Clemente v. Fbi, D.C. ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGELA CLEMENTE,
Plaintiff,
v. Case No. 1:20-cv-1527 (TNM)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Angela Clemente submitted a broad Freedom of Information Act request to the
Federal Bureau of Investigation seeking records related to Jeffrey Epstein and his alleged
criminal activities. The FBI located thousands of responsive records, released some in full and
others with redactions, and withheld the vast majority under various FOIA exemptions. The FBI
now moves for summary judgment, submitting exhaustive declarations and Vaughn indices.
Clemente’s counsel never responded. Without arguments or evidence to the contrary, the Court
will grant the FBI’s motion.
I.
Clemente submitted a FOIA request to the FBI essentially seeking all records it had about
Jeffrey Epstein and his alleged criminal activities. See generally Compl., ECF No. 1; see also
id., Ex. 1, ECF No. 1-5 (letter requesting records under FOIA). The FBI searched for responsive
records, initially locating 11,571 responsive pages. See Def.’s Mot. for Summ. J. (Def.’s MSJ) at
3–4, ECF No. 34-2; Decl. of Michael G. Seidel (Seidel Decl.) ¶ 5, ECF No. 34-4; see also Exs. S
& T (Vaughn Indices), ECF Nos. 34-6, 34-7. The FBI advised Clemente that some responsive
1
records were accessible in the FBI’s FOIA Library (the “Vault”) using the search term “Jeffrey
Epstein,” and directed her to that online repository. See id. ¶ 7. And it informed her that other
records are located within an investigative file exempt from disclosure under FOIA Exemption
7(A), which shields law enforcement records pertaining to a pending or prospective enforcement
proceeding when release of the information could reasonably be expected to interfere with those
proceedings. See id.
The FBI then released 181 pages of the Vault records in full and 1,051 pages in part. See
id. ¶ 5. It withheld 10,339 pages in full under Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E).
See id. The FBI then processed 1,505 additional responsive pages, releasing 665 in full and 743
in part. See id. It withheld 97 of these pages in full because they were either duplicates of other
pages processed elsewhere in the production or exempt under Exemptions 1, 3, 5, 6, 7(A), 7(C),
7(D), and 7(E). See id.; see also id. ¶ 31.
The FBI also issued Clemente two Glomar responses. See id. ¶ 7. The FBI explained
that even acknowledging the existence of records about third-party individuals could reasonably
be expected to invade personal privacy under Exemptions 6 and 7(C). See id.; see also id. ¶ 171.
Similarly, the FBI argued that acknowledging the existence of records about confidential human
sources could jeopardize its ability to investigate and fight criminal behavior and could subject
the sources to reprisal under Exemption 7(D). See id. ¶ 7; see also id. ¶¶ 172–74. Finally, the
FBI argues that it released all non-segregable material. See id. ¶ 164.
II.
Courts resolve the “vast majority” of FOIA cases at summary judgment. Brayton v. Off.
of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on a motion for summary
judgment, a party must show that “there is no genuine dispute as to any material fact.” Fed. R.
2
Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. And a factual dispute is material if it could alter the outcome of the suit under
the substantive governing law. See id.An agency is entitled to summary judgment in the FOIA context if it shows that it has
conducted a search reasonably calculated to uncover all relevant documents, see Morley v. CIA,
508 F.3d 1108, 1114 (D.C. Cir. 2007), and that each relevant record has been produced or is
exempt from disclosure, see Students Against Genocide v. DOS, 257 F.3d 828, 833 (D.C. Cir.
2001). FOIA requires “disclosure of documents held by a federal agency unless the documents
fall within one of nine enumerated exemptions[.]” U.S. Fish & Wildlife Serv. v. Sierra Club,
Inc., 141 S. Ct. 777, 785 (2021).
The agency bears the burden to show that the claimed exemptions apply. See ACLU v.
DOD, 628 F.3d 612, 619 (D.C. Cir. 2011). Courts construe FOIA exemptions narrowly, see
Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011), and consider their applicability de novo, see
King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987). An agency need not produce a record if a
court has enjoined its disclosure, because the agency has no discretion to exercise in such cases.
See Judicial Watch, Inc. v. DOJ, 813 F.3d 380, 383 (D.C. Cir. 2016).
An agency may submit “sufficiently detailed affidavits or declarations, a Vaughn index
of the withheld documents, or both, to demonstrate that [it] has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption[.]” Brennan
Ctr. for Justice v. DOS, 296 F. Supp. 3d 73, 80 (D.D.C. 2017); see also Shapiro v. DOJ, 893
F.3d 796, 799 (D.C. Cir. 2018). If no record evidence contradicts this information and there is
no evidence of agency bad faith, then summary judgment is appropriate. See ACLU, 628 F.3d at
3
626; see also Ancient Coin Collectors Guild v. DOS, 641 F.3d 504, 509 (D.C. Cir. 2011)
(“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the
exemption are likely to prevail.”).
III.
Recall that Clemente failed to respond to the FBI’s motion for summary judgment. 1 The
Court may therefore treat the FBI’s Statement of Material Facts Not in Dispute (SMF) as
admitted. See LCvR 7(h)(1). But the Court still must conduct an independent analysis of
whether the FBI’s search was adequate, whether it properly asserted exemptions, whether it
properly provided Glomar responses, and whether it met its segregability burden. See Winston &
Strawn, LLP v. McLean, 843 F.3d 503, 506–07 (D.C. Cir. 2016) (explaining that district courts
cannot treat a motion for summary judgment as conceded for want of opposition because “[t]he
burden is always on the movant to demonstrate why summary judgment is warranted”); see also
McGehee v. DOJ, 362 F. Supp. 3d 14, 18 (D.D.C. 2019) (granting summary judgment after
independent analysis in FOIA case when same counsel failed to oppose motion).
A.
The FBI’s search was adequate. To obtain summary judgment, the FBI must show “that
it 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.” Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency need not uncover every existing document;
rather, it must show that its search has been adequate and reasonable. See SafeCard Servs., Inc.
v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). The Court’s inquiry therefore centers on the
1
Clemente is represented by James H. Lesar, Esq., who has repeatedly failed to zealously
prosecute his cases in this district. See, e.g., McGehee v. DOJ, 362 F. Supp. 3d 14, 18 & n.2
(D.D.C. 2019).
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method of the search, not its results. See, e.g., Iturralde v. Comptroller of the Currency, 315
F.3d 311, 315 (D.C. Cir. 2003).
The FBI’s primary declarant shows that the FBI’s search was reasonably calculated to
uncover all records responsive to Clemente’s FOIA request. He describes how the FBI organizes
and indexes its files, and how it searches various record-keeping systems. See Seidel Decl. ¶¶
35–48. For Clemente’s request, the FBI searched both its FOIA document processing system
and its Central Records System for responsive records. See id. ¶ 48. And the FBI’s declarant
provides the terms searched and cut-off dates used. See id. The FBI has thus provided a
“reasonably detailed affidavit setting forth the search terms and the type of search performed,
and averring that all files likely to contain responsive materials (if such records exist) were
searched.” Oglesby, 920 F.2d at 68 (cleaned up).
B.
The FBI properly asserted Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E) for the
withheld records.
1.
First up is Exemption 1. It protects matters “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy and . . . in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). The FBI here relies on Executive Order 13,526, which prescribes a uniform system
for classifying and safeguarding national security information. See Seidel Decl. ¶¶ 69–70. So
the FBI must show both that the information was classified under the proper procedures and that
the withheld information substantively falls under this Executive Order. See Salisbury v. United
States, 690 F.2d 966, 971–72 (D.C. Cir. 1982).
5
In the national security context, courts “consistently defer[] to executive affidavits
predicting harm to national security, and have found it unwise to undertake searching judicial
review.” Ctr. for Nat’l Sec. Studs. v. DOJ, 331 F.3d 918, 927 (D.C. Cir. 2003). This is so
because courts are generally ill-equipped to second-guess an agency’s opinion in this context.
See, e.g., ACLU, 628 F.3d at 624. The FBI’s burden is therefore “a light one,” id., and its
arguments need only be both “plausible” and “logical” to justify the invocation of a FOIA
exemption in this context. See Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007).
The FBI’s declarant reviewed the documents and determined that they contain
information properly classified as “secret” under Executive Order 13,526. See Seidel Decl. ¶ 72.
He explained that the withheld information relates to the FBI’s intelligence activities, sources,
and intelligence-gathering methods. See id. ¶ 74. And the information “consists of detailed
intelligence information gathered or compiled by the FBI on a specific individual(s) of national
security interest.” Id. Releasing this information “could reasonably be expected to cause serious
damage to the national security” because criminals could learn about the FBI’s intelligence-
gathering techniques. Id. ¶ 75. More, disclosure would reveal specific targets of national
security-related investigations and the priorities the FBI assigns to such investigations. See id.
The Court finds that it is both plausible and logical that disclosure of the withheld
information could reasonably be expected to damage national security. The FBI persuasively
explains how disclosure of the information at issue would “severely disrupt” its intelligence-
gathering capabilities. Seidel Decl. ¶ 75. And “finding no evidence in the record to support the
6
opposite conclusion, no further investigation is required.” ACLU, 628 F.3d at 625. The Court
thus finds that the FBI has properly invoked Exemption 1. 2
2.
Exemption 3 is next. Exemption 3 protects information “specifically exempted from
disclosure by statute” if the statute neither leaves discretion about disclosure nor establishes
particular criteria for withholding or refers to specific matters to be withheld. 5 U.S.C. §
552(b)(3). The FBI asserted this exemption to withhold in part or in full information that four
statutes shield from disclosure. See Def.’s MSJ at 17; Seidel Decl. ¶¶ 77–84.
First, the FBI attests that it properly withheld names, images, and other identifying
information of child witnesses and victims under the Child Victims’ and Child Witnesses’ Rights
Act, 18 U.S.C. § 3509. See Def.’s MSJ at 17; Seidel Decl. ¶ 77. Other courts in this district
have held that this Act “qualifies as an Exemption 3 withholding statute.” See, e.g., Rodriguez v.
Dep’t of Army, 31 F. Supp. 3d 218, 237 (D.D.C. 2014). The Court is satisfied that this statute
justifies the FBI’s withholding of information related to minor victims and witnesses as part of
the sexual abuse investigation involving Jeffrey Epstein. See Seidel Decl. ¶ 77. 3
2
For Exemptions 1 and 3, no foreseeable harm analysis is required. See Rosenberg v. DOD,
342 F. Supp. 3d 62, 73 n.1 (D.D.C. 2018) (explaining that the foreseeable harm analysis only
applies to exemptions under which discretionary disclosures are possible, which does not include
Exemptions 1 or 3 because disclosure is prohibited by law). Even if foreseeable harm analysis
were required, the Court finds that the FBI easily meets its burden as to its Exemption 1 and 3
withholdings because it asserts many harms in a focused and concrete way. See Reps. Comm. v.
FBI, 3 F.4th 350, 371 (D.C. Cir. 2021); see also Reps. Comm. for Freedom of the Press v. CBP,
567 F. Supp. 3d 97, 120 (D.D.C. 2021) (noting that an agency’s foreseeable harm burden may be
more easily met when “the risk of harm through disclosure is more self-evident and the potential
for agency overuse is attenuated”).
3
The FBI asserts that it also withheld some of this information under Exemptions 6, 7(C), and
7(D) too. See Seidel Decl. ¶ 77.
7
Second, the FBI withheld grand jury materials falling within Federal Rule of Criminal
Procedure 6(e), which protects matters before the grand jury. The D.C. Circuit has explained
that even though “a rule is not generally considered to be a statute, it qualifies as one under
FOIA because the Congress has enacted it into positive law.” Murphy v. EOUSA, 789 F.3d 204,
206 (D.C. Cir. 2015). And the Circuit has also held that an agency may withhold information
related to a grand jury matter under Exemption 3 “if the disclosed material would tend to reveal
some secret aspect of the grand jury’s investigation, including the identities of witnesses.” Id.The FBI withheld the names of subpoena recipients, specific records it sought via subpoena, and
records provided in response to its subpoenas. See Seidel Decl. ¶ 78. The Court agrees that
disclosure of this information would violate the secrecy of grand jury proceedings, including the
identities of witnesses, and that the FBI properly withheld this information.
Third, the FBI withheld documents pertaining to arrests and the criminal history of third-
party juveniles under the Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038. See Def.’s
MSJ at 18; Seidel Decl. ¶ 79. This Act shields from disclosure all information related to any
juvenile delinquency proceeding, with a few exceptions. See 18 U.S.C. § 5083(a)(1–6). Because
Clemente’s request does not qualify for any of the Act’s exceptions, the Court finds that the FBI
properly withheld these records under Exemption 3. 4
Fourth, the FBI withheld information in two documents under the National Security Act,
50 U.S.C. § 3024(i)(1). See Seidel Decl. ¶ 80. It asserts some of these withholdings alongside
Exemption 1. See id.; see also id. ¶ 83. As the FBI explains, this Act affords absolute protection
to intelligence sources and methods. See 50 U.S.C. § 3024(i)(1). And the FBI determined that
4
The FBI asserts that it withheld some of this information under Exemptions 6 and 7(C) too.
See Seidel Decl. ¶ 79.
8
information in the two withheld documents “would reveal intelligence sources and methods”
allowing criminals to develop and implement countermeasures, all to the detriment of the
nation’s security. Seidel Decl. ¶ 83; see also id. ¶ 82 n.35. To bolster its assertions, the FBI
submitted a classified ex parte declaration. See id. ¶ 84. The Court has reviewed this declaration
and finds that it supports the FBI’s assertion of Exemption 3 under this Act. The FBI therefore
properly withheld these records.
3.
Next up is Exemption 5. This exemption shields from disclosure “inter-agency or intra-
agency memorandums or letters that would not be available by law to a party other than . . . in
litigation with the agency[.]” 5 U.S.C. § 552(b)(5). In other words, this exemption protects
materials that would be privileged in the civil discovery context, including materials covered by
the deliberative process and attorney work product privileges.
The deliberative process privilege “shields documents that reflect an agency’s
preliminary thinking about a problem, as opposed to its final decision about it.” Sierra Club, 141
S. Ct. at 785. To qualify for the privilege, a document must be both predecisional and
deliberative. See Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 362 (D.C. Cir.
2021). A document is predecisional if the agency generated it before its final decision on a
matter. See, e.g., Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980). A
document is deliberative if the agency prepared it to “help the agency formulate its position.”
Sierra Club, 141 S. Ct. at 786. There is one final step. The FBI must also provide a “focused
9
and concrete” explanation of why disclosure will cause foreseeable harm “in the specific context
of the agency action at issue.” Reps. Comm., 3 F.4th at 370.
The FBI withheld two categories of information under the deliberative process privilege:
FOIA processing records and emails discussing FOIA search decisions. See Seidel Decl. ¶¶ 90–
91. The FBI explains that the first category includes “search slips, electronic surveillance search
slips, and internal FBI administrative tracking forms.” Id. ¶¶ 88–89. It argues that these are
predecisional because they catalog how the FBI formulates a final FOIA search decision. See id.
¶ 91. And the FBI asserts that they are deliberative because they show the way search avenues
are discussed and revised. See id. The Court agrees. Cf. Machado Amadis v. DOJ, 388 F. Supp.
3d 1, 18–19 (D.D.C. 2019) (finding that similar documents qualify for the deliberative process
privilege), aff’d sub nom., 971 F.3d 364 (D.C. Cir. 2020).
As for foreseeable harm, the FBI explains that disclosure of the FOIA processing records
would “curtail[] proper deliberations during the processing of FOIA requests” and lead to
“public confusion as to the FBI’s final decisions” because it would “show considered decisions
never adopted and actions never taken and cause doubt as to the FBI’s final decision or action.”
See id. Without evidence from Clemente to the contrary, the Court finds that the FBI carries its
foreseeable harm burden as to this information. See Reps. Comm. for Freedom of the Press v.
CBP, 567 F. Supp. 3d 97, 121–22 (D.D.C. 2021) (explaining that similar rationales coupled with
assertions about public confusion can suffice).
Now for the emails discussing FOIA search decisions. The FBI withheld correspondence
between the FBI’s Records Management Division, FBI field offices, and DOJ’s Office of Public
Affairs about the pending status of an investigation and the status of processing records
associated with the investigation. See id. ¶¶ 92–93. The FBI explains that these emails are
10
deliberative and predecisional because they discuss whether information pertaining to an
investigation can be released to the FOIA requester and contain “strategy development on how to
handle” FOIA responses, including whether expedited processing is warranted. Id. ¶ 92. The
Court agrees that these emails qualify for the deliberative process privilege. Cf. Machado
Amadis, 388 F. Supp. 3d at 18–19 (finding that an agency’s impressions and analysis of its FOIA
searches and corresponding recommendations qualify for the deliberative process privilege).
As for foreseeable harm, the FBI asserts that releasing the information in these emails
would allow FOIA requesters to judge “the nature of certain FBI law enforcement
investigations,” chill internal discussions about how to respond to FOIA requests, and “create
public confusion because [the information] predates final agency decisions.” Id. ¶¶ 93, 95. The
FBI has thus provided a “focused and concrete demonstration of why disclosure of the particular
type of material” will cause foreseeable harm “in the specific context of the agency action at
issue.” Reps. Comm., 3 F.4th at 370.
The FBI also argues that some documents qualify for Exemption 5 because the attorney
work-product doctrine protects them. This doctrine protects documents and other records
prepared by or for an attorney in anticipation of litigation. See Coastal States, 617 F.2d at 863–
64. The FBI relies on this doctrine to withhold a few documents. See Seidel Decl. ¶ 97. They
include (1) memoranda containing information from an Assistant United States Attorney
(AUSA) about the timing of Epstein’s indictment and seizure of his assets; (2) a memorandum
sent to an AUSA about the value of an asset Epstein owned for consideration of its seizure; and
(3) memoranda describing actions the FBI is taking at the direction of an AUSA related to a
potential forfeiture action for Epstein’s assets and the potential prosecution of Epstein and others.
See id. The FBI explains that it created these memoranda “in reasonable anticipation of
11
litigation” and that they contain the “AUSA’s prosecutorial strategy and the information the
AUSA was gathering to either support an indictment of Jeffrey Epstein or a civil forfeiture action
or both.” Id. The Court agrees with the FBI that these documents fall squarely within the
attorney work-product doctrine. See Coastal States, 617 F.2d at 864–65.
As for foreseeable harm, the FBI notes that releasing this type of information would
impede prosecutors’ ability to properly prepare legal theories and would hinder their ability to
effectively represent the United States in any future litigation related to Epstein’s co-
conspirators. See Seidel Decl. ¶ 97. The Court agrees that this is a reasonably foreseeable harm
articulated with sufficient contextual specificity. Cf. Reps. Comm., 567 F. Supp. 3d at 120. So
the FBI properly withheld these memoranda under Exemption 5.
4.
The FBI also claims Exemptions 6 and 7(C). Though the two exemptions are similar,
7(C) “provides broader privacy protections” and “thus establishes a lower bar for withholding
material.” CREW v. DOJ, 854 F.3d 675, 681 (D.C. Cir. 2017). So when agencies rely on both
Exemptions 6 and 7(C) for the same material, the Court need not “consider Exemption 6
separately[.]” Roth v. DOJ, 642 F.3d 675, 681 (D.C. Cir. 2017). Exemption 7(C) protects
information compiled for law enforcement purposes if disclosure “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The FBI
always invokes the two exemptions in tandem. See Seidel Decl. ¶¶ 103–14. The Court thus
considers only Exemption 7(C).
Exemption 7(C) protects from disclosure law enforcement records that “could reasonably
be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C); see also Shapiro, 893 F.3d at 800. “To determine whether an invasion of
12
privacy is unwarranted, courts balance the privacy interest against the public interest in
disclosure, including any potential interest in airing governmental misconduct.” Prot. Demo’cy
Project, Inc. v. NSA, 10 F.4th 879, 889 (D.C. Cir. 2021). The relevant public interest here is
whether the withheld information “sheds light on an agency’s performance of its statutory
duties.” DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989).
The FBI withheld the names and identifying information of several categories of people
under Exemption 7(C). They are: (1) third parties of investigative interest; (2) FBI special agents
and professional personnel, including victim specialists; (3) third-party victims; (4) local law
enforcement personnel; (5) third parties mentioned as part of the FBI’s investigative efforts or
who provided information; (6) non-FBI federal government personnel; and (7) state and local
government personnel. See Seidel Decl. ¶¶ 103–114. The FBI attests that it “scrutinized” each
piece of information it withheld “to determine the nature and strength of the privacy interest of
each individual whose name or other identifying information appears in the records at issue.”
Seidel Decl. ¶ 101. And the FBI explains that it balanced each individual’s privacy interest
against the public’s interest in disclosure. See id.The FBI also asserts that foreseeable harm would result from disclosure of these
individuals’ names or identifying information. The FBI explains that the individuals whose
identities are released could be “targeted for reprisal” or may “become targets of inquiries for
unauthorized access to investigative information.” Id. ¶ 106; see also id. ¶¶ 103, 109, 112. So
too for victims, who could also suffer embarrassment if their names were released. See id. ¶ 108.
And the FBI fears that releasing certain names “could lead to harassment, intimidation by
investigative subjects, legal or economic detriment, physical harm, or even death.” Id. ¶ 114.
13
The FBI has thoroughly described the risk of foreseeable harm in the specific context of the
agency action at issue. See Reps. Comm., 3 F.4th at 369.
Nothing in the record suggests that the withheld information clarifies the FBI’s
performance of its statutory duties. See Reps. Comm., 489 U.S. at 773. And given the FBI’s
uncontradicted, plausible declaration showing a logical relationship to the exemption and
foreseeable harm, the Court find that the FBI has properly invoked Exemption 7(C). See Ancient
Coin Collectors Guild, 641 F.3d at 509.
5.
The FBI also asserts Exemptions 7(A), (D), and (E), all of which protect “records or
information compiled for law enforcement purposes.” 5 U.S.C. §552(b)(7). To properly assert
Exemption 7 at all, the FBI must first show that the records relate to “anything that can fairly be
characterized as an enforcement proceeding.” See Jefferson v. DOJ, 284 F.3d 172, 177 (D.C.
Cir. 2002). Courts typically give criminal law enforcement agencies deference when they assert
that records were compiled for law enforcement purposes. See, e.g., Pratt v. Webster, 673 F.2d
408, 416 (D.C. Cir. 1982). The FBI need only rationally show that the information relates to the
agency’s enforcement functions. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002).
It does so here. The FBI explains at length that it compiled the records “in furtherance of
the FBI’s investigation of child prostitution and sex trafficking involving Jeffrey Epstein and
other individuals of investigative interest.” Seidel Decl. ¶ 54. Though Epstein died soon after he
was indicted, the FBI explains that its investigation is ongoing because “it includes other
individuals of investigative interest.” Id. Because the records it withheld under Exemption 7
“were compiled to document the FBI’s investigation of potential federal crimes,” see id., the
14
Court agrees that they satisfy Exemption 7’s threshold requirement. The Court next analyzes the
FBI’s assertion of Exemption 7’s subsections.
First, Exemption 7(A). To justify its application of this exemption, the FBI must show
that a law enforcement proceeding is pending or prospective and that disclosure of the
information could harm the proceeding. See Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir.
1993). The FBI asserts this exemption to protect information related to an ongoing criminal
investigation of Jeffrey Epstein and others for sex trafficking and child prostitution, and to
protect any prospective prosecution of potential co-conspirators. See Def.’s MSJ at 12–13;
Seidel Decl. ¶¶ 55–59. The FBI’s declarant describes the types of documents exempt from
release, including emails, interview forms, interview notes, documents from state and local law
enforcement agencies, documents implementing sensitive investigative techniques, grand jury
subpoenas, evidence logs, and more. See Seidel Decl. ¶ 59.
And the FBI determined that releasing these documents “would provide criminals with
information about the government’s investigation and enforcement strategies in ongoing matters,
allow them to predict and potentially thwart these strategies, and allow them to identify and
tamper with witnesses or otherwise destroy evidence.” Id. ¶ 57. It also confirmed that release of
the records would harm at least one active investigation and any prospective prosecutions of
Epstein’s potential co-conspirators. See id. The FBI properly asserts Exemption 7(A) because it
identifies the pertinent investigations and explains how release of the withheld information could
imperil them. Cf. Mapother, 3 F.3d at 1540.
Second, Exemption 7(D). It protects “records or information compiled for law
enforcement purposes” when release of the information “could reasonably be expected to
disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D). To invoke Exemption
15
7(D), an agency must show either that a source provided the information to the agency under
express assurances of confidentiality or that the circumstances support an inference of
confidentiality. See DOJ v. Landano, 508 U.S. 165, 172 (1993). The FBI withheld information
from both types of sources.
First up are sources operating under express assurances of confidentiality. To meet its
burden, the FBI must present “probative evidence that the source did in fact receive an express
grant of confidentiality.” Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998). The FBI asserts
that it found evidence while processing the records that certain individuals “either requested that
their identity not be revealed” or that FBI investigators “would have, by standard practice,
expressly promised them that their identity and the information provided (outside of its
investigative use) would remain confidential.” Seidel Decl. ¶ 121. More, the FBI explains that
the designation “CW” (cooperating witness) or “CHS” (confidential human source) on certain
files indicates that these sources provided information under an express grant of confidentiality.
Id. ¶ 122. The FBI therefore offers probative evidence that these sources received express
assurances of confidentiality. See Campbell, 164 F.3d at 34. So the FBI withheld their names
and identifying information and the information they provided. See id. ¶¶ 121–23. As for
foreseeable harm, the FBI explains that releasing this information would “display an
unwillingness by the FBI to honor its assurance of confidentiality to current and future sources,”
causing “great detriment to the FBI’s ability to recruit and maintain reliable confidential
sources.” Id. ¶¶ 122–23. The FBI properly asserted Exemption 7(D) as to this information.
Next up are sources operating under implied confidentiality. The FBI argues that for
certain sources, the circumstances in which they provided information support an inference of
confidentiality. See id. ¶¶ 116, 118–20, 124–26. These circumstances include the unique
16
position of the sources, their inside knowledge of investigative subjects, and the detailed
information they provided about the trafficking and prostituting of children. See id. The Court
agrees that these circumstances support a finding of implied confidentiality. Cf. Landano, 508
U.S. at 179. The FBI thus properly withheld the names and other identifying information of
these sources and the information they provided. See Seidel Decl. ¶¶ 118–20, 124–26. As for
foreseeable harm, the FBI explains that disclosing the information these sources provided could
jeopardize the FBI’s ability to ask these sources for help going forward and could subject the
sources to reprisal. See id. The FBI properly asserted Exemption 7(D) as to this information.
Third, Exemption 7(E). That exemption protects “information compiled for law
enforcement purposes” when its release “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines” for the same. 5 U.S.C.
§ 552(b)(7)(E). The FBI applied this exemption to protect the non-public investigative
techniques and procedures it uses. See Seidel Decl. ¶ 128. The D.C. Circuit has explained that
this exemption sets “a relatively low bar for the agency to justify withholding.” Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The key is whether disclosure “could reduce or nullify
[the] effectiveness” of the investigative techniques and procedures. Judicial Watch, Inc. v. Dep’t
of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004).
The FBI easily clears that low bar. Its declarant explains that the FBI withheld collection
methods, analysis of investigative information, sensitive file numbers, types and timing of
investigations, information about targets, dates, and the scope of surveillance, and more. See
Seidel Decl. ¶¶ 129–55. The FBI adequately explained that it applied this exemption to non-
public investigative techniques and procedures that it uses to enforce laws. See id. And the FBI
articulates a context-specific foreseeable harm: releasing investigative techniques could help
17
criminals evade the law, employ countermeasures, and avoid criminal activities in a particular
area to evade detection. See id. More, this Court has recognized that the sensitive context in
which Exemption 7(E) claims often arise suggest a finding of foreseeable harm. See Reps.
Comm., 567 F. Supp. 3d at 129–31. The FBI has properly asserted Exemption 7(E).
C.
The FBI also withheld 38 pages in full because they are sealed by court order. See Def.’s
MSJ at 30; Seidel Decl. ¶ 158 (citing case number 08-mj-08068-LRJ (S.D. Fla.)). To assess
whether the FBI properly withheld sealed records, this Court looks to whether the seal prohibits
the agency from disclosing the records. See Judicial Watch, 813 F.3d at 383; see also Morgan v.
DOJ, 923 F.2d 195, 197 (D.C. Cir. 1991). The FBI’s declarant attests that the FBI searched for
an unsealing order within the case file on the Public Access to Court Electronic Records
(“PACER”) system but found none. See Seidel Decl. ¶ 158. The FBI also contacted the U.S.
Attorney’s Office to ask about the seal. See id. That USAO informed the FBI that the court
order was sealed under Federal Rule of Criminal Procedure 6(e). See id. Most importantly, the
FBI asserts that it withheld records and information “pursuant to court order” in its statement of
undisputed material facts, see SMF ¶ 21, ECF No. 34-3, which the Court finds admitted because
Clemente failed to oppose them. See LCvR 7(h). Given all of this, the Court finds that summary
judgment is proper as to these records. 5
5
Had Clemente disputed the FBI’s assertions, this would have been a closer call. For the D.C.
Circuit has made clear that courts cannot rely on the “mere existence of the seal,” but must
“inquir[e] into its intended effect.” Morgan, 923 F.2d at 197. This Court does so by evaluating
four factors: (1) any explicit sealing order from the court, if one exists; (2) extrinsic evidence
about the intended scope of a purported sealing order; (3) orders of the same court in similar
circumstances; and (4) the issuing court's general rules or procedures. See id. at 197–98; accord
Judicial Watch, 813 F.3d at 383. But given the FBI’s uncontroverted statement that these
documents are sealed by court order, the Court finds that summary judgment is proper.
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D.
The FBI properly issued a Glomar response. 6 An agency may issue a Glomar response
in circumstances where even acknowledging the fact of a record’s existence would result in harm
under one or more FOIA exemptions. See 5 U.S.C. § 522(b)(7)(A). The FBI issued two Glomar
responses to Clemente. One pertained to her request for documents about certain third parties
and another to her request for confidential human source records. See Seidel Decl. ¶¶ 166, 172.
The FBI refused to confirm or deny the existence of records pertaining to certain third parties
because doing so would violate privacy interests that Exemptions 6 and 7(C) protect. See id. ¶
166. And the FBI refused to confirm or deny the existence of certain confidential human source
records because doing so would harm interests related to its confidential source program that
Exemption 7(D) protects. See id. ¶ 172. Clemente has not challenged these Glomar responses,
and the Court finds that they are proper. Cf. Roth, 642 F.3d at 1178.
E.
The Court finds that the FBI properly satisfied its segregability burden. The FBI must
show “with reasonable specificity” why a document cannot be further segregated. Armstrong v.
Exec. Off. of the President, 97 F.3d 575, 578–79 (D.C. Cir. 1996). And the FBI is “entitled to a
presumption that [it] complied with the obligation to disclose reasonably segregable material.”
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). The FBI’s declarant
explains that the agency reviewed each record to identify information exempt from disclosure
and determined that there is no meaningful, non-exempt information that can be reasonably
6
The phrase “Glomar response” derives from Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976),
in which the CIA refused to confirm or deny the existence of records relating to the
“Hughes Glomar Explorer,” a ship allegedly deployed by the U.S government to raise a sunken
Soviet submarine for analysis by the U.S. military and intelligence community. See Roth, 642
F.3d at 1171.
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segregated and released. See Seidel Decl. ¶ 164. So the burden is on Clemente to offer contrary
evidence to rebut the applicable presumption. See Sussman, 494 F.3d at 1117. She has not done
so. The Court therefore finds that the FBI disclosed all reasonably segregable, non-exempt
information. See id.IV.
For these reasons, the Court will grant the FBI’s motion for summary judgment. A
separate Order will issue.
2022.11.21
16:26:06 -05'00'
Dated: November 21, 2022 TREVOR N. McFADDEN, U.S.D.J.
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