Davis v. United States Federal Bureau of Investigation ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONOVAN DAVIS, JR.,
Plaintiff,
v.
FEDERAL BUREAU OF Case No. 18-cv-0086 (CRC)
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
Donovan Davis, Jr. is a federal inmate who wants records relating to his investigation and
prosecution. He submitted Freedom of Information Act (“FOIA”) and Privacy Act requests to
the Federal Bureau of Investigation (“FBI”), the United States Secret Service (“Secret Service”
or “Service”), and the Executive Office of United States Attorneys (“EOUSA”). Dissatisfied
with the agencies’ responses, he filed this suit, challenging the adequacy of their searches and the
legitimacy of their withholdings. All three agencies moved for summary judgment in November
2018. But after a long delay in the briefing—owing in part to the lapse in federal
appropriations—EOUSA moved to withdraw its motion. The Court granted that motion, leaving
only the FBI’s and Secret Service’s motions for resolution. For the reasons that follow, the
Court will grant each of them.
I. Background
In May 2015, Mr. Davis was found guilty of various federal fraud offenses stemming
from his participation in a Ponzi scheme and is currently serving a 204-month prison sentence at
the Federal Correctional Complex in Coleman, Florida. See United States v. Davis, 767 F.
App’x 714, 722 (11th Cir. 2019); Complaint, ECF No. 1, ¶ 4. On October 14, 2016, Davis filed
separate FOIA and Privacy Act requests with the FBI and Secret Service seeking “any and all
records under [his] name and/or identifier assigned to [his] name,” including anything related to
his arrest, investigation, and prosecution. See Declaration of David M. Hardy (“First Hardy
Decl.”), Ex. A, ECF No. 11-4 at 51 (FBI request); Declaration of Kim E. Campbell (“First
Campbell Decl.”), Ex. A, ECF No. 11-7 at 19 (Secret Service request).
The FBI responded to Davis’s request in August 2017. Compl. ¶ 22; First Hardy Decl.
¶ 10. It informed Davis that it had reviewed 149 potentially responsive pages and provided 72 of
those pages. First Hardy Decl. ¶ 10. The FBI also explained that, although many of the
documents were exempt from disclosure in their entirety under the Privacy Act, 5 U.S.C.
§ 552(a)(j)(2), it processed Davis’s request under FOIA because it “afforded the greatest degree
of access authorized by both laws.” Id. The FBI did not, however, provide Davis with a Vaughn
index detailing its withholdings. Compl. ¶ 22. Davis appealed the FBI’s response to the
Department of Justice’s Office of Information Policy (“OIP”) on August 29, 2017; OIP affirmed
the FBI’s response in November 2017. See First Hardy Decl. ¶¶ 13, 15.
The Secret Service, for its part, responded to Davis in May 2017, noting that it had
conducted a search and was reviewing documents for withholding determinations. First
Campbell Decl. ¶ 9. Before any production occurred, in September 2017, the Secret Service told
Davis that he could retrieve an external hard drive it had taken from Davis pursuant to a grand
jury subpoena issued in 2009. Compl. ¶ 31. But when Davis’s wife arranged to do so, she was
informed that the drive had been erased. Id. ¶ 33. Davis alleges that after his wife retrieved the
hard drive, she had it tested by a forensic expert, who concluded that the hard drive had been
erased sometime after the Secret Service received Davis’s FOIA request. Id. ¶ 37.
2
Davis filed suit in January 2018. See Compl. After the suit was filed, the FBI
supplemented its earlier production while the Secret Service provided its first. As for the FBI, it
reviewed an additional seven pages and released to Davis four of them; it also determined that
certain segregable information on already-produced documents could be released in full. First
Hardy Decl. ¶¶ 17–18. The Secret Service, meanwhile, provided Davis 228 pages of responsive
records—74 in full and another 154 with redactions—and withheld completely another 79 pages.
First Campbell Decl. ¶ 12. At the same time, the Secret Service determined that other potentially
responsive records originated with the EOUSA and the Internal Revenue Service and referred the
documents to them for processing. Id. ¶¶ 10–11.
The FBI and Secret Service believe that their responses have fulfilled their FOIA
obligations and move for summary judgment, which Davis opposes.
II. Legal Standards
FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is warranted if “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).
An agency must carry two general burdens to earn summary judgment in a FOIA case.
First, it must show “beyond material doubt that its search was reasonably calculated to uncover
all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504,
514 (D.C. Cir. 2011) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999)) (internal quotation marks omitted). In reviewing an agency’s search, courts examine
the methods, not the fruits, of the search. CREW v. U.S. Gen. Servs. Admin., No. 18-CV-377,
2018 WL 6605862, at *3 (D.D.C. Dec. 17, 2018); Rodriguez v. U.S. Dep’t of Def., 236 F. Supp.
3
3d 26, 34 (D.D.C. 2017). An agency “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). That
showing can be made through declarations that detail “what records were searched, by whom,
and through what process.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir.
1994). Agency declarations are “accorded a presumption of good faith” and “cannot be rebutted
by purely speculative claims about the existence and discoverability of other
documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted).
In addition to demonstrating that it conducted an adequate search, an agency must also
justify any withholdings it has made pursuant to a FOIA exemption. See, e.g., Larson v. Dep’t
of State, 565 F.3d 857, 862 (D.C. Cir. 2009). An agency may justify its withholdings through
sufficiently detailed declarations, see, e.g., id., which will often be paired with so-called Vaughn
indices that describe a withheld document and the reason the agency believes it qualified for a
particular exemption, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). However, because the
primary purpose of FOIA is disclosure, courts construe exemptions narrowly. See, e.g., DiBacco
v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).
III. Analysis
The Court will assess the adequacy of the searches the FBI and Secret Service conducted
before turning to the legitimacy of their withholdings.
A. FBI Search
Davis sought from the FBI “any and all records under [his] name and/or identifier
assigned to [his] name,” including anything related to his arrest, investigation, and prosecution.
4
See First Hardy Decl. at 51. Upon receipt of Davis’s request, the FBI searched its Central
Records System (“CRS”), which “spans the entire FBI organization and encompasses the records
[of all FBI components].” Id. ¶ 19.
Because of the “enormous amount of information contained in the CRS,” its records are
“indexed in a manner which meets the FBI’s investigative needs and priorities, and allows FBI
personnel to reasonably and adequately locate pertinent files in the performance of their law
enforcement duties.” Id. ¶ 21. The FBI explains that “[i]ndex searches of the CRS are
reasonably expected to locate responsive material within the vast CRS since the FBI indexes
pertinent information into the CRS to facilitate retrieval based on operational necessity.” Id.
¶ 26. In other words, because indexing must be done properly to ensure records are readily
accessible to the Bureau in carrying out its law enforcement mission, the FBI says a search of
CRS indices should turn up information related to a one-time investigation target like Mr. Davis.
The index search conducted here was comprehensive. First, the FBI used a “three-way
phonetic breakdown of” Davis’s name—“Davis, Donovan, George”—which meant “the
computer . . . searched the index for three different breakdowns of the name entered,” and then
searched for any “80% or greater phonetic match[es]” with those three name breakdowns. Id.
¶ 27 n.15. The agency also conducted “on the nose searches,” in which “the computer will
search exactly the name entered in the name field and only that name.” Id. ¶ 27 n.17. On top of
that, the agency used Davis’s “date of birth, social security number, and other identifying
information to facilitate the identification of responsive records.” Id. ¶ 27. The search turned up
149 potentially responsive pages, 72 of which were released to Davis. Id. After Davis filed this
suit, the FBI conducted essentially the same search a second time. Id. ¶ 29. This search yielded
an additional seven potentially responsive pages, four of which were released to Davis. Id.
5
The FBI declaration describes a search that could “be reasonably expected to produce the
information requested.” Oglesby, 920 F.2d at 68. Davis wanted records relating to the FBI’s
investigation of him. The FBI searched the system that contains its investigation records for any
records using a variety of formulations of Davis’s name, combined with other identifying
information unique to Davis. The declaration is beyond “reasonably detailed,” it “set[s] forth the
search terms and the type of search performed,” and it “aver[s] that all files likely to contain
responsive materials (if such records exist) were searched,” thus providing a more than ample
basis for summary judgment. Id.; see also Steinberg, 23 F.3d at 552 (summary judgment on
search claim may be warranted where declaration explains “what records were searched, by
whom, and through what process”).
Further proof of the search’s propriety is in the pudding. Although courts cannot
conclude that an agency’s search was inadequate solely by reference to its return, Rodriguez, 236
F. Supp. 3d at 34, the fact that a search turned up the very documents the requester sought
provides strong evidence that the agency conducted an appropriate search. Davis asked for “any
and all records under [his] name and/or identifier assigned to [his] name,” including anything
related to his arrest, investigation, and prosecution, see First Hardy Decl. at 51, and the initial
search returned records related to various case files associated with Davis’s name, id. ¶¶ 27–28.
Davis used those case file numbers to supplement his FOIA request, but the FBI says that “all
records pertaining to [Davis] serialized in these files numbers were processed and released” the
first time around. Id. ¶ 28. That the FBI’s first search located the case files associated with
Davis, and that even a request targeting those specific case file numbers did not return any
additional records, strongly supports the adequacy of the Bureau’s search.
6
Undeterred, Davis contends that the FBI’s search was inadequate because it “relied on a
search of its own index system, not of its records.” Opposition to Summary Judgment (“Opp.”),
ECF No. 12, at 3. He insists that “if the personnel inputting the data did not happen to use the
same words or terms as contained in [his FOIA request], then the documents would not be
located.” Id. Worse still, Davis says index searches are “gameable,” because the agency could
ostensibly index records in a manner that makes them difficult to retrieve via FOIA requests. Id.
What the FBI should have done, according to Davis, is “to notify [him] that an indexing search
would be conducted, and to have asked [him] for his input on appropriate search terms.” Id.
Alternatively, Davis says the Bureau should have “notif[ed] the handful of agents involved [in
his investigation] to provide the government’s FOIA officers with copies . . . of all documents [ ]
related to the agents’ investigation of [him].” Id.
These arguments fail. First, with respect to Davis’s argument that the FBI should have
consulted with Davis to devise appropriate search terms, nothing in law or logic compels
agencies to take such action in processing a FOIA request. As the FBI observes, “[Davis] cites
no legal support for this argument because there is none.” Reply in Support of Motion for
Summary Judgment (“Reply”), ECF No. 21, at 2. Instead, case after case makes plain that “a
FOIA petitioner cannot dictate the search terms for his or her FOIA request.” Bigwood v. U.S.
Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015); see also, e.g., Johnson v. Exec. Office
for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (“FOIA, requiring as it does both
systemic and case-specific exercises of discretion and administrative judgment and expertise, is
hardly an area in which the court should attempt to micromanage the executive branch.”).
Second, Davis’s argument that the search would fail if the original indexing of his
records did not track the language of his FOIA request is patently incorrect. The Bureau
7
searched for various formulations of Davis’s name, including for inexact phonetic matches, and
the search in fact located case files associated with him.
Third, Davis’s suggestion that index searching is impermissible because the FBI might
index records in a manner intended to prevent their discovery later on warrants little discussion.
As an initial matter, it is the sort of “purely speculative claim[ ]” that cannot establish the
inadequacy of an agency’s search. SafeCard Servs., Inc., 926 F.2d at 1200. But Davis’s theory
doesn’t hold water regardless. He suggests that the FBI might deliberately index records relating
to a particular investigation target in a manner that makes their later discovery via an index for
the target’s name unlikely. That would be self-defeating. If an agent needed to locate a case file,
he too must conduct an index search of the CRS; had he indexed the file improperly the first time
around, or perhaps had another FBI official done so, the agent would be out of luck. On top of
its poor logic, Davis’s theory is belied by the search returns themselves. If Davis were right that
the Bureau attempts to “game” FOIA by indexing records in a manner that requires insider
knowledge to locate later on, how can he explain the 150-some responsive pages turned up by
the search conducted in this case?
Fourth and finally, there is Davis’s contention that the FBI search must have been faulty
because it did not locate “records revealing how and when the FBI transferred the evidence to
other government agencies.” Opp. at 3. Davis’s belief that such records should exist is based on
a mistaken claim in the FBI’s first declaration that its investigation led to Davis’s conviction.
See First Hardy Decl. ¶ 45. But as the FBI clarifies in a supplemental declaration, its
investigation closed many years prior to Davis’s 2015 trial and it had nothing to do with his
prosecution or conviction. Second Declaration of David M. Hardy (“Second Hardy Decl.”), ECF
No. 21-1, ¶ 6. That explains the absence of records showing the FBI’s coordination with the
8
federal entities involved in Davis’s ultimate prosecution.1 And, in any event, a detailed agency
declaration “cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs., Inc., 926 F.2d at 1200. When that
declaration outlines a search methodology that can be reasonably expected to uncover responsive
records, the agency’s search is not rendered unreasonable just because it failed to uncover
particular records the FOIA requester thinks must exist. See Rodriguez, 236 F. Supp. 3d at 34.
For these reasons, the Court concludes that the FBI conducted an adequate search.
B. Secret Service Search
Davis sought from the Secret Service the exact same set of records he requested from the
FBI—in short, any and all records “under [his] name and/or identifier assigned to [his] name.”
First Campbell Decl. at 19. The Secret Service determined that its Office of Investigations
would be the most likely custodian of responsive records and asked that office to conduct the
search for Davis’s request. Id. ¶¶ 13–14. The Office of Investigations, in turn, forwarded the
request to the Service’s Orlando Field Office, because agents in that office had spearheaded the
investigation into Davis. Id. ¶ 15. The Orlando Field Office located responsive records in a case
file that was “accessible under Plaintiff’s name, date of birth and social security number.” Id.
¶ 16. Additionally, the Office of Investigations determined that one of its components, the
Investigative Support Division (“ISD”), might have responsive records and asked it to conduct
1
According to a DOJ press release reporting Davis’s sentencing, the key law
enforcement players in Davis’s investigation were the IRS, the Secret Service, and state of
Florida entities. Department of Justice, Florida Businessman Sentenced to 17 Years in Prison
for Conspiring to Defraud Investors (Aug. 27, 2015), https://www.justice.gov/opa/pr/florida-
businessman-sentenced-17-years-prison-conspiring-defraud-investors.
9
its own search. Id. ¶ 18. ISD searched its databases for Davis’s name, date of birth, and social
security number—but came up empty-handed. Id. ¶ 19.
The Secret Service declaration, like the FBI’s, describes a search that could “be
reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. Davis
sought records relating to the Service’s investigation of him. The Service asked its Orlando
Field Office to conduct the search (given that it had been charged with carrying out the Davis
investigation) but for good measure also had ISD conduct a search that might uncover any
records outside the Orlando Field Office’s domain. First Campbell Decl. ¶¶ 16–19. To be sure,
the Service’s declaration is not nearly as detailed as the FBI’s; while both searched for Davis’s
name, the FBI explained exactly how it searched for his name, and the Service does not. All the
same, the Service’s declaration still “set[s] forth the search terms and the type of search
performed” and “aver[s] that all files likely to contain responsive materials (if such records exist)
were searched,” thus providing firm-enough ground for summary judgment. Oglesby, 920 F.2d
at 68; see also Steinberg, 23 F.3d at 552 (summary judgment on search claim may be warranted
where declaration explains “what records were searched, by whom, and through what process”).
Courts in this district have previously sanctioned searches based on strikingly similar
declarations. See Keys v. Dep’t of Homeland Sec., 510 F. Supp. 2d 121, 126 (D.D.C. 2007)
(“[T]he Secret Service used Plaintiff’s name, social security number and date of birth to search
for responsive documents in the Master Central Index.”)
Moreover, as was true of the FBI, the Service’s search bore substantial fruit. It ultimately
produced to Davis 228 pages of responsive records and withheld in full another 79 responsive
pages. Id. ¶ 12. While the efficacy of one search does not rule out the possibility that another
search might be even more fruitful, it does provide evidence that the Service took a reasonable
10
approach to unearthing records relating to its investigation of Davis. It would be odd indeed if
only some records related to Davis were discoverable via a search for his name, birth date, and
social security number.
Davis nevertheless faults the Service’s search for failing to turn up a grand jury subpoena
that is referenced in some of the records it produced to him. Opp. at 8. Davis does not identify
with much specificity the subpoena he thinks the Service’s search should have yielded, so it is
not obvious to the Court that any reasonable search in this case should have located it. Even if
the subpoena were closely connected to Davis’s investigation, the Court has already explained
that “the issue to be resolved is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate.”
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Once the agency
establishes, as the Service has done here, that its search was reasonable, “[m]ere speculation that
as yet uncovered documents may exist does not undermine [that] finding[.]” SafeCard Servs.,
Inc., 926 F.2d at 1201. And while “[i]n certain circumstances, a court may place significant
weight on the fact that a records search failed to turn up a particular document,” Davis here “fails
to offer evidence of circumstances sufficient to overcome an adequate agency affidavit.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). He does not, for
instance, “maintain that the [Service] failed to search particular offices or files where the
document might well have been found,” nor does he “maintain that the [Service] ignored
indications . . . in its initial search that there were additional responsive documents elsewhere.”
Id.
The Court concludes that the Secret Service conducted an adequate search.
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C. Withholdings
The FBI and Secret Service withheld responsive records pursuant to FOIA Exemptions 3,
6, and 7(C), 7(D), and 7(E). The Court will consider their explanations for each exemption in
turn.
1. Exemption 3
Under Exemption 3, an agency need not disclose records that are “specifically exempted
from disclosure by statute” if that statute “requires that matters be withheld from the public in
such a manner as to leave no discretion on the issue; or establishes particular criteria for
withholding or refers to particular types of matters to be withheld; and if enacted after the date of
enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.” 5 U.S.C.
§ 552(b)(3).
The FBI. The FBI argues that the Bank Secrecy Act (“BSA”) requires that certain
records responsive to Davis’s request be withheld under Exemption 3. The BSA and its
implementing regulations provide that “a [BSA] report and records of reports are exempt from
disclosure under [FOIA.]” 31 U.S.C. § 5319; see also 31 C.F.R. § 1010.960. “[I]t is firmly
established in this Circuit that the BSA is a proper basis for invoking an Exemption 3
withholding.” Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t, 13 F. Supp. 3d 92, 116
n.9 (D.D.C. 2014); see also Yunes v. U.S. Dep’t of Justice, 263 F. Supp. 3d 82, 86 (D.D.C.
2017). The only question, then, is whether the records the FBI withheld qualify as a BSA
“report” or “records of reports.” The FBI says they do: the withheld records “relate to the
criminal investigation at issue and were obtained through the BSA” and “involve[ ] BSA reports
12
or records of reports.” First Hardy Decl. ¶ 43. As such, according to the FBI, those records must
be withheld pursuant to Exemption 3.
The Court agrees. Although documents that involve BSA reports or records of reports—
as the FBI describes the withheld documents here—are not, strictly speaking, the same thing as
actual BSA reports or records of reports, Davis does not bother to challenge the FBI’s invocation
of Exemption 3 in his opposition. And even if he had done so, it likely would make no
difference, for the Bureau invoked Exemption 3 “in conjunction with FOIA Exemption coded
categories (b)(7)(E)-1 and (b)(7)(E)-5.” Id. Therefore, even if not all of the withheld
information qualifies as a BSA report or record of a report (and thus subject to Exemption 3),
what remains would likely still be exempt from disclosure under Exemption 7.
The Secret Service. The Secret Service withheld records under Exemption 3 that it
claims were subject to Federal Rule of Criminal Procedure 6(e), “which bars the disclosure of
matters occurring before a grand jury” and “is recognized as a ‘statute’ for Exemption 3
purposes.” Chase v. U.S. Dep’t of Justice, 301 F. Supp. 3d 146, 154 (D.D.C. 2018) (citing Fund
for Constitutional Gov’t. v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir.
1981)). Rule 6(e)’s “grand-jury-secrecy requirement is applied broadly and embraces any
information that ‘tend[s] to reveal some secret aspect of the grand jury’s investigation,
[including] the identities of witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation, the deliberations or questions of jurors, and the like.’” Id. (quoting
Lopez v. Dep’t. of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005)) (alterations in original).
“[D]isclosure of matters occurring before the grand jury is the exception and not the rule.” Fund
for Constitutional Gov’t., 656 F.2d at 868.
13
The Secret Service withheld material on two pages of responsive records that it says
“would reveal matters occurring before a grand jury.” First Campbell Decl. ¶ 27. Davis
complains that the agency’s description of the withheld material is too vague to assess the
applicability of Rule 6(e), noting correctly that “[t]he mere fact that information has been
presented to the grand jury does not itself permit withholding.” Opp. at 8. Davis has a point that
the Service did not identify the withheld information with much specificity in its first
declaration, but its supplemental declaration clarifies any ambiguity. See Supplemental
Declaration of Kim E. Campbell (“Second Campbell Decl.”), ECF No. 21-2, ¶¶ 3–7. It explains
that the redacted sentences “identify a witness before a grand jury and the outcome of this grand
jury,” id. ¶ 3, and contain information that “provides insight into the deliberative process,
identifies a witness who appeared before the grand jury, and reveals the inner workings of a
federal grand jury,” id. ¶ 7. Information like that falls squarely within Rule 6(e). Chase, 301 F.
Supp. 3d at 154 (explaining that Rule 6(e) applies to “the identities of witnesses or jurors” and
“the deliberations or questions of jurors, and the like”). And because Rule 6(e) information may
be withheld pursuant to Exemption 3, the Secret Service acted lawfully in doing so.
2. Exemptions 6 and 7(C)
Exemption 6 protects from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). “The catchall provision ‘similar files’ includes any ‘[g]overnment records
on an individual which can be identified as applying to that individual.’” Prechtel v. FCC, 330
F. Supp. 3d 320, 329 (D.D.C. 2018) (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S.
595, 602 (1982)). If the withheld information qualifies as “personnel and medical files and
similar files,” it is covered by Exemption 6 so long as the “privacy interest in non-disclosure” is
14
greater than “the public interest in the release of the records.” Lepelletier v. FDIC, 164 F.3d 37,
46 (D.C. Cir. 1999). But the “presumption in favor of disclosure [under Exemption 6] is as
strong as can be found anywhere in the [FOIA].” Wash. Post Co. v. HHS, 690 F.2d 252, 261
(D.C. Cir. 1982).
Exemption 7(C) similarly shields from disclosure information “compiled for law
enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion
of privacy.” 5 U.S.C. § 552(b)(7)(C). Information is “compiled for law enforcement purposes”
if it was gathered “to determine whether there was ‘an identifiable possible violation of law.’”
Butler v. U.S. Dep’t of Labor, 316 F. Supp. 3d 330, 336 (D.D.C. 2018) (quoting Birch v. U.S.
Postal Serv., 803 F.2d 1206, 1210 (D.C. Cir. 1986)). If the information qualifies as such, the
question, as with Exemption 6, is whether the personal privacy interest outweighs the public’s
interest in disclosure. See Weisberg, 745 F.2d at 1491. If it does, Exemption 7(C) may properly
be invoked.
The FBI. The Bureau invoked Exemptions 6 and 7(C) to withhold information that
identified special agents and various other FBI employees, individuals interviewed in the Davis
investigation, and third parties who were merely mentioned in the investigative files but did not
participate in the investigation. See First Hardy Decl. ¶¶ 48–55. Given that Davis does not
contest the propriety of any of these exemptions in his opposition, the Court will not address
each of them in detail. A discussion of the first set of privacy exemptions, pertaining to FBI
employees, will suffice.
The Bureau maintains it withheld information under Exemptions 6 and 7(C) “because
doing otherwise would compromise the work and safety of Special Agents and support personnel
connected to this investigation and others.” Mem. Supp. Def’s Mot. Motion for Summary
15
Judgment (“MSJ”), ECF No. 11-1, at 13 (citing First Hardy Decl. ¶¶ 48–49). It explains that
“[p]ublicity (adverse or otherwise) regarding any particular investigation to which [special
agents] have been assigned may seriously prejudice their effectiveness in conducting other
investigations.” First Hardy Decl. ¶ 48. The Bureau also avers that protecting the identity of its
agents protects against “unnecessary, unofficial questioning as to the conduct of this or other
investigations,” since targets of FBI investigations can “carry a grudge which may last for years”
and “may seek revenge on the agents and other federal employees involved in a particular
investigation.” Id.
As for the public interest in disclosure against which those private interests must be
weighed, the FBI “could identify no discernible public interest in the disclosure of this
information because [it] would not shed light on the operations and activities of the FBI.” Id.
Davis, for his part, does not even address the Bureau’s privacy argument. Because the parties
point to no public interest that would be served by disclosure, and because the Court will not
supply one, the FBI employees’ privacy interests must carry the day.2 For “something, even a
modest privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v.
Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). This pattern persists for each set of individuals for
which the FBI invoked Exemptions 6 and 7(C): the Bureau gave reasons why disclosure would
2
To be sure, the Court does not mean that the privacy interests will always prevail and
inevitably permit withholding the names of law enforcement agents. Although they are
“generally exempt from disclosure,” they may be subject to disclosure “where they are required
to confirm or refute allegations of improper government activity.” Sussman v. U.S. Marshals
Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (citing SafeCard Servs., Inc., 926 F.2d at 1205–06).
But “[e]ven then, the requester must produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred in order to gain
disclosure.” Id. (internal quotation marks omitted). Davis, however, neither argues that the
disclosure of names here would reveal government misconduct nor offers any evidence that
would support such a conclusion.
16
invade important privacy interests, and Davis offered no public interest that might justify such an
invasion. The Court therefore holds that the FBI properly withheld information identifying its
employees, individuals involved in the Davis investigation, and other third parties whose names
were mentioned in the case files pursuant to Exemptions 6 and 7(C).
The Secret Service. The Service invoked Exemptions 6 and 7(C) to withhold the names,
cell phone numbers, and email addresses of third parties who provided information in the
Service’s investigation of Davis, First Campbell Decl. ¶ 33, and also the identities and
identifying information of law enforcement personnel involved in the investigation, id. ¶ 35. The
Service explained that disclosure of the former “could cause unwarranted attention” on the third
parties, id. ¶ 33, while disclosure of the latter “may seriously prejudice [the law enforcement
officials’] effectiveness in conducting other investigations” and subject them to “unnecessary,
unofficial questioning” regarding their work, id. ¶ 35. The Service further determined that no
public interest justified disclosure of either subset of information because “such information
reveals nothing about the manner in which the Secret Service conducts its activities.” Id. ¶ 34
(respecting third party information); see also id. ¶ 36 (stating same about officials’ information).
Davis again fails to offer a countervailing public interest in disclosure, or otherwise
challenge the Service’s invocation of Exemptions 6 and 7(C). And the Court, again, cannot
conjure a compelling public interest on its own. Thus, just as it held with respect to the FBI, so it
holds with respect to the Service: it properly withheld the identifying information pursuant to
Exemptions 6 and 7(C).
3. Exemption 7(D)
Exemption 7(D) protects from disclosure “information compiled for law enforcement
purposes” if its release “could reasonably be expected to disclose the identity of a confidential
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source” or could disclose “information furnished by a confidential source” in the course of a
criminal investigation. 5 U.S.C. § 552(b)(7)(D). “[A]n agency must establish a source’s
confidentiality on a case-by-case basis, either by showing that the source ‘provided information
under an express assurance of confidentiality or in circumstances from which such an assurance
could be reasonably inferred.’” Shapiro v. CIA, 247 F. Supp. 3d 53, 67 (D.D.C. 2017)
(quoting Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995)). Once an agency establishes
either an express or implied grant of confidentiality, a FOIA requester can overcome that only by
providing “absolutely solid evidence showing that the source . . . has manifested complete
disregard for confidentiality.” Parker v. Dep’t of Justice, 934 F.2d 375, 378 (D.C. Cir. 1991)
(citation omitted).
The FBI withheld records containing “information that was provided by a confidential
source where confidentiality was implied.” MSJ at 17; see First Hardy Decl. ¶¶ 33–39. The
Bureau avers that the source “provided invaluable assistance and detailed information specific in
nature throughout the mail, wire, money laundering, and investment fraud investigation of
[Davis,] and several co-conspirators.” First Hardy Decl. ¶ 57. As for the circumstances from
which a grant of confidentiality could be inferred, Shapiro, 247 F. Supp. 3d at 67, the FBI
explains that the “individual could reasonably fear that disclosure of his/her identify would place
him/her in danger of possible retaliation (financial or otherwise), or potential harassment,” which
would lead the source to “expect his/her identity and the information provided” to be kept
confidential, First Hardy Decl. ¶ 61. It further explains that “[t]he sources [sic] interactions with
the FBI, and the providing of documentation concerning the investment fraud scheme, was
conducted under such assurances of confidentiality, and warrants the protection of the source’s
name as well as the information the source provided.” Id.
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Davis advances two arguments to pierce the confidentiality veil. First, he says that “the
FBI relies on an unsupported contention that the source is entitled to confidentiality” and
contends that the FBI must identify “specific facts or evidence to support its exemption.” Opp.
at 7. This argument demands too much of the FBI. True, the Supreme Court has “determined
that it is unreasonable to infer that all FBI criminal investigative sources are confidential,” but it
has also said that “the Government often can point to more narrowly defined circumstances that
will support the inference.” U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 179 (1993). Those
circumstances may include “the character of the crime” and the “source’s relation to the crime.”
Id. Here, the FBI has indicated that the source “provided valuable assistance and detailed
information specific in nature throughout the mail, wire, money laundering, and investment fraud
investigation” of Davis and his co-conspirators. First Hardy Decl. ¶ 60. It stands to reason that
only a limited number of individuals would be familiar with the details of a financial fraud
scheme, and that those individuals would likely be closely connected with the target of the
investigation. Public disclosure of the information the source provided—given that so few
individuals are privy to such information—might inevitably betray the source’s identity, and
disclosure of the source’s identity might make him or her a prime target for retaliation, as the
FBI explains in its declaration. See First Hardy Decl. ¶ 61. Under such circumstances, it is
reasonable to infer that the source would only have cooperated on the promise of confidentiality.
Second, Davis points out that the FBI, in its initial declaration, claimed the confidential
source’s information “helped lead to the eventual conviction of [Davis], and several co-
conspirators,” which Davis says is untrue. First Hardy Decl. ¶ 57. As explained above,
however, the FBI’s second declaration clarifies that the information it collected in its
investigation was not actually used in Davis’s eventual prosecution. See Second Hardy Decl.
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¶ 8. Davis says this mistake is reason enough to deny the FBI’s exemption. Opp. at 10. The
Bureau, for its part, maintains that its invocation of Exemption 7(D) is “still accurate and valid”
because the confidential source provided information in a criminal investigation. Second Hardy
Decl. ¶ 8.
If Davis means to argue that confidentiality should no longer attach when the source’s
information is not used to obtain a conviction, then the Court disagrees. Exemption 7(D) applies
to law-enforcement information that “could reasonably be expected to disclose the identity of a
confidential source” or could disclose “information furnished by a confidential source” in the
course of a criminal investigation. 5 U.S.C. § 552(b)(7)(D). Case law does not recognize, and
logic does not recommend, an extra-textual requirement that the information provided by the
confidential source prove critical to obtaining a criminal conviction, or even that it be helpful.
Instead, all Exemption 7(D) requires is that the information was elicited on a confidential basis in
the course of a criminal investigation. The rationale underpinning the confidential source
exemption is implicated even when the source’s information proves useless. Law enforcement
personnel must be able to guarantee confidentiality so that sources will “furnish information to
the FBI with complete candor and without the understandable tendency to hedge or withhold
information because of fear their cooperation with the FBI will later be made public.” First
Hardy Decl. ¶ 58. The “release of a source’s identity,” regardless whether that source was
crucial to a particular prosecution, “would forever eliminate that source as a future means of
obtaining information” and would have a “chilling effect on the activities and cooperation of
other sources providing information to the FBI.” Id. ¶ 59 (emphasis added).
Unpersuaded by either of Davis’s arguments, the Court concludes that the FBI has
adequately justified its Exemption 7(D) withholdings.
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4. Exemption 7(E)
Under Exemption 7(E), an agency may withhold “information compiled for law
enforcement purposes” if producing it “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “This provision creates ‘a relatively low
bar for the agency [to meet] to justify withholding.’” Prechtel, 330 F. Supp. 3d at 334
(quoting Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). “[T]he exemption looks not just
for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk
of circumvention, but for an expected risk; not just for an undeniably or universally expected
risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk,
but for the chance of a reasonably expected risk.” Mayer Brown LLP v. IRS, 562 F.3d 1190,
1193 (D.C. Cir. 2009). An agency need not make a “highly specific” showing of such a risk; it
need only “demonstrate logically how the release of the requested information might create” one.
Id. at 1194.
The FBI applied Exemption 7(E) to “non-public investigative techniques and procedures”
and to “non-public details about techniques and procedures that are otherwise known to the
public.” First Hardy Decl. ¶ 68. Specifically, it withheld records revealing “the techniques and
procedures [it] uses to collect and analyze information in connection with both criminal and
national security investigations,” id. ¶ 69; “sensitive information about investigative methods
used by the FBI for [Davis’s] investigation,” which are also used in national security
investigations more generally, id. ¶ 70; the “investigative focus” of certain FBI investigations,
the release of which the Bureau says would reveal its “strength and weaknesses within certain
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areas of the criminal arena,” id. ¶ 71; “sensitive case file numbers, or sub-file numbers,” which
would reveal the “existence of [publicly] unknown investigations” and “their nature and
geographical locations,” when combined with case file information already in the public domain,
id. ¶ 72, “non-public FBI secure email or IP addresses, and intranet web addresses,” id. ¶ 73; and
a “specific, sensitive law enforcement technique that was employed in the criminal investigation
of [Davis],” id. ¶ 74.
The Bureau’s declaration and brief expands on the rationale for withholding each subset
of information, but the Court need not pause for long on those explanations—for Davis is silent
in response. And given the “low bar” an agency must clear to justify an Exemption 7(E)
withholding, Blackwell, 646 F.3d at 42, perhaps that is for the better. Once the Court applies, as
it must, “a presumption of good faith” to the Bureau’s representations, SafeCard Servs., Inc., 926
F.2d at 1200, it becomes evident that the FBI has offered a sufficient justification for its
Exemption 7(E) withholdings. The withheld information concerns either non-public
investigative techniques themselves, or information that might tangentially reveal information
about how the FBI conducts investigations. And with each set of withholdings, the FBI has
offered a more-than-plausible explanation for how disclosure would risk enabling the
circumvention of the law. See Mayer Brown LLP, 562 F.3d at 1193. The Court therefore
concludes that the Bureau’s Exemption 7(E) withholdings were appropriate.
D. Wiped Hard Dive
Davis next complains that the Secret Service “destroyed material evidence” when it
returned to Davis’s wife a hard drive it had seized during the investigation—but only after
wiping it of its data. Opp. at 8. According to Davis, almost a year after receiving his FOIA
request, the Secret Service informed Davis that it possessed a hard drive he could retrieve; the
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Service told Davis’s wife that the hard drive had been wiped; the drive had not in fact been
wiped, however, and the order to do so came after Davis’s wife had arranged for its return.
Davis appears to believe that this sequence of events establishes a FOIA violation.
Davis is correct to note that any agency cannot avoid its FOIA disclosure obligations by
“intentionally transfer[ring] or destroy[ing] a document after it has been requested under FOIA.”
Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1004 (D.C. Cir. 2009). But the trouble with
Davis’s theory, as the government points out, is that it assumes “the hard drive in question must
have contained responsive records” and “that an adequate search by the Secret Service would
have necessarily involved a search of the hard drive.” Reply at 6. To the contrary, there is no
reason to believe “that the Secret Service had an obligation to search this hard drive for records
that were responsive to a FOIA request [Davis] made.” Id.
The Service maintains that “the hard drive in question was one that belonged to [Davis]
and had been taken into evidence by the Secret Service in the course of investigating [him].”
Reply at 5 n.2. Although it acknowledges that the hard drive was “wiped clean,” it explains that
was the “standard operating procedure[ ] for returning electronic evidence that includes personal
identifying information and evidence of a subject’s illegal activity.” Id. Yet, regardless why the
hard drive was wiped and whether it was done pursuant to “standard operating procedure,”
wiping a hard drive that belonged to Davis does not amount to a FOIA violation in this instance.
Davis sought, inter alia, arrest reports, investigatory records, evidence reports, plea agreements,
charging documents, and various other categories of records relating to the Service’s
investigation of him. See First Campbell Decl. ¶ 7. In other words, he wanted whatever records
the Service had created that were about him. There is no reason to think that a hard drive owned
by Davis and seized by the Service would contain such records. Because the hard drive does not
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fall within Davis’s request, he cannot show that the Service “intentionally transfer[red] or
destroy[ed] a document after it has been requested under FOIA,” making his reliance on
Chambers misplaced. See 568 F.3d at 1004.
E. Segregability
One last issue remains for resolution. FOIA 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). Although Davis does not appear to challenge
the Bureau or Service on segregability, it is well established that “agencies and courts are obliged
to determine whether nonexempt material can reasonably be segregated from exempt material.”
Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 (D.C. Cir. 1991). Accordingly, “it is
error for a district court to simply approve the withholding of an entire document without
entering a finding on segregability, or the lack thereof.” Schiller v. NLRB, 964 F.2d 1205, 1210
(D.C. Cir. 1992) (citation omitted). To meet its burden on segregability, an agency need only
show “with reasonable specificity why [withheld] documents cannot be further segregated.”
Armstrong v. Exec. Office of the President, 97 F.3d 575, 580 (D.C. Cir. 1996).
Both the FBI and Secret Service have done so. The FBI withheld in full 80 pages
because they “were fully covered by one or more of the cited FOIA exemptions, or because the
FBI determined that any non-exempt information on these pages was so intertwined with exempt
material that no information could be reasonably segregated for release.” First Hardy Decl. ¶ 75.
And to the extent anything on those pages could have been released, that would require using
“finite resources only to produce disjointed words, phrases, or sentences [that] would have
minimal or no informational content.” Id. The Secret Service likewise withheld in full 79 pages,
First Campbell Decl. ¶ 12, after a “line-by-line review of all responsive records” revealed that
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“further segregation was not possible because any non-exempt information is inextricably
intertwined with exempt information and releasing it would yield a product with little, if any,
additional informational value while expending substantial Secret Service time and resources,”
id. ¶ 58. Based on these uncontested representations, the Court concludes that the FBI and
Secret Service made every reasonable effort to disclose segregable material.
IV. Conclusion
For the reasons set forth above, the Court will grant the FBI’s and Secret Service’s
motions for summary judgment. A separate Order shall accompany this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: July 3, 2019
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