to the FBI; (4) third parties merely mentioned in FBI records; (5) third parties of
investigative interest; (6) non-FBI federal, state and local government employees; (7) third-party
victims; and (8) commercial institution personnel. Hardy DecI.

¶J 46-48, 88-94. The documents

include information about people who were interviewed and/or provided information to the FBI
during the course of its investigation of Plaintiff. Exemption 6 permits withholding of “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). This “exemption requires the Court to

balance the individual’s right of privacy against the basic policy of opening agency action to the
light of public scrutiny.” U.S. Dep ‘t ofState v. Ray, 502 U.S. 164, 175 (1991) (internal quotation
marks omitted). In conducting this balance, courts have found that individuals have a substantial
interest in keeping personal information private, while comparatively, there is a negligible public
interest in the release of such information. Sheet Metal Workers Int’l Ass ‘n, Local Union No. 19

v. US. Dep’t of Veterans Affairs, 135 F.3d 891, 899-904 (3d Cir. 1998). Notably, “the only
relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure

22

would serve the core purpose of the FOIA, which is contributing significantly to public
understanding ofthe operations or activities ofthe government.” US. Dep ‘t ofDef v. fed. Labor

Relations Attth., 510 U.S. 487, 495 (1994) (emphasis in original) (internal quotation marks and
citations omitted). The release of names, addresses, and similar ‘private’ information reveals little,
if anything, about the operations of the [government].” Sheet Metal Workers Int’l Ass ‘n, Local
Union No. 19, 135 F.3d at 903.

Here, the privacy interest in non-disclosure outweighs the public interest in releasing the
requested documents. The withheld records contain private information concerning govenmient
employees, third parties who provided information to the FBI, individuals whose information was
referenced in the documents, and people of investigative interest. Gatson’ s request does not serve
the public interest because the requested records do little or nothing to improve the public’s
understanding of agency operations. Conversely, there is a strong interest in not disclosing the
private information of government employees, third parties, and victims.16 Therefore, the FBI
properly withheld these records under Exception 6.17

Gatson requested disclosure of disciplinary matters and “remedial measures or additional
policies implemented by the U.S. Attorney’s office to prevent future unauthorized practice of law”
in regard to thirteen FBI Special Agents. Gatson DecI. ¶ 1. Mr. Hardy explained that “[i]t is the
general practice of the FBI to require requesters to submit either a privacy waiver or proof of death
[executing]
or that they provide evidence of a significant public interest in disclosure prior to
law enforcement records. Hardy DecI. ¶ Here, Gatson has
any search for responsive third-party
done neither. Therefore, the FBI correctly withheld this infonnation from disclosure. See
Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011) (concluding that under Exemption 7(C) FBI
properly withheld documents requested about third parties when there was no proof of death,
privacy waiver, or strong public interest that outweighed the individuals’ privacy interests).
16

.

.

.

Exemption 7(C) “provides greater protection from disclosure than exemption 6.” Sheet Metal
Workers, 135 F.3d at 898 (quoting Sheet Metal Workers hit ‘lAss ‘ii, Local No. 9 v. US. Air force,
63 f.3d 994, 996 (10th Cir. 1995)). Therefore, because the Court concludes that the Government
properly invoked Exception 6, an analysis under Exemption 7(C) is unnecessary. See Sheet Metal
Workers Int’l Assn, Local No. 9, 63 F.3d at 998—99 (“Because we hold that exemption 6 protects
the information sought from disclosure, we need not address whether the more protective
provisions of exemption 7(C) would also prevent disclosure of that information.”).
17

23

vi. Exemption 7(D)
Under 5 U.S.C.

§ 552(b)(7)(D) (“Exemption 7(D)”) provides that an agency may withhold

law enforcement records if their release “could reasonably be expected to disclose the identity of
a confidential source.” “[A] source should be deemed confidential if it furnished information with
the understanding that the government would not divulge the communication except to the extent
the FBI thought necessary for law enforcement purposes.” McDonnell, 4 F.3d 1227, 1259—60 (3d
Cir. 1993). Additionally, “a source is confidential within the meaning of Exemption 7(D) if the
source provided information under an express assurance of confidentiality or in circumstances
from which such an assurance could be reasonably inferred.” Id. at 1257.
Here, the FBI withheld records containing third parties who were both impliedly and
expressly promised that their identities and the information provided concerning subjects of the
FBI investigation would remain confidential. As to those who were impliedly promised, Mr.
Hardy certified that the individuals provided information which, if disclosed, could expose them,
as well as their families, to embarrassment, humiliation, and/or physical or mental harm. Hardy
Deci. ¶ 101. Additionally, other confidential sources consented to a proffer agreement in exchange
for an assurance that they would not be fully prosecuted. Id.

¶ 103. The Court finds that these

sources would not have provided information to the FBI if they believed that their identities and
the information provided would not remain confidential.

Revealing such information could

potentially cause them significant harm. Moreover, the individuals who provided information
pursuant to an express promise of confidentiality clearly had an expectation that their identities
and the information provided would remain confidential. Therefore, the Govermrient properly
invoked Exemption 7(D) to withhold records pertaining to these individuals.
vii. Exemption 7(E)

24

Under 5 U.S.C.

§ 552(b)(7)(E) (“Exemption 7(E)”), an agency may withhold law

enforcement records if their release “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.” “An agency’s burden in asserting Exemption 7(E) is relatively low
because, rather than requiring a highly specific burden of showing how the law will be
circumvented, [E]xemption 7(E) only requires that the agency demonstrate logically how the
release of the requested information might create a risk of circumvention of the law.” Paco v. US.
Customs & Border Prot., No. 14-5017, 2016 WL 344522, at *4 (D.N.J. Jan. 27, 2016) (internal
quotation marks omitted).

“Because the Exemption grants categorical protection to these

materials, it requires no demonstration of harm or balancing of interests.” Keys v. Dep ‘t of
Homeland Sec., 510 F. Supp. 2d 121, 129 (D.D.C. 2007) (internal quotation marks omitted).
Pursuant to Exemption 7(E), the FBI withheld twelve categories of records concerning its
joint investigation with local law enforcement into interstate transportation of stolen property and
residential burglaries in Montgomery County, Maryland; Howard County, Maryland; and Loudon
County, Virginia. Hardy DecI.

¶ 53. These categories are: (1) sensitive case file numbers and

subfile names; (2) the rnodtis operandi gang members used to execute burglaries and the law
enforcement technique pertaining to the analysis of the burglaries; (3) non-public database search
results and the printouts compiled therefrom; (4) information concerning dates and types of
investigations; (5) information concerning the installation, locations, monitoring, and types of
devices utilized in surveillance; (6) a specific investigative technique and procedure relating to the
BSA; (7) tactical information contained in operational plans; (8) the investigative focus of specific
investigations; (9) operational directives concerning sensitive investigative techniques and

25

strategies; (10) internal FBI email, intellectual property, and intranet addresses; (11) collection and
analysis of information; and (12) computer analysis response team reports and data. Id.

¶

105-

14. Each category will be addressed in turn.
First, the FBI properly invoked Exemption 7(E) to protect sensitive case file numbers.
These case file numbers indicate the investigative interest in, or priority given to, certain matters.
Hardy Decl.

¶ 52.

Thus, the file numbers would reveal the priority that the FBI has placed on an

investigation. For example, if the reader knows that it is a high priority case, he may cease or
change his criminal activity. Conversely, if he knows that it is low priority, he may continue with
the criminal activity. Either scenario would frustrate legitimate law enforcement investigations
and goals. See Shapiro v. U Dep ‘t ofJttstice, 7$ F. Supp. 3d 508, 520 (D.D.C. 2015). Therefore,
documents with this information were properly withheld in order to prevent the circumvention of
law.
The FBI also correctly withheld documents containing the modtts operandi that gang
members used to carry out the burglaries that were under investigation, as well as the FBI’s
techniques used to analyze those burglaries. The FBI will likely use the same or similar detection
methods or the future. Hardy Deci.

¶ 53.

If disclosed, these documents would pennit Gatson and

his accomplices to change their activities and avoid detection in the future.

See McCoy e.

Moschella, No. 89-2155, 1991 WL 212208, at *5 (D.D.C. Sept. 30, 1991). Therefore, the FBI
properly invoked Exemption 7(1).
Exemption 7(E) was properly invoked to withhold records containing non-public database
search results and printouts compiled therefrom. The databases at issue allow law enforcement to
search a large variety sources with state-of-the-art analytical tools to develop investigative leads.
Hardy DecI.

¶

105.

If disclosed, this information could be used by criminals to avoid detection

26

of their illegal activities, and in turn, jeopardize the FBI’s investigative mission. Id. Accordingly,
the FBI correctly withheld this information. See Paco, 2016 WL 344522, at *6.
The FBI appropriately asserted Exemption 7(E) to withhold records containing information
about the types and dates of investigations conducted by the Government. This information
indicates whether an investigation is “full” or “preliminary,” and the date the investigation was
initiated. Hardy Decl.

¶

106. If released, these records would allow targets to know what types of

activities trigger a full investigation as opposed to a preliminary investigation.

Id.

With

knowledge of this information, criminals could adjust their behavior to avoid investigations and
detection of their illegal endeavors. Id. Therefore, Exemption 7(E) was appropriately invoked.
See C’ottncil on Am.-Islarnic Relations, cal. v. F.B.L, 749 F. Supp. 2d 1104, 1115—16 (S.D. Cal.

2010).
The next issue is whether the FBI properly withheld information regarding the targets,
locations, monitoring, and types of devices utilized in surveilling Plaintiff and his accomplices.
Release of this non-public information would reveal who, when, how, and under what situations
the FBI conducts surveillance. Hardy Deci.

¶

107. The surveillance techniques that were used in

the investigation of Plaintiff are the same techniques utilized by the FBI in other pending
investigations. Id. Therefore, the FBI correctly asserted Exemption 7(E) because disclosure of
these techniques would allow suspects to become familiar with the FBI’s surveillance methods
and develop countermeasures to circumvent surveillance operations. See Labow, 66 F. Supp. 3d
at 127-28.
In combination with Exemption 3, the Government asserted Exemption 7 to withhold
certain procedures available under the BSA. Mr. Hardy certified that the withheld documents
contained confidential information about particular techniques and/or procedures that if disclosed,

27

could provide a person with the necessary knowledge to alter his or her behavior to avoid law
enforcement’s detection of illegal activity. Hardy Deci.

¶ 108. The Court finds that these records

were properly withheld.
The Government invoked Exemption 7(E) to protect the “blueprint” used in investigating
interstate transportation of stolen property. According to Mr. Hardy, the blueprint “provides a
complete overlay of the case being investigated, contemplated actions, and potential techniques to
be used, personnel needed, and coordinating efforts.” Id.

¶ 109. Mr. Hardy explained that the FBI

will use the same or similar strategy contained in the blueprint when investigating future crimes
of interstate transportation of stolen property. Id.

Therefore, this information was properly

withheld under Exemption 7(E). See Pinson v. US. Dep’t of Jttstice, 177 F. Supp. 3d 56, 90
(D.D.C. 2016).
The Government withheld records to keep confidential the focus of particular FBI
investigations. Disclosure of the broader investigative focuses and how they are connected to other
investigations would show the scope of the FBI’s strategies in combatting crime. Hardy Dccl.

¶

110. Mr. Hardy explains that “[r]elease of this type of information would allow criminals to gauge
the FBI’s strengths and weaknesses within certain areas of the criminal arena and structure their
activities in a manner that avoids detection and disruption by the FBI.” Id. Mr. Hardy provides
the example that if a person knew they were being targeted by virtue of the fact that they associated
with a particular individual, then that person would likely disassociate with the individual in order
to evade investigation. Id. The Court finds that release of this information would allow individuals
to circumvent the law, and therefore the FBI properly invoked Exemption 7(E).
The next issue is whether the FBI correctly invoked Exemption 7(E) to withhold documents
containing information about the Domestic Investigations and Operations Guide (“DIOG”). The

28

DIOG is known as the FBI’s law enforcement and national security “playbook.” Id.

¶ 111. It

“instructs FBI employees on the proper use of certain sensitive FBI procedures, techniques, and
strategies for conducting investigations.”

kL

Release of this information would provide

individuals with an “inside look” of the FBI’s confidential strategies and techniques. Id. With
knowledge of this information, criminals would be able to circumvent these procedures and evade
investigation. Therefore, documents with this information were properly withheld. See Muslim
Advocates v. US. Dep ‘t ofJttstice, 833 F. Supp. 2d 106, 109 (D.D.C. 2012).
The FBI invoked Exemption 7(E) to protect intra-agency email addresses, private intranet
web addresses, and “a secure internal email tool.” Hardy Deci.

¶ 112. The release of this

information could permit suspects to circumvent the law by gaining unauthorized access to and
manipulating data within the FBI’s non-public intranet. Id.

Additionally, disclosure of FBI

employees’ internal emails could expose them to harassing communications. Id.

For these

reasons, the FBI properly withheld records containing this information. See Jewett v. US. Dep ‘t
ofState, No. 11-1852, 2013 WL 550077, at *9 (D.D.C. Feb. 14, 2013).
Next, the FBI withheld documents to protect the procedures and techniques used to collect
and analyze information acquired for investigative purposes. Mr. Hardy explained that releasing
this infonriation would “disclose the identity of methods used in the collection and analysis of
information, including how and from where the FBI collects infonriation and the methodologies
employed to analyze it, once it is collected.” Hardy Dccl.

¶ 113. Disclosure of this information

would allow those engaged in criminal activity to create countermeasures to diminish the
effectiveness of the methods used and avoid detection of their illegal activities. Id. Therefore, the
FBI correctly asserted Exemption 7(E) to withhold this information. See Shapiro, 78 F. Supp. 3d
at 520.

29

The last category of records withheld under Exemption 7(E) pertains to “detailed requests,
reports, notes, and/or data resulting from the FBI’s analysis of computer and other digital media
seized pursuant to search warrants and/or subpoenas.” Hardy Decl.

¶

114. Mr. Hardy certified

that the FBI’s computer analysis response team (“CART”) “provides support to investigations that
rely, in whole or in part, upon digital evidence, namely through the acquisition, preservation,
examination processing, and presentation of stored digital information in computers or other
electronic devices or media.” Id. Mr. Hardy explained that “[p]roviding detailed information
about CART software, equipment, techniques, procedures, and/or types of reports generated by
CART during their forensic testing process would impede the FBI’s effectiveness in investigating
crimes where evidence can be found on computers and other digital media.” Id. With knowledge
of this information, criminals would have the necessary information to alter their behavior and
develop technology to thwart CART in order to avoid detection of their illegal activities. Id.
Accordingly, the FBI properly withheld this information.
IV.

CONCLUSION

For the reasons set forth above, Defendant’s motion for summary judgment is granted.
Plaintiffs’ motion is denied. An appropriate Order accompanies this Opinion.

Dated: August 31, 2017

John 4ichae1 Vazquez,

30