Huddleston v. Federal Bureau of Investigation

Filing 136

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Defendant FBI's Motion for Clarification, or in the Alternative, Reconsideration of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt. 73 ) is DENIED. It is further ORDERED that Plaintiff's Motion for Clarification of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt. 77 ) is be GRANTED in part and DENIED in part. Signed by District Judge Amos L. Mazzant, III on 11/28/2023. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BRIAN HUDDLESTON,
Plaintiff,
v.
FEDERAL BUREAU OF
INVESTIGATION and UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:20-cv-00447
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant FBI’s Motion for Clarification, or in the
Alternative, Reconsideration of the Memorandum Opinion and Order Entered September 29,
2022 (Dkt. #73) and Plaintiff’s Motion for Clarification of the Memorandum Opinion and Order
Entered September 29, 2022 (Dkt. #77). Having considered the motions and the relevant
pleadings, the Court finds that Defendant FBI’s Motion for Clarification, or in the Alternative,
Reconsideration of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt. #73)
should be DENIED. Further, having considered the motion and the relevant pleadings, the Court
finds that Plaintiff’s Motion for Clarification of the Memorandum Opinion and Order Entered
September 29, 2022 (Dkt. #77) should be GRANTED in part and DENIED in part.
BACKGROUND
This Memorandum Opinion and Order arises in the context of Freedom of Information
Act litigation between Plaintiff Brian Huddleston and Defendants Federal Bureau of Investigation

(the “FBI”) and the United States Department of Justice (the “DOJ”). The Court will not belabor
on the case’s background here because it has already been discussed in detail in the Court’s
Memorandum Opinion and Order from September 29, 2022 (the “Prior Order”) (Dkt. #70).
On September 29, 2022, the Court entered the Prior Order requiring the FBI and the DOJ
to “produce the information it possesses related to Seth Rich’s laptop and responsive to Plaintiff’s
FOIA requests” (Dkt. #70). The Prior Order did not specify whether the FBI and DOJ must
produce the information it possesses related to Seth Rich’s work laptop or personal laptop
(Dkt. #70). However, all analysis in the Prior Order discussed Seth Rich’s personal laptop, as
opposed to Seth Rich’s work laptop (Dkt. #70). Additionally, the Prior Order did not address
whether the FOIA exemptions 7(D) and 7(E) apply to Seth Rich’s personal laptop (Dkt. #70).
On October 27, 2022, the FBI filed a motion for clarification, or in the alternative,
reconsideration regarding the Prior Order (Dkt. #73). This motion requests for the Court to
reconsider whether FOIA exemptions 7(D) and 7(E) apply to information related to Seth Rich’s
personal laptop (Dkt. #73). 1 The FBI does not actually have Seth Rich’s personal laptop, but rather
it has a compact disk containing images of Seth Rich’s personal laptop (Dkt. #84, Ex. 1 ¶ 5).
Further the FBI has not extracted the information contained on the compact disk (Dkt. #84, Ex. 1
¶ 6). 2 On November 10, 2022, Huddleston filed his response (Dkt. #76). On December 12, 2022,
the FBI filed its reply (Dkt. #84). On January 13, 2023, Huddleston filed his sur-reply (Dkt. #93).

Huddleston has expressed concern that the FBI may have had physical custody over Seth Rich’s personal laptop at
one point and then played “hot potato” by giving the laptop back to local police (Dkt. #76 at pp. 3–4). However, the
unredacted version of FD-302, which the FBI submitted for ex parte in camera review, demonstrates that the
Huddleston’s concern is unfounded (Dkt. #85).
2
Huddleston claims the FBI has made inconsistent statements as to whether it has reviewed or extracted the
information contained on the compact disk (Dkt. #76 at pp. 1–2). The FBI has clarified this issue by revealing that the
FBI can “typically identify the types and approximate volume of files on a compact disk without extracting the data”
(Dkt. #84, Ex. 1 ¶ 6). The FBI had tried to evaluate an approximate page count for the Court, but it has not extracted
or processed the information on the compact disk (Dkt. #84, Ex. 1 ¶ 6).
1

2

On November 14, 2022, Huddleston filed a motion for clarification regarding the Prior
Order (Dkt. #77). Huddleston requested clarification regarding Rich’s work laptop because the
Prior Order did not expressly address the work laptop (Dkt. #77). On December 12, 2022, the FBI
filed its response (Dkt. #84). On January 13, Huddleston filed his reply (Dkt. #92).
In its response to Huddleston’s motion, the FBI noted that it had located additional items
(Dkt. #84 at p. 4) The first two items were a DVD and a tape drive (Dkt. #84 at p. 4–5). The FBI
found these items stored in the same evidence control room as the work laptop (Dkt. #84 at p. 4).
The FBI also found a letter from a third party that accompanied the work laptop, two chain of
custody forms, and a three-page report detailing actions by a third party outside entity to image the
work laptop (Dkt. #84 at p. 5). These three items were attached to the work laptop, DVD, and tape
drive and not uploaded to the relevant electronic case file (Dkt. #84 at p. 6).
LEGAL STANDARD
A motion seeking reconsideration may be construed under Federal Rule of Civil Procedure
54(b), 59(e), or 60(b) depending on the circumstances. “The Fifth Circuit recently explained that
‘Rule 59(e) governs motions to alter or amend a final judgment,’ while ‘Rule 54(b) allows parties
to seek reconsideration of interlocutory orders and authorizes the district court to revise at any
time any order or other decision that does not end the action.’” Dolores Lozano v. Baylor Univ.,
No. 6:16-CV-403-RP, 2018 WL 3552351, at *1 (W.D. Tex. July 24, 2018) (quoting Austin v. Kroger
Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)). Further, “‘[i]nterlocutory orders,’ such as grants of
partial summary judgment, ‘are not within the provisions of 60(b), but are left within the plenary
power of the court that rendered them to afford such relief from them as justice requires [pursuant
to Rule 54(b)].” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting

3

Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir. 1985)) (citing Bon Air Hotel, Inc. v. Time,
Inc., 426 F.2d 585, 862 (5th Cir. 1970)).
Because this is a motion seeking reconsideration of an interlocutory order, the Court uses
Federal Rule of Civil Procedure 54(b). “Federal Rule of Civil Procedure 54(b) provides that, in a
case involving multiple claims or parties, ‘any order or other decision, however found, that
adjudicates fewer than all the claims or the rights and liabilities or fewer than all the parties . . . may
be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.’” Blundell v. Home Quality Care Home Health Care, Inc., No. 3:17-cv-1990-LBN, 2018 WL 276154, at *4 (N.D. Tex. Jan. 3, 2018) (quoting FED. R. CIV. P. 54(b)). “Under Rule
54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient,
even in the absence of new evidence or an intervening change in or clarification of the substantive
law.’” Austin, 864 F.3d at 336 (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d
167, 185 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1075
n.14 (5th Cir. 1994)). Courts generally will not consider an issue raised for the first time in a motion
for reconsideration. See Wise v. Wilkie, 955 F.3d 430, 437 n.25 (5th Cir. 2020); LeClerc v. Webb,
419 F.3d 405, 412 n.13 (5th Cir.2005).
ANALYSIS
The FBI and Huddleston’s motions raise three distinct issues, (1) the production of
information relating to Seth Rich’s personal laptop, (2) the production of information on Seth
Rich’s work laptop and associated documents, and (3) the production of the letter from a third
party that accompanied the work laptop, two chain of custody forms, and the three-page report
detailing actions by a third party outside entity to image the work laptop.

4

I.

Clarification regarding Seth Rich’s personal laptop
The issue of whether the FBI and DOJ must produce information from the images of Seth

Rich’s personal laptop revolves around three issues, (1) whether the FBI waived its arguments
regarding the personal laptop, (2) whether FOIA Exemption 7(D) applies, and (3) whether FOIA
Exemption 7(E) applies. 3 The Court will require the FBI and DOJ to produce a Vaughn index
addressing the information they possess related to Seth Rich’s personal laptop.
A. Waiver of arguments regarding Seth Rich’s personal laptop
Huddleston argues the FBI waived its arguments that FOIA Exemptions 7(D) and 7(E)
apply to Seth Rich’s personal laptop because the FBI failed to raise these issues in its motion for
summary judgment (Dkt. #76 at pp. 6–8). In response, the FBI claims that it “clearly asserted and
explained” the exemptions in its summary judgment briefing, the Vaughn index, and the
declarations of Michael Seidel (supporting its summary judgment briefing) (Dkt. #84 at p. 3). 4
A motion for reconsideration may not be used to introduce new arguments. LeClerc v.
Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005). In LeClerc v. Webb, the plaintiffs filed a motion for
reconsideration that included new arguments. Id. The Fifth Circuit found that the district court

Before an agency can invoke any subpart of Exemption 7, including Exemptions 7(D) and 7(E), the agency must
demonstrate that the records or information at issue were compiled for law enforcement purposes. See John Doe Agency
v. John Doe Corp., 493 U.S. 146, 153, 156 (1989). Here, the records withheld by the FBI were created and compiled in
furtherance of the FBI’s role in the United States Office of Special Counsel investigation and related investigations.
The FBI explains that “these records were created and compiled to document the FBI’s investigation of potential
crimes and threat to the national security, thus, the FBI determined they were created and compiled for law
enforcement purposes” (Dkt. #39, Ex. 1 ¶ 120). Huddleston does not dispute that the records were compiled for law
enforcement purposes, and the Court sees no reason on the record to conclude otherwise. Thus, the Court finds that
the FBI has satisfied Exemption 7’s threshold inquiry.
4
The FBI also argues that “FOIA case[s] can be decided on the Vaughn index alone, or in conjunction with agency
declarations and summary judgment briefing” (Dkt. #84 at p. 3). However, the Court does not reach this issue because
the FBI raised arguments regarding FOIA Exemptions 7(D) and 7(E) via the combination of its summary judgment
briefing, the 4th Seidel Declaration, and its Vaughn index and no waiver occurred.
3

5

had properly rejected the plaintiffs’ new arguments, describing the new arguments as “improperly
raised below.” Id.
The FBI raised arguments regarding both exemptions in its summary judgment briefing, its
Vaughn Index, and the 4th Seidel Declaration. In its Vaughn Index, the FBI indicated that
Exemptions 7(D) and 7(E) apply to the personal laptop (Dkt. #39, Ex. 1 at p. 188). In its summary
judgment briefing, the FBI stated regarding Exemption 7(D):
The FBI asserted Exemption 7(D) to withhold confidential source symbol numbers,
identifying information and information provided by sources under both express
and implied assurances of confidentiality, and information provided by a foreign
government agency under an implied assurance of confidentiality.
(Dkt. #39 at p. 46). In its summary judgment briefing, the FBI stated regarding Exemption 7(E):
Specifically, the FBI asserted Exemption 7(E) to protect FBI internal email
addresses and non-public web addresses; sensitive investigative file numbers and
sub-file names; database information; code names for investigations; types and
dates of investigations; collection and analysis of information; specific law
enforcement techniques utilized to conduct national security investigations;
investigative focus of specific investigations; and identities of an FBI Unit, Squad
and Division.
(Dkt. #39 at p. 47). The FBI further provided relatively more specific information for the general
reasons why the FBI sought the exemptions (Dkt. #39, Ex. 1 ¶¶ 150–151, 171).
Although greater explanation would have been helpful, specifically more detailed
explanations of why Exemptions 7(D) and 7(E) apply to the personal laptop, the FBI has not waived
its arguments regarding whether the exemptions apply to the personal laptop. In its summary
judgment briefing, the FBI indicated that it sought to apply Exemptions 7(D) and 7(E) to a wide
array of records, which could include the personal laptop (Dkt. #39 at pp. 46–47). The FBI
provided more detailed explanations regarding why it applied the exemptions to the wide array of
records (Dkt. #39, Ex. 1 ¶¶ 150–151, 171). However, the Vaughn index indicated that the FBI

6

sought to apply the exemptions to the personal laptop (Dkt. #39, Ex. 1 at p. 188). The combination
of these facts clearly indicates to the court that the FBI raised arguments at the summary judgment
stage that it sought to apply Exemptions 7(D) and 7(E) to the personal laptop. See LeClerc, 419 F.3d
at 412 n.13.
B. Application of Exemption 7(D)
The FBI claims that Exemption 7(D) applies to the compact disk containing images of the
personal laptop because local law enforcement provided the compact disk to the FBI under an
implied assurance of confidentiality (Dkt. #73 at pp. 4–6). 5 Specifically, the FBI argues that an
implied assurance of confidentiality exists because “1) the information and assistance provided
would disclose their agency’s law enforcement techniques, or details about law enforcement
techniques, that are not publicly known; and 2) the information provided in some instances
concerns the law enforcement agency’s own confidential sources” (Dkt. #76 at p. 5). Further, the
FBI claims that disclosure of the information could:
1) jeopardize these agencies’ investigative techniques and procedures as disclosure
would allow criminals to predict and circumvent use of these techniques and
procedures; 2) discredit these state and local law enforcement authorities with
current and future confidential sources, and greatly hinder their ability to recruit
their own valuable sources; and 3) subject the agencies’ personnel to violent
reprisal.
(Dkt. #76 at pp. 5–6). In response, Huddleston replies that the FBI has failed to carry its burden to
meet the standards of Exemptions 7(D) and 7(E) (Dkt. #76 at pp. 8–13). He states that the FBI has
not reasonably inferred that the source provided the laptop under an assurance of confidentiality
(Dkt. #76 at p. 9). He also asserts that the FBI did not show how “disclosure of the laptop’s

The FBI further lists a portion of its motion for summary judgment as a basis for Exemption 7(D) (Dkt. #73 at p. 6).
However, this portion of its summary judgment does not specifically address how Exemption 7(D) applies to the
personal laptop (Dkt. #39 at pp. 45–46).

5

7

contents would cause harm to the local law enforcement agency (or officer) that provided the
laptop to the FBI” (Dkt. #76 at p. 9).
Huddleston further claims that this case is comparable to Bagwell v. United States
Department of Justice (Dkt. #76 at p. 10). In Bagwell, the court refused to treat Pennsylvania State
University as a confidential source under Exemption 7(D). 588 F. Supp. 3d 58, 71–72 (D.D.C.
2022). The court viewed Penn State as a “large and well-represented public institution,” a “far
cry from the ‘witness[ ] to a gang-related murder’” the Supreme Court offered as an example in
United States Department of Justice v. Landano. Id. at 71 (quoting 508 U.S. 165, 179 (1993)).
Huddleston argues that the same principle should apply to prevent a law enforcement agency from
being treated as a confidential source as it is a “large and well-represented public institution”
(Dkt. #76 at p. 10). He speculates that the source of the compact disk is a detective of the
Metropolitan Police Department and a former Assistant United States Attorney (Dkt. #76 at pp.
10–11).
Exemption 7(D) protects information from disclosure that could:
reasonably be expected to disclose the identity of a confidential source . . . which
furnished information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). “Under Exemption 7(D), the question is not whether the requested
document is of the type that the agency usually treats as confidential, but whether the particular
source spoke with an understanding that the communication would remain confidential.”
Landano, 508 U.S. at 172. A source may be confidential under an express assurance of

8

confidentiality or in circumstances from which such an assurance could be reasonably inferred. 6 Id.
An agency may show than an implied assurance of confidentiality exists through factors such as
“the nature of the crime that was investigated and the source’s relation to it.” Id. at 180–81. The
burden of proof lies on the agency to prove that an implied assurance of confidentiality exists. Id.
at 172.
1.

The Investigative Techniques and Procedures of the FBI’s Source

Two of the FBI’s bases for finding that an implied assurance of confidentiality exists relate
to the source agency’s investigative techniques and procedures (Dkt. #73 at pp. 5–6). 7 These bases
mirror Exemption 7(E), which protects information that “would disclose techniques and
procedures for law enforcement investigations or prosecutions . . . if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 522(b)(7)(E). Exemption 7(E)
requires that “the agency must at least provide some explanation of what procedures are involved
and how they would be disclosed.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746
F.3d 1082, 1102 (D.C. Cir. 2014); see infra Part I.C.
If an agency attempts to demonstrate an implied assurance of confidentiality under
Exemption 7(D) based on a need to protect another agency’s investigative techniques and
procedures, then the agency’s explanation must meet the requirements of Exemption 7(E). See 5
U.S.C. § 522(b)(7)(E).
The FBI’s bases based on the source agency’s investigative techniques and procedures fail
to meet the requirements of Exemption 7(E). The FBI’s explanations only reveal that the source

The FBI only asserts that an implied of assurance of confidentiality exists between the FBI and its source (Dkt. #74
at pp. 4–6).
7
In this context, a “source agency” is an agency that provides information to the FBI.
6

9

agency’s investigative techniques and procedures are not publicly known, and their disclosure
would “allow criminals to predict and circumvent [the] use of these techniques and procedures”
(Dkt. #73 at pp. 5–6). These bases are conclusory and do not provide at least some explanation of
what procedures are involved or how they would be disclosed (Dkt. #73 at pp. 5–6). See Citizens
for Resp. & Ethics, 746 F.3d at 1102; see also infra Part I.C.
2.

The Confidential Sources of the FBI’s Source

Two of the FBI’s bases for finding that an implied assurance of confidentiality exists deal
with the source agency’s confidential sources and the source agency’s ability to recruit confidential
sources in the future (Dkt. #73 at pp. 5–6). These bases suggest that the FBI should be able to treat
its source as confidential because its source’s source was confidential (See Dkt. #73 at pp. 5–6).
However, the FBI provides no explanation for why the ultimate source is confidential (See generally
Dkt. #73; Dkt. #84).
“[N]arrowly defined circumstances . . . can provide a basis for inferring confidentiality.”
Landano, 508 U.S. at 181. Circumstances that can give rise to such an inference include “the nature
of the crime investigated and the witness’s relation to it.” Id. Ultimately, confidentiality must arise
as an inference based on the underlying circumstances. Id. While affidavits and declarations that
the government submits generally receive a presumption of legitimacy, the agency must still meet
its burden of proof regarding any asserted exemption to FOIA. Batton v. Evers, 598 F.3d 169, 176
(5th Cir. 2010).
An agency may not justify its assertion of Exemption 7(D) by claiming that its source’s
source was confidential without further explanation. To show an implied assurance of
confidentiality, the FBI must demonstrate an inference of confidentiality based on narrowly

10

defined circumstances. Landano, 508 U.S. at 181. However, narrowly defined circumstances
cannot consist solely of describing an agency’s source as having a confidential source. Otherwise,
an agency could effectively bypass the requirements of Landano by simply labeling its ultimate
source as “confidential.” See id. Therefore, the FBI’s two bases for asserting Exemption 7(D)
based on the source agency’s confidential sources are insufficient.
3.

The Threat of Retaliation to the Agents of the FBI’s Source

The FBI’s final basis for asserting Exemption 7(D) is that its source agency’s personnel
may face “violent reprisal” (Dkt. #76 at p. 6). However, the FBI provides no explanation as to how
the disclosure of the compact disk containing images of the personal laptop could subject its source
agency’s personnel to “violent reprisal” (See Dkt. #76 at p. 6).
For a threat of retaliation against a source (or a source’s employees) to constitute a valid
basis for Exemption 7(D), the circumstances must suggest a threat of retaliation. Cooper Cameron
Corp. v. U.S. Dep’t of Lab., 280 F.3d 539, 553–54 (5th Cir. 2002); McNamera v. U.S. Dep’t of Just.,
974 F. Supp. 946, 963 (W.D. Tex. 1997); McQueen v. United States, 179 F.R.D. 522, 531 (S.D. Tex.
1998). In Cooper Cameron Corporation v. United States Department of Labor, OSHA sought to
protect certain records under Exemption 7(D) (among other exemptions) on the grounds of
potential retaliation by an employee against multiple employees. Cooper Cameron Corp., 280 F.3d
at 547. The Fifth Circuit found that there had been no threat of retaliation and the circumstances
did not suggest potential retaliation. Id. at 553. Therefore, the Fifth Circuit held that no implied
assurance of confidentiality existed. Id. at 554.
The FBI does not describe any circumstances connected to the potential disclosure of
records related to the personal laptop that suggest a threat of retaliation for its source agency’s

11

employees (See Dkt. #76 at p. 6). The mere listing of potential “violent reprisal” is insufficient to
suggest potential retaliation. See Cooper Cameron Corp., 280 F.3d at 553–54. Therefore, the FBI’s
final basis does not suggest that an implied assurance of confidentiality exists. See id. at 554.
4.

Huddleston’s Analogy to Bagwell

Contrary to Huddleston’s argument, a local law enforcement agency may constitute a
source under Exemption 7(D), even if the agency is “a large and well-represented public
institution.” In Bagwell, the court reasoned that Penn State did not have an implied assurance of
confidentiality with the DOJ because it was a “large and well-represented public institution,” in
contrast with the Supreme Court’s example of a “witness[ ] to a gang-related murder.” Bagwell,
588 F. Supp. 3d at 71; Landano, 508 U.S. at 179. However, the Supreme Court’s example was just
one instance of where an implied assurance of confidentiality exists. Landano, 508 U.S. at 179. A
court should apply a “particularized approach,” evaluating “factors such as the nature of the crime
that was investigated and the source’s relation to it.” Id. Further, Exemption 7(D) expressly notes
that a confidential source may include “a State, local, or foreign agency or authority or any private
institution which furnished information on a confidential basis.” 5 U.S.C. § 522(b)(7)(D).
Therefore, an implied assurance of confidentiality can exist between an agency and a local law
enforcement agency that is a large and well-represented public institution.
The Court is not persuaded that an implied assurance of confidentiality exists regarding the
compact disk containing images of the personal laptop. 8 Accordingly, the Court finds that the FBI

The FBI also argues that the unredacted version FD-302 would further justify its assertion of Exemption 7(D)
(Dkt. #84 at p. 2). However, the unredacted version of FD-302 does not suggest to the Court that an implied assurance
of confidentiality regarding the compact disk containing images of the personal laptop exists between the FBI and the
local law enforcement agency (See Dkt. #85).
8

12

did not properly withhold the files on the images of the personal laptop under Exemption 7(D).
Thus, Huddleston is entitled to summary judgment on this issue.
C. Application of Exemption 7(E)
The FBI justifies its withholding of records from the personal laptop under Exemption 7(E)
to protect the methods it uses to collect and analyze information it obtains for investigative
purposes (Dkt. #73 at p. 6). 9 The FBI claims “[t]he release of this information would disclose the
identity of methods used in the collection and analysis of information, including how and from
where the FBI collects information and the methods employed to analyze it once collected”
(Dkt. #73 at pp. 6–7). 10 In response, Huddleston argues that the FBI’s justification for using
Exemption 7(E) is insufficient because it does not give any explanation of the procedures involved
or how they would be disclosed (Dkt. #76 at p. 12 (quoting Woodward v. U.S. Marshals Serv., 534
F. Supp. 3d 121, 130–31 (D.D.C. 2021)).
FOIA Exemption 7(E) exempts from disclosure information that “would disclose
techniques and procedures for law enforcement investigations or prosecutions . . . if such

The FBI further lists a portion of its motion for summary judgment as a basis for Exemption 7(E) (Dkt. #73 at p. 7).
However, this portion of its summary judgment does not specifically address how Exemption 7(E) applies to the
personal laptop (Dkt. #39 at pp. 46–47), so the Court does not consider it.
10
In its entirety, the FBI’s explanation for using Exemption 7(E) as stated in its motion for reconsideration is:
Within FOIA Exemption Category (b)(7)(E)-6, the FBI withheld methods it uses to collect and
analyze information it obtains for investigative purposes. The release of this information would
disclose the identity of methods used in the collection and analysis of information, including how
and from where the FBI collects information and the methods employed to analyze it once collected.
Such disclosures would enable subjects of FBI investigations to circumvent these and similar
techniques, thus diminishing their usefulness. This, in turn, would facilitate the ability of
investigative subjects to accumulate information regarding the circumstances under which specific
methods were used and the utility of the information obtained. Release of this type of information
would enable criminals to educate themselves about the methods employed to collect and analyze
information and therefore allow them to take countermeasures to circumvent the effectiveness of
these methods and continue to engage in activities that violates the law. Accordingly, the FBI
properly withheld this information pursuant to FOIA Exemption 7(E).
(Dkt. #73 at pp. 6–7).
9

13

disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §
522(b)(7)(E). “In order to show that it is justified in withholding the information under FOIA
Exemption 7(E), an agency must ‘demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.’” Bradley v. I.R.S., No. 5:17-CV-737,
2019 WL 4980459, at *7 (W.D. Tex. Aug. 5, 2019) (quoting Blackwell v. F.B.I., 646 F.3d 37, 42
(D.C. Cir. 2011)). Further, “[b]ecause the text of FOIA [E]xemption 7(E) exempts from disclosure
records that ‘could reasonably be expected to risk circumvention of the law,’ the [FBI] ‘does not
have to prove that circumvention is a necessary result.’” Highland Capital Mgmt., LP v. I.R.S., 408
F. Supp. 3d 789, 818 (N.D. Tex. 2019) (quoting Mayer Brown, LLP v. I.R.S., 562 F.3d 1190, 1193
(D.C. Cir. 2009)). “Instead, the [FBI] need only show that there is a chance of a reasonably
expected risk that the law would be circumvented if the information withheld is disclosed.” Id.
To satisfy the requirements of Exemption 7(E), “the agency must at least provide some
explanation of what procedures are involved and how they would be disclosed.” Citizens for Resp.
& Ethics in Wash., 746 F.3d at 1102. In Citizens for Responsibility and Ethics in Washington v. United
States Department of Justice, the Department of Justice sought to withhold certain records from
disclosure under Exemption 7(E). Id. at 1101–02. The Department of Justice claimed that the
withholding was necessary to “to protect procedures and techniques used by FBI [agents] during
the investigation.” Id. at 1102. The D.C. Circuit rejected this explanation for Exemption 7(E)
because it neither indicated “what procedures [were] at stake” nor described “how disclosure . . .
could reveal such procedures.” Id. Therefore, the D.C. Circuit rejected the Department of
Justice’s attempt to withhold the records under Exemption 7(E). Id.

14

The FBI’s justification for withholding the files on the images of the personal laptop neither
provides some explanation of what procedures are involved nor how they would be disclosed
(Dkt. #73 at pp. 6–7). The FBI’s explanation, although longer than that in Citizens for Responsibility
and Ethics in Washington v. United States Department of Justice, is vague and conveys minimal
concrete information. See 746 F.3d at 1102. The Court is unaware of what procedures would be at
stake. See id. The Court also is unaware of how the procedures would be disclosed. See id.
The Court is not persuaded that disclosure of this material could reasonably be expected to
risk circumvention of the law. 11 Accordingly, the Court finds that the FBI did not properly withhold
the files on the images of the personal laptop under Exemption 7(E). Thus, the Huddleston is
entitled to summary judgment on this issue. The Government shall produce a Vaughn index
addressing the information it possesses on the compact disk containing images of Seth Rich’s
personal laptop that is responsive to Plaintiff’s FOIA requests.12
II.

Clarification regarding Seth Rich’s work laptop
The Court will require the FBI and DOJ to produce a Vaughn index relating to Seth Rich’s

work laptop, the DVD, and the tape drive because these items are agency records. The FBI asserts
that the items are not an agency record and thus not subject to FOIA (Dkt. #84 at p. 3). Huddleston
argues that the items are agency records and thus subject to FOIA (Dkt. #92 at p. 11).
FOIA confers jurisdiction on district courts to “enjoin an executive agency from
withholding agency records and to order the production of agency records improperly withheld.”

The FBI also argues that the unredacted version FD-302 would further justify its assertion of Exemption 7(E)
(Dkt. #84 at p. 2). However, the unredacted version of FD-302 provides to the Court neither some explanation of what
procedures are involved nor how they would be disclosed (See Dkt. #85).
12
In his motion for summary judgment, Huddleston specifically requested that the FBI “search the computers and
discs identified in Michael G. Seidel’s declaration for responsive records (including metadata), then process any
responsive records for production and/or in camera review” (Dkt. #46 at p. 32).
11

15

U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989); 5 U.S.C. § 552(a)(4)(B). “[F]ederal
jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3)
‘agency records.’” Id. (quoting Kissinger v. Reps. Comm. for Freedom of Press, 445 U.S. 136, 150
(1980)). The agency bears the burden to prove that an item is not an agency record. Id. at 142 n.3.
Two elements exist for determining whether an item is an agency record. Id. at p. 144–45. First,
“an agency must either create or obtain the requested materials.” Id. at p. 144. Second, the agency
“must be in control of the requested materials at the time the FOIA request is made.” Id. at 145.
In this context, “control . . . mean[s] that the materials have come into the agency’s possession in
the legitimate conduct of its official duties.” Id. The FBI concedes the first prong of this test,
leaving only the second prong at issue (Dkt. #84, Ex. 1 ¶ 13).
The Fifth Circuit has not yet adopted a test to evaluate whether an agency has control of
materials for the purposes of the second element. The FBI urges the Court to analyze whether the
agency had control over the items under the 4-factor Burka test (Dkt. #84, Ex. 1 ¶12). The four
factors under the Burka test are “(1) the intent of the document’s creator to retain or relinquish
control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit;
(3) the extent to which agency personnel have read or relied upon the document; and (4) the degree
to which the document was integrated into the agency’s record system or files.” Burka v. U.S.
Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996). However, Huddleston correctly
notes that the D.C. Circuit has called the utility of the Burka test into doubt (Dkt. #92 at p. 9). See
Cause of Action v. Nat’l Archives & Recs. Admin., 753 F.3d 210, 214–15 (D.C. Cir. 2014) (“If the
agency did not control the material, the Supreme Court held, the material was not an ‘agency
record.’ We have questioned whether the Burka test is helpful in delineating that distinction.”).

16

Among the most insightful analyses into the flaws of the Burka test is the 9th Circuit’s
opinion of Rojas v. Federal Aviation Administration. 941 F.3d 392 (9th Cir 2019). Rojas notes two
problems with the Burka test. Id. at p. 408–09. First, the first factor in the Burka test is in direct
tension with the Supreme Court’s decision in Tax Analyst. Id. at p. 409. The D.C. Circuit issued
Burka before the Supreme Court issued Tax Analyst. See Burka, 87 F.3d 508 (issued in 1996); Tax
Analyst, 492 U.S. 136 (issued in 1998). This conflict exists because the “first factor [of Burka] is in
tension with the Court’s conclusion that ‘the intent of the creator of a document’ is not relevant
to a determination of whether the document is an agency record.” Rojas, 941 F.3d at 409 (quoting
Tax Analyst, 492 U.S. at 147). Second, some of the Burka factors are less helpful when applied
electronic records today compared to over 25 years ago. Id. In the words of the 9th Circuit, “[f]or
instance, whether an email is ‘integrated’ into the agency’s record system or files is less meaningful
today because email and other electronic records may be automatically stored on an agency’s
server, and not ‘filed’ in a record system in any formal way.” Id.
An important consideration discussed in Tax Analyst is the distinction between an agency’s
possession of records in connection with agency-related business and personal matters not related
to the agency’s transaction of public business. 492 U.S. at 145. The Supreme Court emphasized
that agency records should not “include personal materials in an employee’s possession, even
though the materials may be physically located at the agency.” Id. Further, the Supreme Court
noted that agency records include items and documents related to the agency’s “transaction of
public business.” Id.
The 9th Circuit’s test in Roja is that “a court may consider a range of evidence to determine
whether specified records are in the agency’s possession in connection with agency-related

17

business, or instead involve personal matters not related to the agency’s transaction of public
business.” 941 F.3d at 409. “[E]vidence relating to the agency’s use of documents (including its
system for preserving, retrieving, or disposing of the documents, and any reliance on the
documents by agency employees) may be relevant to this inquiry. Agency records are not limited
to documents that are preserved according to agency directions.” Id. Electronic records and
“other documents that are unrelated to agency business are not agency records, even if they are
stored on the agency’s server and used by an agency employee.” Id. Because “no mens rea
requirement [exists] for whether materials constitute agency records . . . agency records may
include documents used by agency employees in connection with agency business, even if the
employees were engaging in misconduct.” Id.
The Court will apply the Roja test to determine whether the work laptop, the DVD, and
the tape drive are agency records within the context of FOIA. Given the numerous issues with the
Burka test and its tension with Tax Analyst, the Court will not apply the Burka test. See id. The
Rojas test accounts for these issues and considers the distinction between an agency’s possession
of records in connection with agency-related business and personal matters not related to the
agency’s transaction of public business. Id.
Applying the Roja test, the work laptop, the DVD, and the tape drive are agency records
and subject to the FBI’s control as required under second prong of the test for whether an item is
an agency record. 13 Undoubtedly, the FBI is in possession of the items as it stores them in an
evidence control room (Dkt. #84, Ex. 1 ¶ 13(a)). The FBI emphasizes that the items are all
evidentiary items, belonging to non-governmental, third parties (Dkt. #84, Ex. 1 ¶ 13(a)). Although

13

The Court would reach the same result under the Burka test.

18

these items are all considered evidentiary property “managed under a different set of rules and
regulations than actual agency records,” this circumstance does not demonstrate that the items
are kept for reasons unrelated to the FBI’s transaction of public business (Dkt. #84, Ex. 1 ¶ 13(a)).
See Tax Analyst, 492 U.S. at 145. Next, the FBI notes that it does not have the right to use and
dispose of the items as it sees fit because they are governed by the Digital Evidence Policy Guide
(Dkt. #84, Ex. 1 ¶ 13(b)). Therefore, the FBI must ultimately return these items to their “rightful
owners when all criminal proceedings have terminated” (Dkt. #84, Ex. 1 ¶ 13(b)). These claims
suggest that although the FBI may not have absolute control of items, it possesses the ability to use
the items within the bounds of the Digital Evidence Policy Guide for purposes related to the FBI’s
transaction of public business (Dkt. #84, Ex. 1 ¶ 13(b)). See Tax Analyst, 492 U.S. at 145.
The FBI provides two additional facts under its analysis of whether the items are agency
records for the purposes of FOIA. First, the FBI claims that it found “no indication that the FBI
relied on content of the work laptop, DVD, or tape drive” (Dkt. #84, Ex. 1 ¶ 13(c)). This fact
supports a finding that the items are not agency records. See Rojas, 941 F.3d at 409. Finally, the
FBI found that the items were not “incorporated into its records systems or files” (Dkt. #84, Ex.
1 ¶ 13(d)). As Rojas diminished the Burka test’s focus on integration of the records, this fact has a
neutral impact on whether the items are agency records. See Rojas, 941 F.3d at 409.
Overall, the FBI has not met its burden to demonstrate that the work laptop, the DVD, and
the tape drive are not agency records under the Rojas test. Therefore, the Huddleston is entitled to
summary judgment on this issue. Huddleston specifically requested that the Court order the FBI
to produce a Vaughn index for the metadata and records contained on the items (Dkt. #92 at p. 15).
The Court orders the FBI to produce a Vaughn index addressing the information it possesses on

19

Seth Rich’s work laptop, the DVD, and the tape drive that is responsive to Plaintiff’s FOIA
requests. The Vaughn index must address the metadata contained within Seth Rich’s work laptop.
See Long v. Immigr. & Customs Enf’t, 279 F. Supp. 3d 226, 233–34 (D.C. Cir. 2017) (implicitly
finding that metadata is an agency record and thus subject to FOIA).
III.

Production of Newly Found Documents
The Court will not require the FBI and DOJ to produce the letter from a third party that

accompanied the work laptop, two chain of custody forms, and the three-page report detailing
actions by a third party outside entity to image the work laptop. The FBI claims that the newly
found documents are entirely exempt from disclosure pursuant to FOIA Exemptions 3, 6, 7(A),
7(C), and 7(E) (Dkt. #84 at p. 6).
Under FOIA Exemption 7(A), the FBI may withhold “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law enforcement
records or information . . . [that] could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A). 14 The agency bears the burden to prove that agency records
fall within an enumerated exception. Tax Analysts, 492 U.S. at 142 n.3. The FBI argues that
Exemption 7(A) should bar the disclosure of the newly found documents to protect “information
about pending law enforcement investigation” (Dkt. #84, Ex. 1 ¶ 26). The FBI specifically states
that:

As previously stated, before an agency can invoke any subpart of Exemption 7, including Exemption 7(C), the agency
must demonstrate that the records or information at issue were compiled for law enforcement purposes. See John Doe
Agency, 493 U.S. at 153, 156. Here, the records withheld by the FBI were created and compiled in furtherance of the
FBI’s role in the United States Office of Special Counsel investigation and related investigations. The FBI explains
that “these records were created and compiled to document the FBI’s investigation of potential crimes and threat to
the national security, thus, the FBI determined they were created and compiled for law enforcement purposes”
(Dkt. #84, Ex. 1 ¶ 22). Huddleston does not dispute that the records were compiled for law enforcement purposes,
and the Court sees no reason on the record to conclude otherwise. Thus, the Court finds that the FBI has satisfied
Exemption 7’s threshold inquiry.

14

20

The FBI determined release of [these materials] would provide criminals and agents of
foreign powers with information about the United States government’s investigation and
enforcement strategies in these ongoing matters, which would allow criminals and our
national adversaries to predict and potentially thwart these strategies, and/or allowing
them to discover and tamper with witnesses and destroy evidence.
(Dkt. #84, Ex. 1 ¶ 26). The enforcement proceeding at issue is the criminal prosecution and
governmental action against various Russian nationals who have been indicted by a Grand Jury in
the District of Columbia (Dkt. #84, Ex. 1 ¶ 28). This enforcement proceeding deals with Units
26165 and 74455 of the foreign military intelligence agency of the General Staff of the Russian
Armed Forced (Dkt. #84, Ex. 1 ¶ 27. These units engaged in largescale cyber operations to
interfere with the 2016 U.S. presidential election (Dkt. #84, Ex. 1 ¶ 27).
The FBI argues that the release of any information concerning this investigation, including
within the newly found documents, would be premature because the defendants (the indicted
Russian nationals) are fugitives and various harms would result (Dkt. #84, Ex. 1 ¶ 29). The FBI
claims that “these individuals would acquire the unique advantage of knowing certain details . . .
which could be used to . . . escape prosecution and thwart current investigative efforts by altering
or counteracting evidence, changing behavior, intimidating or physically harming witnesses or law
enforcement officials, and/or flight” (Dkt. #84, Ex. 1 ¶ 29(a)). The FBI further claims that this
information would “allow third parties who are not directly related to this matter to interfere with
investigative efforts . . . through harassment, intimidation, and creation of false evidence by
dispensing extraneous facts discussed in the investigation” (Dkt. #84, Ex. 1 ¶ 29(b)).
Huddleston responds by arguing that the FBI’s claims are boilerplate and conclusory
(Dkt. #92 at p. 18). Additionally, Huddleston claims that the FBI cannot on one hand say that they
did not rely on the newly found documents while at the same time say that the documents are

21

essential to the prosecution of Russian intelligence agents (Dkt. #92 at p. 18). Finally, Huddleston
argues that the FBI’s supporting affidavit “does not make any attempt to apply [the writer’s] legal
arguments to the facts of this case, instead leaving it up to the Court to guess what [the writer] is
talking about” (Dkt. #92, Ex. 1 at p. 19).
There is a general recognition among courts that prematurely releasing certain information
under FOIA may interfere with enforcement proceedings against fugitives. See, e.g., Martorano v.
Fed. Bureau of Investigation, No. 89–377, Civ. A. 89–1345(RCL), 1991 WL 212521, at p. *9 (D.C.
Cir. Sept. 30, 1991); Shapiro v. Cent. Intel. Agency, 247 F.Supp.3d 53, 65 (D.D.C. 2017); Hildago v.
Fed. Bureau of Investigation, 541 F.Supp.2d 250, 256–57 (D.D.C. 2008); Ayyad v. U.S. Dep’t of
Just., No. 00 CIV. 960(KTD), 2002 WL 654133, at p. 2–4 (S.D.N.Y. Apr. 18, 2002). In Shapiro v.
Central Intelligence Agency, the FBI declined to disclose certain information to avoid incidentally
aiding a fugitive in an ongoing domestic terrorism case. 247 F.Supp.3d at 65. The FBI stated that
it withheld information related to a fugitive. Id. Further, the FBI argued that disclosure “could
‘expose potential leads and/or suspects the FBI identified’ in relation to an on-going domestic
terrorism investigation and releasing the concealed information in Mandela 520–521 could harm
the ‘on-going investigation by impeding the FBI’s efforts to locate the fugitive.’” Id. Based on
these reasons, the court found that the FBI had satisfied the requirements of FOIA Exemption
7(A). Id.
The FBI has provided a sufficient explanation to withhold the documents under FOIA
Exemption 7(A). As in Shapiro v. Central Intelligence Agency, the FBI has indicated that disclosure
of the newly found documents would reveal information related to the fugitives that would aid said
fugitives (Dkt. #84, Ex. 1 at p. 15). Id. Further, the FBI has sufficiently described the enforcement

22

proceeding at issue and how disclosure of the newly found documents could reasonably be
expected to interfere with enforcement proceedings.” See 5 U.S.C. § (b)(7)(A).
The Court does not find the FBI’s arguments to be boilerplate and conclusory. The two
points that Huddleston notes from Seidel’s Sixth Affidavit in isolation would be boilerplate and
conclusory because these statements would go little further than reiterating the basic requirements
of FOIA Exemption 7(A) (Dkt. #92 at p. 18). See 5 U.S.C. § (b)(7)(A). However, Seidel’s Sixth
Affidavit contains an additional two pages describing the enforcement proceeding at issue and how
disclosure could reasonably be expected to interfere with said enforcement proceedings in
sufficient detail to meet the requirements of Exemption 7(A) (Dkt. #84, Ex. 1 at pp. 14–15).
Contrary to Huddleston’s arguments, a law enforcement agency does not necessarily have
to rely on information for its disclosure to reasonably interfere with an enforcement proceeding.
No element of FOIA Exemption 7(A) requires a law enforcement agency to rely on the information
at issue. See 5 U.S.C. § (b)(7)(A). However, the FBI has described in sufficient detail how the
public disclosure of the newly found documents could reasonably be expected to interfere with said
enforcement proceedings regardless of its reliance on the newly found documents (See Dkt. #84,
Ex. 1 at pp. 13–15).
Thus, the Court finds that the FBI properly withheld the newly found documents under
Exemption 7(A). 15 Accordingly, the FBI is entitled to summary judgment on this issue.
IV.

Timeline for Disclosure of Documents
The FBI must process hundreds of thousands of documents to comply with this

Memorandum Opinion and Order (Dkt. #73 at p. 9). The FBI requests about 67 years to produce

Because the Court finds the newly found documents were properly withheld under Exemption 7(A), the Court does
not reach whether the newly found documents were also properly withheld under Exemptions 3, 6, 7(C), and 7(E).

15

23

the documents relating to the personal laptop alone (Dkt. #73 at p. 9). 16 Huddleston requests that
the FBI produce the documents in just 14 days (Dkt. #76 at p. 14). Neither of these requests is
appropriate. Therefore, the Court orders the FBI and Huddleston to provide a suggested timeline
for the disclosure of documents.
CONCLUSION
With the exceptions of Seth Rich’s work laptop, the DVD, the tape drive, and the compact
disk containing images of Seth Rich’s personal laptop, which are responsive to Huddleston’s FOIA
requests, the Court finds the Government properly withheld or redacted information responsive
to Huddleston’s requests in accordance with the FOIA’s exemptions.
It is therefore ORDERED that Defendant FBI’s Motion for Clarification, or in the
Alternative, Reconsideration of the Memorandum Opinion and Order Entered September 29,
2022 (Dkt. #73) is DENIED.
It is further ORDERED that Plaintiff’s Motion for Clarification of the Memorandum
Opinion and Order Entered September 29, 2022 (Dkt. #77) is be GRANTED in part and
DENIED in part.
It is further ORDERED the Government shall produce a Vaughn index addressing the
information it possesses on the compact disk containing images of Seth Rich’s personal laptop that
is responsive to Plaintiff’s FOIA requests.
It is further ORDERED that the Government shall produce a Vaughn index addressing the
information it possesses on Seth Rich’s work laptop, the DVD, and the tape drive that is responsive

The FBI requests to produce the documents relating to the personal laptop at a rate of 500 documents per month
and estimates that about 400,000 documents exist (Dkt. #73 at p. 9). This would result in a production schedule of
about 66.7 years.

16

24

to Plaintiff’s FOIA requests. The Vaughn index must address the metadata contained within Seth
Rich’s work laptop.
It is further ORDERED that the Government and Huddleston shall recommend to the

.

court a timeline for the disclosure of information on Seth Rich’s personal laptop, Seth Rich’s work
laptop, the DVD, and the tape drive within 14 days following the issuance of this Memorandum
Opinion and Order.
IT IS SO ORDERED.

SIGNED this 28th day of November, 2023.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

25