Sciacca v. Federal Bureau of Investigation ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANTHONY SCIACCA, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-cv-2030 (KBJ)(JMF)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
The Federal Bureau of Investigation (“FBI”) began to investigate Plaintiff
Anthony Sciacca (“Sciacca”) in the late 1990s as part of a wider investigation into an
organized crime group. (Second Declaration of David M. Hardy (“Hardy Decl.”), ECF
No. 12-1, ¶ 5.) On May 7, 2001, Sciacca pled guilty in the United States District Court
for the Eastern District of New York to a charge of racketeering in violation of 18
U.S.C. § 1962(c), and on November 8, 2001, a judge of that court sentenced Sciacca to
23 years in federal prison, where he remains to this day. (Id. ¶¶ 5-6.) Sciacca has
brought this action against the FBI, the Department of Justice (“DOJ”), and DOJ’s
Office of Information and Privacy (“OIP”) (collectively, “Defendants”) alleging that
Defendants have mishandled a document request that Sciacca submitted in 2006,
pursuant to the Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”). (See generally
Complaint (“Compl.”), ECF No. 1.) Defendants filed a motion for summary judgment
on May 4, 2009, which the Court referred to Magistrate Judge John M. Facciola.
1
On February 16, 2012, Magistrate Judge Facciola issued a Report and
Recommendation finding that the Court should deny Defendants’ summary judgment
motion. As discussed further below, because Defendants have failed to provide this
Court with sufficient information to evaluate the propriety of the various FOIA
exemptions that Defendants have invoked to withhold and redact presumably responsive
documents, the Court will adopt the Report and Recommendation as a part of its
opinion and DENY Defendants’ summary judgment motion without prejudice. As the
Order accompanying this Memorandum Opinion states, Defendants will now have the
opportunity to submit supplemental declarations and/or a Vaughn index that provides
the necessary information.
I. BACKGROUND & PROCEDURAL HISTORY
On December 19, 2006, Sciacca submitted a FOIA request to the FBI’s New
York Field Office seeking documents related to his criminal case. (Hardy Decl. ¶ 7.)
Specifically, Sciacca requested: “all records in possession of the Federal Bureau of
Investigation on myself or which makes reference to myself.” (See Hardy Decl.,
Exhibit A, ECF No. 12-2, at 2.)
On November 15, 2007, the FBI informed Sciacca that they had been unable to
locate any documents responsive to his request, claiming that Sciacca’s case documents
were not in their expected storage location and could not be found elsewhere after a
reasonable period of time. (Hardy Decl. ¶ 11.) The FBI further notified Sciacca that
he had a right to appeal this “unable to locate” result to the OIP. (Id.) Sciacca availed
himself of this appeal on December 3, 2007. (Id. ¶ 12.)
2
On March 3, 2008, the OIP advised Sciacca that relevant records had been found
after a second search, but that the FBI would nonetheless withhold all of the records
pursuant to FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which exempts from the
reach of FOIA “records or information compiled for law enforcement purposes” to the
extent the production of such records “could reasonably be expected to interfere with
enforcement proceedings.” (Id. ¶ 14.) Then, on November 16, 2008, Sciacca filed suit
in this Court. (See Compl.) Sciacca styled his complaint as alleging violations of his
due process and equal protection rights; however, the substance of his complaint is
simply an allegation that the FBI violated the FOIA statute in its handling of Sciacca’s
request. (See id. at 5-6.) As relief, Sciacca seeks an order directing the FBI to release
the requested documents. (Id. at 7.)
On March 4, 2009, approximately three and a half months after Sciacca filed his
complaint, the FBI produced 281 pages of the records Sciacca had requested, in full or
in part, out of 365 pages it claimed to have reviewed at that point, withholding the
remaining 84 pages in full. (Hardy Decl. ¶ 16.) The FBI asserted various FOIA
exemptions to justify its redactions of the produced documents and its withholding the
remainder of the documents, including Exemption 2, which pertains to matters that are
“related solely to the internal personnel rules and practices of an agency,” 5 U.S.C.
§ 552(b)(2); Exemption 3, which relates to matters that are “specifically exempted from
disclosure by statute,” 5 U.S.C. § 552(b)(3); Exemption 6, which 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), and Exemption 7,
which applies to “records or information compiled for law enforcement purposes,”
3
5 U.S.C. § 552(b)(7). (Id.) 1 On April 30, 2009, the FBI produced to Sciacca another
141 pages, in full or in part, out of an additional 279 pages it had reviewed, withholding
the remaining 138 pages in full, and invoking the same FOIA exemptions as before to
justify its redactions and withholding. (Id. at ¶ 17).
A. Defendants’ Motion For Summary Judgment And Accompanying
Declaration
On May 4, 2009, Defendants moved for summary judgment on Plaintiff’s claims,
asserting that the productions they had made satisfied any FOIA obligations, and thus
no genuine questions of material fact remained in the case. (See Mem. in Supp. of
Defs.’ Mot. For Summ. J. (“Defs.’ Br.”), ECF No. 12, at 1.) In support of the motion,
Defendants submitted a lengthy declaration from David M. Hardy, the Section Chief of
the Record/Information Dissemination Section, Records Management Division of the
FBI. (Hardy Decl. ¶ 1.)
The Hardy Declaration begins with a summary of the procedural history of
Sciacca’s FOIA request, then explains the organization of the FBI’s central records
system and details the steps taken to search for and review records responsive the
Sciacca’s request. (Id. ¶¶ 7-33.) The Declaration notes that two separate tranches of
records were produced to Hardy—the first comprised of 281 of 365 responsive pages
1
Exemption 7 itself contains six separate subcategories. Defendants invoked three of these in redacting
and withholding information otherwise responsive to Sciacca’s request: Exemption 7(C), which covers
records compiled for law enforcement purposes that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C); Exemption 7(D), relating records
compiled for law enforcement purposes that “could reasonably be expected to disclose the identity of a
confidential source,” 5 U.S.C. § 552(b)(7)(D); and Exemption 7(E), which applies to records compiled
for law enforcement purposes that “would disclose techniques and procedures for law enforcement
investigations,” 5 U.S.C. § 552(b)(7)(E). (See Hardy Decl. ¶ 40.)
4
produced in full or in part; the second comprised of 141 of 279 responsive pages
produced in full or in part. (Id. ¶¶ 16-17.) 2
Next, the Hardy Declaration goes on to explain the coding system used to redact
portions of the pages produced to Sciacca. It notes that each produced page “on its face
contains coded categories of exemptions which detail the nature of the information
withheld,” and that these “coded categories” appear next to the specific information that
has been withheld (that is, redacted). (Id. ¶ 39.) Moreover, in addition to identifying
the type of information redacted, the coded categories displayed on each page also
identify which specific FOIA exemption the information implicates. (Id.) In other
words, each “coded category” appearing next to a specific redaction conveys two pieces
of information to the reader: 1) the type of information redacted; and 2) the specific
FOIA exemption (or exemptions) that justify redacting that type of information. As an
example, the Declaration states that
on Bates Page SCIACCA-2 “Exemption (b)(7)(C)-1” is cited
to protect the names and/or identifying information
concerning FBI Special Agents and Support Employees.
The ‘(b)(7)(C)’ designation refers to Exemption (b)(7)(C) of
the FOIA concerning Unwarranted Invasion of Personal
Privacy. The numerical designation ‘1’ following the
(b)(7)(C) narrows the category of protected information
from the main category to the more specific subcategory of
“FBI Special Agents and Personnel.”
(Id. ¶ 39.)
The Hardy Declaration goes on to list eighteen different types of information
redacted in the records produced to Sciacca. (Id. ¶ 40.) For each of these types of
information, the Declaration lists the corresponding coded category (or, in some cases,
2
While the Hardy Declaration does not so specify, the Court assumes that the difference between the number of
total responsive pages and the number of pages released to Sciacca consists of pages withheld in full.
5
categories) that identifies the specific FOIA exemption that justifies redacting that type
of information wherever it appears in the records produced to Sciacca. (Id. ¶ 40.) For
example, the Declaration identifies “Confidential Source Symbol Numbers,” as having
category code (b)(2)-1. (Id.) Thus, wherever the coded category (b)(2)-1 appears next
to a redaction in the records produced, it indicates to the reader that Defendants have
redacted a Confidential Source File Number because they believe that such numbers are
exempt from disclosure under FOIA Exemption 2.
In some cases, multiple coded categories are listed for a particular type of
information, indicating that Defendants believe that more than one FOIA exemption
authorizes redacting that particular type of information. For example, the entry for
Confidential Source Symbol Numbers not only identifies that type of information as
having coded category (b)(2)-1, but also notes that it is “cited in conjunction with
[coded category] (b)(7)(D)-2,” (id.) which protects information that “could reasonably
be expected to disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D).
In other words, the categorization system outlined in the Hardy Declaration attempts to
identify each different type of information that was redacted from the records produced
to Sciacca, and also to identify which FOIA exemption or exemptions are applicable to
each of those types of information.
After explaining how Defendants categorized the redactions in the records that
they produced, the Hardy Declaration goes on to explain the justification behind the
redaction of each of the eighteen types of information, including why FOIA Exemptions
2, 3, 6, and/or 7, respectively, justify redacting those types of information. (Hardy
Decl. ¶¶ 42-86.) For example, in discussing Defendants’ decision to redact
6
Confidential Source Symbol Numbers pursuant to FOIA Exemptions 2 and 7(D), the
Declaration explains that a “Confidential Source Symbol Number” is an internal FBI
designation used to identify the source of information used in FBI reports, and that
“release of these source symbol numbers would indicate both the scope and location of
FBI informant coverage within a particular geographic area” and could potentially be
used to identify confidential sources. (Id. ¶¶ 44-45.) For each of the eighteen types of
information, the Hardy Declaration provides a similar explanation, and then identifies
the Bates number of each produced page that that type of information appears on—for
example, code category (b)(2)-1 “has been cited on the following pages: SCIACCA-
293, 314, and 317.” (Id. ¶ 45.)
Finally, the Hardy Declaration includes a statement that the pages that were
withheld in full contain no “reasonably segregable” information, such that if they were
redacted and released, all that would actually be produced would be “a patchwork of
unintelligible text.” (Id. ¶ 87.)
In his opposition to Defendants’ motion for summary judgment, Sciacca raises
two issues that he claims should preclude entry of summary judgment in Defendants’
favor. First, Sciacca argues that he is unable to evaluate effectively Defendants’
application of the relevant exemptions because Defendants have not provided an
adequate Vaughn index. Second, Sciacca contends that summary judgment is not
warranted because Defendants acted in bad faith when they initially claimed that they
could find no documents responsive to his FOIA request. (Pl.’s Opp. to Defs.’ Mot. for
Summ. J. (“Pl. Opp.”), ECF No. 23, at 5-7.)
7
B. The Magistrate Judge’s Report and Recommendation
On October 11, 2011, the Court referred Defendants’ summary judgment motion
to Magistrate Judge Facciola for a Report and Recommendation regarding the motion.
(See Order Referring Case to Magistrate Judge, ECF No. 28.) On February 16, 2012,
Magistrate Judge Facciola issued such a report, which concluded that the Hardy
Declaration was insufficient as a matter of law to support all of the Defendants’
justifications for the withholding of records, and thus that Defendants’ summary
judgment motion should be denied. (See Report and Recommendation, ECF No. 31, at
3.) Specifically, Magistrate Judge Facciola concluded that the Hardy Declaration had
failed to demonstrate that the pages Defendants had fully withheld contained no
additional reasonably segregable information. (Id.) 3
On March 1, 2012, Defendants filed a timely objection to the Magistrate Judge’s
report. (Defs.’ Objections to the Magistrate Judge’s Report and Recommendation
(“Defs.’ Obj.”), ECF No. 32.) Defendants argued that the Hardy Declaration satisfied
their burden of showing that the records withheld in full were not reasonably segregable
through its statement that any non-exempt information in these records would amount to
merely “a patchwork of unintelligible text.” (Id. at 8.)
II. LEGAL STANDARDS
A. An Agency’s Obligation Under FOIA
FOIA “generally requires the disclosure, upon request, of records held by a
federal government agency[.] ” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796
F. Supp. 2d 13, 18 (D.D.C. 2011). Specifically, FOIA provides in relevant part that
3
The report did not address Sciacca’s arguments about the lack of a Vaughn index or Defendants’ bad
faith.
8
[E]ach agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed, shall
make the records promptly available to any person.
5 U.S.C. § 552(a)(3)(A). FOIA “was enacted to facilitate public access to Government
documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 171 (1991), in order to provide
“a means for citizens to know ‘what their Government is up to.’” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171 (2004). However, “[i]n enacting FOIA,
the Congress sought to balance the public’s interest in governmental transparency
against legitimate governmental and private interests [that] could be harmed by release
of certain types of information.” United Tech. Corp. v. U.S. Dep’t of Def., 601 F.3d
557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). To that end,
“Congress included nine exemptions permitting agencies to withhold information from
FOIA disclosure.” Judicial Watch, 796 F. Supp. 2d at 23.
Whenever it invokes one of the nine FOIA exemptions, a government agency
bears the burden of demonstrating that the records requested do in fact qualify for that
exemption. See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.
Cir. 2003). Moreover, even if a portion of the records is justifiably withheld pursuant
to one of the enumerated exemptions, “[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). “The government bears the burden of
demonstrating that no reasonably segregable material exists in the withheld documents”
and “must provide[ ] a detailed justification and not just conclusory statements to
demonstrate that all reasonably segregable information has been released.” Barouch v.
9
DOJ, No. 12-cv-0129, 2013 WL 4494686, at *17 (D.D.C. Aug. 23, 2013) (internal
quotation marks and citations omitted).
“Because of its unique evidentiary configuration, the typical FOIA case ‘distorts
the traditional adversary nature of our legal system’s form of dispute resolution.’”
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006) (quoting King v.
DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987)). “When a party submits a FOIA request, it
faces an ‘asymmetrical distribution of knowledge’ where the agency alone possesses,
reviews, discloses, and withholds the subject matter of the request.” Id. (quoting King,
830 F.2d at 218). “Accordingly, the FOIA places the burden on the agency to establish
its right to withhold information under one of the enumerated FOIA Exemptions. An
agency may do so through producing a Vaughn index, which is an affidavit that indexes
and specifically describes withheld or redacted documents and explains why each
withheld record is exempt from disclosure.” Schoenman v. FBI, 604 F. Supp. 2d 174,
196 (D.D.C. 2009) (citing King, 830 F.2d at 219). An agency may also rely upon
“sufficiently detailed affidavits or declarations” in discharging its burden under FOIA.
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009).
B. Summary Judgment In FOIA Cases
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife, 623 F. Supp. 2d at 87 (citing Bigwood v. U.S.
Agency for Int’l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007)). Under Rule 56 of the
Federal Rules of Civil Procedure, summary judgment must be granted when the
pleadings, the discovery and disclosure materials on file, and any affidavits, “‘show that
there is no genuine issue as to any material fact and that the movant is entitled to a
10
judgment as a matter of law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) (quoting Fed. R. Civ. P. 56). In the FOIA context, a district court reviewing a
motion for summary judgment conducts a de novo review of the record, and the
responding federal agency bears the burden of proving that it has complied with its
obligations under the FOIA. 5 U.S.C. § 552(a)(4)(B); see also In Defense of Animals v.
Nat’l Insts. of Health, 543 F. Supp. 2d 83, 92-93 (D.D.C. 2008) (same). The court must
analyze all underlying facts and inferences in the light most favorable to the FOIA
requester. See Wills v. DOJ, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). As such, summary
judgment for an agency is only appropriate after the agency proves that it has “fully
discharged its [FOIA] obligations[.]” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.
1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th Cir. 1985)).
A court may award summary judgment based solely upon the information
provided in affidavits or declarations when the affidavits or declarations describe “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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations “are accorded a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.1991)
(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
11
C. Review Of A Magistrate Judge’s Report And Recommendation
“[A] magistrate judge’s report and recommendation is reviewed de novo.” Bode
& Grenier, LLP v. Knight, 821 F. Supp. 2d 57, 60 (D.D.C. 2011) (internal quotation
marks and citation omitted). “The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.
§ 636(b). When objecting to a report and recommendation, “the parties may not present
new issues or arguments to the district judge; rather, only those issues that the parties
have raised in their objections to the Magistrate Judge’s report will be reviewed by this
court.” M.O. v. D.C., No. 11-cv-1695, 2013 WL 5424705 (D.D.C. Sept. 30, 2013)
(internal quotation marks and citation omitted). “And ‘when a party makes conclusory
or general objections, or simply reiterates his original arguments, the Court reviews the
Report and Recommendation only for clear error.’” Id. (quoting Alaimo v. Bd. of Educ.
of the Tri–Valley Cent. Sch. Dist., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009).
III. ANALYSIS
Defendants here maintain that they have fully complied with their FOIA
obligations by conducting an adequate search for documents responsive to Sciacca’s
request, by producing all responsive, reasonably segregable records, and through the
Hardy Declaration, by carrying their burden of justifying their withholding or redaction
of certain records. Accordingly, Defendants maintain that there is no remaining issue
of material fact, and therefore that summary judgment should be granted in their favor.
(Defs.’ Br. at 1.)
12
In considering the pending motion for summary judgment, the ultimate question
this Court must address is whether Defendants have carried their burden of justifying
the invocation of various FOIA exemptions to redact and withhold documents that
would otherwise be responsive to Sciacca’s FOIA request. Of course, in order for this
Court to make that determination, Defendants must provide sufficient information
regarding the records that were redacted or withheld in their entirety and also
Defendants’ reasons for treating certain responsive records in this fashion; here, this
question of whether or not Defendants here have provided sufficient information about
their withholdings is the crux of the current dispute. Magistrate Judge Facciola
concluded that the Hardy Declaration does not provide adequate support for
Defendants’ arguments regarding segregability. Moreover, Sciacca maintains that
Defendants have not provided a sufficient Vaughn index as a matter of law, and that
Defendants acted in bad faith such that the Hardy Declaration—which has been offered
as evidence regarding how the agency discharged its FOIA obligations—should not be
accorded a presumption of good faith. For the reasons explained below, this Court
concludes that Defendants have fallen short of their duty to provide adequate
information regarding the redactions and withholdings, and that, without more
information, this Court cannot evaluate whether Defendants have properly employed the
various exemptions pursuant to which Defendants redacted and withheld the documents
in question.
A. Defendants Have Failed To Provide Adequate Support For Their
Conclusory Statement Regarding Segregability
“If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after deleting the exempt portions, unless the
13
non-exempt portions are inextricably intertwined with exempt portions.” Salas v.
Office of Inspector Gen., 577 F. Supp. 2d 105, 112 (D.D.C. 2008) (citing Trans-Pac.
Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999)). In order to
justify withholding an entire record on the grounds that any non-exempt information is
“inextricably intertwined” with exempt information, an agency “‘must demonstrate [to
the Court] that it cannot segregate the exempt material from the non-exempt and must
disclose as much as possible.’” Defenders of Wildlife, 623 F. Supp. 2d at 90 (quoting
Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003)). Indeed, “[b]efore
approving the application of a FOIA exemption, the district court must make specific
findings of segregability regarding the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). And while “[a]gencies are
entitled to a presumption that they complied with the obligation to disclose reasonably
segregable material,” id. at 1117, “a blanket declaration that all facts are so intertwined
to prevent disclosure under the FOIA does not constitute a sufficient explanation of
non-segregability. . . . rather, for each entry the defendant is required to specify in
detail which portions of the document are disclosable and which are allegedly exempt.”
Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004) (emphasis in
original) (internal quotation marks and citations omitted).
As noted above, Magistrate Judge Facciola’s Report and Recommendation found
that Defendants had failed to carry their burden of showing the documents withheld in
full contained no reasonably segregable information. The Report and Recommendation
specifically takes issue with paragraphs 87 and 88 of the Hardy Declaration, which
provide in relevant part:
14
(87) After extensive review of the documents at issue, it has
been determined that there is no further reasonably
segregable information which may be released. The fully
withheld documents are not segregable in that the extensive
redactions would only cause a patchwork of unintelligible
text. Thus, the FBI should not be required to segregate these
words and phrases from disclosure.
***
(88) The FBI has processed and released all reasonably
segregable information from the records responsive to
plaintiff’s request to the FBI.
(See Report and Recommendation at 2-3.) Magistrate Judge Facciola found that these
statements were inadequate as a matter of law to meet the standard articulated above.
In their objection to the magistrate judge’s Report and Recommendation,
Defendants point out that the focus of FOIA is on the substance of the documents
subject to a request rather than the individual words, and thus they are not required to
disclose documents where extensive redactions would cause only “a patchwork of
unintelligible text” to be produced. (Defs.’ Obj. at 4-6.) Defendants also attempt to
distinguish the cases Magistrate Judge Facciola relied upon in his report, arguing that
those cases did not address situations involving the production of heavily redacted
documents. (Id. at 6-7.) Defendants argue that, because of these factors, they should
not be required to expend the effort to redact and produce the withheld documents. (Id.
at 7-8.)
Defendants are correct in their recitation of the prevailing legal standard, but
miss the point of Magistrate Judge Facciola’s recommendation. While it is true that
Defendants need not produce documents where redactions would cause them to have
“minimal or no information content,” Mead Data Cent., Inc. v. Dep’t of the Air Force,
15
566 F.2d 242, 261 n. 55 (D.C. Cir. 1977), Defendants must do more than simply state
that they withheld documents for this reason. Rather, they must give the Court some
basis on which to evaluate their claim that no reasonably segregable information exists
in those documents. Thus, the question at this point is not whether the withheld
documents satisfy the stated exemption, but whether the Hardy Declaration contains
enough information for the Court to assess—and potentially to concur with—
Defendants’ conclusion that there is no reasonably segregable information in those
documents. See, e.g., Wilderness Soc’y, 344 F. Supp. 2d at 18 (“[T]he segregability
question turns on whether the agency has sufficiently explained why there was no
reasonable means of segregating factual material from the claimed privileged
material.”)
Here, while the Hardy Declaration is lengthy, and provides a reasonably detailed
description of the various types of exemptions that Defendants maintain are applicable
to Sciacca’s documents, it does not provide any information on the segregability of the
documents that were entirely withheld. Indeed, the entire discussion of segregability in
the 42-page Declaration amounts to (1) the conclusory statements cited above; and (2)
an equally conclusory statement that “[e]very effort was made to provide plaintiff with
all reasonably segregable portions of releasable material.” (Hardy Decl. ¶ 37.) These
are quintessentially the type of “blanket declarations” that do not suffice to carry an
agency’s burden of showing that certain documents may be withheld in full. Wilderness
Soc’y, 344 F. Supp. 2d at 19. Indeed, based on the information Defendants have thus
far provided, this Court cannot even ascertain which documents the FBI has entirely
withheld, as opposed to those it has produced with redactions. Defendants have clearly
16
failed to provide this Court with sufficient information for it to make the required
“specific findings of segregability regarding the documents to be withheld.” Sussman,
494 F.3d at 1116. Consequently, the Court will adopt the magistrate judge’s reasoning
and conclusion regarding segregability, and will deny Defendants’ motion for summary
judgment partly on this ground.
B. Defendants Have Not Provided A Detailed Description Of The Documents
Produced And The Information Withheld
Additionally, despite the complex system that Defendants used to label and
identify various pages of their response to Sciacca’s FOIA request, Defendants have
missed the mark with respect to a much more fundamental task: their duty to provide a
straightforward listing of the documents and information that have been withheld
pursuant to a FOIA exemption. As noted above, because of the information
asymmetries inherent in the FOIA system, the agency bears the burden of justifying any
withholding of otherwise responsive information. See, e.g., Bigwood, 484 F. Supp. 2d
at 74. “To enable the Court to determine whether documents properly were withheld,
the agency must provide a detailed description of the information withheld through the
submission of a so-called ‘Vaughn Index,’ sufficiently detailed affidavits or
declarations, or both.” Defenders of Wildlife, 623 F. Supp. 2d at 88; see also Oglesby v.
Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d
820, 827-28 (D.C. Cir. 1973). The Vaughn Index and/or accompanying affidavits or
declarations must “provide[ ] a relatively detailed justification, specifically identif[y]
the reasons why a particular exemption is relevant and correlat[e] those claims with the
particular part of a withheld document to which they apply.” Judicial Watch v. FDA,
449 F.3d at 146 (quoting Mead Data, 566 F.2d at 251). While there is no set form for
17
these submissions, the agency should “‘disclose as much information as possible
without thwarting the exemption’s purpose.’” Hall v. DOJ, 552 F. Supp. 2d 23, 27
(D.D.C. 2008) (quoting King, 830 F.2d at 224).
In this case, Defendants rely exclusively on the Hardy Declaration to justify their
redaction and withholding of various documents that apparently would otherwise be
responsive to Sciacca’s FOIA request. But the Hardy Declaration is manifestly
insufficient as a matter of law to allow the Court to assess the applicability of the FOIA
exemptions it discusses and thereby grant summary judgment in Defendants’ favor.
First, and most important, neither the Declaration itself nor Defendants’
summary judgment papers bother even to list or describe the responsive documents at
issue. In the Hardy Declaration and elsewhere in their papers, Defendants refer only to
the “pages” that they have produced, redacted, or withheld, and identify such pages
only by Bates number. (See, e.g., Defs.’ Br. at 6-7; Hardy Decl. ¶¶ 45, 48, 50, 52.)
Nowhere do Defendants explain what types of documents these pages belong to, who
created the documents and for what purpose, and how the exemptions relate to the
nature of the documents themselves. Nor do Defendants identify whether the “pages”
are part of stand-alone, single-page documents, or comprise parts of various multi-page
documents that Defendants identified as responsive to Sciacca’s document request.
Similarly, although all parties acknowledge that Defendants redacted some of the
responsive documents while withholding others completely, neither the Hardy
Declaration nor Defendants’ summary judgment brief provides any information about
which specific documents fall into which category (produced in full, redacted, or
withheld) and why.
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Such information is unquestionably necessary “to enable the court and the
opposing party to understand the withheld information in order to address the merits of
the claimed exemptions,” Judicial Watch v. FDA, 449 F.3d at 150, and without this type
of information, it is simply impossible for the Court to determine whether the
exemptions were properly applied. As a hypothetical example, unless the agency
represents that a certain withheld document spanning pages Bates numbered SCIACCA-
001-008 was a report from an FBI Special Agent created on a particular date concerning
information provided by a confidential source (as opposed to, say, a news story
reporting on issues related to Sciacca’s prosecution), the Court cannot properly evaluate
whether and to what extent a claimed exemption applies to that document. And having
not provided basic document-identifying information regarding the production in this
case, Defendants have failed to meet their obligation to “disclose as much information
as possible without thwarting the exemption’s purpose.” Hall, 552 F. Supp. 2d at 27.
In short, the Hardy Declaration seems to put the cart before the horse insofar as
it elaborately identifies Defendants’ asserted exemptions, but neglects to provide an
overall picture of the universe of documents at issue as is necessary for the Court to be
able to put those exemption justifications in the proper context. Given the specifics of
this case, an adequate affidavit, declaration, or Vaughn index will include a description
of each document (and, wherever possible, the date created and reason for its creation);
the Bates ranges associated with each document; and the exemptions that arguably
apply to each document, along with the reasons for the asserted exemption. Notably,
because there are only 600 “pages” at issue in this case—and presumably far fewer
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documents— providing adequate supporting documentation in the manner described
should not place an undue burden on Defendants. 4
C. Defendants Did Not Act In Bad Faith
Finally, the Court turns to Sciacca’s contention, made in his opposition to
Defendants’ motion for summary judgment, that the FBI acted in bad faith in regard to
its initial response to his FOIA request and thus the Hardy Declaration should be
discredited. Sciacca points to the fact that the FBI initially denied that the agency had
any responsive documents, and then, (in Sciacca’s words) the agency “mysteriously
‘found’ his ‘responsive’ materials.” (Pl. Opp. at 6.)
Although evidence of bad faith can be used to rebut the “presumption of good
faith” that otherwise attaches to affidavits or declarations submitted in support of a
FOIA summary judgment motion, SafeCard Serv., Inc., 926 F.2d at 1200; see also
Moore, 916 F. Supp. at 35-36, it is not enough for a plaintiff “to make purely
speculative claims about the existence and discoverability of other documents.” Justice
v. IRS, 798 F. Supp. 2d 43, 46 (D.D.C. 2011) (internal quotation marks and citation
omitted). Here, even if the fact that the FBI initially claimed that it could not locate
any records responsive to Sciacca’s request evidenced bad faith—and this Court is not
convinced that it does— this evidence relates only to the FBI’s efforts regarding the
adequacy of its search for responsive documents, and Sciacca has expressly disavowed
any challenge to the adequacy of the FBI’s search. (See Pl. Opp. at 7 (“Plaintiff would
4
To be clear, to the extent that the rationale for the redaction or withholding related to each of the
“code categories” in the Hardy declaration is consistent across documents, Defendants may refer back
to such rationale and need not repeat it with respect to each category applied to each document listed in
the expanded Vaughn index. What Defendants need to do—and what they have thus far failed to do—is
provide enough information about the documents themselves so that the Court can understand why a
particular code category is relevant to a particular document.
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also state that the dispute is not that there was insufficient search of the FBI’s files of
that the searches that were done were inadequate; but that the FBI is incorrectly
withholding and redacting materials that are responsive to the request and releasable to
Plaintiff.”).) Sciacca makes no allegations regarding bad faith with respect to the
withholding of responsive information, which, by Sciacca’s own admission, is the only
issue before the Court. Accordingly, the Court finds that there is no evidence that the
FBI acted in bad faith in withholding or redacting documents responsive to Sciacca’s
request.
IV. CONCLUSION
For the reasons discussed above, the Court finds that Defendants have not
provided sufficient information to permit an assessment of whether they have produced
all reasonably segregable information, and have also failed to submit a sufficiently
detailed affidavit, declaration, or Vaughn index in support of Defendants’ contention
that they have satisfied their FOIA obligations. Accordingly, Defendants’ motion for
summary judgment is DENIED without prejudice. Once they have provided
supplemental declarations, or a Vaughn index, in a manner consistent with this opinion
and the accompanying order, Defendants may renew their motion.
DATE: March 6, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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