Pinson v. United States Department of Justice ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON :
:
Plaintiff, :
: Civil Action No.: 12-1872 (RC)
v. :
: Re Document No.: 300
UNITED STATES DEPARTMENT :
OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT
Plaintiff Jeremy Pinson, a federal inmate proceeding pro se, filed multiple Freedom of
Information Act (“FOIA”) requests seeking records from various components of the U.S.
Department of Justice (“DOJ”). In addition to releasing a number of records, the DOJ asked
Pinson to clarify some of her1 records requests, told her that it could not find records responsive
to some of her requests, and informed her that some of the records she sought were exempt from
disclosure by law. Pinson filed a complaint challenging some of these determinations and
alleging that the DOJ improperly withheld records.
In a prior opinion the Court granted in part and denied in part the DOJ’s first request for
summary judgment as to the claims against the Federal Bureau of Investigation (“FBI”). See Defs.’
1
Pinson identifies using feminine pronouns. The government and the Court follow suit.
See Defs.’ Mot. Dismiss or, Alt., Renewed Mot. Summ. J. at 2 n.1, ECF No. 287. The Court’s
use of feminine pronouns is not intended to reflect any substantive or legal characterization.
Mot. Partial Summ. J., ECF No. 137; Memorandum Opinion (“Mem. Op.”), ECF No. 276; Pinson
v. U.S. Dep’t of Justice, 177 F. Supp. 3d 56 (D.D.C. 2016).
Now before the Court is the DOJ’s second motion for summary judgment as to the
remaining twelve FOIA requests.2 See Defs.’ 2d Mot. Partial Summ. J. Respect FBI (“Defs.’ Mot.
Partial Summ. J.”), ECF No. 300. The DOJ argues that the FBI conducted an adequate search and
made proper withholdings pursuant to FOIA exemptions for each of Pinson’s requests. See Defs.’
Mem. P. & A., ECF No. 300-2. For the reasons set forth below, the Court grants in part and denies
in part the DOJ’s second motion for summary judgment as to the FBI.
I. FACTUAL BACKGROUND
A. FOIA Requests 1199153, 1217900, and 1217901
In her response to the DOJ’s most recent motion for summary judgment, Pinson
stipulated that summary judgment in favor of the DOJ was appropriate as to FOIA Requests
2
For clarity, the Court summarizes the progress of the FOIA requests Pinson submitted
to the FBI. The Court’s first opinion with regard to the FBI dealt with twenty-three numbered
and twelve unnumbered FOIA requests. See generally Memorandum Opinion (“Mem. Op.”),
ECF No. 276; Order, ECF No. 275. In that previous opinion, the Court entered judgment for the
FBI on sixteen of the numbered requests, specifically, Request Nos. 1153107, 1171229,
1186051, 1192365, 1194851, 1199078, 1202477, 1210450, 1210449, 1203873, 1217894,
1217895, 1217896, 1217897, 1217898, and 1217899. See generally Order, ECF No. 275;
Memorandum Opinion (“Mem. Op.”), ECF No. 276. Additionally, the Court entered judgment
for the FBI on seven of the unnumbered requests: (1) “Records on Jamil Al-Amin,” (2) “All
Criminal Matter Referrals from USP Victorville,” (3) “All Criminal Matter Referrals from ADX
Florence,” (4) “All Criminal Matter Referrals from USP Lewisburg,” (5) “All Criminal Matter
Referrals from FCI Talladega,” (6) “Letters to Wardens of FCI Talladega,” and (7) “Documents
Related to Lavallee Prosecution.” See generally Order, ECF No. 275; Memorandum Opinion,
ECF No. 276.
The remaining seven numbered and five unnumbered requests—Nos. 1178465, 1199153,
1199194, 1199202, 1217900, 1217901, 1229060, records related to investigations in 2007–08 of
assaults at USP Florence or Victorville, records related into investigations of the California
Aryan Brotherhood and Mexican Mafia, FD-302s of USP Victorville Homicide Investigations,
the addresses of all FBI offices, and letters to various BOP wardens—are the subject of this
opinion.
2
1199153, 1217900, and 1217901. Pl.’s Resp. Opp’n FBI Mot. Summ. J (“Pl.’s Opp’n”) at 1, ECF
No. 313. The Court therefore grants the DOJ summary judgment with respect to its responses to
FOIA Requests Nos. 1199153, 1217900, and 1217901.
B. Request No. 1178465
On November 21, 2011, Pinson submitted a request to the FBI for records “produced as a
result of the visit by [two] FBI Agents on Nov. 1, 2011 to the U.S. Penitentiary Max in Florence,
Colorado who spoke to me and took notes of my answers to their questions.” 2d Hardy Decl. Ex.
D, ECF No. 137-3. The FBI acknowledged the request and assigned the request number
1178465. 2d Hardy Decl. ¶ 11 & Ex. E. The FBI released three pages with redactions pursuant to
the Privacy Act Exemption (j)(2) and FOIA Exemptions 6 and 7(C). 2d Hardy Decl. ¶ 12 & Ex.
F.
The Court previously denied the DOJ summary judgment on this document because the
DOJ could not establish that Pinson had received the FBI’s response. See Mem. Op. at 30–31.
Pursuant to the Court’s order, the DOJ re-sent the original release letter to Pinson on April 29,
2016. Order, ECF No. 275 at 2; 3d Hardy Decl. ¶ 5 & Ex. B, ECF No. 302. The DOJ now moves
for summary judgment on the grounds that its search was adequate and that it produced to Pinson
all responsive records after properly withholding some records under FOIA Exemption 7(C).3 See
Defs.’ Mot. Partial Summ. J. at 2.
C. Request No. 1199194
In August 2012, Pinson submitted a request to the FBI for records “regarding
investigations of the California Aryan Brotherhood.” See 2d Hardy Decl. Ex. Q; Corr. 2d Am.
3
The DOJ also claimed additional, redundant exemptions, but as the Court finds that all
of the material which was properly withheld was exempt from disclosure under Exemption 7(C)
it does not address these exemptions.
3
Compl. at 6, ECF No. 32. As with other requests, she requested “no more than two hours search
time and 100 pages of information in this request.” 2d Hardy Decl. ¶ 28. The FBI acknowledged
receipt of the request and assigned the request number 1199194. 2d Hardy Decl. ¶ 29 & Ex. R.
The FBI then informed Pinson that the information requested on the California Aryan
Brotherhood could be accessed free of charge online at the FBI’s Vault.4 2d Hardy Decl. ¶ 30 &
Ex. S.
The Court previously denied summary judgment because the DOJ could not establish that
Pinson had received a response from the FBI concerning this request. See Mem. Op. at 30–31.
The Court’s previous opinion did not contemplate that the FBI had attempted to transmit any
records to Pinson.
The DOJ sent Pinson two letters referring to Request No. 1199194 subsequent to the
Court’s prior opinion. 3d Hardy Decl. Ex. B & C. The DOJ’s most recent declaration states first
that “[t]he responsive records pertaining to the California Aryan Brotherhood are located on the
FBI’s Online Webpage, the Vault.” 3d Hardy Decl. ¶ 7. The declaration continues: “[t]he FBI re-
reviewed the publically available documents and determined that additional segregable
information could be released; therefore, it reprocessed the records and released it to plaintiff on
July 22, 2016.” 3d Hardy Decl. ¶ 7. The DOJ now moves for summary judgment on the grounds
that its search was adequate and that it produced to Pinson all responsive records after properly
4
This appears to be a reference to the file “Aryan Brotherhood,” discussing an
investigation that began in the California prison system, available at https://vault.fbi.gov/
Aryan%20Brotherhood%20.
4
withholding some records pursuant to FOIA Exemptions 3 and 7(C).5 See Defs.’ Mot. Partial
Summ. J. at 2.
D. Request No. 1199202
In August 2012, Pinson submitted a request to the FBI for records “regarding
investigations of the California Mexican Mafia,” to which the FBI assigned the request number
1199202. See 2d Hardy Decl. ¶¶ 24, 25 & Exs. N, O; Corr. 2d Am. Compl. at 6. As with other
requests, she requested “no more than two hours search time and 100 pages of information in this
request.” 2d Hardy Decl. ¶ 24. By two separate letters dated September 27, 2012, the FBI both
acknowledged receipt of the request and advised Pinson that the information requested on the
California Mexican Mafia could be accessed free of charge online at the FBI’s Vault, the FBI’s
electronic reading room. 2d Hardy Decl. ¶¶ 25, 26 & Exs. O, P.
The Court previously denied summary judgment because the DOJ could not establish that
Pinson had received a response from the FBI on this request. See Mem. Op. at 30–31. Pursuant
to the Court’s order, the DOJ re-sent the correspondence related to this request to Pinson on
April 29, 2016. Order at 2; 3d Hardy Decl. ¶ 8 & Ex. B. The DOJ now moves for summary
judgment on the grounds that its search was adequate. See Defs.’ Mot. Partial Summ. J. at 2.
E. Request No. 1229060
On September 11, 2013, Pinson submitted a request to the FBI for records “related to a
9/10/13 FBI interview of [Pinson] at ADX Florence.” 2d Hardy Decl. ¶ 124 & Ex. ZZZZ. After
acknowledging receipt of the request and assigning the request number 1229060, the FBI
released two pages to Pinson and withheld information pursuant to Privacy Act Exemption (j)(2)
5
The DOJ also claimed additional, redundant exemptions, but as the Court finds that all
of the material which was properly withheld was exempt from disclosure under either Exemption
3 or Exemption 7 it does not address these exemptions.
5
and FOIA Exemptions 6, 7(A), 7(C), 7(D), and 7(F). 2d Hardy Decl. ¶¶ 125, 126 & Exs.
AAAAA, BBBBB.
The Court previously denied summary judgment because the DOJ could not establish that
Pinson had received a response from the FBI concerning this request. Mem. Op. at 30 n.16.
Pursuant to the Court’s order, the DOJ re-sent the original release letter to Pinson on April 29,
2016. Order, ECF No. 275 at 2; 3d Hardy Decl. ¶ 11 & Ex. B. The DOJ now moves for summary
judgment on the grounds that its search was adequate and that it produced to Pinson all responsive
records after properly withholding some records under FOIA Exemptions 6 and 7. See Defs.’ Mot.
Partial Summ. J. at 2.
F. Request for Documents Relating to the Californian Mexican Mafia and Aryan
Brotherhood; FD-302s of USP Victorville; and Letters to Various Wardens
In response to three of Pinson’s requests, the FBI concluded that the requests were not
specific enough to permit it to search its records. The affected requests were (1) Pinson’s request
for all documents “concerning the activities of the California Mexican Mafia and Aryan
brotherhood gangs within federal prisons generated since 2007,” 2d Hardy Decl. ¶ 150 & Ex.
KKKKK,6 (2) Pinson’s request for “all information, specifically Form-302[s], produced during
investigation of inmate homicides at the U.S. Penitentiary in Victorville, California between
2004 and 2012,” 2d Hardy Decl. ¶129 & Ex. CCCCC; Corr. 2d Am. Compl. at 7; and (3)
Pinson’s request for “production of all letters written by [the FBI] in California, Colorado to the
Wardens of Federal Correctional Complex or institutions in Florence, CO or/and Victorville, CA
[and/or Coleman] for any reason from 2008 to the present,” 2d Hardy Decl. ¶ 147 & Ex. IIIII.
6
At various points, the DOJ has mis-labeled Pinson’s request as pertaining to all
documents concerning these gangs “since 2005.” See, e.g., 2d Hardy Decl. ¶ 150. The
discrepancy has no effect on the Court’s analysis.
6
The FBI asserted that none of these requests were formulated with sufficient detail to
permit a search of its records. 2d Hardy Decl. ¶¶ 150–51; 2d Hardy Decl. ¶¶ 130–31 & Ex.
LLLLL; 2d Hardy Decl. ¶ 148 & Ex. JJJJJ. The DOJ was previously denied summary judgment
as to each of these three requests because it could not establish that Pinson had received any of
the three responses from the FBI. See Mem. Op. at 31–32. In accordance with the Court’s order,
the DOJ re-sent the original correspondence related to these requests to Pinson on April 29,
2016. See 3d Hardy Decl. ¶¶ 12, 13, 14 & Exs. B, D. These letters each stated that the requests
did “not contain enough descriptive information to permit a search,” and asked Pinson to “please
provide us with more specific information.” See 3d Hardy Decl. Exs. B, D; 2d Hardy Decl. Exs.
JJJJJ, LLLLL. Pinson acknowledges receiving the letters relating to the homicide investigations
and letters to wardens, but contends that they did not ask her to clarify her request. See Pinson
Decl. ¶ 12, ECF No. 313. The DOJ now again moves for summary judgment on all three requests
on the grounds that its search was adequate. See Defs.’ Mot. Partial Summ. J. at 2.
G. Request for Documents Relating to Assaults
On May 13, 2011, Pinson submitted a request to the FBI seeking information pertaining
to “Inmate on Inmate assaults referred for investigation by Bureau of Prisons during 2007–2008
at the U.S. Penitentiary Florence, Colo. or Victorville, CA.” 2d Hardy Decl. ¶ 158 & Ex.
RRRRR. The FBI referred this request to the Bureau of Prisons in May of 2011. 3d Hardy Decl.
¶ 16. The DOJ was previously denied summary judgment by the Court as to this request because
the Court had insufficient information to assess whether the referral was properly conducted and
whether the outcome of the referral was proper. See Mem. Op. at 20–21. Pursuant to the Court’s
Order, the FBI contacted the BOP inquiring about the status of the referral. 3d Hardy Decl. ¶ 16.
The BOP advised the FBI that it assigned the referral “Information Request Number 2011-
7
07767,” that it had completed processing of this request, and notified Pinson on March 14, 2012.
3d Hardy Decl. Ex. E. The BOP re-sent this letter to Pinson on July 25, 2016. Mem. P & A at 8–
9. Pinson does not claim she never received the letter, nor is there any indication she has
appealed the release. The DOJ now again moves for summary judgment. See Def.’s Mot. Partial
Summ. J. at 2.
H. Request for Addresses of FBI Offices
On May 6, 2011, Pinson submitted a request seeking an “[a]ddress directory to all agency
departments or field offices.” 2d Hardy Decl. ¶ 153 & Ex. MMMMM. The FBI responded
stating that her request did not contain enough information to conduct a search. 2d Hardy Decl.
¶ 154 & Ex. NNNNN. Pinson subsequently filed an appeal, on June 8, 2011, to which the Office
of Information Policy (“OIP”) assigned number AP-2011-02269. 2d Hardy Decl. ¶¶ 155–56 &
Exs. OOOOO, PPPPP. In its response on September 26, 2011, the OIP affirmed in part the FBI’s
actions, and also provided Pinson with a nine-page document, printed from the FBI’s website,
containing the contact information for all FBI field offices by state. 2d Hardy Decl. ¶ 157 & Ex.
QQQQQ.
The DOJ was previously denied summary judgment by the Court because it could not
establish that Pinson had received a response from the FBI concerning this request. See Mem.
Op. at 33–34. Pursuant to the Court’s order, the DOJ re-sent the original correspondence related
to this request to Pinson on April 29, 2016. See Order at 2; 3d Hardy Decl. ¶ 15 & Ex. B. The
DOJ now again moves for summary judgment on the grounds that its search was adequate. See
Defs.’ Mot. Partial Summ. J. at 2.
8
II. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate
when “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 “material” fact is one capable
of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to
return a verdict for the nonmovant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden
of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the nonmovant
must point to specific facts in the record that reveal a genuine issue that is suitable for trial.
Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must avoid
“making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the nonmovant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions
offered without any evidentiary support do not establish a genuine issue for trial. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
When assessing a summary judgment motion in a FOIA case, a court makes a de novo
assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. §
9
552(a)(4)(B); Judicial Watch v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C.
2009). To prevail on a motion for summary judgment, “the defending agency must prove that
each document that falls within the class requested either has been produced, is unidentifiable or
is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice,
627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable
Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant
may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Ethics
& Responsibility in Wash. v. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007) (“[T]he
Court may award summary judgment solely on the basis of information provided by the
department or agency in declarations when the declarations describe ‘the documents and the
justifications 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.’” (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “Ultimately, an agency’s justification for invoking
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370,
374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). A
reviewing court should generally “respect the expertise of an agency” and not “overstep the
proper limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1388 (D.C. Cir. 1979).
Even if the nonmovant does not respond to the motion for summary judgment, the court
cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a
motion for summary judgment cannot be ‘conceded’ for want of opposition.”). “The burden is
10
always on the movant to demonstrate why summary judgment is warranted. The nonmoving
party’s failure to oppose summary judgment does not shift that burden. The District Court must
always determine for itself whether the record and any undisputed material facts justify granting
summary judgment.” Id. (internal quotation marks omitted) (quoting Grimes v. District of
Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring) and citing Fed. R. Civ. P.
56(e)(3)).
III. ANALYSIS
The DOJ contends that all its remaining searches related to the FBI are either complete or
unfeasible because Pinson’s requests were too vague. The DOJ further contends that its claimed
exemptions are justified, as supported by its declarations by David Hardy, the Section Chief of
the FBI’s Record/Information Dissemination Section. Finally, the DOJ argues that it has
produced all reasonably segregable material when portions of documents could be released but
other portions were justifiably withheld.
Most of Pinson’s opposition to the DOJ’s motion concern the adequacy of its search. She
specifically argues that several searches did not uncover documents that she anticipated, that her
requests were definite enough to support a search, and that certain redactions made documents
difficult to identify. Although the Court finds that Pinson’s arguments relating to desired
documents and redactions are inapplicable and that many of the searches were acceptable, it
cannot say that two of her requests are too vague to allow for a search, and lacks sufficient
information about another to grant summary judgment. And, a lack of details surrounding an FBI
“referral” to the BOP leaves the Court unable to determine whether the DOJ’s search was
adequate.
11
Pinson may also take issue with some of the DOJ’s claimed exemptions, but her filings
do not make such objections clear. The Court nonetheless analyzes them and concludes that all
of the DOJ’s claimed exemptions are justified with the exception of one. With regard to that
exception, the Court is unable to ascertain what evidence the DOJ relies upon. The Court also
finds that the FBI released all reasonably segregable materials in what it has released so far.
Accordingly, the Court grants the DOJ’s motion in part and denies it in part.
A. Adequacy of The FBI’s Search
The DOJ asserts that its searches in response to all nine of the contested requests were
adequate.7 See Defs.’ Mot. Partial Summ. J. at 1–2. For each of these contested requests, the
Court will independently consider whether the record and undisputed facts justify granting
summary judgment as to the adequacy of the agency’s search even where Pinson does not
specifically contest that adequacy. The Court agrees that the searches conducted with respect to
most of these requests were adequate, but lacks sufficient information to determine the adequacy
of the searches with respect to Request No. 1199202, records relating to the investigations of
assaults, and certain requests the DOJ claims were too vague to permit searches.
Under FOIA, an adequate search is one that is “reasonably calculated to uncover all
relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation
mark omitted) (quoting Weisberg, 705 F.2d at 1351). The agency need not search “every record
system” for the requested documents, but it “must conduct a good faith, reasonable search of
those systems of records likely to possess the requested records.” Marino v. Dep’t of Justice, 993
7
After Pinson stipulated to the propriety of the DOJ’s response to three requests, the
remaining nine contested requests are Request Nos. 1178465, 1199194, 1199202, and 1229060,
as well as the unnumbered request pertaining to investigations of assaults in 2007–08,
investigations of the Aryan Brotherhood and Mexican Mafia, FD-302s of USP Victorville
homicide investigations, the addresses of all FBI offices, and letters to various wardens.
12
F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate
search, it must provide a “reasonably detailed” affidavit describing the scope of that search.
Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003) (quoting
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). It is not enough,
however, for the affidavit to state in conclusory fashion that the agency “conducted a review of
[the files] which would contain information that [the plaintiff] requested” and did not find
anything responsive to the request. Weisberg, 627 F.2d at 370. On the other hand, once the
agency has provided a reasonably detailed affidavit describing its search, the burden shifts to the
FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of
material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116.
The DOJ Adequately Searched in Response to Request Nos. 1178465,
1199194, and 1229060, but not Request No. 1199202
Pinson disputes the adequacy of the search with respect to a number of her FOIA
requests. First, Pinson contests the adequacy of the search as to Request No. 1178465,
contending that the FBI did not release certain handwritten notes that she specifically requested.
Pinson Decl. ¶ 3. Next, she states that she did not receive any response to Request No. 1199202.
See Pinson Decl. ¶ 6. Additionally, she argues that although she did receive documents with
respect to Request No. 1199194, those documents were old and did not deal with more recent
prosecutions, which she contends was the object of her request. See Pinson Decl. ¶ 5. For the
reasons set forth below, the Court agrees with the DOJ that its searches in response to Request
13
Nos. 1178465, 1199194, and 12290608 were adequate, but disagrees with the DOJ with respect
to Request No. 1199202.
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.” Defs. of
Wildlife, 623 F. Supp. 2d at 91 (quoting Valencia-Lucena v, 180 F.3d at 325). In general, courts
give considerable deference to agency affidavits supporting their searches. See Hidalgo v. FBI,
No. 10-5219, 2010 WL 5110399, at *1 (D.C. Cir. Dec. 15, 2010) (“[S]ubstantial weight [is]
traditionally accorded [to] agency affidavits in FOIA ‘adequacy of search’ cases.” (citing
Chambers v. U.S. Dep’t of the Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009))). Agency affiants
are also entitled to a rebuttable presumption of good faith. See id. With respect to the results of a
search, “it is long settled that the failure of an agency to turn up one specific document in its
search does not alone render a search inadequate.” Ancient Coin Collectors Guild v. U.S. Dep’t
of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (alteration and internal quotation marks omitted)
(quoting Iturralde, 315 F.3d at 315). Finally, an agency need not conduct a search when the
documents are already public because doing so “provide[s] an alternative form of access, . . .
satisf[ying] [the] requirement under FOIA to make records available to the public.” Shurtleff v.
EPA, 991 F. Supp. 2d 1, 19 (D.D.C. 2013). However, this does not relieve the agency of the
requirement that it show an adequate search responsive to the request was conducted at some
point. See Scudder v. CIA, 25 F. Supp. 3d 19, 49 (D.D.C. 2014).
The DOJ provided a declaration from the FBI showing adequate searches for Request
Nos. 1178465, 1199194, and 1229060, but not for No. 1199202. See generally 3d Hardy Decl.
8
Pinson admits that she received the materials from Request No. 1229060 and apparently
does not take issue with the search process itself, contesting only the “withheld material.” Pinson
Decl. ¶ 8.
14
With respect to the actual searches that the FBI conducted in response to these requests—
Requests No. 1178465 and 1229060—the DOJ’s declaration describes each request in detail,
explains to whom the request was sent, and specifies the databases searched. Specifically, the
FBI searched the indices to its Central Records System (“CRS”), which holds almost all FBI
records, for responsive materials. See 2d Hardy Decl. ¶¶ 11, 29, 125; Records of the Federal
Bureau of Investigation, National Archives, https://www.archives.gov/research/
investigations/fbi/central-records.html (last accessed 3/22/2017); see also Jett v. Fed. Bureau of
Investigation, 139 F. Supp. 3d 352, 365 (D.D.C. 2015), reconsideration denied, No. 14-CV-
00276 (APM), 2016 WL 107912 (D.D.C. Jan. 8, 2016). The FBI uses the CRS “to conduct
searches that are likely to yield documents responsive to FOIA and Privacy Act requests.” 2d
Hardy Decl. ¶ 160. The FBI accesses the CRS through the CRS’s indices. 2d Hardy Decl. ¶ 160–
62. Here, the FBI searched the CRS’s indices for responsive materials. 2d Hardy Decl. ¶ 125
(with respect to Request No. 1229060, the FBI “search[ed] the indices to its CRS”) & Ex.
AAAAA, BBBBB; 2d Hardy Decl. ¶ 11 & Ex. E (same with respect to Request No. 1178465).
This finding is in accord with another court in this district, which found a similar search of the
CRS reasonable under comparable circumstances—in a case in which Mr. Hardy served as the
defendants’ affiant, in fact. See Shapiro v. U.S. Dep’t of Justice, 37 F. Supp. 3d 7, 23 (D.D.C.
2014). Pinson does not dispute the reasonableness of using the CRS indices or the good faith
nature of the searches. However, she does assert that certain inadequacies existed in the searches
made in response to Requests No. 1178465, 1199202, and 1199194. See generally Pl.’s Opp’n.
The Court will address these contentions in turn.
The Court previously denied summary judgment for the DOJ on Request No. 1178465
because Pinson made a sworn declaration that she did not receive the documents, and the
15
documents themselves were not in the record. Pinson, 177 F. Supp. 3d at 77–78. Since then, the
FBI has re-sent the documents to Pinson. See 3d Hardy Decl. ¶ 5. Pinson does not dispute that
she received the documents. Rather, she contends that they were too redacted to be useful and
that they did not include a handwritten document that she requested. Pinson Decl. ¶ 3. Neither of
these arguments affect the adequacy of the FBI’s search process. The redactions pertain to
exemptions, and are thus examined infra. The fact that a particular document was not produced
is irrelevant under Ancient Coin Collectors Guild, particularly in the absence of any evidence
suggesting that the search itself was inadequate or that bad faith was afoot. 641 F.3d at 514; see
also Kay v. FCC, 976 F. Supp. 23, 33 (D.D.C. 1997) (citing SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1201 (D.C. Cir. 1991)) (“[I]f the agency does not possess the documents at the time
of the FOIA request, even though the documents may have existed at some earlier point in time,
the agency is not improperly withholding them.”), aff’d, 172 F.3d 919 (D.C. Cir. 1998).
As for Request No. 1199202, the FBI pointed Pinson towards records freely available on
its online portal instead of conducting a specific search. 2d Hardy Decl. ¶¶ 24–27 & Ex. P; 3d
Hardy Decl. ¶ 8 & Ex. B. Pinson claims that she did not receive a response to her request. Pinson
Decl. ¶ 6. She has not challenged the FBI’s referral to the online portal or articulated any barriers
to her accessing the portal. Nonetheless, the FBI has not fulfilled its burden of showing that it
conducted a search reasonably calculated to locate responsive documents. Although directing a
requester to a public set of documents that would otherwise be responsive to the request is
acceptable under FOIA, see Shurtleff, 991 F. Supp. 2d at 19, the FBI has done nothing more than
assert, in conclusory terms, that the documents available on its vault are responsive. See 2d
Hardy Decl. ¶¶ 24–27. The FBI never explains whether there are other responsive documents not
on the vault, how those documents were chosen, or whether the vault was up-to-date at the time
16
of Pinson’s request. See 2d Hardy Decl. ¶¶ 24–27 & Ex. P; 3d Hardy Decl. ¶ 8 & Ex. B. There
are also fewer than 100 pages of responsive material available online, the limit that Pinson set for
the search. See FBI Records: The Vault, Freedom of Information and Privacy Acts: Mexican
Mafia, https://vault.fbi.gov/Mexican%20Mafia (last accessed March 27, 2017). Accordingly, the
DOJ has not shown that it conducted a search reasonably calculated to uncover all relevant
documents. Defs. of Wildlife, 623 F. Supp. 2d at 91. The Court thus denies summary judgment
with respect to the search process in response to Request No. 1199202.
The DOJ also pointed Pinson toward public records for Request No. 1199194. See 2d
Hardy Decl. ¶¶ 28–31 & Ex. R; 3d Hardy Decl. ¶ 7. However, with respect to this request, the
FBI met its burden. After the Court’s previous order, the FBI re-mailed correspondence related
to this request to Pinson, once again informing her that the requested documents could be
accessed for free on the FBI’s public website. Going even further, the FBI also re-reviewed the
already publicly-available documents and determined that it could release further reasonably
segregable material that was previously redacted. 3d Hardy Decl. ¶ 7. Pinson’s argument that the
documents she received did not pertain to more recent investigations, see Pinson Decl. ¶ 5, is
incongruent with the language of her request. Pinson requested a maximum of 100 pages of
responsive materials. 2d Hardy Decl. ¶ 28. The documents available via the FBI’s vault total
over 150 pages. See FBI Records: The Vault, Freedom of Information and Privacy Acts: Aryan
Brotherhood, https://vault.fbi.gov/Aryan%20Brotherhood%20/Aryan%20Brotherhood%20Part%
201%20of%201/view (last accessed March 27, 2017). Unlike with request No. 1199202, it is
irrelevant that more documents may exist. If Pinson wanted more pages than her initial request or
pages on a different subject matter, she should have submitted a separate request.
17
The Court thus concludes that adequate searches were conducted with respect to Requests
No. 1178465, 1199194, and 1229060, but that the DOJ has not met its burden of showing that it
conducted a search reasonably calculated to uncover all responsive material with respect to
Request No. 1199202.
The FBI’s Referral of the Assaults Request to the
BOP does not Warrant Summary Judgment
The DOJ moves for summary judgment on Pinson’s request for information about certain
assault investigations on the grounds that the FBI referred the request to the BOP, and that BOP
completed the processing and notified Pinson that it was going to release certain pages and
withhold others under Exemptions 7(C), 7(E), and 7(F). See Defs.’ Mot. Partial Summ. J. at 8–9.
The DOJ further notes that the BOP re-released the records to Pinson’s counsel in 2016. See
Defs.’ Mot. Partial Summ. J. at 9. None of the evidence the DOJ cites to details the search
process that the BOP took in processing this request. See 2d Hardy Decl. ¶¶ 158–59; 3d Hardy
Decl. ¶ 16.
As noted in the Court’s previous opinion, “[t]he referral of records does not automatically
relieve the FBI of its disclosure responsibility.” Pinson, 177 F. Supp. 3d at 72. Indeed, “the
agency who received the FOIA request . . . is the agency ultimately responsible for responding to
the request,” and thus “the agency is not absolved of its obligations under FOIA when it refers
the documents elsewhere.” Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59, 70 (D.D.C.
2008).
The DOJ has, quite simply, not provided the Court with any details about the search
process, documents released, or exemptions claimed with respect to Pinson’s assault request. The
Hardy Declaration states only that the matter was referred to the BOP, and that the BOP
processed the request. 2d Hardy Decl. ¶¶ 158–59 & Ex. RRRRR. Without details of the search
18
and the BOP’s claimed exemptions, the Court cannot determine whether the “agency who
received the FOIA request” met its obligations.9 See Keys, 570 F. Supp. 2d at 70. The Court thus
denies summary judgment with respect to this request.
Requests Not Permitting a Search
For the unnumbered requests seeking (1) records relating to investigations of the
California Aryan Brotherhood and Mexican Mafia since 2007, (2) FD-302s from USP
Victorville homicide investigations, and (3) letters sent to the wardens of USPs Victorville,
Florence, Coleman, the FBI claims Pinson did not supply enough information to permit a search.
See 3d Hardy Decl. ¶¶ 12–15. Pinson contests the adequacy of the FBI’s search as to these three
requests and contends that, although she received the FBI’s letters, they did not ask her to
provide information with respect to the final two requests. See Pl.’s Opp’n at 1–2.
FOIA requests must describe the desired records in a way sufficient to “enable[] a
professional employee of the agency who was familiar with the subject area of the request to
locate the record with a reasonable amount of effort.” Dale v. IRS, 238 F. Supp. 2d 99, 104
(D.D.C. 2002) (quoting Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978)). “Broad,
sweeping requests lacking specificity are not sufficient.” Id. (citing Am. Fed’n of Gov’t Emps.,
Local 2782 v. U.S. Dep’t of Commerce, 632 F. Supp. 1272, 1277 (D.D.C. 1986), aff’d, 907 F.2d
203 (D.C. Cir. 1990)). A plaintiff’s refusal to make a request more specific can bolster the
agency’s claim that a request was too broad. See id. This is because FOIA does not allow
requesters to turn agencies into “full-time investigators on behalf of requesters.” Assassination
9
Notably, the Court has not identified this request having been dealt with in the context
of any of BOP’s motions for summary judgment. See generally Pinson v. Dep’t of Justice, No.
12-cv-1872, 2017 WL 663523 (D.D.C. Feb. 17, 2017); Pinson v. U.S. Dep’t of Justice, No. 12-
cv-1872, 2016 WL 29245 (D.D.C. Jan. 4, 2016); Pinson v. U.S. Dep’t of Justice, 199 F. Supp. 3d
203 (D.D.C. 2016).
19
Archives & Research Ctr., Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff’d, No. 89-5414,
1990 WL 123924 (D.C. Cir. Aug. 13, 1990).
The Court agrees with the DOJ that the first request was too vague for the FBI to process.
The request at issue was for all documents “concerning the activities of the California Mexican
Mafia and Aryan brotherhood gangs within federal prisons generated since 2007,” 2d Hardy
Decl. ¶ 150 & Ex. KKKKK. On its face, because of the breadth and sweeping nature of the
request, this request is too vague to expect an FBI employee familiar with the subject area to
conduct a search. See Dale v. IRS, 238 F. Supp. 2d at 104. The request is for “all” documents
related to two different prison gangs generated during the last decade, which supports Mr.
Hardy’s assertion that the request was too broad. See 2d Hardy Decl. ¶ 150. This conclusion is
bolstered by the fact that Pinson did not clarify her request when the FBI asked for her to do so.
Indeed, this is the one request in this category that Pinson does not address in her declaration.
See generally Pinson Decl. Because she did not respond to BOP’s request to clarify and the
language of the request is broad and sweeping, the Court will grant summary judgment for the
DOJ.
In contrast, the Court cannot say that Plaintiff’s second or third requests were too vague
for the DOJ to respond, at least on this record. Pinson’s second request, which is for “all
information, specifically Form-302[s], produced during investigation of inmate homicides at the
U.S. Penitentiary in Victorville, California between 2004 and 2012,” see 2d Hardy Decl. ¶ 129 &
Ex. CCCCC; Corr. 2d Am. Compl. at 7, seems reasonably narrow so as to allow a professional
employee familiar with FBI investigations into homicides at Penitentiary in Victorsville to
formulate a search. If this is not the case, the DOJ has not told the Court why. Instead, in
conclusory terms, it asserts that it informed Pinson that the request was too vague. See 2d Hardy
20
Decl. ¶ 130. It never explains why it finds the request to be vague, or what factors make this
seemingly-straightforward request overbroad. If, for example, inmate homicides are too
numerous or the investigations are too broad to make for a reasonable search (both unlikely), the
FBI should have said so in its exhibits.10 The FBI also did not clarify what it found vague in its
letter to Pinson. See 2d Hardy Decl. Ex. CCCCC. The Court simply cannot grant summary
judgment in favor of the DOJ on the record before it.
The same reasoning applies to Pinson’s third request, which was for “all letters written by
[the FBI] in California, Colorado to the Wardens of Federal Correctional Complex or institutions
in Florence, CO or/and Victorville, CA, [and/or Coleman] for any reason from 2008 to the
present.” 2d Hardy Decl. ¶ 147 & Ex. IIIII. This request cannot be dismissed out of hand. It
seems to be confined to a narrow universe of potential documents—letters—produced under a
narrow set of circumstances—written by the FBI in certain states to certain wardens within those
states—during a specified time—from 2008 to present. Yet the DOJ supplies no details
supporting its claim of vagueness by, for example, showing that letters exchanged between the
wardens and the FBI were too numerous to make the search reasonable in scope or providing
more detail about the manner the records are organized making such a search unreasonable.11 See
2d Hardy Decl. ¶¶ 147–48. Nor did it give Pinson any direction on how she should clarify her
request. See 2d Hardy Decl. Ex. IIIII.
10
For example, the FBI could indicate that a search of the records from the Field Office
with jurisdiction over Victorsville using the search terms “murder and/or homicide” and
“Victorsville” still generates too many records to reasonably review in order to locate responsive
Form-302 reports.
11
Are letters to the BOP wardens common, or rare? The record does not say. If such
letters are rare, do they typically come from a certain level of FBI official (for example, a Special
Agent in Charge) or are these letters authored by all Special Agents? Information of this type
can assist the Court in determining whether a particular search is feasible.
21
Accordingly, the Court grants summary judgment with respect to Pinson’s “California
Aryan Brotherhood and Mexican Mafia” request, but denies it with respect to her homicide and
warden correspondence requests.
The FBI Adequately Responded to Pinson’s Request for FBI Addresses
As noted above, Pinson submitted a request seeking an “[a]ddress directory to all agency
departments or field offices.” 2d Hardy Decl. ¶ 153 & Ex. MMMMM; accord Pinson, 177 F.
Supp. 3d at 69. The FBI responded by “provid[ing] [P]laintiff a nine page document, printed
from the FBI’s website, containing contact information for all FBI field offices . . . .” 2d Hardy
Decl. ¶ 157 & Ex. QQQQQ. The FBI also informed Pinson that it did not maintain a directory of
all FBI “departments.” 2d Hardy Decl. Ex. QQQQQ. Pinson acknowledges receipt of the FBI’s
response, but maintains that the letter does not “seek additional info[rmation] []or explain the
nonsearch.” See Pinson Decl. ¶ 11.
FOIA does not force agencies to create documents; it only requires them to produce
certain nonexempt materials for the public to see. NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
161–62 (1975). An agency need only create those documents “which the law requires the agency
to prepare or which the agency has decided for its own reasons to create.” Id. (citing Sterling
Drug, Inc. v. FTC, 450 F.2d 698, 702 (D.C. Cir. 1971)).
Given the DOJ’s explanation and the good faith presumption that the Court gives agency
affiants, the DOJ has adequately searched for and produced materials in response to this request.
The FBI provided Pinson with a complete list of all FBI field offices. 2d Hardy Decl. ¶ 157.
Beyond that, the Court has no reason to question the FBI’s assertion that it does not maintain a
directory of all its “departments.” Under NLRB v. Sears, Roebuck & Co., the FBI is not required
to create a document that it otherwise does not possess in order to respond to Pinson’s FOIA
22
request. As a result, the Court will grant the DOJ’s motion for summary judgment with respect to
the search concerning addresses.12
B. FOIA Exemptions
The DOJ next argues that the FBI properly withheld records, in whole or in part,
responsive to Request Nos. 1178465, 1199194, and 1229060 under FOIA Exemptions 3, 6,
7(A),13 7(C), and 7(D). See Statement of Material Facts Not in Genuine Dispute 1–6, ECF No.
300-1; 3d Hardy Decl. ¶¶ 21–22, 35–51 & pp. 3–5; 2d Hardy Decl. ¶¶ 201. Pinson states that
“the enumerated requests which the FBI claims exemption upon are hereby conceded and [will
be] subject to no further challenge from [P]laintiff,” with the caveat that she reserves her right to
contest future withholdings. See Pl.’s Opp’n at 2.14 However, in her declaration, Pinson states
that she “contests the withheld material” in Request No. 1229060 and seems to suggest that the
material in Request No. 1178465 was overly-redacted. Pinson Decl. ¶¶ 3, 8. In light of the pro se
nature of the plaintiff and the D.C. Circuit’s holding in Winston & Strawn, LLP, 843 F.3d at 505,
the Court will analyze the DOJ’s claimed withholdings notwithstanding Pinson’s apparent
concessions.
“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361 (1976). “Consistent with this purpose, agencies may withhold only
12
The FBI performs most of its functions through its Field Offices. If Pinson wanted the
address for a specific office (for example, Headquarters, the training facility at Quantico, or
forensics labs), she should have so specified.
13
The DOJ seemingly invokes Exemption 7(A) for FOIA Request No. 1229060,
however; as discussed infra at Part III.B.2.d, the Court could not locate the justifications for
withholdings relied upon by the DOJ in asserting this exemption.
14
Pinson’s Response contains inconsistent assertions as to whether she contests the
exemptions used by the FBI to withhold documents responsive to her FOIA requests. See Pl.’s
Opp’n at 1–2.
23
those documents or portions thereof that fall under one of nine delineated statutory exemptions.”
Elliot v. USDA, 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b)). “[T]he
exemptions are ‘explicitly exclusive.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
(1989) (quoting FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)). It is the agency’s burden to
show that withheld material falls within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B);
Elliott, 596 F.3d at 845.
Exemption 3
The FBI invoked Exemption 3 to withhold information responsive to Request No.
1199194, Pinson’s request for information related to the FBI’s investigation of the California
Aryan Brotherhood. See Defs.’ Mot. Partial Summ. J. at 5. Portions of the publicly-available
materials were withheld because they pertain to grand juries. See Defs.’ Mot. Partial Summ. J. at
5; 3d Hardy Decl. ¶¶ 21–25. The DOJ argues that the FBI properly invoked Exemption 3
because the withheld information “contain[s] information about the names of recipients of
federal grand jury subpoenas; information that identifies specific records subpoenaed by a
federal grand jury; and copies of specific records provided to a federal grand jury in response to
federal grand jury subpoenas.” 3d Hardy Decl. ¶ 22.
Exemption 3 permits the withholding of information “specifically exempted from
disclosure by [other] statute[s].” 5 U.S.C. § 552(b)(3). Withholding information is proper when
the statute either “leave[s] no discretion” or “establishes particular criteria for withholding or
refers to particular types of mattes to be withheld.” Id. §§ 552(b)(3)(A)(i)–(ii). Federal Rule of
Criminal Procedure 6(e) prohibits the disclosure of grand jury information. Fed. R. Crim. P. 6(e).
Rule 6(e) is a “statute” for purposes of Exemption 3 application. Boyd v. Exec. Office for United
States Attorneys, 87 F. Supp. 3d 58, 82 (D.D.C. 2015) (citing Fund for Constitutional Gov’t v.
24
Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981)). The scope of Rule 6(e) is
“necessarily broad.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d
856, 869 (D.C. Cir. 1981). However, “[t]here is no per se rule against disclosure of any and all
information which has reached the grand jury chambers.” Senate of the Com. of Puerto Rico on
Behalf of Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). Indeed,
invoking Exemption 3 “require[s] some affirmative demonstration of a nexus between disclosure
and revelation of a protected aspect of the grand jury's investigation.” Id. at 584. Thus, in
deciding whether grand jury information is protected from disclosure by Exemption 3, “the
touchstone is whether disclosure would tend to reveal some secret aspect of the grand jury’s
investigation such matters as 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. at 582 (internal quotation marks omitted). The D.C. Circuit has found that the following may
properly be withheld under the “broad reach of grand jury secrecy”: information[] naming or
identifying grand jury witnesses; quoting or summarizing grand jury testimony; evaluating
testimony; discussing the scope, focus and direction of the grand jury investigations; and
identifying documents considered by the grand jury and conclusions reached as a result of the
grand jury investigations.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656
F.2d 856, 869 (D.C. Cir. 1981).
The materials withheld under Exemption 3 relate to specific grand jury investigations. 3d
Hardy Decl. ¶ 22. As noted above, the withheld information concerned the identities of
“recipients of federal grand jury subpoenas; information that identifies specific records
subpoenaed by a federal grand jury; and copies of specific records provided to a federal grand
jury in response to federal grand jury subpoenas.” 3d Hardy Decl. ¶ 22. All of these categories of
25
materials embody information that could elucidate the “strategy or direction of the investigation”
of the grand jury, and is thus exempt from release. See Senate of P.R., 823 F.2d at 582–84; see
also Fund for Constitutional Gov’t, 656 F.2d at 869 (“Witness names are clearly covered [by
Exemption 3], as are documents subpoenaed as exhibits.”). Pinson concedes that this exemption
applies. See Pl.’s Opp’n at 2. The Court is satisfied that it does, and accordingly grants the DOJ
summary judgment with respect to its withholdings under Exemption 3.
Exemptions 6 and 7(C)
The DOJ also argues the FBI properly invoked Exemptions 6 and 7(C) as to documents
responsive to Request Nos. 1178465, 1199194, and 1229060 to prevent the disclosure of names
and other identifying information concerning FBI Special Agents, support personnel, third
parties of investigative interest, city, local, and state government employees, and third parties
who provided information to the FBI. See 3d Hardy Decl. ¶ 35–42. Exemption 6 protects
“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). Exemption 7(C) excludes
“records or information compiled for law enforcement purposes . . . 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.” Id. § 552(b)(7)(C). Both exemptions
require agencies and reviewing courts to “balance the privacy interests that would be
compromised by disclosure against the public interest in the release of the requested
information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting Davis v.
Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
Although the balancing test is applied to both Exemption 6 and 7(C), “Exemption 7(C) is
more protective of privacy than Exemption 6 and thus establishes a lower bar for withholding
26
material.” Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting
ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011)); see also U.S. Dep’t of Def. v.
Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994) (“Exemptions 7(C) and 6 differ in the
magnitude of the public interest that is required to override the respective privacy interests
protected by the exemptions.”). Specifically, “the balance tilts more strongly toward
nondisclosure in the context of Exemption 7(C) because ‘Exemption 7(C)’s privacy language is
broader than the comparable language in Exemption 6 in two respects.’” Braga v. FBI, 910 F.
Supp. 2d 258, 267 (D.D.C. 2012) (quoting Reporters Comm., 489 U.S. at 756). First, Exemption
6 “encompasses ‘clearly unwarranted’ invasions of privacy, while Exemption 7(C) omits the
adverb ‘clearly.’” Id. Second, Exemption 7(C) lowers the risk of harm standard from “would” to
“could reasonably be expected to” constitute an invasion. Id. The differences in the language
between the two exemptions reflect Congress’s decision to provide the government with “greater
flexibility in responding to FOIA requests for law enforcement records or information” than in
responding to requests for personnel, medical, and other similar files. See Reporters Comm., 489
U.S. at 777 n.22.
Accordingly, if the documents withheld and information redacted were “compiled for law
enforcement purposes only,” the Court need engage only in an analysis of whether the defendant
properly redacted information and withheld documents pursuant to Exemption 7(C). See People
for the Ethical Treatment of Animals v. Nat’l Insts. of Health, 745 F.3d 535 (D.C. Cir. 2014)
(confining its FOIA analysis to Exemption 7(C) because its “privacy language is broader than the
comparable language in Exemption 6” (quoting Reporters Comm., 489 U.S. at 756)); Roth v.
U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (finding “no need to consider
Exemption 6 separately [when] all information that would fall within the scope of Exemption 6
27
would also be immune from disclosure under Exemption 7(C)”); Rodriguez v. U.S. Dep’t of
Army, 31 F. Supp. 3d 218, 231 (D.D.C. 2014). Therefore, as an initial matter, the Court must
determine whether Exemption 7 applies to the withholdings in this case.
a. Threshold Inquiry
“[T]o withhold documents under Exemption 7, the agency must, as a preliminary matter”
make a “threshold” showing demonstrating “that the records were compiled for a law
enforcement purpose.” Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997). Agencies classified as
law enforcement agencies, like the DOJ here, receive deference to their assertion that documents
were compiled for a law enforcement purpose. See Pratt v. Webster, 673 F.2d 408, 418 (D.C.
Cir. 1982) (rooting deference in “the generally accurate assumption that federal agencies act
within their legislated purposes”). A court’s review of this threshold question is “necessarily
deferential,” but is “not vacuous.” Id. at 421.
To be sure, not every document compiled by a law enforcement agency is compiled for a
law enforcement purpose. See, e.g., Am. Immigration Council v. U.S. Dep’t of Homeland Sec.,
950 F. Supp. 2d 221, 245–46 (D.D.C. 2013) (relying on Pratt to reject ICE’s argument that all of
its records are compiled for a law enforcement purpose); Benavides v. Bureau of Prisons, 774 F.
Supp. 2d 141, 146–47 (D.D.C. 2011) (relying on Pratt to reject a “per se” rule that all BOP
documents are created for law enforcement purposes and finding that the recordings of inmates’
telephone conversations were not compiled for law enforcement purposes). To show that it was,
the agency must establish “(1) ‘a rational nexus between the investigation and one of the
agency’s law enforcement duties;’ and (2) ‘a connection between an individual or incident and a
possible security risk or violation of federal law.’” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (quoting Campbell v. Dep’t of Justice, 164 F.3d 20,
28
32 (D.C. Cir. 1998)); see also Pratt, 673 F.2d at 420 (setting forth the rational nexus test for the
first time in this circuit).
In 1986, Congress amended Exemption 7 to broaden the reach of the threshold
requirement from “investigatory records compiled for law enforcement purposes,” 5 U.S.C.
§ 552(b)(7) (1982) (emphasis added), to simply “records or information compiled for law
enforcement purposes,” Anti-Drug Abuse Act of 1986, § 1802(a), Pub. L. No. 99-570; see also
Tax Analysts, 294 F.3d at 79. The D.C. Circuit has made clear that, after the amendments, the
Pratt test applies only “when an agency seeks to invoke Exemption 7 in a situation in which
there is an ongoing law enforcement ‘investigation,’” but in that context, it “is still good law.”
Tax Analysts, 294 F.3d at 77–78. Where there is no ongoing investigation, materials may still
meet the threshold requirement of Exemption 7 if they are akin to “guidelines, techniques, and
procedures for law enforcement investigations and prosecutions outside of the context of a
specific investigation.” Id. at 78.
The FBI is the primary investigative agency of the federal government. Pinson’s requests
for materials related to “two separate homicide investigations that occurred in two Federal
Prisons, and the FBI’s investigation of the Aryan Brotherhood,” 3d Hardy Decl. ¶ 24 (emphasis
added), clearly show that the sought after materials were created and compiled for law
enforcement purposes. Accordingly, the FBI adequately establishes—as Pinson has apparently
conceded, see Pl.’s Opp’n at 2—that the responsive records at issue here were compiled for law
enforcement purposes within the scope of Exemption 7.
b. Exemption 7(C)
The DOJ argues that the FBI properly invoked Exemption 7(C) with respect to FOIA
Request Nos. 1178465, and 1199194. In applying Exemption 7(C), courts first determine
29
whether there is a privacy interest in the information requested. See ACLU, 655 F.3d at 6. If the
court finds a privacy interest, the court next balances the individual’s privacy interest against the
public interest, considering the public interest only insofar as it pertains to “the citizens’ right to
be informed about what their government is up to.” Davis, 968 F.2d at 1282 (quoting Reporters
Comm., 489 U.S. at 773). It is the FOIA requester’s obligation to articulate a public interest
sufficient to outweigh the individuals’ privacy interest, and the public interest must be
significant. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172–73 (2004).
Courts have “long recognized” that a “mention of an individual’s name in a law
enforcement file will engender comment and speculation and carries a stigmatizing connotation.”
Roth, 642 F.3d at 1174 (quoting Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir.
2003)). For those reasons, an agency may withhold the identities of targets of a law enforcement
investigation, witnesses, informants, and law enforcement officers under Exemption 7(C). See
SafeCard Servs., 926 F.2d at 1205. In fact, the D.C. Circuit has adopted “a 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). The D.C. Circuit has extended this protection to the names
of agency employees for similar, if not identical, reasons. See Lesar v. U.S. Dep’t of Justice, 636
F.2d 472, 487–88 (D.C. Cir. 1980); see also Roth, 642 F.3d at 1174; Schrecker, 349 F.3d at 661.
The DOJ argues that the FBI properly invoked Exemption 7(C) to prevent the disclosure
of “names and/or identifying information” of law enforcement personnel, their support
personnel, and third parties who interacted with law enforcement personnel. 3d Hardy Decl.
¶¶ 38–42. The FBI withheld materials to protect identifying information about FBI Special
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Agents, law enforcement support personnel, and city, local, and state law enforcement personnel
“who were responsible for conducting, supervising, and/or maintaining the investigative and
intelligence activities reported in the documents.” 3d Hardy Decl. ¶¶ 38, 40. As for third parties,
the FBI invoked Exemption 7(C) to “protect the names and identifying information” of third
parties “who are of investigative interest to the FBI and/or law enforcement agencies,” “third
parties merely mentioned in the responsive documents,” and “[third parties] who provided
information to the FBI during the course of the investigation described in the responsive
documents” 3d Hardy Decl. ¶¶ 39, 42. As the FBI correctly points out, these individuals have a
substantial privacy interest in not having their identities disclosed, because disclosure could lead
to “harassment or embarrassment [and] undue public attention.” 3d Hardy Decl. ¶¶ 39, 41, 42;
Roth, 642 F.3d at 1174. Pinson does not contest the withholding of records or information
compiled for law enforcement purposes under Exemption 7, and thus obviously does not show
that the public’s interest outweighs these privacy interests, let alone that the agency in any way
acted illegally. See Pl.’s Opp’n at 2. In light of the substantial privacy interests of these different
categories of individuals, the Court determines that the FBI properly withheld identifying
information under Exemption 7(C).
c. Exemption 7(D)
The DOJ contends that the FBI properly invoked Exemption 7(D) when it withheld
information responsive to Request No. 1199194. According to the DOJ, the FBI properly
withheld names, identifying information, and information provided to the FBI and/or other law
enforcement entities during the course of investigations under express grants of confidentiality.
3d Hardy Decl. ¶ 46. The DOJ also contends that the FBI properly invoked Exemption 7(D) with
respect to identifying information and information provided by a third party under circumstances
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in which confidentiality can be inferred, in this case an “individual who was associated with top
level Aryan Brotherhood members who [was] reporting on activity within the Aryan
Brotherhood and other gangs.” 3d Hardy Decl. ¶¶ 47–48. Finally, the DOJ claims the FBI
properly invoked Exemption 7(D) to prevent the disclosure of “permanent source symbol
numbers” assigned to confidential sources of the FBI.15 3d Hardy Decl. ¶ 49. Source symbol
numbers were assigned to “confidential informants who report information to the FBI on a
regular basis [under] express assurance[s] of confidentiality.” 3d Hardy Decl. ¶ 49. The Court
will first address the information withheld pursuant to express grants of confidentiality—
including the permanent source symbols of informants—and then address the information
withheld because of implied confidentiality.
i. Express Grants of Confidentiality
Exemption 7(D) protects law enforcement information that “could reasonably be
expected to disclose the identity of a confidential source . . . which furnished information on a
confidential basis.” 5 U.S.C. § 552(b)(7)(D). The exemption also “protects the ability of law
enforcement agencies to obtain relevant information from such sources” and “once an
informant’s confidentiality has been established almost nothing can eviscerate Exemption 7(D)
protection.” Sellers v. U.S. Dep’t of Justice, 684 F. Supp. 2d at 161 (internal quotations and
citations omitted). “[A] source is confidential within the meaning of Exemption 7(D) if the
source “provided information under an express assurance of confidentiality or in circumstances
from which such an assurance could be reasonably inferred.” U.S. Dep’t of Justice v. Landano,
508 U.S. 165, 172 (1993) (quoting S. Rep. No. 93–1200, at 13, reprinted in 1974 U.S.C.C.A.N.
15
“Permanent source symbol numbers” are numbers sequentially assigned to FBI
informants that are used to refer to those informants in lieu of their names. 3d Hardy Decl. ¶ 49.
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6267, 6291). Source symbol codes assigned under express grants of confidentiality are included
in this category. See Callaway v. U.S. Dep’t of Treasury, 577 F. Supp. 2d 1, 3 (D.D.C. 2008).
Exemption 7(D) plainly applies to the information withheld by the FBI because it was
obtained during the course of investigations with “express grants of confidentiality.” 3d Hardy
Decl. ¶ 46. The same is true for the permanent source symbols assigned to informants operating
under express grants of confidentiality. Callaway, 577 F. Supp. 2d at 3. Pinson does not contest
the applicability of this exception, and does not call into question the good faith nature of the
DOJ affiant’s credibility.
ii. Implied Confidentiality
In addition to protecting expressly confidential sources, Exemption 7(D) applies to
sources that are confidential by implication. See Landano, 508 U.S. at 179. The Supreme Court
has stated that it is reasonable to assume that the cooperation of paid informants is confidential
because informants have an ongoing relationship with the FBI and generally communicate with
the FBI covertly. See id. The same Court also reasoned that the gang-related nature of a crime
would support an inference that a witness would prefer to keep his identity a secret out of fear of
reprisal. See id. (“Most people would think that witnesses to a gang-related murder likely would
be unwilling to speak to the Bureau except on the condition of confidentiality.”).
The identities of FBI informants investigating top-level Aryan Brotherhood gang
members fit squarely within the reasoning in Landano. See 508 U.S. at 179. The government
seeks to withhold the identities of informants who provided information to the FBI on a
continual basis. See 3d Hardy Decl. ¶¶ 47–48. Moreover, the violent gang activities of the Aryan
Brotherhood support the inference that those informants would not have provided the FBI with
information “except on the condition of confidentiality.” See Landano, 508 U.S. at 179. Once
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again, Pinson does not contest the applicability of this exception. The Court concludes that the
exception applies.
* * *
In sum, all of the information withheld—information about investigations “under express
grants of confidentiality” including the permanent source symbols of informants, and the
identities of informants on top-level Aryan Brotherhood members—“could reasonably be
expected to disclose the identity of a confidential source.” See 5 U.S.C. § 552(b)(7)(D). Pinson
does not contest the applicability of this exception, and does not call into question the good faith
nature of the DOJ affiant’s credibility. Accordingly, the Court enters summary judgment for the
DOJ as to the information withheld pursuant to Exemption 7(D) in response to Request No.
1199194.
d. Request No. 1229060
With regard to FOIA Request No 1229060—which sought the records related to an FBI
interview of Pinson at ADX Florence—the FBI has failed to justify the withholdings under
Exemption 7(A). Defs.’ Mot. Partial Summ. J. at 7–8. It is unclear which supporting documents
in the record the FBI relies upon for justifying withholdings under Exemption 7(A). Nor is it
clear, based on the Court’s reading of the record, that the redactions under Exemption 7(A) are
redundant of other exemptions. See generally 2d Hardy Decl. The DOJ’s brief directs the Court
to paragraph 11 of the third declaration of David Hardy. See Defs.’ Mot. Partial Summ. J. at 8.
This paragraph states that “[j]ustification for withholding of information from these pages is
provided in paragraphs 189–193 of the Second Hardy Decl. See ECF No. 137, and 35–36 infra
for FOIA exemption (b)(7)(A).” 3d Hardy Decl. ¶ 11. However, paragraphs 189–93 of the
Second Hardy Decl. simply describe the Exemption 7 threshold issue outlined above and general
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law surrounding Exemption 7(A). See 2d Hardy Decl. ¶¶ 189–93. And, neither paragraphs “35–
36” nor pages 35–36 apply to Exemption 7(A). Paragraphs 35–36 of the third Hardy declaration
detail Exemptions b(6) and b(7)(C) and pages 35–36 are part of an irrelevant exhibit. Because
the Court cannot divine the justifications DOJ relies upon for Request No. 1229060, the Court
denies summary judgment with respect to Exemption (7)(A).
C. Segregability
FOIA requires that any reasonably segregable portion of a record shall be provided to any
person requesting such record after removal of exempt portions, unless the non-exempt portions
are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b); see also Johnson v.
Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). “Agencies are entitled to a
presumption that they complied with the obligation to disclose reasonably segregable material.”
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). To demonstrate that all
reasonably segregable material has been released, the agency must provide a “detailed
justification” for its non-segregability. Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d
242, 261 (D.C. Cir. 1977). However, the agency is not required to provide so much detail that the
exempt material would be effectively disclosed. Id.
Here, the DOJ provided Pinson with a “Summary of Justification Categories” index
describing each document withheld in part or in full, as well as the exemption under which it was
withheld. 3d Hardy Decl. at 9. The table details, with specificity, the nature of the withholdings
and the legal justifications. Pinson concedes that the exemptions apply, and thus obviously does
not overcome the “presumption that [the FBI] complied with the obligation to disclose
reasonable segregable material.” See Pl.’s Opp’n at 2; Sussman, 494 F.3d at 1117. The
declaration of Mr. Hardy is therefore sufficient to fulfill the agency’s obligation to show with
35
“reasonable specificity” why a document cannot be further segregated. See Armstrong v. Exec.
Office of the President, 97 F.3d 575, 578–79 (D.C. Cir. 1996).
The only argument by Pinson that the FBI did not produce all reasonably segregable
material was that its response to Request No. 1178465—which sought documents related to two
visits by the FBI to ADX Florence—was “so heavily redacted it supplied no information about
the document’s contents.” See Pinson Decl. ¶ 3. In general, “no genuine dispute is shown merely
because a released record was heavily redacted.” Plunkett v. Dep’t of Justice, 924 F. Supp. 2d
289, 304 (D.D.C. 2013). Pinson’s argument is indistinguishable from the rejected argument in
Plunkett. The conclusory statement that a document is heavily redacted does not suffice to refute
an agency’s detailed showing that all reasonably segregable material has been released.
Accordingly, the Court grants the DOJ summary judgment with respect to issues of
segregability.
IV. CONCLUSION
For the foregoing reasons, the DOJ’s motion for summary judgment is GRANTED IN
PART and DENIED IN PART. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: March 29, 2017 RUDOLPH CONTRERAS
United States District Judge
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