King & Spalding, LLP v. U.S. Department of Health and Human Services ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KING & SPALDING LLP, )
)
Plaintiff, )
)
v. ) Case No. 16-cv-01616 (APM)
)
U.S. DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case concerns three Freedom of Information Act (“FOIA”) requests submitted by
Plaintiff King & Spalding LLP to Defendants U.S. Department of Health and Human Services
(“HHS”) and U.S. Department of Justice (“DOJ”) (collectively “Defendants”). The court already
has ruled on one round of summary judgment motions and, at this stage in the litigation, the only
remaining issues pertain to the FOIA requests directed to DOJ. Specifically, Plaintiff challenges
DOJ’s search for responsive records, as well as its withholding of certain documents under
Exemptions 6, 7(C), and 7(D).
Before the court are the parties’ renewed cross-motions for summary judgment. Upon
review of the parties’ briefs and the present record, the court grants in part and denies in part
Defendants’ Renewed Motion for Summary Judgment and Plaintiff’s Renewed Cross-Motion for
Summary Judgment.
II. BACKGROUND
A. Plaintiff’s FOIA Requests
In 2012, the United States Attorney’s Office for the District of Columbia (“USAO-DC”)
initiated a criminal and civil investigation of Abiomed, Inc., a medical device company. See Pl.’s
Cross-Mot. for Summ. J., ECF No. 21 [hereinafter Pl.’s Cross-Mot.], Pl.’s Statement of
Undisputed Material Facts [hereinafter Pl.’s Stmt.], ¶¶ 36–37. The investigation centered on
marketing and labeling practices for a particular medical device, Impella 2.5, and ended three
years later without any enforcement action. See id. The investigation may have commenced when
an anonymous source, acting through a private lawyer, disclosed records pertaining to Abiomed
to the USAO-DC. See Pl.’s Cross-Mot. at 17 1; cf. Defs.’ Mot. for Summ. J., ECF No. 20
[hereinafter Defs.’ Mot.], Decl. of Tricia Francis, ECF No. 20-2 [hereinafter Francis Decl.], ¶¶ 13–
15, 18; Defs.’ Combined Opp’n to Cross-Mot. & Reply in Supp. of Mot. for Summ. J., ECF No.
25 [hereinafter Defs.’ Initial Reply], Second Decl. of Tricia Francis, ECF No. 25-2 [hereinafter
Second Francis Decl.], Corrected & Suppl. Vaughn Index for EOUSA, ECF No. 25-2, at 17–26
[hereinafter EOUSA Vaughn Index]. Abiomed suspects that one of its competitors, Maquet, is the
unnamed source. See Pl.’s Cross-Mot. at 32–33.
After the investigation closed, Abiomed sought to learn about how it started. On April 14,
2016, counsel for Abiomed, Plaintiff King & Spalding LLP, filed three separate FOIA requests
with HHS and two subcomponents of DOJ: the Civil Division and the Executive Office for United
States Attorneys (“EOUSA”). See Compl., ECF No. 1, ¶¶ 9–11; Defs.’ Mot., Defs.’ Statement of
Material Facts Not in Genuine Dispute [hereinafter Defs.’ Stmt.], ¶ 1; Pl.’s Stmt. ¶ 1. In each
1
Unless otherwise noted, citations to the parties’ pleadings, and any exhibits thereto, are to the page numbers
electronically generated by CM/ECF.
2
request, Plaintiff sought documents concerning Abiomed. See generally Defs.’ Stmt. ¶¶ 2, 10, 14;
Pl.’s Stmt. ¶¶ 2, 10, 14. Plaintiff asked for “[a]ll documents between January 1, 2012 and October
31, 2012, provided to any [federal agency] from any individual, corporation, partnership, or other
private party other than Abiomed, Inc.” that “concern[ed], discuss[ed], or refer[red] to Abiomed”
or “related . . . to the issuance of a Health Insurance Portability and Accountability Act subpoena
issued by the [USAO-DC] to Abiomed.” Defs.’ Stmt. ¶¶ 10, 14; see Pl.’s Stmt. ¶¶ 10, 14. 2
As discussed, Plaintiff no longer challenges the response it received from HHS; the only
outstanding issues in this matter pertain to the FOIA requests directed to the DOJ Civil Division
and the EOUSA. See Joint Status Report, ECF No. 29 [hereinafter JSR], ¶ 3.
1. Civil Division Request
The Civil Division responded to Plaintiff’s FOIA request by letter dated June 17, 2016.
See Defs.’ Stmt. ¶ 11; Pl.’s Stmt. ¶ 11. The letter explained that the Civil Division had located 49
pages of potentially responsive documents and had referred those documents to the EOUSA for
direct response, but that a portion of the documents were protected from disclosure by court seal.
Defs.’ Stmt. ¶ 11; Pl.’s Stmt. ¶ 11. The letter also advised Plaintiff that it could administratively
appeal the Civil Division’s response within 60 days. Defs.’ Stmt. ¶ 12; Pl.’s Stmt. ¶ 12.
Plaintiff took no action in response to the June 17, 2016, letter that it received from the
Civil Division. Defs.’ Stmt. ¶ 13; Pl.’s Stmt. ¶ 13. According to Plaintiff, it could not have
“appealed” the letter because the letter “did not state any determination that the Civil Division was
2
The requests directed to DOJ for documents concerning, discussing, or referring to Abiomed included any documents
provided to the Civil Division or the USAO-DC by another federal agency or component or office of DOJ, where that
agency, component, or office initially obtained or received the documents from the anonymous source. See Defs.’
Stmt. ¶¶ 10, 14; Pl.’s Stmt. ¶¶ 10, 14.
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not complying with the FOIA request or any reasons for a decision not to comply” and therefore
did not constitute a “final response” from the agency. See Pl.’s Stmt. ¶ 13.
On December 23, 2016, from the records it received from the Civil Division, EOUSA
released 27 pages in full and withheld 16 pages in full. See Defs.’ Stmt. ¶ 16; Pl.’s Stmt. ¶¶ 16,
35. According to Defendants, the 16 pages withheld in full are duplicates of documents that
EOUSA withheld in full in response to the FOIA request that Plaintiff submitted directly to
EOUSA. Defs.’ Stmt. ¶ 16; cf. Francis Decl. ¶ 11; Francis Decl., Attach. E. Thus, EOUSA
withheld those pages on identical grounds as those discussed below. See Francis Decl. ¶ 11.
2. EOUSA Request
Simultaneous with the release of the Civil Division’s records, EOUSA responded to the
FOIA request directed to it, releasing 344 pages in full and withholding 51 pages in full pursuant
to FOIA Exemptions 6, 7(C), and 7(D). Defs.’ Stmt. ¶ 15; see Pl.’s Stmt. ¶ 15. 3 Thus, all told,
EOUSA withheld in full 67 pages of responsive material (51 pages responsive to the EOUSA
request and 16 pages responsive to the Civil Division request). See Francis Decl., Attachs. D–E.
The undisclosed information generally falls into two categories: “(1) the names of government
personnel, the name of an attorney representing the unnamed source and the names of third parties
who appear in the documents provided by the unnamed source under Exemption[s] [6 and] 7(C),
and (2) certain material that could reveal the identity of the Government’s unnamed source under
Exemption 7(D).” See King & Spalding, LLP v. U.S. Dep’t of Health & Human Servs., 270
3
In its December 23, 2016, letter, EOUSA stated that it was also withholding the information pursuant to Exemption
5. See Defs.’ Stmt. ¶ 15. EOUSA no longer relies on that exemption, however, because it contends that the same
information is protected from disclosure under Exemptions 6 and 7. See id. at n.1.
4
F. Supp. 3d 46, 47 (D.D.C. 2017) (cleaned up); see also Defs.’ Stmt. ¶¶ 15–16; Pl.’s Stmt. ¶¶ 15–
16.
On April 5, 2017, after the parties filed their initial cross-motions for summary judgment,
EOUSA released four additional documents consisting of email communications, which the
agency located after conducting a supplemental search in March 2017. See Defs.’ Initial Reply at
7, 20; Second Francis Decl. ¶ 3; EOUSA Vaughn Index at 23–26 (documents 13–16). As part of
this supplemental release, EOUSA released 46 pages in full and 33 pages in part, withholding any
information that fell within the two aforementioned categories pursuant to Exemptions 6, 7(C),
and 7(D). See Second Francis Decl., April 5, 2017 EOUSA Letter, ECF No. 25-2, at 9–11; EOUSA
Vaughn Index at 23–26. 4 Plaintiff does not appear to challenge any of these redactions. See Pl.’s
Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 27 [hereinafter Pl.’s Initial Reply], at 5; see
also Pl.’s Renewed Cross-Mot., ECF No. 33 [hereinafter Pl.’s Renewed Cross-Mot.], at 7 (seeking
court order compelling Defendants to produce only those 67 pages of responsive information
previously withheld in full).
Separately, as part of the supplemental release, EOUSA also invoked Exemptions 4 and 5
to withhold certain information from several attachments to one of the four produced emails. See
Defs.’ Initial Reply at 21 (noting the withholding of attachments to an email labeled document 13,
which included the U.S. Food and Drug Administration’s (“FDA”) internal draft minutes of a
meeting between Abiomed and FDA’s Office of Compliance and proposed edits to those minutes,
4
Specifically, the redacted information included: the names and identifying information of DOJ attorneys, a criminal
investigator for the U.S. Food and Drug Administration (“FDA”), the name of counsel for the unnamed source, and
passcode information for a telephonic conference. See Defs.’ Initial Reply at 20; see also Second Francis Decl. ¶¶ 3–
11; Second Francis Decl., Decl. of Sarah Kotler, ECF No. 25-2, at 12–16 [hereinafter Kotler Decl.], ¶ 11; EOUSA
Vaughn Index at 23–26. Additionally, the FDA identified Exemption 7(F) as a separate basis to withhold the name
of its criminal investigator. Kotler Decl. ¶ 11. That exemption is not listed in the EOUSA Vaughn Index, however,
and Defendants do not appear to rely on that exemption in their briefing. Cf. Defs.’ Initial Reply at 20 n.7 (stating
only that Exemption 7(F) was identified as an additional basis for withholding the name of the FDA investigator).
5
as well as an inspection report of Abiomed); see also Second Francis Decl. ¶ 10; Second Francis
Decl., Decl. of Sarah Kotler, ECF No. 25-2, at 12–16 [hereinafter Kotler Decl.], ¶¶ 6–9; EOUSA
Vaughn Index at 23–24 (document 13). In its first cross-motion for summary judgment, Plaintiff
explained that it did not challenge the applicability of Exemptions 4 and 5, provided that Plaintiff
was correct in its understanding that “the government is asserting Exemption 4 to protect
confidential commercial information supplied by Abiomed to the government, and Exemption 5
to protect internal notes made by government lawyers that memorialize meetings held between
Abiomed and the government.” Pl.’s Initial Reply at 17. Plaintiff reiterated this point in a Joint
Status Report filed after the court denied both sides’ initial cross-motions for summary judgment
and asked Defendants to define the scope of the material withheld. See JSR ¶ 18. Defendants did
not provide the requested clarification in their present motion for summary judgment, see Defs.’
Renewed Mot. for Summ. J., ECF No. 32, Mem. in Supp. [hereinafter Defs.’ Renewed Mot.], at
4, but Plaintiff did not press the issue further in its renewed cross-motion, see generally Pl.’s
Renewed Cross-Mot. (incorporating by reference all previous arguments raised in initial briefing
filed in support of summary judgment but failing to mention Exemptions 4 and 5). As the parties
have not fully briefed the Exemption 4 and 5 withholdings, the court does not address them here.
Instead, as directed below, the parties shall meet and confer regarding the scope of information
withheld pursuant to Exemptions 4 and 5 and clarify whether Plaintiff intends to challenge those
withholdings.
B. Procedural Background
Plaintiff brought this FOIA action on August 9, 2016, see Compl., and the parties filed
cross-motions for summary judgment on February 7, 2017, and February 28, 2017, respectively,
see Defs.’ Mot.; Pl.’s Cross-Mot. In their initial cross-motions, the parties disputed, among other
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things: (1) Plaintiff’s exhaustion of administrative remedies with respect to the Civil Division
request, (2) the adequacy of EOUSA’s search, (3) the applicability of FOIA Exemptions 6, 7(C),
and 7(D) to the information withheld in response to both the Civil Division and EOUSA requests,
and (4) EOUSA’s segregability determination. See Defs.’ Mot. at 15–28; Pl.’s Cross-Mot. at 24–
44.
On September 6, 2017, the court denied the parties’ motions without prejudice. See
generally King & Spalding, LLP, 270 F. Supp. 3d at 47–49. In doing so, the court only addressed
a threshold question raised by the parties’ dispute over the applicability of Exemptions 7(C) and
7(D): whether the source of the withheld records is an entity or an individual. See id. The court
observed that, as to Exemption 7(C), if the source is an entity, “then the materials the entity
supplied [could not] be withheld . . . based solely on the company’s interest in nondisclosure,”
because “the protection of personal privacy under Exemption 7(C) does not extend to
corporations.” Id. at 48 (internal quotation marks omitted). Similarly, the court noted that the
identity of the source impacted the Exemption 7(D) calculus, which requires the Government “to
present probative evidence that the source provided information . . . under either an express or
implied assurance that its identity would remain confidential,” because an implied assurance of
confidentiality may be more difficult to establish where the source is entity. See id. at 48–49
(internal quotation marks omitted). Accordingly, the court denied the parties’ initial cross-motions
for summary judgment without prejudice, allowing Defendants to submit additional information
concerning the source’s identity. Id.
On September 22, 2017, Defendants advised the court that they had no more information
to offer about the identity of the confidential source. See generally JSR. Defendants reported that,
“[b]ecause the source was not identified by the attorney who provided the material on the source’s
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behalf, EOUSA does not know whether the source was an entity or an individual.” See id. ¶ 5.
Nevertheless, Defendants indicated that they intended to renew their motion for summary
judgment with respect to their withholdings under Exemptions 6, 7(C), and 7(D), subject to one
exception discussed below. See id. ¶¶ 7–9.
The parties renewed their cross-motions for summary judgment on November 2, 2017, and
November 17, 2017, respectively. See generally Defs.’ Renewed Mot.; Pl.’s Renewed Cross-Mot.
In their renewed motions, both parties incorporate their previous arguments with respect to
segregability, adequacy of the search, and exhaustion. See Defs.’ Renewed Mot. at 4; Pl.’s
Renewed Cross-Mot. at 19–21. The parties also advance similar arguments concerning the
applicability of Exemptions 6, 7(C), and 7(D). See Defs.’ Renewed Mot. at 5–15; Pl.’s Renewed
Cross-Mot. at 9–19. Defendants qualify their earlier position in one respect, however. Because
EOUSA does not know whether the source was an entity or an individual—and, correspondingly,
does not know whether the source has a legally cognizable privacy interest—Defendants no longer
rely on Exemptions 6 and 7(C) as independent bases to justify the complete withholding of records
to protect the source’s identity. See Defs.’ Renewed Mot. at 13. But Defendants do continue to
rely on Exemptions 6 and 7(C) to withhold the names and other identifying information of
government personnel and third parties, including the private attorney who communicated with
the Government on the source’s behalf. See id. at 13–15.
Plaintiff, for its part, contends that Defendants cannot meet their burden to justify
application of Exemption 7(D) in this case, largely for the same reasons stated in Plaintiff’s initial
motion for summary judgment. Cf. Pl.’s Renewed Cross-Mot. at 7–8, 10–18. Plaintiff also takes
issue with Defendants’ continued reliance on Exemptions 6 and 7(C) to withhold the name of the
private attorney who represented the source, as well as the name of his or her law firm. See id. at
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18–19. Plaintiff is silent, however, as to Defendants’ continued reliance on those exemptions to
withhold the names of government personnel and third parties whose names may appear in the
responsive records. See id.; Pl.’s Reply in Supp. of Renewed Cross-Mot. for Summ. J., ECF No.
37 [hereinafter Pl.’s Reply], at 9–10; see also Pl.’s Cross-Mot. at 24–33 (failing to address
Defendants’ explanation for withholding the names and identifying information of these
individuals in initial round of summary judgment briefing).
The parties’ renewed cross-motions for summary judgment are now ripe for consideration.
III. LEGAL STANDARD
“Designed to facilitate public access to Government documents, [FOIA] requires federal
agencies to disclose information to the public upon reasonable request unless the records at issue
fall within specifically delineated exemptions.” Reporters Comm. for Freedom of Press v. FBI,
877 F.3d 399, 401 (D.C. Cir. 2017) (cleaned up). To prevail in a FOIA action, an agency must
demonstrate that three requirements are met. See Sea Shepherd Conservation Soc’y v. IRS (“Sea
Shepherd I”), 89 F. Supp. 3d 81, 89–90 (D.D.C. 2015). First, the agency must “‘demonstrate
the . . . adequacy of the search’ for relevant documents.” Cable News Network, Inc. v. FBI, 293
F. Supp. 3d 59, 68 (D.D.C. 2018) (alteration in original) (quoting Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982)). “Second, it must show that the withheld material ‘falls within one of nine
statutory exemptions.’” Id. (quoting People for the Ethical Treatment of Animals v. Nat’l Institutes
of Health, 745 F.3d 535, 540 (D.C. Cir. 2014)). Finally, “[e]ven when an exemption applies, the
agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record’ after removing
the exempt material.” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 62 (D.C. Cir. 2018) (second
alteration in original) (quoting 5 U.S.C. § 552(b)).
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Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton
v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is
“genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is
“material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C.
§ 552(a)(4)(B)). “The agency may carry that burden by submitting affidavits that ‘describe the
justification for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.’” Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014) (quoting
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)); see also SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (imposing similar burden on agency to establish
adequacy of search and explaining that agency affidavits must be “relatively detailed and non-
conclusory” and “submitted in good faith” (internal quotation marks omitted)).
IV. DISCUSSION
The parties’ renewed cross-motions for summary judgment present four issues: (1) whether
EOUSA properly withheld responsive records pursuant to FOIA Exemptions 6, 7(C), and 7(D);
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(2) whether EOUSA adequately justified its efforts to segregate and release all non-exempt
records; (3) whether Plaintiff was required to exhaust its administrative remedies with respect to
the request directed to the DOJ Civil Division; and (4) whether EOUSA conducted an adequate
search for responsive records. The court addresses each of these issues in turn.
A. FOIA Exemptions
Because Defendants invoke Exemption 7(D) to withhold in full the 67 pages of responsive
information that Plaintiff seeks, the court begins its analysis with that exemption before addressing
whether Defendants may rely on Exemptions 6 and 7(C) to withhold the identity of the lawyer and
law firm that represented the source.
1. Exemption 7(D)
The 67 pages of responsive information withheld in full by EOUSA “were provided to the
[USAO-DC] by a private attorney who represented an unidentified source in connection with an
investigation by that Office into alleged criminal conduct by Abiomed.” Defs.’ Renewed Mot. at
6 (citing Francis Decl. ¶ 18); accord Second Francis Decl. ¶¶ 2, 9. EOUSA contends that this
information is protected from disclosure under Exemption 7(D) because its release “could
reasonably be [expected] to disclose the identity of the [unidentified] source, who provided
material on a confidential basis.” EOUSA Vaughn Index at 17–23 (documents 1–12); accord
Francis Decl. ¶ 19.
Exemption 7(D) protects from disclosure “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 [the] source.” 5 U.S.C.
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§ 552(b)(7)(D). There is no dispute that the documents at issue here were “compiled for law
enforcement purposes.” See Francis Decl. ¶ 14 (“All information at issue in this case was compiled
for law enforcement purposes in order to investigate allegations of criminal conduct by
Abiomed.”); cf. Pl.’s Renewed Cross-Mot. at 10. Instead, the parties contest whether the
anonymous source qualifies as a “confidential source” within the meaning of Exemption 7(D)—
that is, whether the source provided the information in question “with an understanding that the
communication would remain confidential,” U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 172
(1993). See Defs.’ Renewed Mot. at 5–11; Pl.’s Renewed Cross-Mot. at 10–15.
“A source counts as confidential ‘if the source provided information under an express
assurance of confidentiality or in circumstances from which such assurance could reasonably be
inferred.’” Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 530 (D.C. Cir. 2016) (quoting Williams
v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995)); accord Landano, 508 U.S. at 172. “[I]t is ‘not
enough for the agency to claim that all sources providing information in the course of a criminal
investigation do so on a confidential basis.’” Borda v. U.S. Dep’t of Justice, 245 F. Supp. 3d 52,
60 (D.D.C. 2017) (quoting Labow, 831 F.3d at 531). Rather, the agency must “either ‘present
probative evidence that the source did in fact receive an express grant of confidentiality,’ or ‘point
to more narrowly defined circumstances that support the inference of confidentiality.’” CREW,
746 F.3d at 1101 (citations and alteration omitted) (first quoting Campbell v. U.S. Dep’t of Justice,
164 F.3d 20, 34 (D.C. Cir. 1998); then quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1184
(D.C. Cir. 2011)). “The agency invoking Exemption 7(D) bears the burden of ‘showing that the
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source is a confidential one.’” Sea Shepherd I, 89 F. Supp. 3d at 97 (quoting CREW, 746 F.3d at
1101).
In this case, Defendants do not contend that the anonymous source furnished the
information based on an express assurance of confidentiality. Rather, they maintain that the source
did so under “more narrowly defined circumstances” that support an implied assurance of
confidentiality. Defs.’ Mot. at 26; Defs.’ Renewed Mot. at 5–11; see Landano, 508 U.S. at 179.
Following Landano, the D.C. Circuit has identified four factors, originating in the case of Roth v.
U.S. Department of Justice, that courts should consider when deciding whether a source received
an implied assurance of confidentiality: “[1] the character of the crime at issue, [2] the source’s
relation to the crime, [3] whether the source received payment, and [4] whether the source has an
ongoing relationship with the law enforcement agency and typically communicates with the
agency only at locations and under conditions which assure the contact will not be noticed.”
Labow, 831 F.3d at 531 (quoting Roth, 642 F.3d at 1184). No single factor is dispositive. See id.at 531–32.
Before turning to the individual factors, the court notes the general lack of evidence offered
by Defendants to support their invocation of Exemption 7(D)—even after the court gave
Defendants a second bite at the apple. Defendants’ declarant Tricia Francis, an Attorney Advisor
with the EOUSA, provides little context for the anonymous source’s disclosure. She does not say,
for instance, how the lawyer first contacted the USAO-DC; what the lawyer told the assigned
AUSA about his or her client; or what words passed between the lawyer and the AUSA about the
document disclosure. See generally Francis Decl.; Second Francis Decl. Nor can the court tell
much about the withheld records from the limited descriptions contained in the Vaughn Index.
The court does not know, for example, whether the records contain trade secrets, proprietary
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information, or other sensitive data; whether the documents refer to individuals obviously
associated with the source; or whether the documents bear any kind of confidentiality markings.
See generally EOUSA Vaughn Index. Notably, Defendants did not submit any evidence or the
documents themselves for in camera consideration. Thus, in terms of details, the court is left
wanting.
In large part, Francis’s declaration contains unhelpful generalities. Francis reports that it
is her “understanding . . . that the AUSA did not know the identity of the source on whose behalf
private counsel provided information that supported the Government’s investigation of Abiomed.”
Second Francis Decl. ¶ 9 (emphasis added). She also submits that the information provided “could
reasonably reveal the identity of the source” if released, given that it “appears to be of a type
accessible to a finite group of people and/or attributable to a specific person or group of people.”
Id. (emphasis added). Francis adds that “the fact that the source’s identity remained anonymous
supports the notion that the source wished to provide the government with information in support
of its investigation in a confidential manner.” Id.Francis’s statements are more notable for what they do not say, than what they do say.
Francis does not specify whether her “understanding” is based on communications with the AUSA
who received the records or some other source; explain why the records “appear[ ] to be” of a type
to which only a small group would have access; nor discuss in what other ways the release of the
information might reveal the source. Moreover, while the source’s anonymity and the decision to
speak through counsel bear some weight, “anonymity primarily shows that a source wants to
remain confidential rather than that there was any assurance that the source would be treated as
confidential.” Ortiz v. U.S. Dep’t of Health & Human Servs., 70 F.3d 729, 734 (2d Cir. 1995); see
also Sea Shepherd I, 89 F. Supp. 3d at 98 (rejecting confidential-source treatment based merely on
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a request for anonymity). Finally, the court is perplexed by Francis’s assertion that although “the
AUSA did not know the identity of the source,” disclosing the records still “could reasonably
reveal” the source’s identity. See Second Francis Decl. ¶ 9. If the AUSA could not decipher the
source despite the benefit of compulsory process and access to nonpublic information, then why
should the court believe that Plaintiff, who lacks those advantages, is more capable of ferreting out
the source?
In any event, the court now turns to the four Roth factors.
a. Character of the crime
The first factor—the nature of the crime investigated—“contemplates that sources likely
expect confidentiality when they report on serious or violent crimes, risking retaliation.” See
Labow, 831 F.3d at 531. Thus, in some cases, “the violent nature of the crime at issue” will
“‘characteristically support[ ] an inference of confidentiality’ that a court can generically apply to
all informants.” Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t, 13 F. Supp. 3d 92, 110
(D.D.C. 2014) (emphasis added) (quoting Landano, 508 U.S. at 177); see, e.g., Mays v. Drug Enf’t
Admin., 234 F.3d 1324, 1330 (D.C. Cir. 2000) (“[W]hatever his ‘relation to the crime,’ an
informant is at risk to the extent the criminal enterprise he exposes is of a type inclined toward
violent retaliation.”); see also Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (holding that the
character of the crime may support an inference of confidentiality, “particularly if the criminal
activity is of a type inclined toward violent retaliation” (internal quotation marks omitted)).
This is not such a case. Here, the unidentified source provided information that “led to a
federal criminal investigation into whether Abiomed was engaged in off-labeling marketing
practices, i.e., promoting [medical devices] for uses outside of those approved by the [FDA].”
King & Spalding, LLP, 270 F. Supp. 3d at 47; see Defs.’ Renewed Mot. at 9; Francis Decl. ¶¶ 13,
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15; cf. Pl.’s Stmt. ¶¶ 36–44. The regulatory nature of the offense for which Abiomed was
investigated therefore distinguishes this case from those where courts have found “the violence
and risk of retaliation that attend [a particular] type of crime [to] warrant an implied grant of
confidentiality for . . . a source.” See Mays, 234 F.3d at 1329; see also Rosenberg, 13 F. Supp. 3d
at 110 (listing the types of cases in which the violent nature of the crime supports an inference of
implied confidentiality, including “homicide, drug trafficking, gang-related crime, terrorism, or
government overthrow”); Hodge, 703 F.3d at 581–82 (finding implied assurance of confidentiality
given “vicious nature of the crimes” and declarant’s statement that disclosure of witness identities
could subject witnesses to “violent reprisals”); cf. Sea Shepherd Conservation Soc’y v. IRS (“Sea
Shepherd II”), 208 F. Supp. 3d 58, 84 (D.D.C. 2016) (noting that while the agency’s law
enforcement function related to tax offenses, the first factor still favored implied confidentiality
where “the nature of the information provided related to other more physically threatening crimes”
and the agency provided evidence that at least one source indicated a fear of retaliation, “which
[was] unsurprising, given [the target’s] well-documented history of violence against its ideological
opponents”).
Nor does the seriousness of the offense weigh in favor of a finding of an implied assurance
of confidentiality here. While Defendants are correct that application of Exemption 7(D) “is not
limited to situations involving violent crimes,” Defs.’ Renewed Mot. at 9, the only case Defendants
cite from this jurisdiction is easily distinguishable. In that case, the plaintiff submitted FOIA
requests to various federal agencies, including the FBI, seeking records related to the raid of a
meatpacking plant and the subsequent prosecution of the plant’s manager, whom the plaintiff
represented. See Rosenberg, 13 F. Supp. 3d at 98. After reviewing in camera the information
withheld by the FBI pursuant to Exemption 7(D), the court concluded that the FBI had “met its
16
burden of establishing that the individuals whose identities and information [were] withheld [had]
provided information to the FBI under an implied assurance of confidentiality.” Id. at 110. In so
holding, the court reasoned that while the case did not involve a violent crime that otherwise might
characteristically support an inference of confidentiality, the “severity” of the financial crimes at
issue in that case and the “close association” that certain informants had with the plant, its manager,
or the manager’s fraudulent activity supported the requisite inference. Id. As relevant here, the
court explained:
[A]s the FBI averred in its . . . Declaration, these informants
provided information about a financial fraud perpetrated by [the
plant manager] that resulted in his incarceration in federal prison for
a term of twenty-seven years. While the length of the incarceration
or even the potential for incarceration was unknown to the
informants at the time they provided information to the FBI, [the
manager’s] lengthy sentence reflects the severity of the crime about
which the informants were providing information. Indeed, [the
manager] was convicted of 86 counts of financial fraud and related
offenses. . . . Courts have found informants to have spoken under
implied assurances of confidentiality when they provided
information about similarly severe non-violent financial crimes, for
example, an investigation into a suspect who had committed crimes
of “racketeering activity, wire fraud, money laundering, loan
sharking, extortion, obstruction of justice, aiding and abetting,
securities fraud, and embezzling funds from a labor organization.”
Id. at 110–11 (citations omitted) (quoting Wolfson v. United States, 672 F. Supp. 2d 20, 33 (D.D.C.
2009)). Suffice it to say, in terms of severity, the character of the alleged crimes at issue here—
involving violations of laws relating to the promotion of off-label use of a medical device—pales
in comparison to the character of the crimes at issue in Rosenberg, which involved “long term
incarceration and financial fraud,” 13 F. Supp. 3d at 109 (alterations omitted). 5
5
Neither party offers much detail about the nature of the criminal and civil investigation initiated, and eventually
dropped, by the USAO-DC, other than to say that the investigation focused on alleged off-label promotion of one of
Abiomed’s medical devices. Nevertheless, the court notes that even the harshest penalties for such conduct appear to
be far less severe than the potential punishment for the crimes cited in Rosenberg. Compare 21 U.S.C. § 331(prohibiting adulteration or misbranding of devices), and 21 U.S.C. § 333(a) (describing criminal penalties for
17
Importantly, Francis’s assessment of the risks faced by the source who provided the
withheld materials does not lead the court to a different conclusion. The Supreme Court’s
reasoning in Landano suggests that the first two factors (the nature of the crime and the source’s
relation to it) are merely a proxy for determining the potential risk of retaliation faced by the source
if her identity were disclosed. See 508 U.S. at 179–80. Thus, in analyzing the first factor, courts
also have considered any other evidence relevant to the nature of that risk. See, e.g., Labow, 831
F.3d at 531 (considering agency declarant’s explanation of potential risk in assessing first factor);
Sea Shepherd II, 208 F. Supp. 3d at 84 (same); see also Hale v. U.S. Dep’t of Justice, 99 F.3d
1025, 1030 (10th Cir. 1996) (noting that Landano identified several factors relevant to the implied
confidentiality inquiry and that under the rationale articulated in that case, “courts may look to the
risks an informant might face were her identity disclosed, such as retaliation, reprisal or
harassment, in inferring confidentiality” (quoting Massey v. FBI, 3 F.3d 620, 623 (2d Cir. 1993)).
Here, the only such evidence offered by Defendants is Francis’s statement that Exemption
7(D) protects from disclosure the identity of and information provided by the confidential source,
because the release of such information “would endanger individual informants, likely making
them targets of harassment or other forms of reprisal.” Francis Decl. ¶ 18; Second Francis Decl.
¶ 8. But there are several problems with this statement, at least as applied to this case. First,
Francis’s prediction about the aforementioned risks is premised on pure speculation. By Francis’s
own admission, EOUSA does not know whether the source is an individual or an entity. See
Francis Decl. ¶ 18; Second Francis Decl. ¶ 9. That great unknown is, at minimum, a relevant
consideration in assessing risk to the source. See Landano, 508 U.S. at 176.
violation of section 331), with 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1344 (bank
fraud), 18 U.S.C. § 1956 (money laundering), and 18 U.S.C. § 1014 (false statements to bank).
18
Second, Francis’s risk assessment is too conclusory. See generally CREW, 746 F.3d at
1088, 1100 (explaining that an agency affidavit generally must contain “reasonably specific detail”
to carry the agency’s burden of establishing that a claimed exemption applies). While the D.C.
Circuit “ha[s] credited the FBI’s assessment of risks faced by informants even if described in
relatively broad strokes,” Labow, 831 F.3d at 531, it has only done so where inferences about those
risks “can reasonably be drawn from the type of crime committed,” id. (emphasis added). Compare
id. (finding FBI explanation concerning risks associated with informing on anarchist groups—such
as “embarrassment, humiliation, and/or physical or mental harm” and “retaliation and threats
(including death threats)”—to be sufficient, even though it spoke to potential dangers posed by
anarchist extremists in general, because the cited risks could be reasonably inferred from nature of
crime), with Comput. Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 906 (D.C.
Cir. 1996) (rejecting agency’s suggestion that sources of information relating to “computer crimes”
face the same potential for harassment or retaliation as sources of information relating to gang-
related crimes where agency “offered no evidence that a fear of retaliation by hackers [was]
sufficiently widespread” to justify inference that sources of information relating to computer
crimes expected confidentiality). No such inference can be drawn here. Cf. Hodge, 703 F.3d at
581–82 (crediting agency assessment that disclosure of identities of witnesses who provided
information about FOIA requester’s involvement in murder could have “disastrous consequences”
and subject informants to “violent reprisals”); Petrucelli v. Dep’t of Justice, 51 F. Supp. 3d 142,
170 (D.D.C. 2014) (holding that agency properly invoked Exemption 7(D) where declarant not
only stated that disclosure would render informants “targets of harassment or other forms of
reprisal,” as here, but also offered further details, including the fact that the source provided
19
information about a violent criminal enterprise and that the FOIA requester was convicted of a
“revenge killing” in connection with that enterprise).
Defendants attempt to provide a slightly more detailed explanation about the potential risks
of disclosure in their briefs, but the court finds that explanation equally unconvincing.
Specifically, Defendants argue that based on Plaintiff’s representations in this lawsuit, it is
reasonable to infer that Plaintiff “intends to use the information sought in [its] FOIA [requests] to
attempt to identify the anonymous source and possibly pursue that source in some fashion,”
thereby supporting the inference that “the anonymous source provided the information under
circumstances that implied an assurance of confidentiality.” Defs.’ Renewed Mot. at 10 (citing
Ortiz, 70 F.3d at 735). But see Pl.’s Renewed Cross-Mot. at 14 (“[Plaintiff] has never suggested
that it plans any particular action against the unidentified source or its counsel. After all, [Plaintiff]
does not know who the source was or the actual nature of the information that was provided.”).
Defendants do not predict how Plaintiff would intend to “pursue the source,” but perhaps
Defendants intend to suggest that the threat is “possible legal action.” See Landano, 508 U.S. at
176. Yet even if that were the case, under Landano, the court cannot conclude that such a risk
weighs in favor of implied confidentiality absent more information about the nature of information
provided and the source itself. See id.; cf. EPIC v. Drug Enf’t Admin., 192 F. Supp. 3d 92, 111
(D.D.C. 2016) (holding that “potential retaliation against a private company” was insufficient to
establish an implied assurance of confidentiality absent a more detailed explanation of the other
Roth factors).
Thus, the court finds that the first factor does not tip the scales in favor of a finding of
implied confidentiality here.
20
b. Source’s relation to crime
The court turns next to the second Roth factor: the source’s relationship to the crime. This
factor is relevant to the implied confidentiality analysis “because sources divulging nonpublic,
identifying information are more ‘vulnerable to retaliation.’” Labow, 831 F.3d at 531 (quoting
Mays, 234 F.3d at 1330). As discussed, EOUSA does not know the identity of the source who
provided information to the USAO-DC in support of its investigation of Abiomed. Presumably
for this reason, Francis’s declarations are silent with respect to the source’s relationship to
Abiomed or its marketing practices that were the subject of the investigation. Instead, Francis
simply states that the information provided by the source “could reasonably reveal [its]
identity . . . to Plaintiff, or others, given that the information provided appears to be of a type
accessible to a finite group of people and/or attributable to a specific person or group of people.”
Second Francis Decl. ¶ 9; see also Francis Decl. ¶ 19 (noting that Defendants only withheld
records that did not appear “on their face . . . to be publicly available or subject to wide
dissemination”).
In its most recent application of the Roth factors, the D.C. Circuit found the second factor
to weigh in favor of implied confidentiality when the informants were “in a position to have ready
access to and/or knowledge about targets and others involved” in the investigated activity and
“provided specific detailed information that [was] singular in nature.” Labow, 831 F.3d at 532
(emphasis added). Such information, the Labow court reasoned, was the kind that “could be traced
to a particular source” if released to the public. Id. In some sense, Francis’s statement that the
information appears to be accessible to a finite group of people and/or attributable to a specific
person or group of people is similar to the agency explanation offered in Labow. But absent more
facts, the court is in no position to evaluate the validity of that claim or the proximity of the source
21
to the crime. Most obviously, the court cannot make the assessment because Defendants do not
know the character of the source. If, for instance, the source is an Abiomed competitor, then that
fact might weigh against an inference of confidentiality. The opposite would hold true if the source
is an Abiomed insider.
Nor do the documents, as described in the Vaughn Index, lead to the natural inference that
they were closely held. Several of the withheld documents are identified as letters between
Abiomed and the FDA. See EOUSA Vaughn Index at 18–20 (documents 3–5). Presumably, these
letters would be publicly available under FOIA. Other records are described as “bate[s]-stamped,”
but not by the EOUSA. See id. at 20 (document 6). Bates-stamp markings suggest that these
documents may have been exchanged in civil litigation or produced to a government agency. And,
finally, two of the documents are described as a “two-page article regarding an Abiomed product,
which contains markings by an unidentified person,” id. at 21 (document 7), and a “note from a
third party to unidentified recipients,” id. (document 8). The lack of identifying information about
the author of the markings and the note means that the court cannot draw any inference at all from
these documents about the source’s proximity to the alleged unlawful activity. In short, these
records are a far cry from the type of records that courts have recognized give rise to an inference
of confidentiality by virtue of their content. Cf. Ortiz, 70 F.3d at 734 (finding it reasonable to
assume close relationship between target of investigation and source based on nature of allegations
and contents of an anonymous letter, which demonstrated source’s awareness of personal details
of target’s life). The court therefore finds this factor to be, at most, neutral.
c. Whether the source received payment
Moving on to the third Roth factor, the court’s analysis is easy: Given that Defendants
presented no evidence with respect to whether the unidentified source received payment in this
22
case, the third factor does not weigh in favor of a finding of implied confidentiality here. Cf.
Landano, 508 U.S. at 179 (“[I]t is reasonable to infer that paid informants normally expect their
cooperation with the FBI to be kept confidential.”); Labow, 831 F.3d at 532 (“[A]ll parties agree
that the sources did not receive payment. That fact weighs against a finding of confidentiality, but
is not itself dispositive.”).
d. Duration of relationship with law enforcement and manner of
communication
That leaves the fourth Roth factor, which “concerns the duration of the source’s
relationship with law enforcement and the manner of communication.” Labow, 831 F.3d at 532;
see also Roth, 642 F.3d at 1184 (describing fourth factor as “whether the source has an ‘ongoing
relationship’ with the law enforcement agency and typically communicates with the agency ‘only
at locations and under conditions which assure the contact will not be noticed.’” (quoting Landano,
508 U.S. at 179)). In this case, Defendants make no argument about the duration of the source’s
relationship with law enforcement. They appear only to rely upon the second criteria—the manner
of communication—to support an inference of confidentiality. See Defs.’ Renewed Mot. at 8–9.
Defendants contend that “[t]he fact that the source remained anonymous and provided the
information through a conduit (an attorney at a private law firm)” supports the application of
Exemption 7(D) here. Id. at 8 (citing Ortiz, 70 F.3d at 734; and Providence Journal Co. v. U.S.
Dep’t of Army, 981 F.2d 552, 566 (1st Cir. 1992)).
As noted previously, the court agrees that the anonymous production of records does
support some inference of confidentiality. Cf. Labow, 831 F.3d at 532 (“Consistent and secretive
communications indicate a source’s expectation of confidentiality.” (emphasis added)). But on
this record, the utter lack of specific evidence makes that inference a relatively weak one. The
declarant, Francis, tells the court no more than that an unidentified source, acting through a private
23
lawyer, provided the documents to law enforcement. See Francis Decl. ¶ 18. The EOUSA Vaughn
Index provides a bit more color. It suggests that some communication took place by email in
February 2012. See EOUSA Vaughn Index at 22 (document 11). The next dated entries are from
May 2012 and are contained in a letter from the lawyer to an AUSA, which encloses documents,
see id. at 17 (document 1), and two additional email communications, see id. at 21–22 (documents
9–10). These limited communications, seemingly occurring over a short period of time at the start
of the investigation, do not support an “ongoing relationship” with the law enforcement agency.
Notably, there appear to be no communications in the later part of the three-year investigation.
Nor do the communications themselves give rise to a particularly strong inference of
confidentiality, as Defendants claim. True the source remained anonymous, but its lawyer did not;
instead, the lawyer chose to communicate via traditional methods of letter and email, not in a
manner suggesting a need for greater secrecy (such as an in-person meeting). Thus, the fourth
Roth factor does not tilt the scales in favor of nondisclosure.
The two primary cases on which Defendants rely—Ortiz and Providence Journal, both
involving anonymous sources—do not compel a different result. Ortiz involved an unsolicited,
anonymous letter sent to a field office of the Social Security Administration, which triggered a
criminal investigation of the plaintiff. See 70 F.3d at 733–34. After reviewing the letter in camera,
the Second Circuit concluded that the letter, even though unsolicited, was sent with an assurance
of confidentiality that reasonably could be inferred from the circumstances. Id. Specifically, the
court found it “evident from the nature of the allegations and the contents of the letter that the
author was aware of personal details of [the plaintiff’s] life.” Id. at 734. Thus, the court held:
It is reasonable to assume that knowledge of such details places the
source of that information in close relationship with, or proximity
to, [the plaintiff]. . . . The possibility of retaliation or harassment is
reasonable and genuine in a case such as this one where serious
24
allegations are made by someone who may be quite close to the
object of those allegations.
Id. Providence Journal is factually similar to Ortiz. There, the Inspector General of the Army
received four anonymous letters accusing officers of the Rhode Island National Guard of serious
misconduct punishable either by disciplinary action or court-martial under the Uniform Code of
Military Justice. See Providence Journal, 981 F.2d at 555. The court found the authors of the
letters to be anonymous sources who had sent the letters in confidence, in part because of the
consequential nature of the allegations and because two of the letters contained “explicit
representations that the writers feared ‘reprisal’ or ‘retribution’ (e.g., loss of employment) in the
event their statements were disclosed.” Id. at 565–67.
To state the obvious, other than the anonymity of the source, this case bears little
resemblance to Ortiz or Providence Journal. As discussed, because Defendants have not identified
the source as an entity or an individual, the court cannot assess the risks that disclosure would
pose. Moreover, the court does not know enough about the documents’ contents to find that they
contain the type of intimate or closely-held information that might reveal the source. And, finally,
the fact the source used a private lawyer to convey the records means the source is likely more
sophisticated than the letter writers in Ortiz and Providence Journal and thus less likely to believe
that mere anonymity equates to confidentiality. Indeed, by using private counsel, it is fair to
assume that the source was on notice of the “boundaries of the FOIA exemptions,” Brant Constr.
Co. v. EPA, 778 F.2d 1258, 1262–63 (7th Cir. 1985), and therefore capable of taking the proper
steps to ensure confidentiality, if so desired. Accordingly, Ortiz and Providence Journal do not
aid Defendants’ cause.
25
* * *
In summary, weighing the four Roth factors together, the court cannot conclude that the
unidentified source provided the information in question to the USAO-DC under an implied
assurance of confidentiality. Although the source remained anonymous and provided some
potentially nonpublic and identifying information through counsel, see Francis Decl. ¶¶ 18–19, the
lack of other information about the source, including its proximity to the alleged misconduct,
neutralizes those factors. Moreover, because the misconduct in question concerns off-label
marketing practices, not more serious or violent crimes, it is less likely that the source feared
retaliation and thus expected confidentiality, as opposed to simply wanting to remain anonymous.
Thus, under these circumstances, the court finds that Defendants have failed to justify their
invocation of Exemption 7(D) to withhold the 67 pages of responsive information in full. 6
2. Exemptions 6 and 7(C)
The court turns next to Defendants’ invocation of Exemptions 6 and 7(C) to withhold the
name of the lawyer and the law firm that represented the source. 7 Because “‘Exemption 7(C) is
6
Because the court concludes that the unidentified source does not qualify as a “confidential source” within the
meaning of Exemption 7(D), the court need not address the parties’ arguments with respect to (1) whether disclosure
of the information provided by the source “could reasonably be expected to” reveal the source’s identity, see Defs.’
Renewed Mot. at 9; Pl.’s Renewed Mot. at 9–10, and (2) whether disclosure of the same information is nevertheless
protected under the second clause of the exemption, which protects information furnished by confidential sources if
such information is compiled by criminal law enforcement authority “in the course of a criminal investigation,” see
Defs.’ Renewed Mot. at 10; Pl.’s Renewed Mot. at 10–12. For the same reason, the court does not reach Defendants’
asserted separate basis for withholding information identifying the private attorney who communicated on behalf of
the source under Exemption 7(D). See Defs.’ Renewed Mot. at 9 (arguing that “Exemption 7(D) also protects
information identifying the agent who provided the information on behalf of the unidentified [confidential] source
when the agent’s identity could be used to identify the informant” (internal quotation marks omitted)).
7
As discussed above, Plaintiff does not appear to challenge Defendants’ reliance on Exemptions 6 and 7(C) to
withhold the names and other identifying information of government personnel or third parties whose names may have
appeared in either the 67 pages withheld in full by EOUSA or the 33 pages released in part as part of EOUSA’s
supplemental release. However, because those individuals clearly have a privacy interest in not having their names
associated with a law enforcement investigation, see Bartko, 898 F.3d at 71; see also Roth, 642 F.3d at 1174(“[W]itnesses, informants, and investigating agents have a substantial interest in ensuring that their relationship to the
investigations remains secret.” (cleaned up)), Plaintiff, as the requester, bore the burden of showing how disclosure of
these individuals’ names would likely advance a significant public interest, see Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004). For the same reasons discussed below in section IV.A.2.a., the court finds that
26
more protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding
material,” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (quoting U.S. Dep’t of
Defense v. FLRA, 510 U.S. 487, 496 n.6 (1994)), “the court need only consider here Defendants’
reliance on Exemption 7(C),” King & Spalding, LLP, 270 F. Supp. 3d at 48 n.2.
Exemption 7(C) protects from disclosure “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 constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). There is no dispute here that the information was compiled
for law enforcement purposes; the only question is whether release of the information “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” To determine
whether the release of information constitutes an “unwarranted invasion of personal privacy,” the
court must balance “the privacy interests that would be compromised by disclosure against the
public interest in release of the requested information.” Davis v. U.S. Dep’t of Justice, 968 F.2d
1276, 1281 (D.C. Cir. 1992); accord ACLU, 655 F.3d at 6.
a. The lawyer’s name
As to disclosure of the lawyer’s name, the balancing under Exemption 7(C) is not as
complicated as the parties make it out to be. The D.C. Circuit has long held that “‘third parties,’
‘witnesses,’ and ‘informants’ mentioned in investigatory files maintain a privacy interest ‘in
keeping secret the fact that they were subjects of a law enforcement investigation.’” Bartko, 898
F.3d at 71 (quoting Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C.
Cir. 1995)); see also Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir. 2003)
(characterizing this privacy interest as “substantial”). For this reason, the Circuit has adopted a
Plaintiff has failed to meet that burden here. Thus, the court will grant summary judgment in favor of Defendants as
to the withholding of the names and identifying information of these individuals as well.
27
“categorical rule permitting an agency to withhold information identifying private citizens
mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity.’” Schrecker, 349 F.3d at 661(quoting SafeCard Servs., 926 F.2d at 1206); accord Bartko, 898 F.3d at 71; see also Prop. of
People v. U.S. Dep’t of Justice, 310 F. Supp. 3d 57, 68 (D.D.C. 2018) (“[T]he D.C. Circuit has
held that any ‘names and identifying information of third parties contained in . . . investigative
files are presumptively exempt.’” (quoting CREW, 746 F.3d at 1096)).
Because Plaintiff has not come forward with “compelling evidence” that would confirm or
refute allegations of illegal agency activity, Plaintiff cannot overcome application of the
categorical rule in this case. Even outside the categorical rule context, when a requester suggests
wrongdoing, she “must establish more than a bare suspicion in order to obtain disclosure.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (“[W]here there is a privacy
interest protected by Exemption 7(C) and the public interest being asserted is to show that
responsible officials acted negligently or otherwise improperly in the performance of their duties,
the requester must establish more than a bare suspicion in order to obtain disclosure.”). “Rather,
the requester must produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” Id. Courts “must insist on a meaningful
evidentiary showing,” the Supreme Court has explained, because “[a]llegations of government
misconduct are easy to allege and hard to disprove.” Id. at 175 (internal quotation marks omitted).
Here, Plaintiff contends that there is enough evidence to warrant a reasonable belief “that
the government disclosed confidential information about the investigation to Maquet, one of
Abiomed’s main competitors, or a closely-associated individual.” Pl.’s Initial Reply at 8. To
support this contention, Plaintiff first points to a Forbes.com article reporting that “the
28
investigation of Abiomed was ‘rumored’ on Wall Street for at least two weeks” before the USAO-
DC issued a grand jury subpoena to Abiomed on October 26, 2012. Pl.’s Cross-Mot. at 32; Pl.’s
Stmt. ¶ 40; see Pl.’s Cross-Mot., Decl. of John C. Richter, ECF No. 21-1 [hereinafter Richter
Decl.], ¶¶ 25–26; see also Richter Decl., Attach. Q (Forbes article). Because “only the government
knew what it was going to do,” Plaintiff posits, “it is not unreasonable to suspect that the
government was the source of that rumor.” Pl.’s Cross-Mot. at 32; accord Pl.’s Initial Reply at 8–
9.
Plaintiff further asserts that its suspicion that “someone in the government who knew about
the subpoena leaked information about the status of the investigation to Maquet, who then leaked
it to investors,” Pl.’s Initial Reply at 9, is corroborated by the following evidence: (1) a February
2014 meeting in which a former Maquet executive told Abiomed executives that he “personally
participated in a plan, generated by two Maquet employees, to hire an out-of-state law firm to
submit complaints against Abiomed to the [DOJ] in hopes of sparking a government
investigation,” Pl.’s Initial Reply, Ex. A, Decl. of Sean C. Flynn, ECF No. 27-1, ¶ 3; (2) an April
2014 meeting in which a Maquet marketing manager told Elliot Favus, an investment analyst, that
Maquet was voluntarily providing federal investigators with information about regulatory
violations by Abiomed, see Pl.’s Initial Reply, Ex. B., Decl. of Bryan J. Finley, ECF No. 27-2
[hereinafter Finley Decl.], ¶ 5; see also Finley Decl., Ex. B; (3) a statement by one of Maquet’s
marketing managers to Abiomed’s regional directors that Abiomed had “some big news coming”
and was in for a “big surprise” at a conference in late October 2012, just days before the USAO-
DC issued the grand jury subpoena to Abiomed, Finley Decl. ¶ 2; (4) a meeting that occurred
between a Maquet marketing manager and Favus at the same October 2012 conference, which
included a discussion of Abiomed, see id. ¶¶ 3–4; see also Finley Decl., Ex. A; and (5) the fact
29
that the “outstanding short position on Abiomed’s stock mysteriously increased to 395 percent
right before the subpoena” issued, Pl.’s Initial Reply at 9 (citing Richter Decl. ¶¶ 25, 27). 8
Finally, Plaintiff contends that the “abrupt and swift action taken by the [USAO-DC] after
these events further suggests the possibility of government impropriety.” Pl.’s Initial Reply at 10.
Plaintiff cites an April 2, 2014, letter from Abiomed to the U.S. Attorney’s Office for the District
of Massachusetts, copying the USAO-DC, which “raised concerns about suspected leaks of
information about the investigation, potential collusion between analysts and hedge funds who
may have been ‘front running’ Abiomed stock[,] and requested that the government open an
investigation into potential securities law violations.” Pl.’s Cross-Mot. at 32 (citing Pl.’s Stmt.
¶ 42); see also Richter Decl. ¶ 28. Although Plaintiff does not attach the letter, Plaintiff asserts
the letter also stated that Abiomed had evidence indicating that “analysts may have obtained the
information about the impending subpoenas from Maquet,” which, in turn, suggested that
“Maquet . . . may have gotten its inside information about the investigation from a government
attorney who was handling the investigation.” Richter Decl. ¶ 29. Plaintiff emphasizes that “[n]ot
long after sending the letter, on or about the middle of May 2014,” id. ¶ 30, “the lead criminal
AUSA in DC was removed from the Abiomed investigation and reassigned,” Pl.’s Cross-Mot. at
33 (citing Pl.’s Stmt. ¶ 44).
Though Plaintiff creatively weaves together a host of disparate facts to paint a portrait of
government wrongdoing, none of its evidence “warrant[s] a belief by a reasonable person that the
alleged Government impropriety might have occurred.” See Favish, 541 U.S. at 174. Like the
8
In response to Defendants’ suggestion that Plaintiff might have been the source of the rumor, see Defs.’ Initial Reply
at 15, Plaintiff also offered evidence to foreclose that theory, see Pl.’s Initial Reply at 10–11; see also Pl.’s Initial
Reply, Ex. C, Suppl. Decl. of John C. Richter, ECF No. 27-3, ¶¶ 5–6 (stating that Plaintiff was not aware of the
investigation prior to being contacting by Abiomed on October 26, 2012, the day the grand jury subpoena was served,
and therefore could not have disclosed information about the investigation or the grand jury subpoena before the
subpoena was issued).
30
requester’s efforts in Blackwell v. FBI, Plaintiff’s recounting of “a litany of allegedly suspicious
circumstances” lacks any substantiation and thus “fail[s] to meet the demanding Favish standard.”
646 F.3d 37, 41 (D.C. Cir. 2011). Plaintiff’s “evidence” does not directly implicate a law
enforcement official in any unlawful act. And, its circumstantial evidence is similarly lacking:
simply put, conjecture of wrongdoing is not the “meaningful evidentiary showing” that Favish
demands. See Favish, 541 U.S. at 175. Absent any hard evidence substantiating its “if not the
government then who?” theory, Plaintiff cannot establish that a reasonable person would have
more than a suspicion of impropriety. As a result, “there is no ‘counterweight on the FOIA scale
for the court to balance against the cognizable privacy interest in the requested records.” Boyd v.
Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) (quoting Favish, 541
U.S. at 174–75). Plaintiff’s challenge to Defendants’ invocation of Exemption 7(C) as to the
lawyer’s name therefore must fail.
b. The name of the law firm
That leaves the question whether Defendants also may withhold the identity of the private
law firm with which the attorney was affiliated. Defendants urge the court to answer that question
in the affirmative, claiming that “employment information” is properly withheld under Exemption
7(C) “when its disclosure would risk identifying the individual whose privacy rights are
implicated.” Defs.’ Combined Opp’n & Reply Mem., ECF No. 35, at 7. Notably, Defendants do
not contend that the law firm itself has a privacy interest. Plaintiff, on the other hand, asserts that
Defendants have “produced no evidence to support [their] assertion that the name of the law firm
would identify the individual attorney.” Pl.’s Reply at 9.
The court agrees with Plaintiff. The declarations offered by Defendants largely focus on
EOUSA’s justification for withholding certain responsive records in full to protect the identity of
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the source. See generally Francis Decl.; Second Francis Decl. They are silent, however, on the
question whether disclosing the name of the law firm could reasonably be expected to lead to the
disclosure of the identity of the lawyer, whose privacy interests are directly at stake. If the law
firm is a sole proprietorship, for example, then the court could easily conclude that Defendants
properly withheld the name of the firm under Exemption 7(C); in that case, disclosure of the name
of the law firm would effectively disclose the identity of the lawyer. If, on the other hand, the law
firm is much larger—for example, comprised of hundreds of attorneys—then the court may be less
likely to uphold the withholding of the firm name under Exemption 7(C). The record in its present
state does not contain such information.
Accordingly, the court will allow Defendants an opportunity to supplement the Francis
Declarations with facts that support their assertion that disclosure of the law firm’s name could
reasonably be expected to constitute an unwarranted invasion of the lawyer’s personal privacy. 9
B. Segregability
Because “[t]he focus of FOIA is information, not documents, . . . an agency cannot justify
withholding an entire document simply by showing that it contains some exempt material.” Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA therefore
requires that “[a]ny reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
Given the court’s holding that Defendants must produce the 67 pages of responsive
information subject to the Exemption 7(C) redactions outlined above, Plaintiff’s challenge to
EOUSA’s segregability analysis as to those documents in their entirety, see Pl.’s Cross-Mot. at
9
In addition to filing a supplemental declaration, Defendants may also submit an ex parte, in camera declaration from
the lawyer, indicating why disclosure of the name of his or her law firm could reasonably be expected to reveal the
lawyer’s identity.
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38–40; Pl.’s Initial Reply at 12–13, is moot. Furthermore, there is no separate segregability
analysis for the court to undertake with respect to these 67 pages because the only material
Defendants seek to redact are names and identifying information, as described above.
Finally, although Plaintiff does not challenge EOUSA’s segregability determination with
respect to the 33 partially redacted pages produced as part of the agency’s supplemental release,
cf. Pl.’s Initial Reply at 13, the court still must determine whether EOUSA has carried out its duty
to disclose reasonably segregable material, see Ctr. for Pub. Integrity v. U.S. Dep’t of Energy, 287
F. Supp. 3d 50, 74 (D.D.C. 2018) (“A district court must evaluate segregability even where, as
here, the requester has not challenged it.” (citing Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1116 (D.C. Cir. 2007)). After reviewing the Francis Declarations, the accompanying Kotler
Declaration, and the EOUSA Vaughn Index, the court is satisfied that EOUSA has provided a
sufficiently detailed justification for its segregability determination with respect to the
supplemental release (i.e., documents 13–16). See Francis Decl. ¶¶ 14–17; Second Francis Decl.
¶¶ 10–11; Kotler Decl.; EOUSA Vaughn Index at 23–26; see also Sussman, 494 F.3d at 1117(“Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.”).
C. Exhaustion of Civil Division Request
The court need not linger over the parties’ dispute regarding whether Plaintiff failed to
exhaust its administrative remedies with respect to the Civil Division request. As Plaintiff
correctly points out, this issue may prove to be “meaningless,” Pl.’s Initial Reply at 15, because
Defendants claim that of the 67 pages withheld in full by EOUSA, the 16 pages responsive to the
Civil Division request were duplicative of the other 51 pages responsive to the EOUSA request,
see Defs.’ Stmt. ¶ 15. And, there is no dispute that Plaintiff administratively exhausted its
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remedies with respect to the EOUSA request. See Defs.’ Mot. at 17 (“EOUSA did not provide a
final response to Plaintiff prior to the filing of this lawsuit and, therefore, exhaustion is not an issue
pertaining to that distinct request.”). Plaintiff also notes, however, that Defendants may have
located and ultimately withheld additional documents responsive to the Civil Division request
“due to a perceived failure to exhaust.” Pl.’s Initial Reply at 15. Defendants have provided no
clarification on this point. See, e.g., JSR ¶ 11; see also Defs.’ Renewed Mot. at 4 (simply
incorporating previous argument that Plaintiff failed to administratively exhaust Civil Division
request). For this reason, as directed below, the parties shall clarify whether Defendants have
withheld any information in addition to the 16 pages responsive to the Civil Division request
discussed above and, if so, whether Plaintiff still intends to challenge the withholding of any
documents responsive to the Civil Division request.
D. Adequacy of Search
Finally, the court addresses Plaintiff’s challenge to the adequacy of EOUSA’s search for
responsive records. See generally Pl.’s Cross-Mot. at 41–44. To prevail in a FOIA action, an
agency must “demonstrate that it has made ‘a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.’”
Sea Shepherd I, 89 F. Supp. 3d at 89–90 (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990)). An agency is entitled to summary judgment “only if it ‘show[s] beyond material
doubt that it has conducted a search reasonably calculated to uncover all relevant documents.’”
Aguiar v. Drug Enf’t Admin., 865 F.3d 730, 738 (D.C. Cir. 2017) (alteration in original) (quoting
Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007)). “To meet that burden, the agency may
submit, and [the court] may rely on, ‘reasonably detailed affidavit[s], setting forth the search terms
and the type of search performed, and averring that all files likely to contain responsive materials
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(if such records exist) were searched.’” Id. (second alteration in original) (quoting DiBacco v. U.S.
Army, 795 F.3d 178, 188 (D.C. Cir. 2015)). “Agency affidavits are accorded a presumption of
good faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” Bartko, 898 F.3d at 74 (internal quotation marks omitted).
Summary judgment is inappropriate, however, if “a review of the record raises substantial doubt
as to the search’s adequacy, particularly in view of well[-]defined requests and positive indications
of overlooked materials.” Reporters Comm. for Freedom of Press, 877 F.3d at 402 (internal
quotation marks omitted).
Here, Defendants offer the declaration of Theresa Jones, the acting FOIA coordinator for
USAO-DC’s Civil Division, to describe the search EOUSA undertook to locate records responsive
to Plaintiff’s FOIA request. See generally Defs.’ Mot., Decl. of Theresa D. Jones, ECF No. 20-3
[hereinafter Jones Decl.]; Defs.’ Initial Reply, Suppl. Decl. of Theresa D. Jones, ECF No. 25-3
[Suppl. Jones Decl.]. According to Jones, Marvin Bryan, Jr., the FOIA Coordinator for the USAO-
DC at the time, began by performing a search of the “Master Index”—the U.S. Attorney’s Office
computerized docketing/case management system—using the search term “Abiomed, Inc.” and a
date range of January 1, 2012, to October 31, 2012. Jones Decl. ¶¶ 5, 7. Although this search
produced no responsive records, id. ¶ 7, Bryan also sent a global email to “all USAO[-]DC Civil
Employees in search of responsive records” and “subsequently contacted another AUSA in the
Criminal Division after being advised that this AUSA might have potentially responsive records,”
id. ¶ 8. In response to the email, Bryan received two Abiomed-related files from two AUSAs. Id.
¶ 9; see Suppl. Jones Decl. ¶ 4. For ease of reference, the court refers to these files as Matter One
and Matter Two.
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Records relating to Matter One were deemed unresponsive, as they post-dated the
applicable date range listed in Plaintiff’s FOIA request. Jones Decl. ¶ 9; see also Suppl. Jones
Decl. ¶ 4 (noting that Jones reviewed the paper file associated with one of the two Abiomed-related
matters and determined that it fell outside of the relevant date range). Notwithstanding the
unresponsiveness of these records, Jones directed the USAO-DC’s Information Technology Unit
(“IT”) to perform an additional search of the electronic files of the only AUSA identified as having
been assigned to Matter One. See Suppl. Jones Decl. ¶ 4; Jones Decl. ¶ 13. Although the AUSA
no longer worked in the office at the time of the search, IT was able to search a copy of the AUSA’s
email mailbox “as it existed on the day IT removed it from the network.” Suppl. Jones Decl. ¶ 4;
see also Jones Decl. ¶ 13 (noting that USAO-DC’s “email archive platform contains three years’
worth of data for employees, and IT removes an employee’s network account from the system
after an employee resigns”). Jones asked IT to perform a search using the terms “Abiomed, Inc.,”
“Food & Drug Administration,” “Department of Justice Consumer Protection Branch,” and the
name of the source’s lawyer’s law firm—all subject to the timeframe of January 1, 2012, to
October 31, 2012. Jones Decl. ¶ 14. After running a search for the applicable date range using
the abovementioned search terms and variants thereof, IT located 420 documents. Id. ¶ 15. Jones’s
review of those documents, however, yielded no responsive records. Id. ¶ 17.
The file concerning Matter Two was found in the Fraud and Public Corruption Section
(“FPS”) of the USAO-DC’s Criminal Division. Jones Decl. ¶ 10. An AUSA in FPS, who had
been assigned to Matter Two more recently, i.e., outside the relevant time period, provided the file
to Jones for review, and that file ultimately was determined to have some documents responsive
to Plaintiff’s FOIA Request. See Jones Decl. ¶ 10; Suppl. Jones Decl. ¶ 5. This AUSA further
assisted in Jones’s search effort by (1) facilitating access to FPS’s electronic files stored on a
36
secured network drive, which Jones searched for responsive records related to Abiomed, Inc., and
(2) searching a “.pst folder” that the AUSA maintained in connection with his work on the
Abiomed matter for any emails that fell within the applicable date range. See Jones Decl. ¶¶ 11–
12; Suppl. Jones Decl. ¶ 5. Jones’s search of FPS’s electronic files yielded no responsive records.
Jones Decl. ¶ 11. It is unclear whether the AUSA’s search of his .pst folder yielded any responsive
records. See id. ¶ 12 (stating only that the AUSA from FPS “provided the result of [his] review”
to Jones and not specifying whether this search effort, as opposed to a separate search effort also
described, yielded responsive records).
In addition to the above-described efforts, Jones also determined that two other AUSAs
were assigned to Matter Two during the relevant time period. Suppl. Jones Decl. ¶ 5. Only one
of those AUSAs still worked in the U.S. Attorney’s Office as of Jones’s search; the other left the
office in May 2014. Id. ¶ 6. “The AUSA who was still in the office searched his [own] files,
including emails, for responsive documents and provided potentially responsive documents to
[Jones].” Id. Jones located some responsive documents as a result of that review. See id.; Jones
Decl. ¶ 12.
Jones did not at first conduct a search of the emails of the AUSA who left the office in May
2014 due to “a misunderstanding as to whether that [AUSA’s] electronic files could still be
accessed.” Suppl. Jones Decl. ¶ 6. However, after further inquiry, Jones learned that a
convenience copy of the AUSA’s email mailbox remained available, “as it [existed] the day IT
removed the AUSA’s account from the network.” Id. ¶ 7; see id. ¶ 6; see also Jones Decl. ¶ 13
(explaining that IT removes an employee’s network account from the system after an employee
resigns). Jones then obtained a convenience copy from IT and personally searched the AUSA’s
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mailbox for responsive documents. Suppl. Jones Decl. ¶ 7. Jones located four responsive
documents as a result of this supplemental search. Id.
To summarize, as to email searches, “the identified AUSAs who were still in the office
searched their own email for responsive documents and, for AUSAs who no longer were in the
office, that email was searched as it existed at the time those AUSAs left the office.” Id. ¶ 8. Jones
explains that “[t]he only other potential source for email would be email retained by EOUSA in
its USAMail archive.” Id. ¶ 9. That archive “is automatically purged on a three-year sliding
timeline, meaning that email only can be accessed dated back to three years from the date of the
search.” Id. Because the searches were performed in 2016 and 2017, respectively, the relevant
time period in Plaintiff’s FOIA request (January 1, 2012, to October 31, 2012) fell outside that
three-year window. Id. Thus, the USAMail archive “was not searched because it would not
contain responsive documents.” Id. Furthermore, according to Jones, there are not any backup
tapes or other archives where responsive records might be housed. See id. (noting that the only
backup tapes used within USAMail are for disaster recovery, which retain only the previous seven
days of exchange database data); id. (“EOUSA does not maintain archived backup tapes.”).
Plaintiff’s challenge to the adequacy of EOUSA’s search focuses on the search of emails.
In Plaintiff’s view, Jones’s description of that search is deficient in three respects. First, Plaintiff
contends that although Jones searched a convenience copy of the mailbox of the former AUSA
who was previously assigned to Matter Two (i.e., the matter falling within the relevant time period)
as part of her supplemental search, Jones’s supplemental declaration does not identify the search
terms used to search that AUSA’s mailbox or explain how the search was conducted. See Pl.’s
Initial Reply at 15–16. While Jones describes in some detail the search conducted by IT of the
other former AUSA’s email—the one assigned to Matter One—Plaintiff submits that she does not
38
do the same for the email of the departed AUSA assigned to Matter Two. See id. at 16. Second,
Plaintiff asserts that Jones’s explanation with respect to the two current AUSAs assigned to Matter
Two who searched their own email mailboxes suffers from the same deficiencies—namely, the
failure to provide any information about the search terms or methods the AUSAs used. Id. Third,
and relatedly, Plaintiff complains that Jones does not sufficiently describe the scope of the search
conducted by the two AUSAs who searched their own emails. See id. at 16–17. For example,
Plaintiff points out that while Jones states that the current AUSA who worked on Matter Two
during the relevant time period searched his files, “including emails,” Jones does not explain
whether this search included the AUSA’s current inbox and all relevant folders. Id. at 17.
Similarly, Plaintiff notes that while Jones clarifies in her supplemental declaration that the AUSA
in FPS who was assigned to Matter Two more recently searched a “.pst folder” as opposed to an
“archive folder,” Jones still “does not state whether that AUSA searched any email outside this
folder and, if not, whether those other places were likely to contain responsive information.” Id.
At least with respect to the methods used and the locations searched, the court is satisfied
that Jones has provided a sufficiently detailed description of the agency’s search efforts. The court,
however, agrees with Plaintiff that Jones’s declarations are lacking insofar as they do not include
the search terms used to search three of the four AUSAs’ email files. For Defendants to carry their
burden of demonstrating the adequacy of the search, the declarations they rely upon “must set forth
‘the search terms’ used in the search, not some of the search terms used.’” Walston v. U.S. Dep’t
of Defense, 238 F. Supp. 3d 57, 65 (D.D.C. 2017) (quoting Oglesby, 920 F.2d at 68). Here, while
Jones sets forth the search terms used by IT in conducting a search of one former AUSA’s email,
Jones does not state whether similar terms were used when she conducted her own search of
another former AUSA’s email. Nor does Jones indicate what search terms were used by the current
39
AUSAs who searched their own emails. Thus, the court will deny the parties’ renewed cross-
motions for summary judgment without prejudice as to the adequacy of the search and allow
Defendants an opportunity to either (1) submit an additional declaration from Jones attesting to
the search terms used in the original searches described above, or (2) conduct a new search for the
requested records and provide a sufficiently detailed declaration, which includes a description of
the search terms used, in support of that renewed search effort.
V. CONCLUSION AND ORDER
For the reasons stated above, Defendants’ Renewed Motion for Summary Judgment, ECF
No. 32, and Plaintiff’s Renewed Cross-Motion for Summary Judgment, ECF No. 33, are granted
in part and denied in part. To recap the court’s rulings:
1. Judgment is entered in favor of Plaintiff with respect to the 67 pages withheld in
full under Exemption 7(D).
2. Judgment is entered in favor of Defendants with respect to appropriate redactions
under Exemption 7(C) within the 67 pages withheld in full and the 33 pages released in part,
including the source’s lawyer’s name.
3. On or before October 9, 2018, Defendants may file any supplemental declaration(s)
as to the following:
a. The agency’s justification under Exemption 7(C) for withholding the name
of the source’s lawyer’s law firm; and
b. The adequacy of EOUSA’s search to include, at least, the relevant search
terms used to locate responsive emails for three of the four AUSAs.
4. Finally, no later than October 22, 2018, the parties shall file a Joint Status Report
that addresses (a) whether Plaintiff intends to challenge Defendants’ withholdings under
40
Exemptions 4 and 5; (b) whether there are any remaining issues with respect to the Civil Division
request; and (c) whether the parties intend to renew their motions for summary judgment with
respect to any disputes concerning disclosure of the law firm’s name or the adequacy of EOUSA’s
search. If the parties intend on further litigation, they shall propose a briefing schedule.
Dated: September 7, 2018 Amit P. Mehta
United States District Judge
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