di Montenegro v. Federal Bureau of Investigation
MEMORANDUM OPINION Signed by District Judge James C. Cacheris on 6/22/17. (gwalk, ) **Order to follow**
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
TRISTAN DI MONTENEGRO,
FEDERAL BUREAU OF
M E M O R A N D U M
O P I N I O N
This case is before the Court on Defendant Federal
Bureau of Investigation’s (“Defendant” or “FBI”) Motion for
For the following reasons, the
Court will grant Defendant’s motion.
I. Background 1
On July 1, 2015, Plaintiff Tristan di Montenegro
(“Plaintiff”) submitted a Freedom of Information Act and Privacy
Act (“FOIA/PA”) request to the FBI, in which Plaintiff requested
“my records” for the period of “1980 to present.”
Mem. in Supp.
of Def.’s Mot. for Summ. J. [Dkt. 22], Exh. 1, Declaration of
David M. Hardy (“Hardy Decl.”), Exh. A at 1.
Plaintiff failed to file a brief in opposition to Defendant’s motion.
Accordingly, the facts set forth in Defendant’s brief and the attached
exhibits are deemed admitted for purposes of this matter. See, e.g., Bon
Supermarket & Deli v. United States, 87 F. Supp. 2d 593, 600 (E.D. Va. 2000).
indicated that he wanted the FBI to search for “any and all
files, documents, records and investigations classified under
designation 190 and/or 197 main files, as well as all control
files including but not limited to those with ‘-0,’ ‘-2,’ and
Id. (emphases omitted).
On July 15, 2015, the FBI wrote to Plaintiff and
stated that it was “unable to identify main file records
responsive” to the request.
Hardy Decl., Exh. B at 1.
informed Plaintiff that if he had “additional information
pertaining to the subject that [he] believe[d] was of
investigative interest to the [FBI],” he could provide those
details and the FBI would “conduct an additional search.”
The response also included a standard statement that the FBI
“neither confirms nor denies the existence of [Plaintiff’s] name
on any watch lists.”
Finally, the response indicated that
Plaintiff could appeal to the Office of Information Policy
(“OIP”) within 60 days.
On July 31, 2015, Plaintiff appealed to the OIP,
arguing that the FBI should have searched for “classified”
records and “control files.”
Hardy Decl., Exh. C at 4-8.
Plaintiff also offered an “amendment” to his original request,
asking the FBI to search a list of seven additional “Systems of
Records,” including the “National Crime Information Center,”
“Electronic Surveillance (ELSUR) Indices,” “Terrorist Screening
Records System,” and “Law Enforcement National Data Exchange.”
Id. at 5.
On August 24, 2015, the OIP denied Plaintiff’s appeal,
concluding that the FBI had conducted an “adequate, reasonable
search” and that “no main file records” had been located.
Decl., Exh. E at 1-2.
The appeal denial stated that Plaintiff
could submit additional information to the FBI regarding
specific dates, locations, and names that the FBI could use to
try and “identify responsive cross references.”
Id. at 2.
Finally, the appeal denial stated that Plaintiff could file suit
in federal district court.
On November 4, 2016, Plaintiff filed the instant
action, proceeding pro se.
Compl. [Dkt. 1].
the procedural history of his FOIA/PA request and asked the
Court to “[o]rder defendant immediately to state which records
it intends to disclose,” “order defendant to provide access to
the requested documents,” “expedite this proceeding,” and “award
plaintiff costs and reasonable attorneys [sic] fees.”
1] at 2.
In support of this request, Plaintiff alleged that the
“FBI and DHS have engaged in a conspiracy” where Plaintiff “has
been subject to cyber-harassment, death threats, anti-Semitic emails, interference of communications with Jewish organizations,
allegations that he is a ‘closet Muslim,’ identity theft and online impersonation, harassment of business and employment
contacts with the goal of depriving the plaintiff of an income,
interception of plaintiff-attorney communications with the goal
of depriving the plaintiff of legal counsel, [and] abusive and
threatening text messages and phone calls.” 2
[Dkt. 1-2] at 1.
On December 19, 2016, the FBI filed its answer and
status report, [Dkts. 10, 11], and stated that “[a]s part of
this litigation, the FBI has been conducting additional searches
to ensure that it identifies all potentially responsive
documents to the plaintiff’s request,” and that the FBI had
“identified some potentially responsive records,” [Dkt. 11] at
1; Hardy Decl., ¶ 21.
The FBI proposed that the Court order the
FBI to complete its search and production of records by February
28, 2017, followed by the parties filing a joint status report
on or before March 31, 2017.
[Dkt. 11] at 1-2.
By February 28, 2017, the FBI had completed its
additional search for records responsive to Plaintiff’s request.
Hardy Decl., Exh. F.
A portion of the documents discovered
during these additional searches originated with other
government agencies: the Department of Justice’s Office of
Inspector General (“OIG”), the United States Immigration and
Customs Enforcement (“ICE”), and the United States Department of
Hardy Decl., ¶ 60.
The FBI referred these
These claims were the subject of a separate action before Judge Trenga, who
recently dismissed the case. See Montenegro v. NSA, No. 1:16-cv-1608, ECF
No. 31 (E.D. Va. May 11, 2017).
records to the relevant agencies for their review and potential
Id.; Exh. F at 1.
OIG reviewed 22 pages of records.
Mem. in Supp. of Def.’s Mot. for Summ. J., Exh. 2, Declaration
of Deborah M. Waller (“Waller Decl.”), ¶¶ 5-12.
pages of records.
Id., Exh. 3, Declaration of Fernando Pineiro
(“Pineiro Decl.”), ¶¶ 6-9.
ICE reviewed 8
State also reviewed 8 pages of
Id., Exh. 4, Declaration of Eric F. Stein (“Stein
Decl.”), ¶¶ 3-16.
Attached to its motion for summary judgment, the FBI
submitted four Vaughn declarations to specify and explain the
redactions and withholdings made by each of the four agencies
pursuant to FOIA/PA exemptions.
The FBI withheld various
information under FOIA Exemptions 6 and 7(C), 7(D), 7(E), and
7(F), as well as under PA Exemption (j)(2).
43, 44-49, 50-56, 57-58, 23.
Hardy Decl., ¶¶ 29-
The OIG withheld the name of an
administrative employee under FOIA Exemptions 6 and 7(C).
Waller Decl., ¶¶ 6-12.
ICE redacted the name of one special
agent pursuant to FOIA Exemptions 6 and 7(C), Pineiro Decl.,
¶ 8, and withheld information contained within the Alien File,
Index, and National File Tracking System pursuant to PA
Exemption (k)(2), id., ¶ 9.
Finally, State withheld the names
of a State consular official and of a Bureau of Diplomatic
Security agent pursuant to FOIA Exemptions 6 and 7(C).
Decl., ¶¶ 14-16.
After the conclusion of all four agencies’ review, the
FBI produced 48 pages of documents to Plaintiff. 3
The documents relate primarily to three topics: (1)
Plaintiff’s 2014 tips to the FBI regarding a theft of diamonds
in Belgium; (2) Plaintiff’s 2014 claim that he was the victim of
wire fraud; and (3) Plaintiff’s 2015 complaints concerning the
FBI’s alleged “conspiracy” against him.
Mem. in Supp. of Def.’s
Mot. for Summ. J., ¶ 9.
On April 4, 2017, Plaintiff filed a status report
indicating his belief that the FBI’s February 28 production “did
not respond to any of the plaintiff’s specific requests as
referenced within the original FOIA Requests.”
[Dkt. 16] at 1.
On April 5, 2017, the FBI filed its own status report indicating
that it had turned over all responsive documents.
[Dkt. 19] at
However, given that Plaintiff seemed to challenge the
adequacy of its search, the FBI also proposed a briefing
schedule for summary judgment.
proposed schedule on April 6, 2017.
The Court adopted the FBI’s
The FBI has now moved for summary judgment.
The FBI contends that its search was adequate, the
redactions made on the produced records fall within wellestablished FOIA/PA exemptions, and each of the redactions is
Fourteen pages were withheld in their entirety because, after redactions,
the remaining words had “minimal or no informational content.” Hardy Decl.,
detailed with reasonable specificity in the Vaughn declarations.
Mem. in Supp. of Def.’s Mot. for Summ. J. at 1.
failed to file a brief in opposition to the FBI’s motion. 4
argument was held on June 22, 2017.
This matter is now ripe for
II. Standard of Review
Summary judgment is appropriate only if the record
shows “that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986).
The moving party always bears the
initial burden of “informing the district court of the basis for
its motion,” and identifying the matter “it believes
demonstrate[s] the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323.
“A material fact is one ‘that might
affect the outcome of the suit under the governing law.’
disputed fact presents a genuine issue ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th
Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
At oral argument, Plaintiff apologized for his lack of understanding with
respect to the rules of civil procedure and verbally opposed Defendant’s
Once the movant has met the initial burden, “the nonmoving party ‘may not rest upon mere allegation or denials of
his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.’”
Hughes v. Bedsole, 48
F.3d 1376, 1381 (4th Cir. 1995) (quoting Anderson, 477 U.S. at
This is particularly important where the opposing party
bears the burden of proof.
Hughes, 48 F.3d at 1381.
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.
Anderson, 477 U.S. at 249-50.
Moreover, the mere existence of a scintilla of evidence is
insufficient; there must be evidence on which the jury could
reasonably find for the non-moving party.
Id. at 252.
judge’s inquiry, therefore, unavoidably asks whether reasonable
jurors could find by a preponderance of the evidence that the
opposing party is entitled to a verdict.
To obtain summary judgment in a FOIA/PA action, an
agency must show that, viewing the facts in the light most
favorable to the requester, there is no genuine issue of
material fact with regard to the agency's compliance with
See Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d
588, 591 (4th Cir. 2004); Steinberg v. U.S. Dep't of Justice, 23
F.3d 548, 551 (D.C. Cir. 1994).
FOIA cases are properly
resolved on summary judgment after the agency has responded to
the request. See Hanson v. USAID, 372 F.3d 286, 290 (4th Cir.
2004); Wickwire, 356 F.3d at 590.
The Court may award summary
judgment based solely upon the information provided in
affidavits or declarations when the affidavits or declarations
describe the search conducted, explain the basis for its
response, and are not controverted by contrary evidence in the
record or evidence that the agency acted in bad faith.
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Moreover, agency declarations are to be accorded a presumption
of good faith.
See, e.g., Bowers v. U.S. Dep't of Justice, 930
F.2d 350, 357 (4th Cir. 1991).
Adequacy of the FBI’s Search
Under FOIA, “the agency must make a good faith effort
to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information
Nation Magazine v. Customs Serv., 71 F.3d 885 (D.C.
Cir. 1995) (internal citation and quotations omitted).
question is not whether every responsive document has been
unearthed, but whether the agency has demonstrated that it has
conducted a search reasonably calculated to uncover all relevant
Ethyl Corp. v. EPA, 25 F.3d 1241, 1246–77 (4th Cir.
An adequate search “may be limited to the places most
likely to contain responsive documents.”
Carter, Fullerton &
Hayes, LLC v. FTC, 601 F. Supp. 2d 728, 735 (E.D. Va. 2009)
(internal quotations omitted).
For the reasons stated below,
the FBI conducted a reasonable and adequate search in light of
Plaintiff’s request for information.
Plaintiff’s FOIA/PA request states that it seeks
Plaintiff’s “personal records, files and documentation” as a
“global records and files request” covering “1980 to present.”
Hardy Decl., Exh. A at 1.
Typically, the FBI responds to
requests like Plaintiff’s by searching its Central Records
System (“CRS”), which consists of applicant, investigative,
intelligence, personnel, administrative, and general files
complied and maintained by the FBI in the course of fulfilling
its functions as a law enforcement, counterterrorism, and
intelligence agency. 5
Hardy Decl., ¶ 12.
To locate CRS information, the FBI relies upon index
Hardy Decl., ¶ 19.
The FBI customarily uses the
Universal Index (“UNI”) application of Automated Case Support
(“ACS”) to conducts its searches due to the broad range of
indexed material it can locate in FBI files. 6
if a records request seeks information that may have been
generated on or after July 1, 2012, the FBI also conducts a
The CRS contains the records of the entire FBI organization, including FBI
Headquarters, FBI Field Offices, and FBI Legal Attaché Offices worldwide.
Hardy Decl., ¶ 12.
UNI is an automated index of the CRS; individual names may be recorded with
applicable identifying information—such as date of birth, race, sex,
locality, Social Security number, address, and/or date of an event—by all
offices of the FBI for later retrieval. Id., ¶ 17.
second search of Sentinel, the FBI’s next-generation case
Id., ¶ 18.
On July 15, 2015, in response to Plaintiff’s FOIA/PA
request, the FBI used the UNI application of ACS to conduct a
CRS index search for responsive “main” records. 7
The FBI included search terms containing Plaintiff’s name
and aliases—“Tristan Di Montenegro,” “Tristan Xango Di
Montenegro,” and “Peter Andrew Solomon”—in an attempt to find
“personal records” responsive to Plaintiff’s request.
The FBI’s search also included alternate orderings and
phonetic spellings of Plaintiff’s name and aliases.
Id., ¶ 20
The search failed to locate any records responsive to
Plaintiff’s FOIA/PA request.
Id., ¶ 20.
On December 7, 2016, the FBI conducted an additional
search of the CRS via the UNI application of ACS, as well as ran
a new index search via Sentinel.
Hardy Decl., ¶ 21.
used the same search terms as it had previously used, with the
exception of also looking for cross-reference records. 8
These cross-reference searches yielded 62 pages of responsive
records to Plaintiff’s FOIA/PA request.
Mem. in Supp. of Def.’s
Mot. for Summ. J. at 10.
Main records refer to “records indexed to the main subject(s) of a file,”
which “carries the name of an individual, organization, or other subject
matter that is the designated subject of the file.” Id., ¶ 14(a).
Cross-reference records are records “that merely mention or reference an
individual, organization, or other subject matter that is contained in a
‘main’ file record about a different subject matter.” Id., ¶ 14(b).
The FBI went into great detail to outline its methods
for searching the CRS for records that are responsive to
“[A] search need not be perfect, only
adequate, and adequacy is measured by the reasonableness of the
effort in light of the specific request.”
Meese, 790 F.2d 942, 956 (D.C. Cir. 1986).
considerable time and effort to its searches, the FBI has
satisfied its burden of demonstrating that its search was
reasonably calculated to turn up all responsive records with
respect to Plaintiff’s request.
FOIA and PA Exemptions
Out of the 62 pages discovered via the FBI’s index
searches, 48 pages were produced to Plaintiff.
Def.’s Mot. for Summ. J. at 10.
Mem. in Supp. of
The FBI reviewed the majority
of these records for potential withholdings pursuant to FOIA/PA
exemptions, but portions were also referred to the OIG, ICE, and
State for their review.
Having reviewed the four agencies’
Vaughn declarations, the Court finds that the FBI has met its
burden of demonstrating that all of the information withheld or
redacted fell within one of the enumerated FOIA or PA
FOIA Exemptions 6 and 7(C)
Most of the withholdings that resulted from the four
agencies’ review fall under the privacy protections of FOIA
Exemptions 6 and 7(C).
Exemption 6 requires agencies to
withhold information contained in “personnel,” “medical,” and
“similar” files when disclosure would “constitute a clearly
unwarranted invasion of personal privacy.”
The phrase “similar files” has a “broad, rather
than a narrow, meaning.”
United States Dep’t of State v.
Washington Post Co., 456 U.S. 595, 598 (1982).
It “extends to
all information which applies to a particular individual,”
Judicial Watch, Inc. v. United States, 84 F. App’x 335, 338 (4th
Cir. 2004) (quotation marks and alternation omitted), including
“not just files, but also bits of personal information, such as
names and addresses,” Judicial Watch, Inc. v. FDA, 449 F.3d 141,
152 (D.C. Cir. 2006).
Moreover, the requester bears the burden
of establishing a significant public interest in the disclosure
of such information.
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 172 (2004).
Exemption 7(C) operates similarly to Exemption 6.
Solers, Inc. v. IRS, 827 F.3d 323, 332 (4th Cir. 2016).
requires agencies to withhold information compiled for law
enforcement purposes that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.”
U.S.C. § 552(b)(7)(C).
Here, the FBI has excluded eight categories of
individuals whose personal information is protected from
disclosure under Exemptions 6 and 7(C): (1) non-FBI federal
employees; (2) FBI special agents and support personnel; (3)
third parties mentioned in criminal files; (4) third parties of
investigative interest; (5) third parties with criminal records;
(6) third parties who provided information to the FBI; (7) third
party victims; and (8) local law enforcement personnel.
Hardy Decl., ¶¶ 28, 34-43.
Pursuant to these exemptions, the
FBI withheld information contained in the records labeled as
DIMONTENEGRO 19, 22-25, 32-35, 37-50, and 52-62.
and accompanying nn.8-15.
Id., ¶¶ 34-43
It argues that these withholdings
were necessary to protect the individuals from harassment,
embarrassment, and/or invasion of privacy.
Id., ¶¶ 34-43.
Court agrees, finding that the withheld information is
consistent with FOIA Exemptions 6 and 7(C).
See Judicial Watch,
84 F. App’x at 339 (holding that the release of government
employee names would constitute an unwarranted invasion of
In addition, the OIG withheld the name of one
administrative employee pursuant to Exemptions 6 and 7(C).
Waller Decl., ¶¶ 6-12.
The OIG argues that “the documents
concerned an allegation of work-related misconduct,” qualifying
as a “personnel” file under Exemption 6.
Id., ¶ 10.
also argues that, because the documents were compiled to
investigate potential misconduct by a Department of Justice
employee, the records were created for law enforcement purposes
under Exemption 7(C).
Id., ¶ 11.
Accordingly, the Court
concludes that this information was properly withheld under FOIA
Exemptions 6 and 7(C).
ICE also redacted one page of records to withhold the
name and personally identifying information of a special agent.
Pineiro Decl., ¶ 8.
This redaction was made to prevent
harassment, avoid placing the officer in danger, and preclude
the possible minimization of his or her future effectiveness in
The Court finds that ICE’s redaction was
appropriate pursuant to FOIA Exemptions 6 and 7(C).
Judicial Watch, 84 F. App’x at 339.
Finally, State redacted the names of a State consular
official and of a Bureau of Diplomatic Security agent.
Decl., ¶¶ 14-15.
State contends that these redactions were
necessary to protect the identities of individuals involved in
law enforcement, avoiding possible harassment or intimidation as
well as the possibility of compromising future law enforcement
Id., ¶ 15.
Again, State’s redactions under FOIA
Exemptions 6 and 7(C) were proper.
See Judicial Watch, 84 F.
App’x at 339.
FOIA Exemptions 7(D), 7(E), and 7(F)
A smaller portion of the withholdings in the records
currently before the Court fall under FOIA Exemptions 7(D),
7(E), and 7(F).
The Court will briefly address each of these
exemptions in turn.
FOIA Exemption 7(D) protects “records or information
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or
information . . . could reasonably be expected to disclose the
identity of a confidential source . . . and, in the case of a
record or information compiled by criminal law enforcement
authority in the course of a criminal investigation . . . ,
information furnished by a confidential source.”
If the FBI “can demonstrate that the
information was provided in confidence at the time it was
communicated to the FBI, the source will be deemed a
confidential one, and both the identity of the source and the
information he or she provided will be immune from FOIA
Dow Jones & Co. v. DOJ, 917 F.2d 571, 575-76 (D.C.
Cir. 1990) (internal quotation marks and citations omitted).
addition, “when circumstances such as the nature of the crime
investigated and the witness’ relation to it support an
inference of confidentiality, the Government is entitled to a
presumption” of confidentiality.
DOJ v. Landano, 508 U.S. 165,
In the instant case, the FBI has subdivided its
Exemption 7(D) withholdings into two categories: (1) information
provided by foreign government authorities under an express
assurance of confidentiality; and (2) information provided by
sources under an implied assurance of confidentiality.
Supp. of Def.’s Mot. for Summ. J. at 15.
Under the first
category, the FBI protected the identity of, and information
provided by, a foreign agency or authority, Hardy Decl., ¶ 47,
by withholding information on records labeled DIMONTENEGRO 3539, 41-42, 44-50, and 57, id. at n.17.
Pursuant to the second
category, the FBI protected the identities of, and information
provided by, sources who provided “valuable, detailed
information concerning the activities of subjects who were of
investigative interest to the FBI or other law enforcement
Id., ¶ 49.
The FBI withheld such information on
records labeled DIMONTENEGRO 52-62.
Id. at n.18.
FBI has demonstrated that these records were created for law
enforcement purposes and that the information provided therein
was provided as the result of either express or implied
confidentiality, the Court finds that this information was
properly withheld pursuant to FOIA Exemption 7(D).
FOIA Exemption 7(E) states that an agency may withhold
records or information compiled for law enforcement purposes
that would “disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk
circumvention of the law.”
5 U.S.C. § 552(b)(7)(E).
exemption “only requires that the [agency] demonstrate logically
how the release of the requested information might create a risk
Gluckman v. U.S. Dep’t of Labor, No. 3:13-
CV-169, 2013 WL 6184957, at *5 (E.D. Va. Nov. 26, 2013)
(internal quotation marks omitted) (emphasis added).
Again, the FBI has subdivided its Exemption 7(E)
withholdings into several categories: (1) database
identifiers/printouts; (2) sensitive investigative techniques
and procedures for investigating financial crimes; (3) sensitive
FBI squads and units; and (4) sensitive file number and sub-file
Mem. in Supp. of Def.’s Mot. for Summ. J. at 16-17.
First, the FBI withheld the names of databases and database
search results obtained from non-public databases that are used
for official law enforcement purposes.
Hardy Decl., ¶ 53.
FBI argues that these databases are “repositories for
counterterrorism and investigative data” that allow law
enforcement “to query information and develop investigative
As a result, their disclosure might impede the
Pursuant to this first category, the
FBI withheld information on records labeled DIMONTENEGRO 46-47,
50, 52-54, 58, and 60.
Because the disclosure of these
databases and their search results could potentially lead to
circumvention of the law, this withholding was proper under
Second, the FBI withheld information about its
internal investigative methodologies.
Hardy Decl., ¶ 54.
FBI contends that to disclose such information would allow
individuals to alter their behavior to avoid detection.
prevent this, the FBI withheld information on one record labeled
Id. at n.20.
Given that the FBI has
demonstrated that the release of such information might allow
individuals committing financial crimes to adjust their conduct
to avoid possible punishment, this withholding was also proper
under Exemption 7(E).
Third, the FBI protected information pertaining to the
names, numbers, and/or alpha designators of certain FBI squads
Hardy Decl., ¶ 55.
The FBI maintains that the
existence of these particular squads and units is not known to
the general public and could reveal the area of focus the FBI
has chosen to apply to certain aspects of its counterterrorism
The FBI withheld this information on records
labeled DIMONTENEGRO 52-54.
Id. at n.21.
Because of the
sensitive nature of this information, the Court finds that this
withholding was proper pursuant to Exemption 7(E).
Finally, the FBI withheld information pertaining to
the case file number and sub-file name of a particular file
included in the responsive records.
Hardy Decl., ¶ 56.
argues that the numbering used for the case file and the naming
conventions used for the sub-file name could potentially reveal
the investigative priority the FBI gives to certain matters, as
well as the investigative techniques it uses.
withheld this information on records labeled DIMONTENEGRO 52-54
Id. at n.22.
Again, given that this information is
connected to the possibility of criminals circumventing the law,
this withholding was proper pursuant to Exemption 7(E).
The final FOIA Exemption—Exemption 7(F)—protects from
disclosure information contained in law enforcement records that
“could reasonably be expected to endanger the life or physical
safety of any individual.”
5 U.S.C. § 552(b)(7)(F).
Elec. Privacy Info. Ctr. v. DHS, 777 F.3d 518,
526 (D.C. Cir. 2015).
Moreover, “[d]siclosure need not
definitely endanger life or physical safety; a reasonable
expectation of endangerment suffices.”
Here, the FBI withheld portions of records labeled
DIMONTENEGRO 55-62 because they contain witness names and
information regarding criminal activities undertaken by
individuals who have shown a propensity for violence.
Decl., ¶ 58 at n.23.
The FBI argues that in some cases, the
information is so specific that it would allow others to
determine the identities of the individuals who provided the
information and could result in those individuals being targeted
Given this possible danger, the FBI has
established that there is a reasonable threat to life or
Thus, its withholdings under Exemption 7(F)
PA Exemptions (j)(2) and (k)(2)
The remaining withholdings claimed by the FBI and ICE
fall under PA Exemptions (j)(2) and (k)(2).
The Court will
address each of these exemptions in turn.
Exemption (j)(2) exempts from disclosure systems of
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.”
U.S.C. § 552a(j)(2).
In the instant case, the FBI’s standard
response to Plaintiff’s FOIA/PA request, known as a Glomar
response, stated that the agency “neither confirms nor denies
the existence of [Plaintiff’s] name on any watch lists.”
Decl., Exh. F at 1.
The plain language of Exemption (j)(2)
applies to prevent the disclosure of any information regarding
FBI watch lists, as such lists are clearly intended to help law
enforcement prevent crime and apprehend criminals.
Circuit Court of Appeals have previously addressed a Glomar
response in the specific context of PA Exemption (j)(2), the
Court nevertheless finds that the FBI would be well within its
authority to provide this sort of generic statement to
Accordingly, the FBI’s response in this case was
proper under Exemption (j)(2).
Exemption (k)(2) exempts from disclosure any system of
records that consists of “investigatory material compiled for
law enforcement purposes” other than material within the (j)(2)
Barnard v. DHS, 598 F. Supp. 2d 1, 23-24 (D.D.C.
ICE withheld a page labeled DIMONTENEGRO 60 to protect
personal privacy data contained in the Alien File, Index, and
National File Tracking System of Records.
Pineiro Decl., ¶ 9.
This type of information is specifically exempted from
disclosure, pursuant to Department of Homeland Security
See Privacy Act of 1974; Department of Homeland
Security U.S. Citizenship and Immigration Services, U.S.
Immigration and Customs Enforcement, U.S. Customs and Border
Protection—001 Alien File, Index, and National File Tracking
System of Records, 78 Fed. Reg. 69,864-01 (Nov. 21, 2013).
Accordingly, ICE’s withholding of information under Exemption
(k)(2) was proper.
Based upon a review of the uncontested facts, and
after resolving all rational inferences in favor of Plaintiff as
the non-moving party, the Court finds that no genuine issue of
material fact remains with regards to the FBI’s compliance with
FOIA and PA.
The FBI is therefore entitled to judgment as a
matter of law.
For the foregoing reasons, the Court will grant
Defendant’s Motion for Summary Judgment.
An appropriate order
June 22, 2017
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?